Accounts of the Indigenous law governing dispute resolution in the area now called Ontario, Canada, date from the early to mid-17th century. French civil law courts were created in Canada, the colony of New France, in the 17th century, and common law courts were first established in 1764. The territory was then known as the province of Quebec.
A portion of the province of Quebec was designated Upper Canada by the Constitutional Act 1791. Almost immediately after the colony was created, Upper Canada's colonial government abolished the French civil law and established English common law courts in private law matters. The union of the Canadas had little effect on the court system in what became Canada West. Periodic reform continued in the region's courts before and after Canada West was renamed Ontario upon Confederation in 1867.
Ontario's courts were reformed and reorganized on several occasions in the 19th century. Major changes included the creation of the Court of Chancery of Upper Canada, a court of equity, in 1837, and the fusion of common law and equity in 1881. Periodic reform continued in the 20th century. In 1972, Ontario acquired another new court, the Divisional Court. Its courts' current names and roles were largely settled by the 1990s.
Indigenous law Evidence of human activity in what is now Ontario dates to approximately 9000 BCE. 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. Councils of elders consulted broadly before making decisions, and their authority usually rested on understanding 'public opinion,' while that of chiefs rested on the power of persuasion."
In Anishinaabe law, governance and dispute resolution occur at councils and council fires. Historian Heidi Bohaker describes a distinction Peter Jones drew between common councils, where people could resolve disputes and adopt and modify legal rules within a given territory; and general councils, where leaders of common councils would go to form and renew alliances between territories. Both forms of council were "consensus-based deliberative bodies that were expected to receive and consider advice from the people they represented". Jones wrote in the early 19th century, but Bohaker notes that the council structure was much older—dating at least from the early to mid-17th century.
In Haudenosaunee law, the Great Law of Peace governs dispute resolution, emphasizing, among other things, that matters that may result in disputes should be discussed and negotiated before they become disputes proper.
Canada (New France) (1608–1763)
Between the first French settlement at Quebec City in 1608 and the conquest of New France in 1758–60, the French colony of Canada followed the coutume de Paris, a codified version of French customary law; and French statute law. 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. Seigneuries also held manorial courts with jurisdiction within the seigneur's land grant. In 1651, Governor Jean de Lauson created the sénéchaussée, a court at Quebec City with both trial and appellate jurisdiction. New France became a French crown colony in 1663 and the new colonial administrators were keen to reform its legal system. From that date, the colony's sovereign council held "broad and unified legislative, executive, financial, and judicial powers".
According to Edmond Lareau, justice in early New France was dispensed "more or less arbitrarily by the governor", since the sénéchal—from whose name the sénéchaussée was taken—was appointed by, and answered to, the governor. In important matters, the sénéchal adjudicated matters in a council with the Jesuit superior and "notable city residents".
Quebec (1763–1791) In 1763, James Murray was empowered, by a letter from George III, as the captain-general and governor-in-chief of the province of Quebec, to create courts of civil and criminal jurisdiction within the province. Accordingly, on 17 September 1764, Murray established a Court of King's Bench for the province with jurisdiction in all civil and criminal cases. Appeals lay from his decisions to the provincial cabinet in cases where the amount in dispute was over £300. Where the amount in dispute was over £500, an appeal lay from cabinet to the Privy Council.
At the same time, the Court of Common Pleas was established, with civil jurisdiction in cases above £10. In cases above £20, an appeal lay to the Court of King's Bench; in cases over £300 to the provincial cabinet, with a further appeal to the Privy Council in cases over £600. The Court of Common Pleass had three judges and sat at Quebec City and Montreal. The province was divided into two judicial districts by the Godefroy and Saint-Maurice rivers, and courts of quarter sessions were formed for these districts, to sit at Quebec City and Montreal every three months.
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". In criminal cases, the existing criminal law of England governed.
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. The former Court of Common Pleas had sat both in Quebec and in Montreal, but now there were to be two independent courts: one in Quebec, the other in Montreal, limited in jurisdiction to their own districts. On 3 January 1775, Lord Dorchester was instructed to create a Court of King's Bench for the province for criminal cases; and, dividing the province into two districts, to establish a Court of Common Pleas for each district with jurisdiction over all civil cases that would be "cognizable by the Court of Common Pleas in Westminster Hall".
The Treaty of Paris brought a large number of immigrants from the American colonies. This increase in population increased the demand for courts. 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. In each of these districts, a court of common pleas was established, with unlimited civil jurisdiction; and a court of quarter sessions, which handled "local government and criminal matters". The first Upper Canada legislature renamed them the "Eastern", "Midland", "Home", and "Western" districts, respectively.
The courts of common pleas and quarter sessions were overseen mainly by judges without legal training. Common pleas judges modified the common law received from England to reduce some of the technicalities associated with the forms of action. They avoided using technical Law Latin or Law French terms, such as assumpsit or trover, in favour of vernacular terminology. As compared to its English counterpart, civil procedure in the common pleas was "relatively simple and informal".
Upper Canada (1791–1840)
Upper Canadians were largely United Empire Loyalists who found the French civil law "alien". Accordingly, the first statute of the legislature of Upper Canada32 Geo III, c 1 (Upper Canada) 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. The second statute required jury trial in civil matters; juries were already required in civil trials.
According to historian William N. T. Wylie, the two principal figures in the design of Upper Canada's court system were William Osgoode, who became chief justice of Upper, then Lower, Canada; and Lieutenant-Governor John Graves Simcoe. Osgoode and Simcoe aimed to create an Upper Canadian legal system that was centralized, professionalized, and based in the English common law.
The courts of common pleas were gradually abolished between 1792 and 1794. In 1794,34 George III, c 2 (Upper Canada) pursuant to the Judicature Act, 1794, the Court of King's Bench was created for the province. The Court of King's Bench, a superior court, was given the powers of the courts of King's Bench, Common Pleas, and Exchequer in England, and had as judges the chief justice of the province and two puisne justices. These three judges were appointed by the imperial Colonial Office and were given substantial salaries.
The Court of King's Bench took up most of the actions that would previously have gone to the courts of common pleas, except actions for small amounts of money (no more than £15, later increased to £40 in some circumstances). Actions between £2 and £15 were heard by District Courts, which sat in each of the province's four judicial districts. By contrast with King's Bench judges, District Court judges were appointed by provincial officials and the posts were not salaried. Their compensation came only from court usage fees.
Judges of the Court of King's Bench went on circuit throughout the province's four judicial districts in meetings termed assizes. The assizes handled civil and criminal matters, conducting civil nisi prius trials and acting as courts of oyer and terminer and general jail delivery (clearing out of prisoners). Assizes initially met only once a year; they became biannual in 1837. Decisions at the assizes could be appealed to a full panel of the Court of King's Bench, sitting at York (which became Toronto).
Upper Canada's court of quarter sessions, officially the General Sessions of the Peace, handled some "less serious cases" that were not dealt with at the assizes. Finally, the courts of requests, presided over by justices of the peace, met every other Saturday to handle small claims. (A "small claim", in early Upper Canada, was a claim for less than £2.) Their jurisdiction was limited to portions of each of the four judicial districts. The courts of requests were abolished in 1841.
The Court of King's Bench only had common law jurisdiction. The lack of an equity court in Upper Canada, and the consequent absence of equitable remedies in the law of property, made it difficult for creditors to foreclose on mortgaged property and prevented debtors from exercising the right of equity of redemption. 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.
Equity was not officially introduced into the law of Upper Canada until 1837, when the Court of Chancery of Upper Canada was created. William Renwick Riddell called that year an "annus mirabilis" for Ontario's court system.