McCombie c. Cadotte (2001), 53 O.R. (3d) 704 (C.A.)

  • Document:
  • Date: 2018

McCombie et al. v. Cadotte*

[Indexed as: McCombie v. Cadotte]

53 O.R. (3d) 704

[2001] O.J. No. 1286

Docket No. C34647

Court of Appeal for Ontario

Morden, Weiler and Feldman JJ.A.

April 10, 2001

 

*Vous trouverez traduction française de la décision ci-dessus à 53 O.R. (3d) 704.

 

Insurance–Automobile insurance–Medical examination–Failure by intended plaintiff in personal injury action to comply with medical examination requirements of s. 258.3 of Insurance Act –Court not having jurisdiction to compel intended plaintiff to undergo medical examination–Insurance Act, R.S.O. 1990, c. I.8, s. 258.3(1)(d).

On July 20, 1999, while riding a bicycle, C collided with an automobile operated by M and owned by L. In August, C’s solicitor gave notice to L’s automobile insurer, State Farm Mutual Automobile Insurance Company (“State Farm”), that C intended to prosecute a claim for damages for personal injuries arising out of the collision. In February 2000, State Farm notified C’s solicitor that it had scheduled three independent medical examinations. These examinations were scheduled under s.

258.3(1) of the Insurance Act, which states that an action for damage from bodily injury shall not be commenced unless the plaintiff does certain things, including, under para. (d), undergoing medical examinations at the defendant’s request. Subsection 258.3(9), however, provides that despite subsection (1), a person may commence an action without complying with subsection (1), but the court shall consider the non-compliance in awarding costs. C did not attend the examinations, and M and L moved for an order c ompelling her to undergo them. Jenkins J. granted the order, and C appealed.

 

Held, the appeal should be allowed with costs.

 

The legislative scheme, which comprises ss. 258.3 to 258.6 of the Insurance Act, imposes a costs sanction as the remedy for non-compliance with s. 258.3(1). It would be wrong to imply a right to apply for a court order compelling the intended plaintiff to undergo a medical examination. The legislative scheme was intended to involve plaintiffs submitting to requests of their own accord and not the compulsion of a court order. To import into the legislation a right to enforce by court order the request that the plaintiff undergo a medical examination makes the legislative scheme more elaborate, costly and heavy-handed than was contemplated by the legislature. The legislature did not intend that the medical examination scheme for settlement purposes be more inflexible and onerous than the one provided for the purposes of trial.

 

Fasken (Litigation guardian of) v. Iola (1999), 46 O.R. (3d) 754 (S.C.J.); Rancourt v. Demetrios (August 31, 1999), Donohue J., apld

 

Boulianne v. Donovan (Sepember 3, 1999), Court File No. London 31287/99 (Ont. S.C.J.); Lodge v. Regier, 53 O.R. (3d) 352, [2001] O.J. No. 734 (Div. Ct.); Moons v. Maxin, [2000] O.J. No. 5120

(S.C.J.), not folld Other cases referred to

80 Wellesley St. East Ltd. v. Fundy Builders Ltd., [1972] 2 O.R. 280, 25 D.L.R. (3d) 386 (C.A.) Statutes referred to

Automobile Insurance Rate Stability Act, 1996, S.O. 1996, c. 21, s. 22 Courts of Justice Act, R.S.O. 1990, c. C.43, s. 105

Insurance Act, R.S.O. 1990, c. I.8, ss. 258.3 – 258.6 [en. S.O. 1996, c. 21, s. 22]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 30.08(2), 31.07(2), 33, 33.03, 33.07, 33.08, 34.15(1)(b)

Authorities referred to

Bennion, F.A.R., Statutory Interpretation: A Code, 2d ed. (London: Butterworths, 1992)

Watson, G.D., and C. Perkins, Holmested and Watson: Ontario Civil Procedure, looseleaf (Toronto: Carswell, 1984- )

APPEAL from an order compelling a medical examination of a plaintiff in an intended action for damages for bodily injury.

Barbara Legate, for appellant. Matthew G. Duffy, for respondents.

 

The judgment of the court was delivered by

 

[1]  MORDEN J.A.:–The basic issue in this appeal is whether a defendant in an intended action in which the plaintiff claims damages for bodily injury arising from the use of an automobile is entitled to obtain an order from the court compelling the plaintiff to undergo a medical examination under s. 258.3(1)(d) of the Insurance Act, R.S.O. 1990, c. I.8, as enacted by the Automobile Insurance Rate Stability Act, 1996, S.O. 1996, c. 21, s. 22. This 1996 legislation, frequently referred to as Bill 59, ushered in a new regime of automobile insurance law on November 1, 1996.

 

[2]  The statutory provisions most pertinent to the issue to be resolved are as follows:

 

258.3(1) An action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile shall not be commenced unless,

(a)           the plaintiff has applied for statutory accident benefits;

(b)           the plaintiff served written notice of the intention to commence the action on the defendant within 120 days after the incident or within such longer period as a court in which the action may be commenced may authorize, on motion made before or after the expiry of the 120-day period;

(c)           the plaintiff provided the defendant with the information prescribed by the regulations within the time period prescribed by the regulations;

(d)           the plaintiff has, at the defendant’s expense, undergone examinations by one or more persons selected by the defendant who are members of Colleges as defined in the Regulated Health Professions Act, 1991, if the defendant requests the examinations within 90 days after receiving the notice under clause (b);

(e)           the plaintiff has provided the defendant with a statutory declaration describing the circumstances surrounding the incident and the nature of the claim being made, if the statutory declaration is requested by the defendant; and

(f)            the plaintiff has provided the defendant with evidence of the plaintiff’s identity, if evidence of the plaintiff’s identity is requested by the defendant.

 

(2) An insured who receives a notice under clause (1)(b) shall give a copy of the notice to the insurer within seven days of receiving the notice.

. . . . .

(5) An examination under clause (1)(d) shall not be unnecessarily repetitious and shall not involve a procedure that is unreasonable or dangerous.

. . . . .

(7)  If a person who performs an examination under clause (1)(d) gives a report on the examination to the defendant, the defendant shall ensure that the plaintiff receives a copy of the report within 60 days after the defendant receives the report.

(8)  In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, no prejudgment interest shall be awarded under section 128 of the Courts of Justice Act for any period of time before the plaintiff served the notice under clause (1)(b).

(9)  Despite subsection (1), a person may commence an action without complying with subsection (1), but the court shall consider the non-compliance in awarding costs. The appendix to these reasons contains all of the provisions in the legislative scheme of which s. 258.3 is a part: ss. 258.3, 258.4, 258.5, and 258.6 [appendix omitted].

 

[3]  I set forth the facts relevant to this appeal. On July 20, 1999, the appellant, Pat Cadotte, while riding a bicycle, came into collision with an automobile operated by the respondent Matthew McCombie and owned by the respondent Deborah Lyttle. The automobile was insured by State Farm Mutual Automobile Insurance Company.

 

[4]  On August 5, 1999, the appellant’s then solicitor (who was subsequently succeeded by Ms. Legate at the beginning of October 1999) gave notice to State Farm and Mr. McCombie that the appellant intended to prosecute a claim for damages arising out of the motor vehicle accident. State Farm replied to this letter by letter dated August 10, 1999 advising that Mr. McCombie’s motor vehicle limits were $1 million and that “based on the information we have available at this date, the policy will respond subject to the terms, conditions and limits of this policy.”

 

[5]  I will not detail the subsequent correspondence that flowed back and forth between State Farm and the appellant’s solicitor. I will note only that Ms. Legate furnished to State Farm some of the information required under s. 258.3(1). In February of 2000, State Farm notified Ms. Legate that it had scheduled, on specified dates and times, three “Bill 59 independent medical exams” for the appellant to attend: a functional abilities evaluation, an orthopaedic examination and a psychological examination. Ms. Legate responded that the notice was out of time and that the appellant “need not attend”.

 

[6]  The respondents, by notice of application dated March 14, 2000, commenced this proceeding in which they sought an order compelling the appellant to attend the three examinations that they had requested her to undergo. On June 14, 2000, Jenkins J. granted the order sought ([2000] O.J. No. 5120).

 

[7]  Jenkins J. decided the 90-day time limit issue against the appellant. He referred to a decision of McDermid J. in Moons v. Maxin, [2000] O.J. No. 5120 (S.C.J.), that the request for a medical examination under s. 283.3(1)(d) need not specify a date, a place or a particular physician in order to comply with this provision. This must have been in reference to a letter from State Farm dated November 4, 1999, in which it reserved its rights to medical examinations. On the hearing of this appeal we were advised that this issue was now “off the table” and so we need not consider it.

 

[8]  With respect to the court’s jurisdiction to compel medical examinations, Jenkins J. said:

The respondent alleges that the court does not have jurisdiction to order medical examinations pursuant to s. 258.3(1)(d) of the Insurance Act as the remedy provided in that section is an award of costs against a plaintiff who fails to comply with the statutory provisions. The respondent’s position is that until an action is commenced, the court has no authority to order attendance for medical examinations. In support of that proposition, the respondent relies upon the decision of Donohue J. in Rancourt v.

Demetrios.

In Moons et al. v. Maxin McDermid J. held that the insurer’s right to an independent medical examination pursuant to s. 258.3(1)(d) is one that is independent of its right to such an examination under the Rules of Practice or the Courts of Justice Act and one that is essential to advancing the settlement process at an early stage. As a result, he held that the court can order a plaintiff to attend for such an examination.

In my view, McDermid J. was correct in holding that the insurer’s right to an independent medical examination under s. 258.2(1)(d) is independent of its right to an examination under the Rules of Practice or the Courts of Justice Act. Consequently, I am unable to agree with the Rancourt decision and I find that the fact that an action has not yet been commenced is of no significance.

 

[9]  As a prelude to my consideration of the issue raised on this appeal, which begins in para. 14, I shall refer to some of the existing case law on it. I shall deal first with the two decisions referred to by Jenkins J. in his reasons. In Moons v. Maxin, McDermid J. expressed himself as indicated in Jenkins J.’s reasons. The remedy which he granted was an order staying the action until the s. 258.3(1)(d) examination of the plaintiff had been performed. He said that he agreed “with the sentiments expressed by Kennedy J. in Boulianne v. Donovan (September 3, 1999), Court file No. London 31287/99 (Ont. S.C.J.) and that he had “a different view from that expressed by Stinson J. in Fasken v. Iola, 1999 Carswell Ontario 4184 [Fasken (Litigation guardian of) v. Iola (1999), 46

O.R. (3d) 754 (S.C.J.)]. I do not believe in the circumstances before me that s. 258.3(9) exhausts the remedies available to the court, which has a right to control its own process once an action has been commenced.” I shall deal with the decision in Fasken shortly.

 

[10]  In Rancourt v. Demetrios, August 31, 1999, Donohue J. said in a brief endorsement:

Applicant Rancourt seeks an Order compelling respondent to attend as per para. 1(6) of the Notice of Application. Respondent, Demetrios, has not commenced an action.

Should she decide to commence one she runs the risk of being penalized in costs and interest should she not comply with s. 258.3(1)(d) of the Insurance Act. However it is her choice whether to commence an action and whether to comply with s. 258.3(1)(d). She may well be penalized in costs and interest if she chooses to bring action. Since she has not yet chosen to go on the playing field I am not prepared to penalize her in advance. The Insurance Act does not provide for compelling attendance where there is as yet no action. To assume that common law vests such jurisdiction would be to write my own Insurance Act. Application dismissed. No costs.

 

[11]  I shall now briefly describe each of the two decisions referred to in Moons v. Maxin, Boulianne and Fasken. In Boulianne, Kennedy J. said:

At issue in this motion is the interpretation of 258.3(9): “Despite subsection (1), a person may commence an action without complying with subsection (1), but the courts shall consider the non-compliance in awarding costs.”

. . . . .

Under the plaintiff’s interpretation, this subsection allows the plaintiff to unilaterally negate the defendant’s rights to notice and disclosure, but with a penalty of having

non-compliance considered in awarding of costs. Such an interpretation is quite plausible given the plain meaning of the words in s. 258.3(9). However, when subjected to a consequential analysis the plaintiff’s interpretation is less compelling.

Many, if not most, cases involving personal injuries suffered in motor vehicle accidents settle and, therefore, the awarding of costs by a judge never occurs and non-compliance would never be penalized. Even if a case did reach the stage where costs are awarded, the Court must only “consider” the plaintiff’s conduct in dealing with costs. The legislation does not force the Court to penalize for non-compliance.

If the plaintiff’s interpretation was accepted, at best s. 258.3(9) would allow plaintiffs to conduct “trial by ambush” in exchange for a mere risk of having costs awarded in favour of the defendant, and at its worst, it would allow the plaintiff to withhold information — thereby impeding settlement — without any consequence at all.

. . . . .

Also, to accept the interpretation of the plaintiff, the court would be permitting one party to unilaterally change the rights of the parties under a contract of insurance which would be unfair and contrary to contractual principles.

 

[12]  In Fasken (Litigation guardian of) v. Iola, the defendants complained that the plaintiffs had not complied with the requirements of s. 258.3(1) and sought an order striking out the statement of claim. In the alternative, they sought an order requiring the plaintiff to comply and declaring that the prejudgment interest on the plaintiffs’ claim be suspended pending compliance. Stinson J. said [at paras. 8-12]:

 

As much as one might agree with the laudable intent behind the early disclosure requirements, one cannot overlook the fact that the legislature saw fit to absolve a plaintiff from non-compliance with them. Section 258.3(9) expressly permits a person to commence an action without complying with s-s. (1); in other words, despite the prohibitory language contained in s-s. (1), in reality it is no prohibition at all.

While the legislation expressly permits non-compliance with the early disclosure requirements, it also imposes sanctions upon a plaintiff who chooses this route. Under

s. 258.3(8) a plaintiff is precluded from recovering prejudgment interest for any period of time prior to the service of a notice under s. 258.3(1)(b). As well, the court is directed to consider a plaintiff’s failure to comply with the notice requirements when awarding costs: see s. 258.3(9).

In light of the express exemption found in s-s. (9) and the sanctions for

non-compliance found in s-ss. (8) and (9), I am not prepared to strike out the statement of claim for non-compliance with the early disclosure requirements of s. 258.3(1).

Indeed, to do so would be contrary to the express provisions of s-s. (9). Nor do I consider it appropriate to make a declaratory order regarding the plaintiffs’ entitlement or disentitlement to prejudgment interest. Subsection (8) expressly addresses that issue and dictates a particular result.

If, as the defendants complain, the purpose of the legislation is not being achieved, the appropriate recourse is to seek an amendment to the statute. In the legislative forum all considerations relevant to the desirability of such a change may be properly weighed.

Turning finally to the request by the moving parties for an order requiring the plaintiffs to comply now with the early disclosure requirements, I am not prepared to grant that relief either. Once again, a party who opts not to make early disclosure is subject to the sanctions found in s-ss. (8) and (9). To that extent, by imposing those sanctions the legislature has already provided a remedy for non-compliance. Absent express authority to do so, I do not consider that the court should create a remedy that the legislature chose not to include.

 

[13]  The last decision that I shall refer to before setting forth my analysis is that of the Divisional Court in Lodge v. Regier, 53 O.R. (3d) 352, [2001] O.J. No. 734, in which the court dismissed an appeal from a decision of McGarry J. which had ordered the plaintiff to undergo a functional activities evaluation under s. 258.3. The decision of the Divisional Court was given on January 2, 2001, before the appeal before us was argued, and its reasons, given by Epstein J., were released on March 5, 2001. These reasons referred to the Boulianne, Moons, and Fasken decisions. After these references, Epstein J. then said [at paras. 12, 13, 15]:

With respect, we disagree [with the Fasken decision]. Ontario enacted no-fault automobile insurance legislation to control the cost of insurance premiums by reducing the cost of motor vehicle claims. Under the Act the insurer is obligated “to attempt to settle the claim as expeditiously as possible.” To facilitate early settlement the legislature has given the insurer enhanced discovery rights before an action is started.

The Act should not be interpreted so as to prevent early resolution of motor vehicle claims. While s. 258.3(9) suggests costs as a sanction against non-compliance with the requirements designed to further this objective, the section should not be construed as prohibiting the court from granting another form of remedy consistent with that objective. Such an interpretation would undermine the legislation’s objectives and unnecessarily fetter the court’s authority to grant a remedy required in the interests of justice. The approach in Boulianne and those cases that followed is justified in terms of its compliance with legislative intent.

. . . . .

Since McGarry J. did have a discretion to make the order, the next question is whether there are grounds to interfere with that discretion. Given that the condition imposed by McGarry J. was designed to protect the plaintiff from any adverse consequences of the Functional Capacities Assessment, we are not persuaded to interfere with the exercise of his discretion.

 

 

 

[14]  With great respect for the contrary view, in my opinion the approach taken in Rancourt and Fasken is the correct one.

 

[15]  There can be no doubt that the object of the legislation is to facilitate the early settlement of claims resulting from motor vehicle accidents and that this is highly desirable. To this end, the defendant is given a right to have information provided to him or her and to request that the plaintiff undergo medical examinations. Although, from the opening flush of s. 258.3(1), it first appears that compliance with clauses (a) to (f) is a condition which must be satisfied before an action may be commenced, s. 258.3(9) indicates that this is not so. It allows a person to commence an action without complying with subsection (1), but makes non-compliance a relevant factor in the award of costs.

 

[16]  In my view, in the legislative scheme, which comprises ss. 258.3 to 258.6, the potential costs sanction is the intended remedy for non-compliance with subsection (1). This scheme, of course, does not expressly make provision for a right to move, or apply for, a court order and I do not think that it would be right to imply such a right or to recognize it in the exercise of the court’s inherent jurisdiction.

 

[17]  The same costs remedy is provided for the failure to comply with the requirements in both s.

258.5 and s. 258.6 (set forth in the appendix to these reasons [appendix omitted]). With respect to s. 258.5, I do not think that it makes sense to imply that a plaintiff has the right to seek a court order compelling an insurer that is defending an action to “attempt to settle the claim as expeditiously as possible”. Similarly, I do not think a court order is contemplated to enforce the requirement of s. 258.6(1) to participate, in the circumstance set forth in that provision, in a mediation of the claim. While the act of undergoing a medical examination, as provided for in s. 258.3(1)(d), is more clear-cut than the acts provided for in ss. 258.5 and 258.6, this should not be a reason for interpreting the three sections differently. The legislative scheme should receive a coherent and consistent interpretation.

 

[18]  The subject matter and purpose of the scheme strongly suggests this. What is involved is not a discovery obligation, such as that of undergoing the defence medical examination provided for in s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 33 [of the Rules of Civil Procedure, R.R.O. 1990, reg. 194] (hereafter referred to as a Rule 33 examination). This obligation is dictated by considerations of procedural fairness, the breach of which can lead to an unfair trial and a judgment not based on the true facts. Failure to comply with an order under Rule 33 can lead to the dismissal of an action (rule 33.07), and understandably so. But failure to comply with a request in s. 258.3(1) can lead only, in some cases, to a claim not being settled as soon as it might otherwise have been settled if there had been compliance. In these circumstances, the consequence is that more time and expense would have been spent on the claim than, possibly, should have been spent. It seems to me that the possible costs sanctions provided for in ss. 258.3(9), 258.5(5), and 258.6(2) are responses logically tailored to remedy the effect of non-compliance. The failure to settle sooner results in increased costs; accordingly, the remedial penalty is to be incorporated in the costs order in the proceeding.

 

[19]  I accept that most claims are settled before trial or judgment but I do not think, as stated in Boulianne, that a plaintiff would never be penalized in costs if his or her non-compliance with s. 258.3(1)(d) could be shown to have prolonged the prosecution of the claim. The plaintiff’s vulnerability to a costs sanction at trial would be a relevant factor in settlement negotiations. Further, the fact that the legislation does not “force the court to penalize for non-compliance”, again as stated in Boulianne, should not count against the sanction effect of s. 258.3(9) in an appropriate case. If the facts showed that the failure of the plaintiff to comply with s. 258.3(1) had nothing to do with a case not settling earlier, it would not be sensible for the plaintiff to suffer costs consequences. An example of such a case would be one where the nature and extent of the plaintiff’s injuries were very much in doubt in the early period and, accordingly, there would be no firm prognosis on which a reasonable settlement could be based.

 

[20]  The potential costs sanction is not the only factor motivating a plaintiff to comply with s. 258.3(1). Most plaintiffs, I think, would be motivated to comply with the provision, in a case which can be fairly and safely settled early on, by the prospect of recovering their compensation, in a settlement, sooner rather than later.

 

[21]  In general terms, I think that to import into the legislation a right to enforce by court order the request that the plaintiff undergo a medical examination makes this scheme more elaborate, costly, and heavy-handed than was contemplated by the legislature. This is emphasized by the fact that if a plaintiff failed to comply with a court order, the result would not be that his or her case would be dismissed on motion by the defendant, as would be the case for non-compliance with discovery obligations in an action (see rules 30.08(2)(b), 31.07(2), 33.07, and 34.15(1)(b)) but, probably, a motion for committal for contempt. I think it highly unlikely that this extreme result was within the legislative purview.

 

[22]  Further, it is clear that in a pre-action situation a court, for obvious reasons, does not have the power to dismiss an action that has not been commenced. Neither can a court stay the commencement of an action because this would be contrary to s. 258.3(9). See Fasken (Litigation guardian of) v. Iola, supra.

 

[23]  Also, it would seem that there would be little chance of settlement in a case where a plaintiff had undergone an examination under a court order before his or her injuries had stabilized. The only result would be that the parties would have incurred extra expenses and the plaintiff would end up, before the case was resolved, having to submit to two examinations, the s. 258.3(1)(d) examination and an inevitable subsequent Rule 33 examination.

 

[24]  A brief comparison between the s. 258.3(1)(d) examination and the one under Rule 33 may be instructive. Although the latter kind of examination is routine in personal injury cases, usually taking place on consent (see rule 33.08), it is dependent on a court order if the parties do not consent. Although a defendant has a prima facie right to choose the doctor who will conduct the examination, the court has a discretion, to be exercised on reasonable grounds, to name another doctor: Holmested and Watson: Ontario Civil Procedure, looseleaf (Toronto: Carswell, 1984- )at p. 33-23. Further, the court has express authority under rule 33.03 to determine any dispute relating to the scope of the examination.

 

[25]  The absolute obligation that the respondents contend is provided for in s. 258.3(1) does not admit of these qualifications. If there is a power in the court to order compliance with s. 258.3(1)(d), and with ss. 258.5(1) and 258.6(1), it would seem that it must be a power to enforce these provisions in accordance with their terms, without qualification. To hold that the court has a discretion to modify a request for an examination, which is made in accordance with the statutory provisions, would be inconsistent with the statute.

 

[26]  These considerations incline me to the view that the legislative scheme was intended to involve plaintiffs submitting to requests, possibly after some variation agreed upon with the defendant, of their own accord and not under the compulsion of a court order. I do not think that the legislature intended the medical examination scheme for settlement purposes to be more inflexible and onerous than the one provided for the purpose of trial.

 

[27]  In Boulianne v. Donovan, supra, as appears from the excerpts set forth above, the court was concerned that the plaintiff’s interpretation of s. 258.3 “would allow plaintiffs to conduct ‘trial by ambush'”. With respect, this could not be so. Before trial, a medical examination, and one which would be more useful because it would be later in time, will have been given under Rule 33.

 

[28]  Further, in Boulianne the court observed that the plaintiff’s interpretation would permit “one party to unilaterally change the rights of the parties under a contract of insurance”. In a tort claim there would be no contractual relationship between the plaintiff and the defendant or the defendant’s insurer.

 

[29]  Finally, in resorting to the inherent jurisdiction of the court to make the order in question, the respondents rely upon the following part of the reasons of this court in 80 Wellesley St. East Ltd. v. Fundy Builders Ltd., [1972] 2 O.R. 280 at p. 282, 25 D.L.R. (3d) 386 (C.A.):

As a superior Court of general jurisdiction, the Supreme Court of Ontario has all of the powers that are necessary to do justice between the parties. Except where provided specifically to the contrary, the Court’s jurisdiction is unlimited and unrestricted in substantive law in civil matters. In Re Michie Estate and City of Toronto et al., [1968] 1 O.R. 266 at pp. 268-9, 66 D.L.R. (2d) 213 at pp. 215-6, Stark, J., after considering the relevant provisions of the Judicature Act and the authorities, said:

It appears clear that the Supreme Court of Ontario has broad universal jurisdiction over all matters of substantive law unless the Legislature divests from this universal jurisdiction by legislation in unequivocal terms. The rule of law relating to the jurisdiction of superior Courts was laid down at least as early as 1667 in the case of Peacock v. Bell and Kendall (1667), 1 Wms. Saund. 73 at p. 74, 85 E.R. 84:

. . . And the rule for jurisdiction is, that nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specifically appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly alleged.

 

[30]  I am doubtful that the order sought in the present proceeding is one that is “necessary to do justice” between the parties in the sense intended in this passage and, further, I am doubtful that what is involved in this case is a matter of substantive law. In any event, if resort is to be had to general principles, I think that the following statement in F.A.R. Bennion, Statutory Interpretation: A Code, 2d ed. (London: Butterworths, 1992) at p. 46 is more in point:

Where sanction provided As Lord Tenterden C.J. said: “Where an Act creates an obligation, and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner.” [Doe d. Bishop of Rochester v. Bridges (1831), 1 B. & Ad. 847 at 859] This “general rule” is stronger in these days of precision drafting, where the drafter may be expected to insert a remedy where one is truly intended.

 

[31]  For these reasons, I would allow the appeal with costs, set aside the order of Jenkins J. and dismiss the application with costs.

 

Order accordingly.

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