According to the
case law in
Canada, the key restriction on the application of inherent jurisdiction is that the
doctrine cannot be used to
override an existing
statute or
rule. The clearest articulation of such restriction is set out in the
Supreme Court of Canada decision in
College Housing Co-operative Ltd. v Baxter Student Housing Ltd. (1976) which was a case dealing with whether a judge had exceeded jurisdiction in determining the
mortgagee should have priority over other charges and encumbrances. The Supreme Court of Canada stated that a court cannot negate the unambiguous expression of legislative will and further held that: Inherent jurisdiction cannot, of course, be exercised so as to conflict with statute or rule. Moreover, because it is a special and extraordinary power, it should be exercised only sparingly and in a clear case. Another restriction on the application of the doctrine of inherent jurisdiction appears to be that inherent jurisdiction cannot be used to create new rules of
substantive law. The
rules of civil procedure in various provinces in Canada have varying relationships with the inherent jurisdiction of their courts. In
Ontario the Rules of Civil Procedure are considered to be regulations of the
Courts of Justice Act, and thus an expression of legislative will. They are created and amended by a "Civil Rules Committee" which consists of fourteen judges and thirteen other persons involved in the legal community including the
Attorney General or his representative. The rules are subject to the approval of the
Lieutenant Governor in Council. The judges of the Court obviously have a part in the making of the rules, but the rules are regulations under the Act. Inherent jurisdiction cannot be used to conflict with the unambiguous expression of the Rules. In
Nova Scotia, on the other hand, the Rules of Civil Procedure are made by the judges of the
Superior Court and the
Court of Appeal pursuant to s.46 of the
Judicature Act. The
Attorney General does not have a hand in their creation, and they are not subject to approval by the
Lieutenant Governor in Council. The Court of Appeal for Nova Scotia has taken the position that a single judge of the court may use the inherent jurisdiction of the court to manage its own procedures. ==See also==