The Federal Court of Appeal: Caseload and Decision-Making

• Author: Peter McCormick
• Pages: 103-130

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The Federal Court of Appeal:

Caseload and Decision-Making

Peter McCormick

     of its evolving formal jurisdiction is not

unlike describing a major highway in terms of a line on the map — it is accur-

ate and useful for many purposes, but it leaves many questions unanswered.

What this chapter will undertake is the counterpart of describing the judicial

highway in terms of the type and volume and f‌low of its trac, with some

attention to how this is evolving over time. Further, mapping the types of

cases within the caseload tells us something about what the court does as

an institution, but what do things look like from the point of view of the

individual judges and the immediate litigants? is chapter will provide that

closer look.

e empirical basis for this description is a database of all available

reported decisions of the Federal Court of Appeal since it became a separate

institution in July , as accessed on the internet through the CanLII

website. It would have been distinctly preferable to have pushed the data col-

lection dates back much earlier — ideally, all the way to  — but this coun-

sel-of-perfection ambition was defeated by the simple fact that the online

availability of Federal Court of Appeal decisions drops o dramatically as

the calendar rolls back. Extending the data-collection process for this project

to the thousands of earlier cases reported in print in the law reports was

beyond available resources.

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        

A smaller problem remained even for the period since  : not all cases

are accessible online. e gaps are easily identif‌ied: the modern practice of

most courts is both to report every decision and to make them available online.

is is catalogued through the modern citation style, with each decision iden-

tif‌ied by three elements — XXXX YYY ZZ, where X is the calendar year, Y is

the abbreviation designating the particular court, and Z is the sequential num-

bering of all decisions handed down within that calendar year. To know the

annual caseload for a court, all one need do is look at the citation for the last

judgment handed down in December — if the last decision in (say)  was

 FCA , then we know that the court delivered (at least)  decisions

that year. But CanLII, the source relied on for this project, promises not com-

plete reporting of the Federal Court of Appeal but only “continuous” reporting,

which in practice translates as “most but not all” such decisions. As a result,

the data collection in this chapter caught  percent of all Federal Court of

Appeal decisions before  and about  percent after — just over  per-

cent overall.1

It would be comforting to be able to describe this as an intentional exclu-

sion of the more routine and less jurisprudentially consequential cases (of

which, as Gregory Caldeira once noted, there are a truly surprising number

for all appeal courts).2 However, such an explanation is not entirely convin-

cing. It is true that one set of these numerically identif‌ied decisions has all

but vanished from the CanLII lists for recent years, that being the formal

assessment of court costs by an Assessment Ocer, and this may account

for a good portion of the “missing” cases, but nonetheless there remain some

puzzling and even problematic omissions. To mention only the most glar-

ing example: the decision of the Supreme Court in Smith v Alliance Pipeline3

has been frequently cited by that Court itself as a signif‌icant part of the

new post-Dunsmuir doctrine of standard of review, but the Federal Court of

Appeal decision that generated the appeal is missing from both CanLII and

1 One reason for the discrepancy is orders issued by the court are sometimes assigned

neutral citation numbers even though such orders are often not accompanied by pub-

lished reasons for judgment; this may account for many of the “missing” cases.

2 See Gregory Caldeira, “The Transmission of Legal Precedent: A Study of State Supreme

Courts” (1985) 79:1 American Political Science Review 178; and Ian Greene et al, Final

Appeal: Decision-Making in Canadian Courts of Appeal (Toronto: Lorimer, 1998) at 80f‌f.

3 Smith v Alliance Pipeline, [2011] 1 SCR 160.