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otherwise provided in the Act (j), and subject to any changes which have since been made in the organization of these courts, the limits of their jurisdiction are, in principle, in no wise altered. Any alteration in the jurisdiction of these pre-Confederation provincial courts over matters within the legislative competence of the Parliament of Canada can, it is submitted, be effected only by Dominion legislation (k:). Until so altered their jurisdiction continues “subject nevertheless

to be

altered by the Parliament of Cana la or by the legislature of the respective province, according to the authority of the Parliament or of that legislature under this Act.” It would unduly swell this volume if we were to attempt to enumerate these different courts, or to indicate their different jurisdictions. We may say, however, that there were in all the provinces, courts molelled upon the principle of the Superior Courts of law in England, whose jurisdiction territorially was limited only by the boundaries of the respective provinces in which they were established, and under these, and as a rule subordinate to them, were various other courts whose jurisdiction was limited as to the class of matters which might be entertained by them (without territorial limitation)(1),or wassubject to limitationsalong both lines (mi); but, it is almost unnecessary to say, there was no limitation of jurisdiction in any provincial court, along any line identical with, or in any sense analogous to, the line of division now existing between matters within the legislative competence of the Dominion parliament, and the provincial legislative assemblies, respectively.

If it be permissible to express an opinion as to what was anticipated by the framers of the B. N. A. Act, we

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(j) See sec. 101 of the B. N. A. Act and notes thereto; also post, p. 229.

(k) See ro Boucher, noted in Cassel's Dig. S. C. p. 181, and referred to in the judgment MacMahon, J., in Reg. v. Toland, noted post, p. 236.

(?) 4.g., County Courts in Upper Canada. (m) c.9., Division Courts.

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should say that it was intended that, in the main, the administration of justice, throughout Canada, should be through the medium of these provincial courts, thus continued. This is clearly evidenced by the assignment to the provinces of the power to exclusively make laws in relation to “the administration of justice in the province, including the constitution, maintenance and organization of provincial courts, both of civil and criminal jurisdiction” (n). As, however, cases would inevitably arise, involving consideration of the powers of the Dominion and Provincial legislatures respectively, and with a view, perhaps, to securing uniformity of decision on such important questions throughout the whole Dominion, the B. N. A. Act provides (section 101), that “the parliament of Canada may, notwithstanding anything in this Act, from time to time, provide for the constitution, maintenance and organization, of a general Court of Appeal for Canada (0), and for the establishment of any additional courts for the better administration of the laws of Canada.” The phraseology of the last clause of this section is a clear recognition of the fact that the provincial courts would necessarily be called upon to administer the laws of Canada (p) (as distinguished from the laws of the various provinces), and the provision was inserted with a view to the better administration of those Dominion laws through the medium of additional courts established by the Dominion government, should occasion arise. The juristliction of such additional courts, established by the Dominion government, must be a special jurisdiction, limited to cases arising out of those matters only which are within the competence of the Dominion parliament. This is the only case in Canadian jurisprudence where the jurisdictional line, if we may use

(n) B. N. A. Act, s. 92,

(0) See R. S. C. c. 135. The Supreme Court of Canada was es. tablished by 38 Vic. c. 11 (Dom.), and became a court on January 11, 1876; see Reg. v. Taylor, 1 S. C. R. 65.

(p) See Resolutions Nos. 31 and 32, printed in Appx.

S.S. 14.


that expression, is co-incident with the line which divides: the legislative powers of the Dominion and the provinces (q). The provinces, in establishing courts, may, but are not bound to adopt any such jurisdictional line. The Dominion is so limited except in the case of its “general Court of Appeal”—the Supreme Court of Canada.

What has taken place since Confederation, serves to support the view we have expressed as to what was anticipated by the Fathers of Confederation.

The only additional courts which have been established by the Dominion government, are the Exchequer Court of Canada,, and the Maritime Court of Ontario, each with a specially limited jurisdiction, sufficiently indicated by its name (ro). But any duly created court, no matter by what authority created, or by what authority the different parts of its machinery may be supplied, may be called on to determine cases involving the application of either Dominion or Provincial law; and this observation applies even to the special courts of Dominion creation, for, although of limited jurisdiction as above indicated, incidental legal relations, depending upon provincial laws, may have to be determined in order to a decision in any given case.

Any government may take advantage of the actual existence within its territorial limits of an organized court of law, to impose on its judges and administrative staff duties (in relation to matters within its "sphere of authority”) other than those imposed upon them by the power which created the court, and whether this action is to be

(9) See ante, p. 225-6.

(s) Note, however, in re The Bell Telephone Co., 7, O. R. 605; in which it was held by Osler, J.A., that a court or judicial tribunal was established by sec. 28 of the Patent Act of 1872, which provided that in case disputes should arise as to the validity of patents (in certain cases), such disputes should be settled by the Minister of Agriculture or his deputy, whose decision should be final; and that the constitution of such a court was intra vires of the Dɔminion parliament. See B. N. A. Act, sec. 91, s-s. 22. See, however, 9 O. R. 33. We should, perhaps, refer a!so to the Revising Officers' Courts under “ The Electoral Franchise Act” as to which see post, p. 249.

considered as the creation of a new court, with the machin. ery of the old, or as the conferring of a new jurisdiction upon the old, seems to be considered by the Judicial Committee of the Privy Council, a matter of indifference (s). The question has come up in various ways, and the principle must now be considered as authoritatively established. As an extreme instance of its application, we may cite the case of Attorney-General v. Flint (t), in which it was held by the Supreme Court of Canada, that it was competent for the Dominion parliament to confer upon the Vice-Admiralty Court, existing in Nova Scotia under Imperial authority, jurisdiction to entertain proceedings for enforcing payment of penalties for breaches of the Inland Revenue Act. It appears to have been the opinion of some at least of the Judges of the Supreme Court, that a judge of a Vice-Admiralty court might decline to take upon himself the burden of such cases, but the jurisdiction so to do, they held to be beyond question. It cannot of course be doubted that if the Imperial parliament, in the exercise of its legislative supremacy, were expressly to prohibit such court from entertaining other than matters arising under Imperial legislation, such prohibition would be operative, but in the absence of such prohibition, it is difficult to see how, as Canadian citizens, the judges and staff of the court could lawfully decline to perform the duties imposed upon them by Cana lian law (1)

Prior to Confederation, the decision of controverted election cases had been entirely in the hands of the different Provincial legislatures, and after Confederation the Dominion parliament exercised the same jurisdiction over

(3) Valin v. Langlois, 5 App. Cas. 115, passage quoted post, p. 232. (0) 16 S. C. R. 707. See also “ The Farewell,” 7 Q. L. R. 380. (u) “ Judges as citizens wer bound to

orm all the duties which are imposed upon thenı by eit:er the Dominio or Local Logislature"-. per Dorion, C.J., in Bruneau v. Massue, 23 L. C. Jur. CO.

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elections to the Dominion House of Commons; but in 1873-4, the Doininion parliament decided to transfer this jurisdiction to the provincial courts. Their power so to do was distinctly upheld by the Judicial Committee of the Privy Council, (affirming the decision of the Supreme Court of Canada) in the well-known case of Valin v. Langlois (2.), in which Lord Selborne in delivering the judgment of the Committee says:

“ There is therefore nothing here to raise a doubt about the power of the Dominion parliament to impose new duties upon the existing provincial courts, or to give them new powers as to matters which do not come witliin tlie classes of subjects assigned exclusively to the legislatures of the provinces." and he afterwards characterizes the distinction which was endeavored to be drawn between the Act of 1873, which entrusted the trial of election petitions to the judges of the Supreme Court, and the Act of 1874, which entrusted this jurisdiction to the provincial courts, as but a nominat, a verbal, and an unsubstantial distinction.”

The validity of the Act, 31 Vic. c. 76 (Dom.), which provided for utilizing the machinery of the provincial courts for the taking of evidence for use before foreign tribunals, has been affirmed by the courts of both Ontario and Quebec (20).

Somewhat the same question arose in Ontario in the cases of Wilson v. McGuire ("), and Gibson v. McDonald (y). County Court judges in that province are appointed by the Dominion government (). Division Courts existed in the various counties of that province prior to Confederation, and liacl always been presided over by the judge of the County Court of the particular county. By an Act of the

(r) 5 App. Cas. 115, affirming 3 S. C. R. 1.

(w) In re Wetherell & Jones, 4 0. R. 713 ; Ex parte Smith, 16 L. C. Jur. 140; and see notes to the opening clause of sec. 91 of the B. N. A.

Act, post.

(y) 70. R. 401.

(1) 2 O. R. 118.
(z) B. N. A. Act, sec. 96.

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