A Brief History of the Federal Court of Appeal and the Federal Court

AuthorIan Greene
[  ]
 1
A Brief History of the Federal Court of
Appeal and the Federal Court
Ian Greene*
    , created in , is a key nation-building
institution. e split of the court in  into the Federal Court and the
Federal Court of Appeal marked another milestone in Canada’s legal and
judicial development. ese courts continue to have a profound impact on
the advancement of the rule of law in Canada, and their jurisprudence has
an increasingly signif‌icant impact on the lives of Canadians, the decisions of
the Supreme Court and other Canadian courts, as well as international courts.
ey are the only courts in Canada that are bilingual, bijural, and itinerant.
e statutory jurisdiction of the Federal Court and the Federal Court
of Appeal includes important matters such as national security, intellectual
property, federal administrative law, Indigenous land and treaty claims, mari-
time law, and citizenship, immigration, and refugee law. e establishment
of the Federal Court of Canada was a continuation and expansion of its pre-
decessor, the Exchequer Court, which had been established by Parliament in
, but it was at the same time a dramatic and controversial expansion of
its jurisdiction. e remarkable story of the growth and development of this
continuum of courts since  revolves around the dedication and leader-
ship of key members of the judiciary of these institutions over the decades.
* In writing this chapter, I acknowledge the helpful assistance of Naomi Stuleanu and
Jacob Blum, two of my Research Assistants, and my colleague Bruce Preston.
[  ]
        
In , the Federal Court had thirty-seven full-time judges,1 ten super-
numerary judge s,2 and eight judicial ocers known as prothonotaries.3 e
Federal Court of Appeal had twelve full-time judges and f‌ive supernumerary
judges. In , the associate (puisne) judges in each court earned ,
annually, and the two chief justices earned ,.4e judges of the Fed-
eral Court and the Federal Court of Appeal constitute less than three percent
of the Canadian judiciary.5 However, these two relatively small courts are of
great consequence to the Canadian legal landscape. e Federal Courts are
pan-Canadian, itinerant courts, which means the judges travel across the
country to hear cases. With good reason, hearings may be heard anywhere,
including smaller localities such as Stando, a town in the Kainai Nation
territory in Al berta.6 e Federal Court and Federal Court of Appeal have
had a signif‌icant impact on public policy in Canada through cases such as
the Trans-Mountain Pipeline decisions of  and 7 and the decision
1 These numbers ref‌lect the position of the Federal Court in April 2020. At that time,
there were two unf‌illed vacancies and an additional three judicial positions and one
prothonotary position that were created in recent years but up to the time of writing
have not been f‌illed.
2 A supernumerary judge is a judge eligible for retirement who has elected to take
supernumerary status, retaining their role as a judge, and being available for judicial
duty as assigned by the Chief Justice, for at least 50 percent of a full-time workload.
See sections 5.2 and 5.1(2) of theFederal Courts Act, RSC 1985, c F-7 [Federal Courts
Act] and section 28 of the Judges Act, RSC 1985, c J-1.
3 Prothonotaries are “full judicial ocers and exercise many of the powers and functions
of Federal Court judges. Their authority includes mediation, case management, prac-
tice motions (including those that may result in a f‌inal disposition of the case, regard-
less of the amount in question), as well as trials of actions in which up to $50,000 is
claimed”: Canada, Oce of the Commissioner for Federal Judicial Af‌fairs Canada,
“Overview of Appointments of Prothonotaries of the Federal Court” (4 July 2017),
online: www.a-cmf.gc.ca/appointments-nominations/Prothonotaries-Protonotaires/
4 Budget Implementation Act, 2017, No 1, SC 2017, c 20. All federally appointed judges
in Canada below the Supreme Court level earn the same amounts, with chief justices
earning somewhat more than associate judges. Adjustments to judicial salaries are
recommended every four years by the Judicial Compensation and Benef‌its Commis-
sion: Canada, Judicial Compensation and Benef‌its Commission, “Home” (8 June 2020),
online: http://quadcom.gc.ca/pg_JcJc_QC_01-eng.php.
5 There were 2,291 judges in Canada in early 2020, according to court websites. About
53 percent of these are appointed by the federal government.
6 Jim Shot Both Sides v Canada, 2019 FC 789.
7 Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 153 [Tsleil-Waututh
Nation] and Coldwater First Nation v Canada (Attorney General), 2020 FCA34 [Cold-
water First Nation].
[  ]
A Brief History of the Federal Court of Appeal and the Federal Court
striking down the Stephen Harper government’s limits to medical assist-
ance provided to refugees.8 ese courts have also set the stage for landmark
Supreme Court decisions involving security and terrorism,9 administrative
la w,10 and the fair treatment of immigrants.11 Finally, they have been at the
forefront of justice system reform, setting the gold standard in Canadian
courts for casef‌low management, delay reduction, and access to justice.
Both the Exchequer Court and the Federal Court of Canada were con-
ceived in controversy. In the s some of the Canadian bar and provincial
judiciaries were opposed to the idea of a separate court for some spe cialized
areas of federal law. e court’s expanded jurisdiction and pan-Canadian
presence in the s was also met with some opposition. However, by ,
the Federal Court and Federal Court of Appeal have f‌irmly established them-
selves as essential features of the Canadian legal system.
is chapter summarizes the story of the challenges and successes of
these unique courts. References are made to the seventy-eight interviews con-
ducted by the four principal authors with fourteen current (as of September
) and ten retired judges from the Federal Court of Appeal, with forty-two
current and f‌ive retired judges from the Federal Court, and with six current
and one retired prothonotary.12 (e results of these interviews are reviewed
in more detail in Chapter .) Examples are pre sented of some notable deci -
sions of the courts that illustrate the work they do and have done.13
8 Canadian Doctors for Refugee Care v Canada (Attorney General), 2014 FC 651 [Canadian
Doctors for Refugee Care].
9 For example, Khadr v Canada (Minister of Justice), 2006 FC 509, reversed 2007 FCA
182, and Charkaoui v Canada (Citizenship and Immigration), [2004] 3 FCR 32 [Charkaoui
FC], af‌f’d 2004 FCA 421 [Charkaoui FCA], which provided the background to the sub-
sequent landmark Supreme Court decision, [2007] 1 SCR 350 [Charkaoui SCC], which
reversed them.
10 Canada (Citizenship and Immigration) v Vavilov, 2017 FCA132, af‌f’d 2019 SCC 65.
11 For example, Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR
817 [Baker SCC].
12 All fourteen judges sitting on the Federal Court of Appeal as of September 2018
were interviewed, which included f‌ive supernumerary judges. Forty-two of forty-four
judges then sitting on the Federal Court were interviewed, including nine super-
numerary judges, and all six prothonotaries were interviewed.
13 The seventy-eight judges and prothonotaries interviewed were asked to name cases
that attracted public attention, and some of these cases are mentioned in this chap-
ter. Other cases are noted because of their public policy implications.

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