Federal Court of Canada

Pre-Confederation to Confederation

Prior to Confederation, the predominantly English-speaking Canada West (which succeeded Upper Canada) and the predominantly French-speaking Canada East (which succeeded Lower Canada) each had a separate system of courts. During pre-Confederation negotiations, the creation of a national court had been contemplated to deal with matters relating to federal law.^[1] The Constitution Act, 1867 thus provided under s. 101 that:

The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.^[2]

Despite the language in the constitution, a national court was not established until 1875.^[1] Prime Minister John A. Macdonald made several attempts between 1869 and 1873 to create a national court under the powers granted to Parliament under s. 101 of the Constitution Act, 1867.^[1] However, these early attempts were rebuffed due to concerns over jurisdiction, particularly because the early proposals would have established a federal Supreme Court exercising both original (trial) jurisdiction and concurrent appellate jurisdiction potentially in conflict with existing courts administered by Ontario and Quebec.^[1]

While no court per se was created, provision was made for the appointment of Official Arbitrators,^[3] whose decisions soon became subject to a final appeal to a Board of Arbitrators,^[4] until a further right of appeal to the new Exchequer Court was created in 1879.^[5]

Exchequer Court

In 1875, the Liberal government of Prime Minister Alexander Mackenzie passed The Supreme and Exchequer Court Act^[6] (introduced by Minister of Justice Telesphore Fournier), which was based on Macdonald's earlier unsuccessful bill of 1870. This act created both the Supreme Court of Canada and the Exchequer Court. The jurisdiction of the Exchequer Court was provided under sections 58 and 59 of the Act:

58. The Exchequer Court shall have and possess concurrent original jurisdiction in the Dominion of Canada, in all cases in which it shall be sought to enforce any law of the Dominion of Canada relating to the revenue, including actions, suits, and proceedings, by way of information, to enforce penalties and proceedings by way of information in rem, and as well in qui tam suits for penalties or forfeitures as where the suit is on behalf of the Crown alone; and the said Court shall have exclusive original jurisdiction in all cases in which demand shall be made or relief sought in respect of any matter which might in England by the subject of a suit or action in the Court of Exchequer on its revenue side against the Crown, or any officer of the Crown. 59. The Exchequer Court shall also have concurrent original jurisdiction with the Courts of the several Provinces in all other suits of a civil nature at common law or equity in which the Crown in the interest of the Dominion of Canada is plaintiff or petitioner.^[6]

The Supreme and Exchequer Court Act made it clear that the Exchequer Court of Canada was inspired by the Court of Exchequer in England, both in name and in jurisdiction, focusing as it did on matters of revenue.^[7] In the same year, however, England abolished the Court of Exchequer, merging its jurisdiction into the High Court of Justice.^[1] Nonetheless, the jurisdiction provided to the Exchequer Court of Canada initially consisted of:

• concurrent original jurisdiction over all cases relating to the enforcement of the revenue laws;
• exclusive original jurisdiction over any demand or relief sought in like manner as the English Court of Exchequer in its revenue side; and
• concurrent original jurisdiction over all civil cases where the Crown is the plaintiff or petitioner.

The independence of the Exchequer Court was not immediately established. Indeed, justices of the Supreme Court also sat as justices of the Exchequer Court in the early years.^[7] The two Courts were not separated until 1887, at which time the functions of the Official Arbitrators were subsumed into the Exchequer Court.^[8] George W. Burbidge, a lawyer from New Brunswick, was the first Exchequer Court judge appointed under this new arrangement.^[7] At the same time, the Court's jurisdiction was expanded to include exclusive original jurisdiction over all claims against the Crown.^[9]

Jurisdiction over railway insolvency

Beginning in 1901, railways gained the ability under the Railway Act to apply to the Court to secure a scheme of arrangement in the event of insolvency.^[10]

Acquisition of admiralty jurisdiction

While s. 96 of the BNA Act, 1867 constituted the superior courts in the provinces, admiralty law jurisdiction was not conferred on them, which continued to be vested in the vice-admiralty courts under the British Vice Admiralty Courts Act, 1863.^[11] Separate courts existed in British Columbia, Lower Canada, New Brunswick and Nova Scotia.^[12] The absence of such a court for Ontario led to the Parliament of Canada, exercising its power under s. 101, to create the Maritime Court of Ontario through the passage of the Maritime Jurisdiction Act 1877.^[13] This was held to be a valid exercise of federal jurisdiction by the Supreme Court of Canada in 1879.^[14]

This mix of courts was rationalized after the British Parliament passed the Colonial Courts of Admiralty Act 1890,^[15] where British possessions were authorized to create their own courts of admiralty jurisdiction.^[16] This was followed shortly with the passage of the Admiralty Act 1891,^[17] which consolidated such jurisdiction throughout Canada in the Exchequeur Court of Canada, which under the British Act "may exercise such jurisdiction in like manner and to as full an extent as the High Court in England, and shall have the same regard as that Court to international law and the comity of nations."^[18]

The extent of this jurisdiction was held to be only that which existed on 1 July 1891, in an appeal decided in 1927 by the Judicial Committee of the Privy Council.^[19] This situation only changed after the Statute of Westminster 1931 came into force, after which Canada passed the Admiralty Act 1934,^[20] which broadened Canadian admiralty jurisdiction to match that of the High Court of England at that time:

18(1) The jurisdiction of the Court on its Admiralty side shall extend to and be exercised in respect of all navigable waters, tidal and non-tidal, whether naturally navigable or artificially made so, and although such waters be within the body of a county or other judicial district, and, generally, such jurisdiction shall, subject to the provisions of this Act, be over the like places, persons, matters and things as the Admiralty jurisdiction now possessed by the High Court of Justice in England, whether existing by virtue of any statute or otherwise, and be exercised by the Court in like manner and to as full an extent as by such High Court.^[21]

Federal Court of Canada

In 1971, the Federal Court of Canada was established, consisting of two divisions (the "Federal Court – Trial Division" and the "Federal Court – Appeal Division"), inheriting much of the jurisdiction of the Exchequer Court.^[22] The Federal Court of Canada gained the jurisdiction to hear judicial reviews from federal agencies and tribunals.^[23] With respect to maritime jurisdiction, the Trial Division was declared to have:

concurrent original jurisdiction ... in all cases in which a claim for relief is made or a remedy is sought under or by virtue of Canadian maritime law or any other law of Canada relating to any matter coming within the class of subject of navigation and shipping except to the extent that jurisdiction has been otherwise specially assigned.^[24]

On July 2, 2003, the Court was split into two separate Courts, with the "Trial Division" continued as the Federal Court and the "Appeal Division" continued as the Federal Court of Appeal.^[25]

Until 1976, there was substantial judicial support^[26][27] for the view that Parliament could give a federal court jurisdiction over any matter (even a matter not regulated by federal statute law), on the basis that "the Laws of Canada" meant not only federal statutes, but provincial ones as well. However, in Quebec North Shore Paper Co. v. Canadian Pacific,^[28] the Supreme Court of Canada rejected this notion, as:

• provincial law is not pro tanto federal law, nor can it be transposed into federal law for the purposes of giving jurisdiction to the Federal Court.
• judicial jurisdiction of the Federal Court is not co-extensive with legislative jurisdiction of Parliament, as "the Laws of Canada" carries the requirement that there be applicable and existing federal law

Discover more about History related topics

Canadian Confederation

Canadian Confederation

Canadian Confederation was the process by which three British North American provinces, the Province of Canada, Nova Scotia, and New Brunswick, were united into one federation called the Dominion of Canada, on July 1, 1867. Upon Confederation, Canada consisted of four provinces: Ontario and Quebec, which had been split out from the Province of Canada, and the provinces of Nova Scotia and New Brunswick. Over the years since Confederation, Canada has seen numerous territorial changes and expansions, resulting in the current number of ten provinces and three territories.

Canada East

Canada East

Canada East was the northeastern portion of the United Province of Canada. Lord Durham's Report investigating the causes of the Upper and Lower Canada Rebellions recommended merging those two colonies. The new colony, known as the Province of Canada, was created by the Act of Union 1840 passed by the Parliament of the United Kingdom, having effect in 1841. For administrative purposes, the new Province was subdivided into Canada West and Canada East. The former name of "Lower Canada" came back into official use in 1849, and as of the Canadian Confederation of 1867 it formed the newly created province of Quebec.

Lower Canada

Lower Canada

The Province of Lower Canada was a British colony on the lower Saint Lawrence River and the shores of the Gulf of Saint Lawrence (1791–1841). It covered the southern portion of the current Province of Quebec and the Labrador region of the current Province of Newfoundland and Labrador.

Constitution Act, 1867

Constitution Act, 1867

The Constitution Act, 1867, originally enacted as the British North America Act, 1867, is a major part of the Constitution of Canada. The act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system. In 1982, with the patriation of the Constitution, the British North America Acts which were originally enacted by the British Parliament, including this Act, were renamed. Although, the acts are still known by their original names in records of the United Kingdom. Amendments were also made at this time: section 92A was added, giving provinces greater control over non-renewable natural resources.

John A. Macdonald

John A. Macdonald

Sir John Alexander Macdonald was the first prime minister of Canada, serving from 1867 to 1873 and from 1878 to 1891. The dominant figure of Canadian Confederation, he had a political career that spanned almost half a century.

Original jurisdiction

Original jurisdiction

In common law legal systems original jurisdiction of a court is the power to hear a case for the first time, as opposed to appellate jurisdiction, when a higher court has the power to review a lower court's decision.

Ontario

Ontario

Ontario is one of the thirteen provinces and territories of Canada. Located in Central Canada, it is Canada's most populous province, with 38.3 percent of the country's population, and is the second-largest province by total area. Ontario is Canada's fourth-largest jurisdiction in total area when the territories of the Northwest Territories and Nunavut are included. It is home to the nation's capital city, Ottawa, and the nation's most populous city, Toronto, which is Ontario's provincial capital.

Alexander Mackenzie (politician)

Alexander Mackenzie (politician)

Alexander Mackenzie was a Canadian politician who served as the second prime minister of Canada, in office from 1873 to 1878.

Exchequer of Pleas

Exchequer of Pleas

The Exchequer of Pleas, or Court of Exchequer, was a court that dealt with matters of equity, a set of legal principles based on natural law and common law in England and Wales. Originally part of the curia regis, or King's Council, the Exchequer of Pleas split from the curia in the 1190s to sit as an independent central court. The Court of Chancery's reputation for tardiness and expense resulted in much of its business transferring to the Exchequer. The Exchequer and Chancery, with similar jurisdictions, drew closer together over the years until an argument was made during the 19th century that having two seemingly identical courts was unnecessary. As a result, the Exchequer lost its equity jurisdiction. With the Judicature Acts, the Exchequer was formally dissolved as a judicial body by an Order in Council on 16 December 1880.

George Burbidge

George Burbidge

George Wheelock Burbidge was a Canadian lawyer, judge and author. After being called to the bar of New Brunswick in 1872, he became a partner in the Saint John, New Brunswick law firm of Harrison and Burbidge.

Lawyer

Lawyer

A lawyer is a person who practices law. The role of a lawyer varies greatly across different legal jurisdictions. A lawyer can be classified as an advocate, attorney, barrister, canon lawyer, civil law notary, counsel, counselor, solicitor, legal executive, or public servant — with each role having different functions and privileges. Working as a lawyer generally involves the practical application of abstract legal theories and knowledge to solve specific problems. Some lawyers also work primarily in advancing the interests of the law and legal profession.

New Brunswick

New Brunswick

New Brunswick is one of the thirteen provinces and territories of Canada. It is one of the three Maritime provinces and one of the four Atlantic provinces. It is the only province with both English and French as its official languages.

The Court consisted of a first-level trial court, known as the Federal Court of Canada – Trial Division, and an appellate Court, known as the Federal Court of Canada – Appeal Division (more commonly referred to as the Federal Court of Appeal).

The Trial Division had jurisdiction to hear judicial review of decisions of federal boards and tribunals, including most immigration matters, as well as jurisdiction in admiralty, intellectual property, and disputes involving the federal government.

The Appeal Division had jurisdiction to hear appeals of decisions of the Trial Division, as well as to determine applications for judicial review of decisions made by specific boards and tribunals, set out in section 28 of the Federal Court Act. Decisions of the Appeal Division could be appealed to the Supreme Court of Canada, but only if leave (permission) was granted by either court.

The court did not use juries so all matters were decided by judge alone: a single judge in the Trial Division and a panel of three judges at the appeal level. Some pre-trial steps such as motions were decided by prothonotaries, a role similar to a master in other courts. The judges and prothonotaries were appointed by the Cabinet of the federal government.

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Admiralty law

Admiralty law

Admiralty law or maritime law is a body of law that governs nautical issues and private maritime disputes. Admiralty law consists of both domestic law on maritime activities, and private international law governing the relationships between private parties operating or using ocean-going ships. While each legal jurisdiction usually has its own legislation governing maritime matters, the international nature of the topic and the need for uniformity has, since 1900, led to considerable international maritime law developments, including numerous multilateral treaties.

Intellectual property

Intellectual property

Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, copyrights, trademarks, and trade secrets. The modern concept of intellectual property developed in England in the 17th and 18th centuries. The term "intellectual property" began to be used in the 19th century, though it was not until the late 20th century that intellectual property became commonplace in the majority of the world's legal systems.

Supreme Court of Canada

Supreme Court of Canada

The Supreme Court of Canada is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian law, and grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts. The Supreme Court is bijural, hearing cases from two major legal traditions and bilingual, hearing cases in both official languages of Canada.

Jury

Jury

A jury is a sworn body of people (jurors) convened to hear evidence and render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment.

Judge

Judge

A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility and arguments of the parties, and then issues a ruling in the case based on their interpretation of the law and their own personal judgment. A judge is expected to conduct the trial impartially and, typically, in an open court.

Motion (legal)

Motion (legal)

In United States law, a motion is a procedural device to bring a limited, contested issue before a court for decision. It is a request to the judge to make a decision about the case. Motions may be made at any point in administrative, criminal or civil proceedings, although that right is regulated by court rules which vary from place to place. The party requesting the motion may be called the moving party, or may simply be the movant. The party opposing the motion is the nonmoving party or nonmovant.

Prothonotary

Prothonotary

The word prothonotary is recorded in English since 1447, as "principal clerk of a court," from L.L. prothonotarius, from Greek protonotarios "first scribe," originally the chief of the college of recorders of the court of the Byzantine Empire, from Greek πρῶτος protos "first" + Latin notarius ("notary"); the -h- appeared in Medieval Latin. The title was awarded to certain high-ranking notaries.

Cabinet of Canada

Cabinet of Canada

The Cabinet of Canada is a body of ministers of the Crown that, along with the Canadian monarch, and within the tenets of the Westminster system, forms the government of Canada. Chaired by the prime minister, the Cabinet is a committee of the King's Privy Council for Canada and the senior echelon of the Ministry, the membership of the Cabinet and Ministry often being co-terminal; as of November 2015 there were no members of the latter who were not also members of the former.

Unlike the general courts set up by each province, matters could not be brought before the Federal Court of Canada unless a law explicitly allowed the proceeding. The docket of the court primarily consisted of judicial reviews of immigration, intellectual property, and federal employment disputes. The court could also deal with incidental aspects of a dispute that fell outside its jurisdiction if the primary dispute was within its jurisdiction.

The court was a national court so trials and hearings occurred throughout Canada. Any orders rendered by the court were enforceable in all the provinces and territories. This contrasts with the provincial superior courts which are organized by each province and require additional steps to enforce decisions in other provinces.

Presidents of the Exchequer Court of Canada

The position of President of the Court was not created until 1923. Before that time, justices of the Supreme Court of Canada sat as judges of the Exchequer Court from 1875 to 1887, at which time George Wheelock Burbidge was appointed as the first full-time judge of the Court. He served until 1908. when Walter Cassels was appointed. In 1912, authority was given to appoint an associate judge to the Court, and Louis Arthur Audette was appointed to that position. In 1945, authority was given to appoint more judges to the Court.

From 1923, the Presidents of the Court were:

• Sir Walter Gibson Pringle Cassels, 1920–1923
• Alexander Kenneth Maclean, 1923–1942
• Joseph Thorarinn Thorson, 1942–1964
• Wilbur Roy Jackett, 1964–1971 (subsequently Chief Justice of the Federal Court of Canada)

Discover more about Jurisdiction related topics

Judicial review

Judicial review

Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompatible with a higher authority: an executive decision may be invalidated for being unlawful or a statute may be invalidated for violating the terms of a constitution. Judicial review is one of the checks and balances in the separation of powers: the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. The doctrine varies between jurisdictions, so the procedure and scope of judicial review may differ between and within countries.

Immigration

Immigration

Immigration is the international movement of people to a destination country of which they are not natives or where they do not possess citizenship in order to settle as permanent residents or naturalized citizens. Commuters, tourists, and other short-term stays in a destination country do not fall under the definition of immigration or migration; seasonal labour immigration is sometimes included, however.

Intellectual property

Intellectual property

Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, copyrights, trademarks, and trade secrets. The modern concept of intellectual property developed in England in the 17th and 18th centuries. The term "intellectual property" began to be used in the 19th century, though it was not until the late 20th century that intellectual property became commonplace in the majority of the world's legal systems.

Supreme Court of Canada

Supreme Court of Canada

The Supreme Court of Canada is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian law, and grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts. The Supreme Court is bijural, hearing cases from two major legal traditions and bilingual, hearing cases in both official languages of Canada.

George Burbidge

George Burbidge

George Wheelock Burbidge was a Canadian lawyer, judge and author. After being called to the bar of New Brunswick in 1872, he became a partner in the Saint John, New Brunswick law firm of Harrison and Burbidge.

Walter Cassels

Walter Cassels

Sir Walter Gibson Pringle Cassels was a Canadian lawyer and judge. He was the first President of the Exchequer Court of Canada from 1920 until his death in 1923.

Louis Arthur Audette

Louis Arthur Audette

Louis Arthur Audette was a Canadian lawyer and judge of the Exchequer Court of Canada.

Alexander Kenneth Maclean

Alexander Kenneth Maclean

Alexander Kenneth Maclean, was a Canadian politician and judge.

Joseph Thorarinn Thorson

Joseph Thorarinn Thorson

Joseph Thorarinn Thorson, was a lawyer and politician from Winnipeg, Manitoba, Canada.

Wilbur Jackett

Wilbur Jackett

Wilbur Roy Jackett, was a Canadian scholar, public servant, jurist, and the first chief justice of the Federal Court of Canada.

Current judges

Prior judges

The judges of this court are listed below.^[30]

  = former judge of the Exchequer Court of Canada

  = stepped down from original appointment

† = died in office

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Cecily Strickland

Cecily Strickland

Cecily Y. Strickland is a justice with the Federal Court of Canada. Before her appointment she was a lawyer at the firm Stewart McKelvey in St. John's, Newfoundland and Labrador. She is a graduate of the Marine Institute of Memorial University of Newfoundland and Dalhousie Law School, now known as Schulich School of Law.

Federal Court (Canada)

Federal Court (Canada)

The Federal Court is a Canadian trial court that hears cases arising under certain areas of federal law. The Federal Court is a superior court with nationwide jurisdiction.

Arthur L. Thurlow

Arthur L. Thurlow

Arthur Louis Thurlow was a Canadian politician and judge. He represented the electoral district of Lunenburg County in the Nova Scotia House of Assembly from 1949 to 1953. He was a member of the Nova Scotia Liberal Party.

Gerald Le Dain

Gerald Le Dain

Gerald Eric Le Dain, was a Canadian lawyer and judge, who sat on the Supreme Court of Canada from 1984 to 1988.

James Jerome

James Jerome

James Alexander Jerome, was a Canadian jurist and former politician and Speaker of the House of Commons of Canada.

James K. Hugessen

James K. Hugessen

James Cornelius Knatchbull-Hugessen, known professionally as James K. Hugessen, is a judge currently serving on the Federal Court of Canada. He is the son of the senator Adrian Knatchbull-Hugessen.

Francis C. Muldoon

Francis C. Muldoon

The Honourable Francis Creighton Muldoon was a Canadian judge of the Federal Court of Canada from July 18, 1983 until September 4, 2001.

Bud Cullen

Bud Cullen

Jack Sydney George "Bud" Cullen, was a Canadian Federal Court judge and politician.

Alice Desjardins

Alice Desjardins

Alice Desjardins is a former judge of the Canadian Federal Court of Appeal, having served from June 29, 1987, to August 11, 2009. In 2013, Desjardins was listed as a NAFTA adjudicator.

Frank Iacobucci

Frank Iacobucci

Frank Iacobucci is a former Puisne Justice of the Supreme Court of Canada from 1991 until his retirement from the bench in 2004. He was the first Italian-Canadian, allophone judge on the court. Iacobucci was also the first judge on the Supreme Court to have been born, raised and educated in British Columbia. Iacobucci has had a distinguished career in private practice, academia, the civil service and the judiciary.

Allen Linden

Allen Linden

Allen Martin Linden,, was a Justice of the Federal Court of Appeal and distinguished tort law professor. He was named an Officer of the Order of Canada in 2015.

Gilles Létourneau

Gilles Létourneau

Gilles Létourneau is a Canadian lawyer/attorney and judge currently serving on the Canadian Federal Court of Appeal and Court Martial Appeal Court of Canada.