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Relief From Forfeiture - History

. Poplar Point First Nation Development Corporation v. Thunder Bay (City)

In Poplar Point First Nation Development Corporation v. Thunder Bay (City) (Ont CA, 2016) the Court of Appeal sets out the history of the development of today's CJA relief from forfeiture:
[38] The origin of the court’s ability to grant relief from forfeitures and penalties was in the equitable jurisdiction of the Chancery Courts. Its scope was limited, available only for penalty clauses. It was also restricted to contracts concerning the transfer of proprietary or possessory rights: J. McGee, Snell’s Equity 3rd ed. (London: Sweet & Maxwell 2010), at para. 13-015.

[39] With the fusion of the courts of equity and common law (commencing in 1873 with the Administration of Justice Act, S.O. 1873, c. 8 and completed in 1881 with the Ontario Judicature Act, 1881, S.O. 1881, c. 5) the ability to grant relief from forfeiture was no longer restricted to the Chancery Courts. Section 16 of the Ontario Judicature Act, 1881 provided that “in every civil cause or matter commenced in the High Court of Justice” where equitable relief was claimed, the court was empowered to grant “such and the same relief as ought to have been given by the Court of Chancery… before the passing of this Act."

[40] Specific statutory authority for granting relief from penalties and forfeitures appeared first in the Ontario Judicature Act, following an amendment to that Act in 1886: S.O. 1886, c. 16, s. 38(b). Relief from penalties and forfeitures was included as “a rule of law” for “every civil cause or matter commenced in the High Court of Justice.” This new statutory power was quickly interpreted as having expanded the circumstances in which relief from forfeiture could be granted. See, for example, Townsend v. Toronto, Hamilton and Buffalo Railway Company (1898), 28 O.R. 195, where Meredith C.J. noted that it was “unnecessary to consider what, if any, limit was to be placed upon” the “wide general language of [the] provision” (at p. 199).

[41] The statutory provision was re-enacted in the various Judicature Acts, until the last was repealed and replaced by the Courts of Justice Act, 1984, S.O. 1984, c. 11, where it was placed under Part VII (originally as s. 111, and now s.98).


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Last modified: 21-05-20
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