Barrister and Solicitor
Legal Writing and Research
Jurisdiction - Statutory Courts
Crown - Role of Crown Counsel
R v Fercan Developments Inc. (Ont CA, 2016)
In this case the Court of Appeal usefully contrasts the jurisdiction of a statutory court (ie. a non-'s.96 constitutional' court, such as the federal court or provincial courts) with the recognized plenary 'inherent jurisdiction' of a s.96 Superior Court:
 As a statutory court, the Ontario Court of Justice does not have any inherent jurisdiction and derives its jurisdiction from statute. It is well established that a statutory court or tribunal enjoys both the powers that are expressly conferred upon it and, by implication, any powers that are reasonably necessary to accomplish its mandate: Dunedin, at para. 70. The jurisprudence has recognized that statutory courts possess certain implied powers as courts of law: R. v. Romanowicz (1999), 1999 CanLII 1315 (ON CA), 45 O.R. (3d) 506 (C.A.), at paras. 59-60. In addition, powers may be implied in the context of particular statutory schemes as well.Additionally, the court commented as follows on the role of Crown Counsel (here in criminal proceedings):
 This court recently considered the “doctrine of jurisdiction by necessary implication” in Pierre v. McRae, 2011 ONCA 187 (CanLII), 104 O.R. (3d) 321. Justice Laskin, at para. 34, noted that a power or authority may be implied: (i) when the jurisdiction sought is necessary to accomplish the objects of the legislative scheme and is essential to the statutory body fulfilling its mandate; (ii) when the enabling act fails to explicitly grant the power to accomplish the legislative objective; (iii) when the mandate of the statutory body is sufficiently broad to suggest a legislative intention to implicitly confer jurisdiction; (iv) when the jurisdiction sought is not one which the statutory body has dealt with through use of expressly granted powers, thereby showing an absence of necessity; or (v) when the legislature did not address its mind to the issue and decide against conferring the power to the statutory body.
 Whether a statutory court is vested with the power to grant a particular remedy depends on an interpretation of its enabling legislation: ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4 (CanLII),  1 S.C.R. 140, at para. 36. When ascertaining legislative intent, a court is to keep in mind that such intention is not frozen in time. Rather, a court must approach the task so as to promote the purpose of the legislation and render it capable of responding to changing circumstances: Dunedin, at para. 38.
 Furthermore, as in any other statutory interpretation exercise, courts need to consider the legislative context when interpreting the legislation at issue: ATCO Gas & Pipelines Ltd., at para. 49.
 Finally, I note that the power being conferred does not have to be absolutely necessary. It only needs to be practically necessary for the statutory court or tribunal to effectively and efficiently carry out its purpose: Dunedin, at para. 71.
 The Supreme Court of Canada has discussed the power of statutory courts to control their process in Cunningham and in Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43 (CanLII),  3 S.C.R. 3. Other than noting that this power cannot contravene explicit statutory provisions or constitutional principles like the separation of power, the court did not discuss the outer limits of a statutory court’s ability to control its own process in either decision. However, in both cases, the court treated a statutory court’s ability to control its own process as largely parallel to a superior court’s ability to control its own process.
 Therefore, even though a provincial court does not have any inherent jurisdiction, it does have the authority to control its own process. Though that power comes through an implied grant of power rather than inherent jurisdiction, I see no reason why a provincial court’s authority to control its own process should not provide the same power to award costs.
 In my opinion, the Crown’s position reflects an abdication of its responsibilities that cannot be condoned. Crown prosecutors play an undeniably important role in the administration of justice. It is well established that they play a quasi-judicial role as “ministers of justice”: Boucher v. The Queen, 1954 CanLII 3 (SCC),  S.C.R. 16, at p. 25. They must act in the interests of the community to see that justice is properly done: R. v. Power, 1994 CanLII 126 (SCC),  1 S.C.R. 601, at p. 616.
 When discharging their role, Crown counsel have an obligation to ensure that the power of the state is used only in pursuit of impartial justice: Oniel v. Marks (2001), 2001 CanLII 24091 (ON CA), 141 O.A.C. 201 (C.A.), at para. 67. Crown counsel must discharge their role with the utmost integrity and sound judgment, remaining open to the possibility of the innocence of the accused and avoiding “tunnel vision”: R. v. Delchev, 2015 ONCA 381 (CanLII), 126 O.R. (3d) 267, at paras. 64-65. Though these principles were articulated in the context of criminal prosecutions, they remain relevant in proceedings like this one.