Posted on October 25, 2015
The Ontario Superior Court of Justice is the largest superior trial court in Canada. The Superior Court, along with the courts that branch out on this level are some of the busiest trial courts in the world. Today we will draw our attention to the 3 courts that branch out of the Suprior Court (For more information about the court structure, please see my last post) 🙂
Athough the Divisional Court is part of the Superior Court of Justice, it is actually not a trial court . Its main function is to deal with appeals, but only certain types of appeals. Such as an appeal of government decisions in the form of a judicial review. This is to determinie whether or not there has been a mistake in coming to a fair decision by the initial judge or decision-maker. The Divisional Court will also hear judicial reviews from administrative tribunals in Ontario (For exmaple, the immigration and refugee board, worker safety insurance board, human rights tribunal etc.) It would mean that a decision on the case as already been rendered from a previous court or tribunal hearing, and the parties are now seeking to appeal the decision by bringing the matter forward to the Divisional Court. It is important to note that regardless of which administrative tribunal the decision came from, judicial review is always available to ensure procedural fairness.
Other than judicial reviews, another important Divisional Court functions is to hear appeals from civil cases involving prior judgements of less than $50,000.00, and appeals from Small Claims Court judgements that involves more than $500 (if the judgment from Small Claims Court is less than $500, there is no right of appeal).
And the list goes on! The Divisional Court also hears appeals from summary conviction offences that were previously heard in the Ontario Court of Justice (lower level provincial court), as well as appeals from Ontario Court of Justice that had to do with family law matters —remember, family law matters are split between Ontario Court of Justice, and Superior Court of Justice court if there are no Fmaily Law Court branches in the area (see below).
Appeals in the Divisional Court are usually heard by a panel of three Superior Court Judges (odd number to avoid a tie).
Because family law involves both provincial and federal legislation, court jurisdiction over family law matters are split between the Supierior Court and the Court of Justice. Superior Court of Justice has sole jurisdiction over matters involving divorce and division of property. The Court of Justice on the other hand, has sole jurisdiction over cases involving child protection and adoptions. These matters can always be heard at their respective courts, if no designated unified family court branch is available. It is also important to note that both courts can preside over cases involving child and spousal support, as well as child custody and access cases.
However, in the spirit of ensuring access to effective family justice across Ontario, the Courts of Justice Act created 17 court locations across the province, separate from the Superior Court of Justice sites, where family court jurisdictions are unified — meaning in these courts, ALL family law cases can be heard, and there is no division.
The 17 unified family court branches are as follows:
It is study week for me this week, so no classes! But I do have 3 midterms practically back-to-back when I return next week so wish me luck on all the studying that I
will should be doing! I know for sure I will need it…and lots of coffee…lots….mmmm coffee…
Have a great week everyone and enjoy the fall weather outside while it still holds!
Updated on October 18, 2015
Over the past couple of weeks I’ve started to write about recent Small Claims Court decisions, and it’s truly been an invaluable learning experience. Not to worry, it will definitely be a staple here on the blog for the foreseeable future. However, we are taking a little detour this week because I want to take it back to where it all started.
While writing case summaries is an excellent opportunity for me to mentally compare, contrast and apply what I learn in school with real life situations, I realize that verbage and jargon within the judge’s decisions can be challenging even for someone with legal training. In fact, I still struggle with this all the time even though I’m well into my second semester in school becoming a paralegal. So I decided that I should backtrack a little bit, and cover the basics. Today, let’s start with the Caandian court structure.
Fact: Up until a few months ago, I honestly had no idea how many levels of courts we have in Canada or in my province, what they are called and what they actually do…and they let me graduate with a major in criminology. Talk about living under a rock :p
Canadian Court Structure
Supreme Court of Canada (the one and only)
Court of Appeal (highest court in each province)
Superior Court Justice (provincial trial courts)
Provincial Court (lower level court in each province)
Supreme Court of Canada (SCC) — Highest court in Canada
- There is only ONE Supreme Court, located in Ottawa
- There are 9 supreme court judges (odd number of judges to avoid a tie)
- Must ask for permission (“seek leave”) before cases can appearing in the SCC
- Only a limited number of cases can appear before the SCC, to appeal a decision rendered by provincial appeal courts
- Generally only decide on cases that have great importance to Canadian society
- Also gives advice to lower courts
- SCC decisions are the “ultimate expression and applications of Canadian law”
- SCC decisions are binding on all lower courts
Court of Appeal — Highest court in each province; appeal court
- Each province or territory has a court of appeal
- Hears criminal and civil appeals from all lower courts in the province
- Has panel of 3-5 judges
- Judges are appointed by the federal government
Superior (Supreme) Court — Trial court in each province
- Names vary between provinces (Ex. Court of Queen’s Bench of Alberta, Quebec Superior Court, Supreme Court of British Columbia, Ontario Superior Court of Justice)
- Judges appoint by federal government
- “inherent jurisdiction” — can hear any case for any matter unless there is a designated court for the matter in question
- Criminal cases: more serious cases under the Criminal Code; judge and jury hears the case unless both the Crown (prosecutor) and the accused agree to a judge only trial
- Civil cases: Hears all civil cases involving damages of over $25K, usually heard by a judge only for these cases; Also administers different courts * — Family court, divisional court, small claims court –> usually heard by a judge only
Provincial Court — lower level court in each province/territory
- Many in each province; again, the name varies between provinces (reasons beyond my comprehension)
- Usually dealing with summary criminal charges, bail hearings, as well as trials
- Deal with cases falling under provincial statues (ex. highway traffic act –> traffic tickets)
- Judges and Justices of the Peace are provincially appointed
- Judges: deal with variety of family law cases (except divorce or property issues, these belong in Superior Court of Justice family court division), and majority of summary conviction offence (less serious)
- Justices of the Peace: deal with provincial offences (traffic court), bail hearings, search warrants
- Justices of the Peace does not have to have a legal career background, but they have to be appointed
** Superior Court of Justice (Ontario) was a bit tricky for me to understand at first because it actually branches out or administers 3 other courts: The divisional court, the family court, and the Small Claims Court. The best way I can describe this structure is that each of the three branches of courts serve different functions and have very specific jurisdiction over what matters they can deal with and what they cannot. So while it technically belongs on the Superior Court of Justice level, the three courts are separate, and depending on what the matter concerns, they will be heard at different courts. I will do another post next week outlining their different functions and jurisdictions.
The court structure can be quite complex and it definitely goes way behind how much a blog post can cover. However, I do want to make sure I do a basic overview first before getting into more details later on. In the meantime, if you have questions or comments please make sure to refer to official government websites I’ve linked in this post, or ask away in the comment section below.
Have a wonderful week everyone! Brrrrr it’s getting cold here in Toronto!
Source: Introduction to Law in Canada Ontario Edition, Olivo. L, Caputus Press 2014 ISBN: 9781553223047
Posted on October 13, 2015
Over the past few months, I have learned some essential best practice tips that I think would be incredibly valuable for all aspiring paralegals out there, just like myself!
This is more of a note to myself, but I thought I would quickly share with you here as well. This may come as common sense to a lot of you, but I do believe that sometimes the best advice are also the ones that are most simplistic.
(OR, if you are like me, you just need to hear it from someone else once in a while 😉 )
*Note: these tips are focused towards a small claims court/tribunal setting where most paralegal work is done 🙂
- Be Prepared — I wasn’t joking when I said most simplistic! Most of the work in a case is behind the scenes before you and a client gets to court. The legal research, the case laws, documents for the other party, a copy for the judge, sworn affidavits, copies of evidence, and the list goes on. Check. Double check. Triple check…did I mention to check?
- Be Concise — I am of the opinion that judges typically don’t like lengthy trials. Keeping things concise, and focus only on relevant facts of the case will most likely work to your advanatge. Make sure to condense your arguments into relevant points, and give every effort to limit any surprise submissions during a trial.
- Prep Your Witness — the credibility of a witness is extremely important to winning a case. A witness’ credibility is acessed live in a court room setting by the judge. The judge looks at the witness’ mannerism, speech, and will essentially rule on whether he/she believes what the witness is saying, which of course has a direct impact on your case.
- Get Familiar With The Court of Justice Act — court procedures of all three levels of court in Ontario, how costs are calculated at the end, roles of different judges etc. are all in there. It is also frequently referenced in case decisions (often when it comes to costs). I am making it a personal goal to get familiarized with it before I head out into the real world after my program
- “Make it easy for the court to rule in your favour” — This is something that one of my professors said in class that has really stuck with me. Our jobs as paralegals and advocates not only entail making strong arguments to advance our client’s claim. At the end of the day, our real job is to convince the court to rule in our favour. There are many components to being a good advocate but it’s important to not lose sight of the big picture: we must do everthing we can to make it easy for the court to rule in our favour. This means organized documents, meeting all deadlines, curteous professional demeanor, strong and rational arguments, and doing our best to anticipate all surprise elements that may arise during the course of the case.
I am sure in the near future I will be able to share even more detailed and indepth practice tips, I am merely scratching the surface here! So please stay tuned, and leave me a comment below if you have any questions!
Have a wonderful rest of the week everyone!
Updated on October 13, 2015
It was Canadian Thanksgiving over the weekend, so I hope everyone got a chance to sleep in, rest up and ate lots of pumpkin pie 😀
The case brief summaries this week have a focus on the issue of jurisdiction. It is not uncommon that a case before the Small Claims Court has to do with a decision made by an administrative tribunal. Because not all administrative tribunals have the power to grant monetary damages for the winning party, some cases can be brought before the Small Claims Court to seek a judgment for damages and costs, even if the matter has been dealt with in another tribunal. It is not always allowed, so it really depends on the facts of the case. The first case summary Sharma v Singh, is a great example of how the court goes through the details of the case to decide whether the specific issue before the court has already been decided. If the issue is exactly the same, it cannot be tried again in an attempt to “get another kick at the can”.
Another scenario would be where a Plaintiff submits his/her Statement of Claim to the Small Claims Court, only for the judge to realize that the matter can only be dealt with by a separate, designated tribunal. Such is the case in Liang v Brock University. The Plaintiff’s problem falls strictly under the jurisdiction of the university, so it is best that she goes through the appropriate channels at school to seek remedies. Courts are extremely reluctant to “step on others’ toes”, and will usually defer the matter back to the appropriate boards and tribunals. In other words, although Small Claims Court is always available for a Plaintiff, to get the result/remedy/damages, he/she must find out if the matter falls under the jurisdiction of a specific board or tribunal, and if so, proceed with that appropriate channel. Generally speaking, Small Claims Court is most effective with matters dealing with tort and breach of contract.
The third case in Kaur v Singh, is a classic case where there is clearly a breach of contract, and falls neatly into Small Claims Court’s jurisdiction. And of course, also a great example of why we should think TWICE before lending money to family :p
Without further ado, here are this week’s cases!
Sharma v Singh, 2015 CanLII 56069 (ON SCSM)
Representation: Pooja Lal (Counsel for Plaintiff); Harpreet Luthra (Paralegal for Defendant)
Background: This case is a ruling on whether or not the Small Claims Court at Brampton, ON will allow the Defendants’ motion to strike the Plaintiff’s claim. If the motion is granted, a trial will not be issued for this matter. The matter relates to a dispute in commissions earned by real estate agents/brokerages during the purchase of a residential property. There has been a prior ruling by the Toronto Estate Board (the Board).
The Plaintiff, Sharma, is a real estate agent working for the other plaintiff in this case, Century 21 People’s Choice Realty Inc. (Century). The defendants, Singh and Bains are a couple who was purchasing the residential property in question. Sharma conducted the open house for the property and the Defendants were very interested and serious about buying. Sharma allegedly asked them if they were already working with their own real estate agent, and have signed a Buyer Representation Agreement (“BRA”), the defendants allegedly said no. Turns out Defendants claim they were in fact working with their own agent, Tejvir Dhugga (Dhugga), and Sharma knew but assures them it’s all good they can just split the commission once they buy the house. Sharma allegedly made Defendants believe they need to put in an offer for the house right away, with Sharma acting as their agent or it will be gone. The sale of the house was finalized and the commission was $13,625.00. After Dhugga found out the was left out of the picture he launched an objection through the Toronto Real Estate Board, and prevented the release of the commission money to Sharma. A full Arbitration Hearing was conducted for the matter, and the tribunal found that:
1) Dhugga was in reality acting as the Defendant’s agent but a BRA was never signed and executed
2) Sharma and Century did not explain the process to the buyers properly, and did not exercise a reasonable standard of care [required by licensed real estate brokers]; Did not exercise due diligence
3) Board finds in favour of HomeLife (real estate brokerage that Dhuggar works for); Ruling is final and binding among parties to this award
Back to our case at hand:
(Clarification: by the Board’s decision, Sharma lost his commission to Dhuggar)
Sharma’s position (Plaintiff):
-Although the Board’s finding was final and binding, he was not a party of that decision, so he should be allow to proceed in a civil litigation against the Defendants
-Seeking damages against the Defendants for “intentional concealment [that they were not working with a real estate agent already]” and breach of contract
-The Board already dealt with this issue, wishes to have this matter dismissed Court’s Analysis & Discussion
Can this matter still be tried in a civil court after the Board’s decision? (Principles of res judicata and issue estoppel)
- Supreme Court rulings have said that although the principle of issue estoppel should be upheld where an issue that has already been decided in a previous case should not be retried again, there is room for judges to exercise discretion to NOT apply it, if there will be injustice
- Goes through the test (provided by the Supreme Court ruling of leading cases in this area) of whether issue estoppel applies here:
- Was the same question dealt with?
- This case here is between Sharma and the defedants, the Board’s case was specifically between Sharma and Dhuggar’s brokerages to figure out which brokerage gets the commission. The issue here is whether the Defendants purposefully concealed their status to Sharma and for breach of contract relating to their BRA
- Was the Arbitral Award a final decision?
- But again, the issue before the court right now is whether Sharma is entitled to the commission from the Defendants under their BRA contract, signed as a result of the Defendant’s concealment and misrepresentation of their status — Different from the Board’s hearing
- Are parties the same as the previous case?
- The defendants were present at the Board arbitration but they were there as witnesses, not an actual party to the hearing.
- Was the same question dealt with?
The test for issue estoppel fails, and does not apply here in this case. The matter can be tried in this court. Defendant’s motion to strike is dismissed and the matter will move forward to trial.
Liang v Brock University, 2015 CanLII 31300 (ON SCSM)
Representation: Emrick Shi (Paralegal for Plaintiff); S. McHugh (Counsel for Defendant)
Background: The Plaintiff, Ms. Liang, enrolled in the Professional Masters Preparation Certification Program (PMPCP) at Brock University. She had come from China to Canada to attend this program. She had complaints about the quality of her instructor’s teaching and the school (Defendant) handled the complaints. Ms. Liang was not satisfied with how her matter was resolved before the school so she left the program and the school after two months. She is now seeking reimbursement of tuition paid for the program and rent expenses while she studied there. The school refuses to do so. Ms. Liang now brings this matter to civil court to seek remedy and/or damages.
Ms. Liang claims that a Ms. Brenda Rose (Rose) was her instructor for 3 out of the 6 classes that Ms. Liang had to take in the first semester. Rose allegedly cancelled four lectures in the course of two months and did not give adequate notice to students. Rose was also allegedly ill prepared to teach in at least one occasion. To summarize, Ms. Liang’s real concern was the quality of Rose’s teaching.
The Judge’s decision on this case is extensive, and cited many leading and relevant case law on civil litigation between student and academic institutions. The main issue before this court is to determine whether the Small Claims Court have adequate jurisdiction to try this case.
- Liang is essentially seeking to overturn an internal academic decision made by a university (she has previously made complaints to the university but was dissatisfied by the results) — the appropriate route for such an action is usually judicial review
- Indeed, Ms. Liang is seeking to base her action in tort (of negligence, university failing their standard of care owed to students) or breach of contract in this case, claims damages (tuition & rent refund) — In her view, this court should have jurisdiction
The court’s reasoning and decision to deny her request are based on these facts outlined in case law:
- It is understood that a student will be subject to the discretion of the university they are enrolled in to resolve academic issues – this includes competency of professors/instructors
- Claiming that…a professor is incompetent, without anything more, will not normally be sufficient grounds to base a cause of action in civil court
- In order to establish a cause of action for breach of contract: student must demonstrate that the university in question actually “fails to fulfill an express or tacit obligation to which this institution had committed by accepting the student’s registration”
- Nothing in Ms. Liang’s claim satisfies the narrow ground where breach of contract in this setting can be applied
- Liang did not agree to enroll in the program only if there are no cancelled classes and if she was 100% satisfied with the quality of teaching
- In order to establish a cause of action for negligence, breach of duty of care, the student must “plead specific facts tending to show that the conduct of the university or professor in question constituted intentional tort”
- Nothing in Ms. Liang’s claim points to any intentional tort committed by the university
- In this case, Ms. Liang’s only evidence is her Statement of Claim
- Courts have continued to wrestle with the issue of jurisdiction in civil courts involving universities
- This claim arises out of an academic dispute with the university, and courts will defer to universities in the matters of academic disputes except in very narrow circumstances
- Courts are NOT well-suited to deal with academic issues at universities. The deference of the courts to universities in these kinds of disputes is well-established in case law
- Again, courts are not well equipped to decide on specialized matters in universities
- It is important to uphold essential independence of universities and not to provide “undue interference in their academic affairs”
- Such matters are best brought up before university tribunals who has the specialized knowledge to decide on academic issues
In conclusion: The plaintiff’s claim is struck, Small Claims Court does not have jurisdiction to deal with this matter. Judicial review is heavily emphasized as the best route to proceed for Ms. Liang’s matter. Generally speaking in most cases, Small Claims Court does NOT have jurisdiction to rule on matters involving university and academic matters. The universities’ independence and power to rule on these matters according to their own discretion is upheld in civil courts.
Kaur v Singh, 2015 CanLII 56070 (ON SCSM)
Representation: Harpreet Luthra (Paralegal for Plaintiff); Kuldeep Singh (Defendant, self-representation)
Background: The defendant, Singh, immigrated to Canada from India in 2001 as a refugee. The plaintiff, Kaur and her husband are his cousin by marriage who lives in Etobicoke, Ontario. Singh stayed with Kaur at their home for one week after landing in Toronto. Singh left to move to Montreal soon after, where it is believed that his claim for refugee status would be more favourably and expeditiously dealt with. Kaur and her husband gave Singh $500.00 at first and another $500 when Singh left to go to Montreal. Both parties agree it would be a loan. Over the year until 2012, Kaur and her husband gave Singh a total of $6,000, and only $500.00 were paid back
- From 2001 until 2012, Kaur and her husband advanced a total of $6000 to Singh to help him establish himself in Canada and to pay for his immigration lawyer
- All fund withdrawals were documented in Kaur’s bank statements, put in as evidence before the court
- The matter was still not solved up to 2009, so Kaur and her husband went to Montreal to see Singh to find out why he wasn’t paying them back
- Singh paid them $500 in cash during their visit, and wrote two undated cheques $3000 each, asking them not to deposit the cheque until he told them he had enough money
- By 2012 Singh still did not allow Kaur to deposit the cheques, so Kaur went ahead and tried to cash in the cheques but they were dishonoured at the bank
- Singh denies ever receiving payment from Kaur, and only wrote the cheques because she pressured him into doing so
- Singh accuses Kaur and her husband to be in the business of cheque fraud (“cheque kiting”)
Court’s finding of fact
Taking into account that Singh is self-represented, Judge explained that in a court of law, not only are real evidence and facts important, the manner of the person’s demeanor is also very important to his/her’s credibitily before the judge. Judge in this case finds that he has no reason to disbelieve the evidence given by Kaur. They had no reason to commit cheque fraud since they had sufficient funds all along in their bank account, and treated Singh like family so they were really trying to help him out. On a balance of probabilities, which is the standard of proof in civil litigation (that one party is more likely than not, more believable than the other party, but NOT beyond a reasonable doubt like in criminal law), the judge finds that Kaur has proven her claim, combined with the convincing testimony given by Kaur’s husband.
The plaintiff has the judgment in the amount of $5,500 ($6000 minus the $500 already paid in cash). Plaintiff is also entitled to cost of retaining counsel for this case, which is set at $1000, and also the interest incurred for all monies owed, at $500, that she could have gotten if she had the money to invest.