Inherent Jurisdiction

From Riverview Legal Group

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved: 2022-11-28
CLNP Page ID: 790
Page Categories: [Legal Principles], [ONCJ], [ONSCJ]
Citation: Inherent Jurisdiction, CLNP 790, <38>, retrieved on 2022-11-28
Editor: Sharvey
Last Updated: 2022/03/07

Cerberus Business Financial, LLC v. B & W Heat Treating Canada, ULC, 2020 ONSC 3781 (CanLII)[1]

[20] First, there is no jurisprudence directly on point which, in my view, does not assist the Trustee. Second, courts have held that inherent jurisdiction does not operate where Parliament or the legislature has acted and cannot be used so as to contradict a statute or rule: see Baxter Student Housing Ltd. v. College Housing Co-operative Ltd., 1975 CanLII 164 (SCC), [1976] 2 S.C.R. 475[2], at p. 480 and Stephen Francis Podgurski (Re), 2020 ONSC 2552, at para. 69[3]. I do not see a functional gap or vacuum in s. 38(2) of the CTA. The three-month period is clearly set out.

[1] [2] [3]

Endean v. British Columbia, 2016 SCC 42 (CanLII), [2016] 2 SCR 162[4]

[23] The inherent powers of superior courts are central to the role of those courts, which form the backbone of our judicial system. Inherent jurisdiction derives from the very nature of the court as a superior court of law and may be defined as a “reserve or fund of powers” or a “residual source of powers”, which a superior court “may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them”: I. H. Jacob, “The Inherent Jurisdiction of the Court” (1970), 23 Curr. Legal Probs. 23, at p. 51, cited with approval in, e.g., Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 20[5]; R. v. Caron, 2011 SCC 5, [2011] 1 S.C.R. 78, at para. 24[6]; and MacMillan Bloedel Ltd. v. Simpson, 1995 CanLII 57 (SCC), [1995] 4 S.C.R. 725, at paras. 29-31.[7]

[24] The courts have recognized that, given the broad and loosely defined nature of these powers, they should be “exercised sparingly and with caution”: Caron, at para. 30. It follows that courts should first determine the scope of express grants of statutory powers before dipping into this important but murky pool of residual authority that forms their inherent jurisdiction: see, e.g., Century Services Inc. v. Canada (Attorney General), 2010 SCC 60, [2010] 3 S.C.R. 379, at paras. 63-68.[8] As The Honourable Georgina Jackson and Janis Sarra write, “[i]t is only where broad statutory authority is unavailable that inherent jurisdiction needs to be considered as a possible judicial tool to utilize in the circumstances”: “Selecting the Judicial Tool to get the Job Done: An Examination of Statutory Interpretation, Discretionary Power and Inherent Jurisdiction in Insolvency Matters”, in J. P. Sarra, ed., Annual Review of Insolvency Law 2007 (2008), 41, at p. 73.

[4] [5] [6] [7] [8]

D.N. v. S.C., 2004 ONCJ 46 (CanLII)[9]

[4] In the case of Television Real Estate Ltd. v. Rogers Cable T.V. Ltd. (1997), 1997 CanLII 999 (ON CA), 34 O.R. (3d) 291, 99 O.A.C. 226, 12 C.P.C. (4th) 381, [1997] O.J. No. 1944, 1997 CarswellOnt 1580 (C.A.)[10], Appeals Justice George D. Finlayson stated the following [at pp. 295-96 O.R.]:

The phrase "by whom . . . the costs shall be paid" has been judicially interpreted to mean "by which of the parties to the proceedings before the court or judge": see Rockwell Developments Ltd. v. Newtonbrook Plaza Ltd. (1972), 27 D.L.R. (3d) 651 (Ont. C.A.) at p. 659. Arnup J.A., for the court, was dealing with s. 82 of the Judicature Act, R.S.O. 1970, c. 228, the predecessor to s. 131 of our present Act. Accordingly, this section of the Act provides no basis for an award against two of the three principals of the corporate plaintiff. Eberle J. recognized this but relied upon what he described as an exception to the salutary rule in Rockwell. In point of law, the exception was expressed earlier by Middleton J. in Sturmer v. Beaverton (Town) (1911), 25 O.L.R. 190 at 192 (H.C.); affirmed at (1912), 1912 CanLII 588 (ON SCDC), 25 O.L.R. 566 (Div. Ct.)[11]. Middleton J. was dealing with an applicant in a proceeding to quash a by-law who, in the view of all the judges who dealt with the case, was not the true applicant but was put forward by others, who themselves had status to bring the proceedings. They all characterized the applicant as a "man of straw". Middleton J. stated at p. 191:
The Court has inherent jurisdiction to prevent abuse of its process, and, as part of this jurisdiction, will stay proceedings, as being taken against good faith, when a man of straw is put forward by those really litigating, until they either give adequate security or consent to be added as parties, so that an order for costs may be made against them in the event of failure.
In Rockwell, supra, at p. 663, Arnup J.A. for the Court held that Sturmer was "express authority for the proposition that, under s. 82, the Court has jurisdiction to award costs against a person proved to have been 'the real litigant', who had put forward a 'man of straw' in his desire to avoid becoming liable for costs" . . .
. . . in order to bring the appellants within the exception of Sturmer as applied in Rockwell, it was incumbent upon the respondent to show (1) that the appellants had status to bring the action against Rogers Cable themselves; (2) that TVR was not the true plaintiff and (3) that TVR was a "man of straw" put forward to protect the appellants and presumably Burry from liability for costs.

[26] I conclude then that the applicant has successfully met the test set out in Television Real Estate Ltd. v. Rogers Cable T.V. Ltd., supra, and that the city can be found liable for costs in this case. The question remains whether the court should exercise its discretion to award costs to the successful respondent.

[27] The basis for the paternity claim in this case was exceptionally weak. In her application, the applicant pleaded as follows:

2. The respondent and I met approximately September 1999 and started an intimate and sexual relationship approximately December 1999 [sic].
3. I was not sexually involved with any man of colour during the time of conception and the respondent is the father of my child as my child is of mixed blood.

[9] [10] [11]


  1. 1.0 1.1 Cerberus Business Financial, LLC v. B & W Heat Treating Canada, ULC, 2020 ONSC 3781 (CanLII), <>, retrieved on 2020-06-25
  2. 2.0 2.1 Baxter Student Housing Ltd. et al. v. College Housing Co-operative Ltd. et al., 1975 CanLII 164 (SCC), [1976] 2 SCR 475, <>, retrieved on 2020-06-25
  3. 3.0 3.1 Stephen Francis Podgurski (Re), 2020 ONSC 2552 (CanLII), <>, retrieved on 2020-06-25
  4. 4.0 4.1 Endean v. British Columbia, 2016 SCC 42 (CanLII), [2016] 2 SCR 162, <>, retrieved on 2021-09-10
  5. 5.0 5.1 Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43 (CanLII), [2013] 3 SCR 3, <>, retrieved on 2021-09-10
  6. 6.0 6.1 R. v. Caron, 2011 SCC 5 (CanLII), [2011] 1 SCR 78, <>, retrieved on 2021-09-10
  7. 7.0 7.1 MacMillan Bloedel Ltd. v. Simpson, 1995 CanLII 57 (SCC), [1995] 4 SCR 725, <>, retrieved on 2021-09-10
  8. 8.0 8.1 Century Services Inc. v. Canada (Attorney General), 2010 SCC 60 (CanLII), [2010] 3 SCR 379, <>, retrieved on 2021-09-10
  9. 9.0 9.1 D.N. v. S.C., 2004 ONCJ 46 (CanLII), <>, retrieved on 2021-09-10
  10. 10.0 10.1 Television Real Estate Ltd. v. Rogers Cable T.V. Ltd., 1997 CanLII 999 (ON CA), <>, retrieved on 2021-09-10
  11. 11.0 11.1 Re Sturmer and Town of Beaverton, 1912 CanLII 588 (ON SCDC), <>, retrieved on 2021-09-10