Civil Litigation - Federal-Provincial Competing JurisdictionsThis topic is about the jurisdictional tension that occurs sometimes between the federal and the provincial superior s.96 constitutional courts - ie. when is a civil case properly before either, or both.
. Mahjoub v. Canada (Public Safety and Emergency Preparedness)
In Mahjoub v. Canada (Public Safety and Emergency Preparedness) (Ont CA, 2023) the Court of Appeal considers the interesting issue of when the Ontario Superior Court has jurisdiction to hear a habeas corpus application challenging a federal court-ordered detention, here under the IRPA:
(3) Application for habeas corpus in the Superior Court [SS: this is the lower court ruling being challenged]. Toussaint v. Canada (Attorney General)
 On July 14, 2021, Mr. Mahjoub commenced an application in the Superior Court seeking a writ of habeas corpus with certiorari in aid. Specifically, Mr. Mahjoub seeks to be relieved of all the conditions of his detention, except for the requirement that he keep the peace, surrender his passport and notify the CBSA of any change of address. Mr. Mahjoub takes the position that the deprivation of his liberty for a lengthy and uncertain period is unlawful and violates his rights under ss. 7, 9 and 12 of the Charter.
 In response, the Minister brought a motion to stay the application on the basis that habeas corpus is not available in the Superior Court against the order of a Federal Court judge. In addition, the Minister argued that the application should be stayed because Mr. Mahjoub has a right of appeal from his conditions of release under the IRPA and because the security scheme under the IRPA is at least as advantageous as a habeas corpus application.
 In a decision dated February 15, 2022, the motion judge granted the Minister’s motion and stayed the application.
 As the first step in his analysis, the motion judge rejected the Minister’s argument that the Superior Court in Ontario does not have jurisdiction to grant habeas corpus in this case because the original order was made by the Federal Court. The motion judge explained that Mr. Mahjoub does not take issue with the finding that he is a security risk or the deportation order. Rather, the question raised by Mr. Mahjoub is “whether the lengthy and uncertain duration of the deprivation of his liberty violates his Charter rights”. The motion judge concluded that the Superior Court has jurisdiction to consider a habeas corpus application that raises this issue.
(3) Whether the Superior Court has jurisdiction [SS: this is the appeal ruling, upholding the lower court]
 The Minister argues that the motion judge erred in law in holding that the Superior Court has jurisdiction to grant habeas corpus in relation to an order made by the Federal Court. I reject this argument. There is no blanket principle that the Superior Court cannot grant habeas corpus in relation to an order made by the Federal Court. While habeas corpus is generally not available in one superior court to alter or attack an order made by another superior court, a recognized exception is where the applicant seeks to establish, as here, that a detention is unlawful because it breaches the applicant’s Charter rights.
 The general rule at common law is that a superior court order is not subject to collateral attack by another superior court through a prerogative writ, including habeas corpus: R. v. Sarson, 1996 CanLII 200 (SCC),  2 S.C.R. 223, at para. 23. In part, the rationale for this principle is that habeas corpus challenges the legality of a detention, and orders made by a superior court are presumptively lawful unless they are successfully challenged on appeal.
 In R. v. Gamble, 1988 CanLII 15 (SCC),  2 S.C.R. 595, at paras. 67 and 74, a majority of the Supreme Court of Canada held that this is an overly technical approach to the availability of habeas corpus where an applicant alleges a Charter breach. The Court held that, in such cases, habeas corpus may be available in relation to an order made by a superior court where “the appeal process may not be able to vindicate an applicant’s Charter interest in having the legality of his or her deprivation of liberty reviewed”. In Sarson, at paras. 41 and 43, the Supreme Court confirmed this “expanded” approach to habeas corpus, but cautioned that it is only available where “the applicant is able to demonstrate that his or her detention fails to accord with the principles of fundamental justice, or otherwise offends the Charter”.
 In this case, Mr. Mahjoub argues that the ongoing and indeterminate length of the restrictions on his liberty violate his Charter rights. This was recognized by the motion judge when he rejected the Minister’s argument that the Superior Court does not have jurisdiction to grant habeas corpus. In my view, given the grounds on which Mr. Mahjoub seeks habeas corpus, the fact that he seeks to challenge restrictions on his liberty imposed by the Federal Court on its own does not preclude the Superior Court in Ontario from considering his application.
 Rather, as addressed below, the viability of Mr. Mahjoub’s application for habeas corpus should be considered through the lens of the two established exceptions. As discussed below, these are carefully tailored exceptions. They are meant to respect the decisions from other courts or the legislated processes for challenging a detention, while nevertheless recognizing the key role habeas corpus plays in protecting a person’s liberty interest.
In Toussaint v. Canada (Attorney General) (Ont CA, 2023) the Court of Appeal held that it was appropriate for the court to declare that it had jurisdiction to hear the case, even though that wasn't sought by the moving party:
The motion judge did not err in concluding the Ontario court has jurisdiction. Windsor (City) v. Canadian Transit Co.
 The motion judge rejected the appellant’s argument that the action was in essence a matter of judicial review within the exclusive jurisdiction of the Federal Court. He noted, first, that the Ontario court has concurrent jurisdiction with the Federal Court with respect to Charter claims against the federal government; and second, that the Minister’s decision on whether to implement a recommendation of the UNHRC was an exercise of a Crown prerogative, and thus was outside the exclusive jurisdiction of the Federal Court.
 The appellant argues that the motion judge was asked only to dismiss the claim under r. 21.01(3)(a) of the Rules of Civil Procedure but went further by ruling that the action was within the jurisdiction of the Ontario court. We do not agree.
 Jurisdiction is an either/or concept: the decision not to dismiss the claim on the basis that it was beyond the jurisdiction of the Ontario court necessarily means that it is within the jurisdiction of the Ontario court. The order allows the action to proceed in the Superior Court of Justice in Ontario, and consequently the appellant is precluded from continuing to dispute the Ontario court’s jurisdiction over the subject matter of the action: see Skof v. Bordeleau, 2020 ONCA 729, 456 D.L.R. (4th) 236, at para. 8, leave to appeal refused,  S.C.C.A. No. 17. It is well settled that this is a final order: see e.g., Hopkins v. Kay, 2014 ONCA 514, at para. 12.
 It cannot be said that the motion judge’s order was made unfairly because it granted relief that the parties did not request. If the appellant did not contemplate this result, it should have. The appellant offers no basis to conclude that the motion judge’s decision is erroneous as a matter of law and we see none. Accordingly, this ground of appeal must be rejected.
In Windsor (City) v. Canadian Transit Co. (SCC, 2016), an appeal from the Federal Court of Appeal, the Supreme Court of Canada considered whether the federal court system had jurisdiction where a federally-incorporated company, co-owner of an international bridge, sought relief in that court against Canadian municipal property standards orders:
 In order to decide whether the Federal Court has jurisdiction over a claim, it is necessary to determine the essential nature or character of that claim (JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue)), 2013 FCA 250 (CanLII),  2 F.C.R. 557, at para. 50; Sifto Canada Corp. v. Minister of National Revenue, 2014 FCA 140 (CanLII), 461 N.R. 184, at para. 25). As discussed in further detail below, s. 23(c) of the Federal Courts Act only grants jurisdiction to the Federal Court when a claim for relief has been made, or a remedy has been sought, “under an Act of Parliament or otherwise”. The conferral of jurisdiction depends on the nature of the claim or remedy sought. Determining the claim’s essential nature allows the court to assess whether it falls within the scope of s. 23(c). Jurisdiction is not assessed in a piecemeal or issue-by-issue fashion.At paras 34-69 the court continues to extensively review the elements of the 'ITO' test for federal court jurisdiction, being drawn from the case of ITO-International Terminal Operators Ltd. v. Miida Electronics Inc. (SCC, 1986), which - roughly stated - requires that "(1) a statute grants jurisdiction to the court, (2) federal law nourishes the grant of jurisdiction and is essential to the disposition of the case, and (3) that federal law is constitutionally valid." [para 19].
 The essential nature of the claim must be determined on “a realistic appreciation of the practical result sought by the claimant” (Domtar Inc. v. Canada (Attorney General), 2009 FCA 218 (CanLII), 392 N.R. 200, at para. 28, per Sharlow J.A.). The “statement of claim is not to be blindly read at its face meaning” (Roitman v. Canada, 2006 FCA 266 (CanLII), 353 N.R. 75, at para. 16, per Décary J.A.). Rather, the court must “look beyond the words used, the facts alleged and the remedy sought and ensure . . . that the statement of claim is not a disguised attempt to reach before the Federal Court a result otherwise unreachable in that Court” (ibid.; see also Canadian Pacific Railway v. R., 2013 FC 161,  1 C.T.C. 223, at para. 36; Verdicchio v. R., 2010 FC 117 (CanLII),  3 C.T.C. 80, at para. 24).
 On the other hand, genuine strategic choices should not be maligned as artful pleading. The question is whether the court has jurisdiction over the particular claim the claimant has chosen to bring, not a similar claim the respondent says the claimant really ought, for one reason or another, to have brought.
 The role and jurisdiction of the Federal Court appear most clearly when seen through the lens of the judicature provisions of the Constitution Act, 1867. Section 96 recognized the superior courts of general jurisdiction which already existed in each province at the time of Confederation. Section 101 empowered Parliament to establish “additional Courts for the better Administration of the Laws of Canada” — i.e., to establish new courts to administer federal law (R. v. Thomas Fuller Construction Co. (1958) Ltd., 1979 CanLII 187 (SCC),  1 S.C.R. 695, at p. 707; Quebec North Shore Paper Co. v. Canadian Pacific Ltd., 1976 CanLII 10 (SCC),  2 S.C.R. 1054, at pp. 1065-66; Consolidated Distilleries, Ltd. v. The King,  A.C. 508, at pp. 520-22 (P.C.)). Parliament exercised this power in 1875 when it enacted legislation creating the Exchequer Court of Canada, which ultimately became the Federal Court of Canada (see The Supreme and Exchequer Court Act, S.C. 1875, c. 11). The Federal Court plays an important role in the interpretation and development of federal law in matters over which it has been granted jurisdiction.
 The provincial superior courts recognized by s. 96 “have always occupied a position of prime importance in the constitutional pattern of this country” (Attorney General of Canada v. Law Society of British Columbia, 1982 CanLII 29 (SCC),  2 S.C.R. 307, at p. 327, per Estey J.). Provincially administered (s. 92(14)) and federally appointed (ss. 96 and 100), they weave together provincial and federal concerns and act as a strong unifying force within our federation. As courts of general jurisdiction, the superior courts have jurisdiction in all cases except where jurisdiction has been removed by statute (Québec Téléphone v. Bell Telephone Co. of Canada, 1971 CanLII 160 (SCC),  S.C.R. 182, at p. 190). The inherent jurisdiction of the superior courts can be constrained by legislation, but s. 96 of the Constitution Act, 1867 protects the essential nature and powers of the provincial superior courts from legislative incursion (Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43 (CanLII),  3 S.C.R. 3, at para. 18; MacMillan Bloedel Ltd. v. Simpson, 1995 CanLII 57 (SCC),  4 S.C.R. 725, at para. 15).
 The Federal Court, by contrast, has only the jurisdiction it has been conferred by statute. It is a statutory court, created under the constitutional authority of s. 101, without inherent jurisdiction. While the Federal Court plays a critical role in our judicial system, its jurisdiction is not constitutionally protected in the same way as that of a s. 96 court. It can act only within the constitutional boundaries of s. 101 and the confines of its statutory powers. As this Court noted in Roberts v. Canada, 1989 CanLII 122 (SCC),  1 S.C.R. 322, at p. 331, “[b]ecause the Federal Court is without any inherent jurisdiction such as that existing in provincial superior courts, the language of the [Federal Court Act] is completely determinative of the scope of the Court’s jurisdiction.”