Ontario. Legislative Assembly.

Correspondence, papers and documents, of dates from 1856 to 1882 inclusive, relating to the northerly and westerly boundaries of the province of Ontario online

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Online LibraryOntario. Legislative AssemblyCorrespondence, papers and documents, of dates from 1856 to 1882 inclusive, relating to the northerly and westerly boundaries of the province of Ontario → online text (page 67 of 86)
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effect thereto.

* That by an Act of the last session, the Legislature of Ontario did consent that the
boundaries of the Province, as determined by the said award, should be declared to be
the northerly and westerly boundaries of the Province of Ontario, and by a further Act
made provision for the administration of justice in the northerly and westerly parts of
Ontario.

That on the 16th January, 1869, the Government of the Dominion of Canada,
through its members and representatives, contended before Her Majesty's Imperial Got-
emment that the western boundary " extended to and included the country between the
Lake of the Woods and Red River," and that the northern boundary included " the
whole region of Hudson's Bay."

That the boundaries then claimed by the Government of the Dominion, oA behalf of
Canada, as against the pretensions of the Hudson's Bay Company, would, on the same
grounds, be the boundaries of the Province of Ontario, and would give to Ontario a ter-
ritory vastly in excess of that embraced in the award of the Arbitrators.

That by an Order in Council, approved on the 28th November, 1871, the constitn-
tional advisers of His Excellency the Governor-General of Canada, obtained the sanction
of the Crown to the statement that "it was of much consequence that the ascertaining
and fixing on the ground of the boundary line in question, should be, as far as possible,
expedited,-" that by another Order in Council, approved on the 9th April, 1872, His
Excellency's advisers obtained the assent of the Crown to the opinion that both Govern-
ments would " feel it their duty to settle, without delay, upon some proper mode d
determining in an authoritative manner, the true position of such boundary ;" that by
another Order in Council, approved on the 7th November, 1872, His Excellency's advisen



• .Tdurnals Leg. Ass., 1880, Vol. 13, p. IfiO.

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RESOLUTIONS OF THE LEGISLATIVE ASSEMBLY OF ONTARIO, 1880. S87



obtained the further sanction of the Crown to the statement that " the importance of
obtaining an authoritative decision as to the limits, to the north and to the west, of the
Promce of Ontario had already been affirmed by a Minute in Council/* and " that the
establishment of criminal and civil jurisdiction and the necessity of meeting the
demands of settlors and miners for the acquisition of titles to lands, combined to render
sach a decision indispensible."

That although so long since as the 12th November, 1874, and as the result of pro-
tracted negotiations, the Gk>vernment of Canada, by Order in Council, consented to concur
in the proposition of the €U)vernment of Ontario to determine the northern and western
boundaries of Ontario by means of a reference ; and although information was from
time to time given to Parliament by the Government of Canada of the progress of the
arrangements for such reference, no action was taken, nor was any effort made by or in
the Parliament of Canada, previous to the award being given, to arrest or prevent the
reference agreed upon by the respective Governments of Canada and Ontario ; that in
May, 1878, the Parliament of Canada granted $15,000 to defray the expenses of the
Ontario Boundary Commission.

That this House regrets that, notwithstanding the joint and concurrent action of
the respective Governments in the premises, and the unanimous award of the Arbitrators,
the Government of Canada has hitherto failed to recognize the validity of the said award,
and that no legislation has been submitted to Parliament by the Government of Canada
for the purpose of confirming the said award.

That nevertheless it is, in the opinion of this House, the duty of the Government
of Ontario to take such steps as may be necessary to provide for the due administration
of justice in the northerly and westerly parts of Ontario,' and that this House believes it
to be of the highest importance to the interests of this Province, and to the securing of
the peace, order and good government of the said northerlyand westerly parts of Ontario,
that the rights of this Province, as determined ^nd declared by the award of the arbitra-
tors appointed by the concurrent agreement and action of the Governments of Canada
and Ontario, should be firmly maintained.

That this House will at all times give its cordial support to the assertion, by the
Qovemment of Ontario,, of the just claims and rights of this Province, and to all neces-
sary or proper measures to vindicate such just claims and rights, and to sustain the
award of the Arbitrators by which the northerly and westerly boundaries of this Province
have been determined.

The Resolutions were carried on the following division :

Yeas. — Messieurs Appleby, Awrey, Badgerow, Ballantyne, Baxter, Bell, Bishop,
Bleiard, Boulter, Broder, Calvin, Cascaden, Chisholm, Creighton, Crooks, Dryden, Field,
Fraser, Freeman, French, Gibson (Huron,) Gibson (Hamilton), Graham, Haray, Hawley,
Hay, Jelly, Kerr, Laidlaw, Lauder, Livingston, Long, Lyon, McCraney, McKim, Mc-
Laughlin, McMahon, Mack, Meredith, Metcalfe, Monk, Morgan, Morris, Mowat, Nairn,
Near, Neelon, Pardee, ParkhiU, Paxton, Richardson, Robinson (Card well), Ross, Sin ;lair^
Springer, Striker, Tooley, Waters, Watterworth, White, Widdifield, Wigle, Wood,
Young — 64.

Nay.— Mr. Miller— 1.



Thk Srorbta&t of Statk to tub Libutbnant-Govbrnor.*

Ottawa, 13th March, 1880.

Sir, — Adverting to the letters of Mr. Under-Secretary Langevin to the Honourable
the Provincial Secretary of Ontario, under date the 14th and 17th ultimo, and their
respective enclosures, I have the honour to request that you will inform me whether your

» Seas. Papers, Ont., 1881, No. 80, p. 10.

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388 KEPORT OF ATTORNEY-GEN. ON ONT. ACT RESPECTING ADMIN. OF JUSTICE.



Government intends to address to this Government any commimication with reference to
the Act, cap. 19, 42 Vic. (1879), "An Act respecting the Administration of Justice in
the Northerly and Westerly parts of Ontario."*

I have the honour to be, Sir,

Your obedient servant.



His Honour the Lieutenant-Governor of Ontario,
Toronto.



J. C. AlKINS,

Secretary of State,



Report of the Attorney-Genbral of Ontario, 15th March, 1880, on the Ontario
Act respecting the Administration of Justice in the Northerly and West-
erly Parts of Ontario.!

The undersigned respectfully submits the following observations on a despatch of
the Under-Secretary of State, dated the 1 4th day of February ultimo, transmitting a
copy of an Order of His Excellency the Governor-General in Council, concurring in a
Report of the Honourable Minister of Justice, wherein it is stated, that, in the opinion
of the Minister, an Act passed by the Legislature of this Province at its last session,
entitled ^^An Act respecting the Administration of Justice in the Northerly and
Westerly parts of Ontario," should be disallowed, unless the same were repealed within
the time for disallowance. The undersigned has also had under consideration a copy
of the said report, transmitted in a subsequent despatch, dated the 1 7th day of February.

The objections suggested to the Act, in the Report of the Minister of Justice,
are these :-;—

(1) That the Act is "based on the assumption that the award of the Right Honour-
able Sir Edward Thornton, the Honourable Sir Francis Hincks, and the late Chief Jus-
tice Harrison, respecting the northerly and westerly boundaries of Ontario, settles such
Boundaries f and (2) that (independently of that question) the Act " seems to encroach
upon the powers of the Dominion Government, with respect to the appointment of
judges, and goes far beyond any previous Act of a similar character/'

With respect to the first objection, it is matter of profound disappointment that,
after the exhaustive investigation which the question of our northerly and westerly
boundaries received, and the unanimous decision, eighteen months ago, by the distin-
guished and able gentlemen selected as arbitrators, the Government of the Dominion is
not yet prepared to abide by the award, or to recognize the just rights of the Province
which the award established ; but the Honourable the Minister of Justice appears to
have overlooked that the Act in question (while making no allusion whatever to ^e
award) assumes no more with regard to the extent of our territory than that we have some
territory west of " a line known as the provisional westerly boundary line of Ontario,"
and some territory north " of the height of land separating the wat^ which flow into
Hudson's Bay from those which flow into Lake Superior and the Georgian Bay." Now,
independently of a mass of other proofs in favour of Ontario's claim, our right to terri-
tory as far west as the Lake of the Woods, and as far north as the boundary or shore of
Hudson's Bay, is demonstrated by the terms of the Royal Commissions, from the 27th
December, 1774, to Sir Guy Carleton, Captain-General and Govemor-in-Chief of the
Province of Quebec, and the subsequent commissions to successive Governors-General,
to the commission to Lord Elgin, of the 1st October, 1846, being the last of the com-

»

« [See, in order of date, pp. 378, 384, 385 and 387, afUe, the Beport of the Minister of JoBtice, dated
20th January, 1880; the Dominion Order in Conncil approvfng thereof, dated 12th February, 1880; and the
communications of 14th and 17th February, and 13th March, 1880, respectively— all relating to the disal-
lowance of the Act in question.— 6. £. L. J

t Sees. Papers, Ont., 1881, No. 30, p. 11.



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REPORT OF ATTORNEY-QEN. ON OJIT. ACT RESPECTING ADMIN. OF JUSTICE. 389



missions to our Governors-General which contained boundary line descriptions. There
is far more reason for maintaining that the award gave us too little, than for maintain-
ing that it gave us too much ; and it gave us considerably less than Dominion Ministers
had claimed before the purchase of the rights of the Hudson's Bay Company. The
Minister of Justice does not, however, advise the disallowance of the Act on this groumi,
bat advises its disallowance upon the ground of the other objection which he suggests,
naniely, that the Act " seems to encroach upon the powers of the Dominion Government
with respect to the appointment of judges, and goes far beyond any previous Act of a
similar character."

The undersigned is respectfully of opinion that this objection has arisen from inad-
vertence, as he will now proceed to shew.

The Minister refers altogether to the 6th section of the Act, and to the jurisdiction
which it confers on the District Court of Algoma — " a Court," he observes, " the judge
of which is appointed by the Lieutenant-Governor, and the salary and allowances of
whom are fixed by the Provincial Legislatura" Now, the fact is, that by the British
North America Act, it is provided that the Govemor-G^eneral has the appointment of
the judges, not only of Superior and County Courts, but of District Courts also ; and
the lOOth section provides that the salaries and allowances of the judges of District
Courts are, like those of the Superior and County Court judges, to be fixed and provided
by the Parliament of Canada. These sections have always' been held to apply to the
judge of the District Court of Algoma ; and accordingly, ever since Confederation, his
salary has been provided by the Parliament of Canada, and not by this Province. The
present judge was appointed previous to Confederation; and it has not before been
suggested that the Lieutenant-€k>vernor has the power of appointing his successor, or
that the Provincial Legislature has anyt^ng to do with his salaty or allowances. The
undersigned respectfully submits that there is no ground whatever for either suggestion.

The Minister refers also to the 10th, 14th, and 15th sections of our Act. The 14th
section relates to the costs in the District Court; and the 10th and 15th provide for the
appointment of certain additional officers for the transaction of the business of the same
Court ; namely, a Deputy Clerk and a Sheriff. The undersigned assumes that the right
of the Province to pass these sections was not intended to be questioned by the Minister
or by the Dominion Government.

The only other suggested encroachment " upon the powers of the Dominion Govern-
ment with respect to the appointment of judges," is the jurisdiction which the Act gives
bo stipendiary magistrates, these officers being appointed by the Lieutenant-Governor.
The Minister observes that several of the Provinces " of Canada have, since Confedera-
tion, provided for the appointment of officers called Magistrates, Stipendiary Magistrates,
Commissioners, etc., and have given to these officers certain judicial functions." As
illustrative of this statement, the Minister refers to an Act of the Legislature of British
Columbia, respecting the Gold Commissioner's Court in that Province ; which Act pur-
ported to give to the Gold Commissioner, who was a local officer to be appointed by the
lieutenant-Govemor, very extensive jurisdiction in civil matters. But, as respects this
Province, the office of stipendiary magistrate was not created since Confederation, but
had existed under our laws for many years previously. These officers are for unorganized
tracts, where the population is too sparse, and the transactions are too limited, to require
or justify the holding of Courts of Assize or County Courts ; and the object or policy
was, and is, to provide by such means for the due administration of justice in such terri-
tories until the population and transactions should become such as to require and justify
other judicial arrangement& Under the law in force for this purpose at the time of Con-
federation (C. S. U. C, chap. 128), a stipendiary magistrate had part of the jurisdiction
which, in the more settled portions of the Province, belonged to County Court judges,
and part of that which, in the more settled portions, belonged to the Superior Courts.
By the 13th section of the Act, Stipendiary Magistrates were authorized to hold Division
Courts, which, elsewhere in the PJ^vince, were held by County Court judges ; and by
the 23rd section, jurisdiction was given to them in all personal actions (save as therein-
after excepted) where the debt or damages did not exceed $100. In Divitnon Courts,
presided over by County Court judges (C. S. TJ. C, chap. 19, sec. 65), it was only as to



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390 REPORT OF ATTORNET-OEN. ON ONT. ACT RESPECTING ADMIN. OF JUSTICE.



claims and demands of a specified . kind that the jurisdiction existed to try cases of that
amount ; while in other personal actions, the jurisdiction was confined to cases where
the debt or damages claimed did not exceed $40. By the 74th and 75th sections of
C. S. XJ. C, chap. 128, a stipendiary magistrate had jurisdiction, by consent of parties,
to refer to arbitration matters in dispute, " within the jurisdiction of the Court as to
subject-matter, but irrespective of amount, if not exceeding )800 f the arbitration to be
''to such persons, and in such manner, aiid in such terms, as he may think reawmable
and jusf The stipendiary magistrate had jurisdiction also to set aside the award, oit
to enforce it as a judgment of his court — an authority which, in the case of so large an
amount, belonged, elsewhere in the Province, to a Superior Court or judge only.

Such was the jurisdiction of these temporary officers when the British Nort^ America
Act was passed ; and yet, their appointment, or the duty of providing for their salaries
and allowances, was not given to the Dominion authorities, and therefore fell to the
Province. Whether, if the office were a new one, unknown before Confederation, or if
a stipendiary magistrate had, by law, before Confederation, no part of the jurisdictioii
which was exercised elsewhere by judges of the Superior or District or County Courts,
the Legislature would have had jurisdiction to create the office, or to give to the holder
of it the jurisdiction mentioned, is another question altogether ; but it is plain, under
the British North America Act, that, as respects our distant outlying and sparsely popu-
lated territories, it is no encroachment on Dominion authority to assign to stipendiary
magistrates some of the authority belonging elsewhere in the Province to Courts the
appointment of whose judges, and payment of whose salaries, are given to the Dominion.

Before Confederation, the provisions of the Act last mentioned were in operation in
the District of Nipissing. Immediately afterwards, the opening up and partial settle-
ment of Mudcoka and Parry Sound rendered desirable the extension of ;the same pro-
visions to these territories. This could, uncler the Act, have been legally done by
proclamation of the Lieutenant-Governor, without further legislation ; but an Act of the
Legislature in each case was preferred, and was passed (31 Vic, chap. 35; 33 Vie,
chap. 24). Subsequently, similar provisions were in the same way extended to Thunder
Biiy, by 34 Vic, chap. 4. These statutes were passed by the first Legislature of Ontario,
and while the late Honourable John Sandfield Macdonald was Attomey-Oeneral of
Ontario, and Sir John A. Macdonald was Minister of Justice. The report on the Act
now in question does not name these Acts, but names a subsequent Act of Ontario,
passed in 1877, by which similar provisions had been applied to Uie Provisional County
of Haliburton.

With reference to these Acts, it may be observed here that the l^slation of the
Parliament of Canada respecting Keewatin and the North- West Territory, shews that
the Parliament of the Dominion agrees, as well with the Parliament of the old Province
of Canada, as with the Legislature of Ontario in 1868, 1869, 1871, and 1877, that
exceptional legislation is required for territories so thinly populated as those in question.
The jurisdiction which the Ontario Act of last session conferred upon the stipendiary
magistrates therein mentioned is not nearly so great as that conferred by Dominion
statutes upon similar magistrates in the territories of the Dominion.

The undersigned further respectfully submits, that, as the administration of justice
in the Province, including the constitution, maintenance, and organization of Provincial
Courts, belongs exclusively to the Provincial Legislature, it is to this Province alone that
the right belongs of determining what the extent, from time to time, should be of the
jurisdiction of these temporary officers. The Act in question, however, did not extend
their jurisdiction in our undisputed territory in case of money den^ds, but merely gave
a much-needed authority in a few other matters as to which otherwise the people would
have no practicable remedy. Thus the 19th section gave to the stipendiary magistrates
the authority which is conferred upon County Court judges elsewhere by the statute re-
specting over-holding tenants, an authority ordinarily exercised by those judges in Cham-
bers. A reference to R. S. O., chap. 137, sec. 3, will show that this jurisdiction only
exists where tenants over-hold without colour of right, and the 6th section provides for
the action taken being subject to the supervision of the Superior Courts.

With respect to any territory which Ontario may have west of the provisional boun-



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RRPOBT OF ATTORNEY-GEN. ON ONT, ACT RESPECTING ADMIN. OF JUSTICE. 391



dary line or north of the height of lan4, the jurisdiction given to the stipendiary magis-
trate sitting in a Division Court is by the 8th section increased from $100 to $200 in
certain classes of cases, namely, in suits relating to debt contract and covenant, or to
$400, where the amount is ascertained by the signature of the defendant; provided,
however, that the contract or covenant was made within the limit for which the Court is
held, or provided the cause of action arose therein, or the defendant resides therein. The
purdiasing power of $200 in this territory now is less than of $100 when that sum was
named. Jurisdiction is also given in minor cases between landlord and tenant, and in
replevin, where the value of the goods claimed does not exceed $100 ; an appeal is provided
for from the decision of the magistrate where the amount claimed is $200 or upwards, or
where title to land or other corporeal property is in question (section 16> sub-section 4) ;
and, on the other hand, vmious matters are excluded from the jurisdiction of the Magis-
trate, namely, actions for gambling debts, for spirituous or malt liquors, for malicious
prosecution, libel, slander, criminal conversation, seduction, or breach of promise of mar-
riage, and actions against a justice of the peace for anything done by him in the execu-
tion of his office, if he objects thereto. These provisions show that the Legislature has
carefully refrained from trusting to the decision of the stipendiary magistrate matters
likely to be of an important nature, and has guarded the rights of parties by providing a
convenient mode of appeal where the money or property in question appears sufficient to
jostify an appeal.

These considerations make it plain that the present Act bears no analogy to the
British Columbia Act, which purported to confer upon Mining Courts jurisdiction in all
personal actions arising within the limits of their respective districts.

The undersigned trusts that, in view of these considerations, the Qovemment of
Canada will perceive that the Act in question is not objectionable on any ground urged
against it, and that its disallowance is not necessary, and would not, under sJl the circum-
stances, l>e a proper exercise of Dominion authority.

The despatch was received when the recent session of the Legislature was &ir ad-
vanced, and it appeared necessary therefore to provide at once for the contingency of the
disallowance, it being assumed that the Dominion Qovemment, in common with the Prov-
ince, felt and would recognize the propriety of some provision being made for the admin-
istration of justice, instead of the territory in question being left to utter lawlessness and
anarchy. A new Act was accordingly passed, which is not to go to into effect unless and
until the former Act is disallowed. The new Act confines the jurisdiction of the stipen-
diary magistrates, as regards subject-matter and amo^t, to the limits provided for by the
law in force before Confederation, and avoids any disputable reference to the extent of
territory within which the Act is to operate, leaving that question to be wholly de-
termined, as may be, by the law and the right.

As the territory in dispute is included in the territory which the Province of Canada
before Confederation claimed as part of Canada, and therefore of Canada West, or Upper
Canada ; and in the territory to which the Dominion, through its Ministers, after Confed-
eration, and until the purchase from the Hudson's Bay Company, made the same claim,
and on the same grounds ; and which territory the Province of Ontario continued after-
wards to claim ; and as the territory, still it seems in dispute, was eighteen months ago
solemnly awarded to the Province as its rightful property by the unanimous decision of
three arbitrators of the highest character and competency, who had been mutually chosen
by the two Qovemment8,^-it is obvious that the »prtma facie right to the territory, if not
(as we insist) the certain and absolute right, is, and must be taken to be, in Ontario ; and
it is the consequent obvious duty of the Province to make such reasonable provision as
may be practicable for the administration of justice among the population of the territory.
The dispute or delay on the part of the Dominion with respect to the award causes uncer-
tainty and its daily increasing and grave evils in connection with the administration of
justice ; and if the dispute or delay is to continue, the undersigned is respectfully of
opinion that the evils referred to, which all must regret, will be intensified by the disal-
lowance of the Provincial legislation, and that their removal, or partial removal, calls
rather for provisional legislation by the Dominion (without prejudice to the matter in
dispute), expressly giving to the laws of Ontario and its officers authority in the tern-



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tJ92 CORRESPONDENCE AS TO THE ACT RESPECTING ADMIN. OF JUSTICE, ETC. :



tory, pending the dispute by the Dominion, or pending the settlement and recognition of
the true boundaries.

The undersigned respectfully recommends that, in case the views which the under-



Online LibraryOntario. Legislative AssemblyCorrespondence, papers and documents, of dates from 1856 to 1882 inclusive, relating to the northerly and westerly boundaries of the province of Ontario → online text (page 67 of 86)