The Federal Court of Appeal: Caseload and Decision-Making

AuthorPeter McCormick
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 3
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 consequ ential 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 b eing 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.

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