Courts of Ontario

Accounts of the Indigenous law governing dispute resolution in the area now called Ontario, Canada, date from the early to mid-17th century.

Periodic reform continued in the region's courts before and after Canada West was renamed Ontario upon Confederation in 1867.

[1] Summarizing the Indigenous approach to dispute resolution, with particular reference to the Mohawk people, the authors of A History of Law in Canada, volume 1, explain that, "All important matters had to be discussed openly, though after consultation some final council deliberations could occur in secret, at least among the Mohawk.

[3] Both forms of council were "consensus-based deliberative bodies that were expected to receive and consider advice from the people they represented".

[8] From 1608, Quebec's governor-general was in effect legislator and judge, since he held responsibility for making civil and criminal law and adjudicating cases.

[9] In 1651, Governor Jean de Lauson created the sénéchaussée, a court at Quebec City with both trial and appellate jurisdiction.

[11] From that date, the colony's sovereign council held "broad and unified legislative, executive, financial, and judicial powers".

[14] Accordingly, on 17 September 1764, Murray established a Court of King's Bench for the province with jurisdiction in all civil and criminal cases.

[16] In the Court of King's Bench, all cases were to be decided "agreeable to the laws of England and to the ordinances of [the] province".

In the Court of Common Pleas the judges were "to determine according to equity haying regard nevertheless to the law of England as far as the circumstances and present situation of things will admit".

[17] In 1770, Governor Guy Carleton, 1st Baron Dorchester, abolished the civil jurisdiction of the justices of the peace and directed all cases not exceeding £12 to be tried by the judges of the Courts of Common Pleas.

In 1788, Lord Dorchester addressed this problem by dividing the province of Quebec into four judicial districts: Luneburg "to the mouth of the River Gananoque", Mecklenburg to the Trent River, Nassau "to the extreme projection of Long Point into the Lake Erie", and Hesse west of Nassau.

[22] Upper Canadians were largely United Empire Loyalists who found the French civil law "alien".

[23] Accordingly, the first statute of the legislature of Upper Canada[24] abolished the coutume de Paris, a body of civil law that had governed non-criminal matters in the province of Quebec before the Constitutional Act 1791.

[25] Osgoode and Simcoe aimed to create an Upper Canadian legal system that was centralized, professionalized, and based in the English common law.

[31] Judges of the Court of King's Bench went on circuit throughout the province's four judicial districts in meetings termed assizes.

[30] Decisions at the assizes could be appealed to a full panel of the Court of King's Bench, sitting at York (which became Toronto).

[33] Finally, the courts of requests, presided over by justices of the peace, met every other Saturday to handle small claims.

Without these remedies, property held as collateral for a loan was often seized by the local sheriff, pursuant to a writ of fieri facias, if a borrower defaulted—and sold at auction for rock-bottom prices.

[39] Officials of the justice system in Upper Canada, including judges, sheriffs, and magistrates, were appointed by colonial administrators and could be dismissed at will.

[41] This, among other factors, led to calls from William Warren Baldwin and others for responsible government, whereby ministers and other officials would be answerable to an elected legislature, as opposed to imperial superiors in London.

London did not initially grant responsible government to Upper Canada, but it did increase judicial job security.

[47] This change was presumably due in part to the fact that the old system of judicial districts—which, with increases in population since they were established, had now grown from four to twenty districts—was abolished by statute in 1849.

[50] Before this court was established, the final appeal of a decision within soon-to-be Ontario (some decisions could be appealed to the Privy Council) lay to the province's executive council; thus, executive and judicial functions were fused, in a manner typical in the common law world at the time.

Banks describes this statute as "a landmark in the history of the Ontario courts", but notes that "it cannot be regarded as a sudden or unexpected development".