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THE COURTS of ONTARIO at the Time of the Conquest of Canada in 1759-6O, the Law Was French, the Couluiie De Paris with Slight Modifications

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THE COURTS of ONTARIO at the Time of the Conquest of Canada in 1759-6O, the Law Was French, the Couluiie De Paris with Slight Modifications THE COURTS OF ONTARIO At the time of the Conquest of Canada in 1759-6o, the law was French, the Couluiie de Paris with slight modifications. After a short period of military rule, the Royal Proclamation of 1763 introduced the law of England both civil and criminal. No objection was ever made in Canada to the criminal law of Eng- land but the French Canadians were much dissatisfied with the change in the civil law. Accordingly the Quebec Act was passed by the Imperial Parliament1 which left the criminal law unchanged but rein- troduced the French law for civil cases. Considerable agitation followed this reinstatement of the previous law; some immi- grants were from the Mother Country and the American Colonies further south, who desired the law to which they were accustomed. So far the western part of Canada had no great interest in the matter, there were no settlements of any conse- quence in what was to become Upper Canada and finally On- tario. But with the peace of 1783 and the recognition of the in- pendence of the United States, it became manifest to the loyal- ists of America that they must seek another home if they desired to retain their allegiance. Many of these made their way across the rivers into Canada, settling chiefly on the left bank of the St. Lawrence, the Niagara and the Detroit; they also desired Eng- lish law. The French Canadian was still wedded to his own law. The new Canadian further west desired his familiar law, the common law of England which he claimed, and with reason, as his birth- right It was thought wise to give to each the right to select his own law, and in 1791 was passed the Canada Act.2 This divided Canada into two parts, Upper Canada and Lower Canada, with practically the same territory as the present Province of Ontario and Quebec; Upper Canada, however, still (and till 1796) in- 1 (1774) 14 George III. C 83. 2 3i George Ill C 31. 18 U.I'ERSITY OF PENNSYLVANIA L4 W REVIEW cluded Detroit and Micliilimackinac. Each Province was given a Legislature so that it might make its own laws. Before the passing of this Act, what was to become Upper Canada was by Lord Dorchester divided into four districts, and a Court of Common Pleas with unlimited jurisdiction was insti- tuted in each district. The Court of King's Bench already in existence had criminal and appellate civil jurisdiction over all Canada, and criminal trials were held before judges -appointed as Commissioners of Oyer and Terminer and General Gaol De- livery. Courts of Quarter Sessions existed also for each Dis- trict, composed of Magistrates, Justices of the Peace of the Dis- trict. The jurisdiction of these courts may be learned from a perusal of Blackstone's Commentaries. Such was the state of affairs when the first Parliament of Upper Canada met at Newark. now Niagara, September x1th, 1792. The first Act of this Legislature was to introduce the Eng- lish law in civil matters. The second was to introduce trial by jury which had no place in the French systen This change dis- located the practice in the Courts of Common Pleas and necessi- tated a change in the system. In 1794,3 a Court of King's Bench ,vas erected for the Province and the Courts of Common Pleas were abolished. The Court of King's Bench was given the powers of the Courts of King's Bench, Common Pleas and Ex- chequer in England, and had as judges the Chief Justice of the Province and two Puisnz Justices. This Court has never been abolished, but has been continued into the Supreme Court of Judicature for Ontario. In I837,4 the number of Puisni Justices was increased to four, but the business was found to be too heavy to be satisfac- torily disposed of by one superior court. Upper Canadians have always been and continue to be intolerant of legal delays; and it was determined to erect another common law court, which was done in x849.1 A new court, the Court of Common Pleas, was called into existence, presided over by a Chief Justice '34 George III. C. 2 (U. C.). 'Act of 7 William IV. C i (U. C.). S12 Vie. C. 64 (Can.). THE COURTS OF O.VTARIO and two Pudsn Justices and with the same powers and jurisdic- tion as the Court of King's, then become Queen's, Bench, while the number of Puisnd Justices in the Queen's Bench was reduced to two as at first. By the same Act a change was made in the Court of Chancery. In 183 7 ," was established a Court of Chan- cery for the first time in the Province, the Governor to be Chan- cellor and a judge to be appointed "The Vice Chancellor of Upper Canada." This was not found wholly satisfactory and accord- ingly the Act of 1849 reconstructed the Court with a Chancellor and two Vice-Chancellors. The Courts of Queen's Bench, Common Pleas and Chan- cery continued in existence as separate courts, the two former as courts of common law, the last as a court of equity, till i88,. The original Act of 1794 established a Court of Appeals to hear appeals from the King's Bench, to be composed of the Lieutenant Governor of the Province (or the Chief Justice) with two or more of the Executive Council. The Act of 1837 made this court a court of appeal also from the Court of Chancery. The proceedings of this court were not so unsatisfactory as might have been expected. The Governor did not in fact sit; and there was generally, if not always, a sufficient number of judges, members of the Executive Council to draw from, to make this court truly judicial. Indeed, it may fairly be compared to the House of Lords where in theory every Peer might sit on appeals, but in fact, from a somewhat remote period, no Peer other than a lawyer ever did sit. It was thought best, however, to change the system to one more logical. The Act of 1849 abolished the Court of Appeals and established a Court of Error and Appeal to hear appeals from both the two common law courts and the court of chancery. This new court was composed of the judges of the three courts, very like the Court of Exchequer Chamber in England, except that this last did not hear appeals from Chancery. In 1874 " this court was reconstituted and thereafter consisted of five judges who had no other duties than to sit as judges of the Court of Appeal. "7 Win. IV. C. a (U. C.). ' 37 Vie. C 7 (Ont.). 20 UNIVERSITY OF PEXXSYLVANIA LA II' REVIEW Then came the revolutionary Judicature Act of 08i8,g which was modelled after the English Act. This Act abolished the dis- tinction between law and equity, giving preference to the rules of equity, united and continued the three courts of original jurisdiction and the Court of Appeals into the Supreme Court of Judicature for Ontario with two divisions: i. The Court of Appeal with five judges; 2, the High Court of Justice with twelve judges. The High Court of Justice was composed of three divisions, corresponling to the three Courts which were by the Statute combined: the Queen's Bench Division, the Common Pleas Division and the Chancery) Division, each with a Chief Jus- tice (or in the Chancery Division, a Chancellor), and two Puisni Justices. Later a fourth division was added to the High Cott, the Exchequer Division, with a Chief Justice and two Puisni Justices. By the Law Reform Act of I9o9,9 which came into force January 1, 1913, the Supreme Court of Judicature for Ontario has become the "Supreme Court of Ontario" with two branches; i, The Appellate Division of the Supreme Court of Ontario; 2, The High Court Division of the Supreme Court of Ontario. The former is only appellate while the latter is a court of original jurisdiction; but any judge of the Supreme Court of On- tario may sit in any division or branch. The divisions of the High Court of Justice are abolished. The Appellate Division conlsists of two divisional courts which have the same jurisdic- tion, unless the state of business requires more frequent sessions they sit alternate weeks and transact all the business of the Ap- pellate Division. Each divisional court has five judges, four of whom constitute a quorun. The first divisional court is com- posed of the five judges who constituted the Court of Appeal, the second divisional court of five who have been selected out of and by the High Court judges to serve in Appeal for the year. Another divisional court or more than one to be selected in the same way may be formed if occasion requires. The Supreme Court of Ontario is the only superior court, 44 Vic. C. 5 (Ont). 09 Edw. VII. C. _8 (Ont.). THE COURTS OF ONTARIO but there is in each county or union of counties, a County Court, and in the unorganized districts, a District Court. These have jurisdiction up to $8oo in contract; $5oo in trespass, re- plevin, foreclosure, sale or redemption in mortgage cases and equitable relief generally; $2000 in partnership actions. Any ac- tion may be brought in a County Court and if the defendant does not in writing dispute the jurisdiction of the court, it may con- tinue and be tried in such court. If the defendant disputes the jurisdiction, the action is removed into the High Court on praccipe.
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