Radical changes in the constitution and jurisdiction of the courts were made by the Ontario Judicature Act, 1881 (x), which was drawn on the model of the English Supreme Court of Judicature Act 1873 (y). The Court of Appeal for Ontario, the Court of Queen's Bench, the Court of Chancery and the Court of Common Pleas were united and consolidated in one Supreme Court of Judicature for Ontario, consisting of two permanent divisions, namely, the Court of Appeal for Ontario and the High Court of Justice. The last mentioned court was subdivided into three divisions under the names of the Queen's Bench Division, the Chancery Division and the Common Pleas Division, representing the two courts of common law and the court of equity then existing (z), and it was

(u) 36 V. c. 8, An Act for the better administration of Justice in the Courts of Ontario.

(v) 37 V. c. 7, An Act to make further provision for the due Administration of Justice.

(w) 39 V. c. 7, s. 22. In 1883, by the statute 46 V. c. 6, provision was made for the appointment of an additional justice of appeal.

(x) 44 V. c. 5, in effect as of the 22nd of August, 1881.

(y) The English statute, together with an amending statute of 1875, came into effect on the 1st of November, 1875.

(z) By the statute 3 E. 7, c. 8, a fourth division of the High Court of Justice was created in 1903 under the name of the Exchequer enacted that the High Court of Justice should be deemed to be a continuation of the said courts and should have all the jurisdiction vested in such courts prior to the passing of the statute (a).

It is to be noted, however, that though in the statute language is used which would indicate that the old courts continued in existence under new names, the divisions of the High Court of Justice were different from the old independent courts (b). Under the English statute certain kinds of business were assigned to particular divisions. Thus to the Chancery Division were assigned "the redemption or foreclosure of mortgages" and other matters which before the statute were within the exclusive jurisdiction of the Court of Chancery. But this is to be regarded as a mere matter of convenience. The distribution of business might at any time be changed without an act of parliament by rules made by the judges (c), and if an action were brought in the wrong division a judge of that division would have jurisdiction to try it instead of ordering it to be transferred to another division. Under the Ontario statute no distinction was made as to the kind of business which should be assigned to a particular division, and the individual judges of all divisions took their turn in doing every kind of judicial work (d). The only significance of the divisions was that the judges of one division usually sat together to constitute a divisional court.

Division. Provision had already been made by the statute 54 V. c. 13, s. 1, for the decrease in the membership of the Chancery Division from four to three judges.

(a) The latest consolidation of the various statutes by which prior to the Judicature Act jurisdiction was conferred on the different superior courts of law and equity is contained in R.S.O. 1897, c. 51, ss. 25 ff. As to the jurisdiction of the Court of Appeal, see ss. 49 ff.

(b) As to the following observations on the English statute, see Maitland, Equity and the Forms of Action, pp. 15, 16.

(c) Under the English statute even the divisions might be changed without act of parliament. The old courts of common law and equity had given place in 1875 to the Chancery Division, the Queen's Bench Division, the Common Pleas Division, the Exchequer Division, and the Probate, Divorce and Admiralty Division. In 1880 pursuant to a recommendation of the judges an order in council was passed uniting and consolidating the three common law divisions under the name of the Queen's Bench Division.

Furthermore, every judge, to whatever division he belonged, was bound in any case that might come before him to administer both law and equity. The change effected by the Judicature Act (e) in this respect has been well summed up in the following words (f) :

The plaintiff may assert an equitable claim in any court; and may obtain an equitable remedy in any court. The defendant may raise any equitable answer or defence to any claim in any court, that is to say, anything which would formerly have been good by way of answer if the suit had been brought in Chancery, or would have afforded ground for an injunction if the action had been brought at law; he may assert, by way of counter-claim against the plaintiff, any claim, legal or equitable, which he might have raised by a cross-suit at law or in equity; the defendant may also obtain relief relating to, or connected with, the original subject of the action, against other persons, whether already parties or not. Every court is to recognize equitable rights incidentally appearing. No cause is to be restrained by injunction, but what would have been ground for injunction is to be raised by way of defence, or upon an application to stay proceedings. Subject to these provisions, common law rights and duties are to be recognized. Every court is to apply all appropriate remedies, and dispose of all matters in controversy.

With regard to substantive law the Judicature Act (g) contained a long section passed to "amend and declare" the law in various respects. The section ended with these words:

(d) The result is that in Ontario a judge must be a judicial jack of all trades. The principle is carried farther towards its logical conclusion in the Law Reform Act, 1909, hereinafter referred to.

(e) Ontario Judicatures Act, 1881, s. 16; cf. R.S.O. 1914, c. 56, s. 16.

(f) Quoted, with some verbal modifications, from Wilson, Judicature Acts, 7th ed., p. 15.

(g) Ontario Judicature Act, 1881, s. 17.

(10) Generally in all matters not hereinbefore particularly mentioned, in which there is any conflict or variance between the Rules of Equity and the Rules of the Common Law with reference to the same matter, the Rules of Equity shall prevail (h).

The language of the statute just quoted expresses the view, which was probably the prevailing one down to a comparatively modern period (i) that the rules of law and the rules of equity were in "conflict" (j). The opposite view, namely, that the relation between law and equity at the time of the passing of the Judicature Act was not one of conflict has been maintained by Maitland, Langdell, Ames and others (k).

By the Law Reform Act, 1909 (I)', which came into effect on the first of January, 1913, the Supreme Court of Judicature for Ontario was designated the Supreme Court of Ontario, and the High Court of Justice for Ontario and the Court of Appeal for Ontario were designated respectively the

(h) The provision is now contained in R.S.O. 1914, c. 56, s. 22, but many of the other provisions contained in s. 17 of the original act have been distributed among other statutes according to their subject matter.

(i) See W. W. Cook in 27 Yale L.J. 290 (December, 1917), referring to some of the literature on both sides of the question.

(j) Spence, Equitable Jurisdiction of the Court of Chancery (note to book II, chapter I); Pomeroy, Equity Jurisdiction, 2nd ed., secs. 48-54, 427; W. N. Hohfeld, articles in 11 Mich. L.R. 537 (June, 1913), 26 Yale L.J. 767 (June, 1917); W. W. Billson, Equity in its Relations to Common Law, Boston, 1917; W. W. Cook, supra.

(k) Maitland, Equity and the Forms of Action, pp. 16 ff., 156 ff.; Ames, article in 1 Harv. L.R. 1 at p. 9 (April, 1887); Langdell, Brief Survey of Equitable Jurisdiction, 2nd ed., pp. 4 ff., 251 ff., Summary of Equity Pleading, 2nd ed., 210, 211, and articles in 1 Harv. L.R. 55 at p. 58 (May, 1887), 13 Harv. L.R. 659, at pp. 673, 677 (April, 1900); John Adams, Treatise on Equity, 8th ed., xxiv and xxix; cf. 13 Halsbury, Laws of England, 64.

(1) 9 E. 7, c. 28. In 1910, by the statute 10 E. 7, c. 28, provision was made for the appointment of two additional judges of the High Court not to be attached to any division. The result, under the Law Reform Act, is that there are nine judges of the High Court Division in addition to the five judges chosen each year for the second divisional court of the Appellate Division.

High Court Division and the Appellate Division of the Supreme Court of Ontario. The divisions and divisional courts of the High Court were abolished, and the appellate jurisdiction vested in the said courts was transferred to the Appellate Division. It was further provided that there should be at least two divisional courts of the Appellate Division, the first to consist of the Chief Justice of Ontario and four justices of appeal, the second to consist of five members of the High Court Division selected year by year by the judges of the Supreme Court.

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It is now provided by the Judicature Act, R.S.O. 1914, c. 56, ss. 3, 12 and 13, as follows:

3. The Supreme Court shall be continued as a superior court of record, having civil and criminal jurisdiction, and it shall have all the jurisdiction, power and authority which on the 31st day of December, 1912, was vested in or might be exercised by the Court of Appeal or by the High Court of Justice or by a Divisional Court of that Court, and such jurisdiction, power and authority shall be exercised in the name of the Supreme Court.

12.- (1) The Appellate Division shall exercise that part of the jurisdiction vested in the Supreme Court which, on the 31st day of December, 1912, was vested in the Court of Appeal and in the Divisional Courts of the High Court, and such jurisdiction shall be exercised by a Divisional Court of the Appellate Division, and in the name of the Supreme Court.

(2) Except as provided by the next preceding subsection, all the jurisdiction vested in the Supreme Court shall be exercised by the High Court Division in the name of the Supreme Court.

13.- (1) All jurisdiction, power and authority which on the 31st day of December, 1912, was vested in or exercisable by the Chief Justice of Ontario or by a Justice of Appeal, shall be vested in and may be exercised by a Judge of the Appellate Division, and shall be exercised in the name of the Supreme Court.

(2) All jurisdiction, power and authority which on the 31st day of December, 1912, was Vested in or exercisable by a Judge of the High Court shall be vested in and may be exercised by a Judge of the High Court Division, and shall be exercised in the name of the Supreme Court.