AuthorBoivin, Richard


Canada and Mexico share the continent of North America and are important trading partners. Our countries have strong cultural ties that have been forged through immigration and tourism. In addition, our legal and political systems share a degree of commonality. Against this background, I will provide an overview of the Federal Court of Appeal of Canada with a focus on its bijural and bilingual aspects and with a view to providing an understanding of the specificity of the Canadian judicial landscape.


From the outset, some context regarding the creation of the Federal Courts of Canada is required. Canada's original constitution, which created the federal dominion of Canada over 150 years ago, in 1867, provides under section 101 that Parliament may establish Courts for the better administration of the laws of Canada. (1) Under this provision, the predecessor of the Federal Courts, the Exchequer Court of Canada, was created in 1875. (2) The Supreme Court of Canada was created at the same time via the same legislation. (3)

Given that the Exchequer Court was created by statute, it did not have inherent jurisdiction, meaning that it did not have the power to decide just any case; it could only decide cases where jurisdiction had been granted to it by Parliament. While the jurisdiction of the Federal Courts has changed over time, the Exchequer Court's jurisdiction came to include matters such as actions and revenue cases against the Crown, as well as admiralty, intellectual property, and citizenship matters, just like the jurisdiction of the Federal Courts today. In 1971, the Federal Court, which was comprised of a trial division and an appeal division, succeeded the Exchequer Court, principally for the purpose of addressing confusion regarding judicial review. (4)

What is meant by judicial review in Canada? It consists of reviewing the decisions of government boards, commissions, tribunals, and other governmental decision makers. In the years of the Exchequer Court, jurisdiction was shared with other courts, which created confusion in the jurisprudence and some ambiguity regarding the territorial scope of the application of provincial decisions across the country. Initially, the newly created Federal Court was therefore granted exclusive jurisdiction over federal judicial review. Later, in 2003, the Appeal Division became a separate Court rather than a division of the Federal Court. (5) Since then, there have been two courts: the Federal Court, as well as the Federal Court of Appeal, where I now sit as a judge.

How does the Federal Court of Appeal operate? It can likely be compared in Mexico to los Tribunales colegiados de circuito. Like those Courts, the Federal Court of Appeal is a circuit court where judges sit in panels of three across Canada to rule upon matters of federal jurisdiction. All cases that come through the federal system are appealed to the Federal Court of Appeal. The only further appeal from our decisions is to the Supreme Court of Canada and parties must be granted leave by the Supreme Court in order for their appeal to be heard. The Supreme Court only hears a limited number of cases per year, usually between 60 and 70 since 2015. (6) It follows that in practice, approximately 98% of our decisions are final.

There are 17 justices at the Federal Court of Appeal (7) and roughly 500 proceedings are commenced before the Court every year. The judges appointed to the Federal Court of Appeal are representative of Canada's geography and can be composed, from time to time, of judges coming from six different legal backgrounds representing the two legal systems, in French and in English. It follows that a judge may be as follows:

* Anglophone with a common law legal training;

* Francophone with a common law legal training;

* Anglophone with a civilian legal training;

* Francophone with a civilian legal training;

* Anglophone with a common law and civilian legal training; and

* Francophone with a civilian and common law legal training.

The Court's geographic jurisdiction covers all 10 provinces and three territories. As judges of a national court, we are required by law to be based out of Canada's national capital, Ottawa, but we all travel across the country to hear cases, from Vancouver in the west, to Halifax in the east, and occasionally far up north to Whitehorse or Yellowknife. From their creation, the Federal Courts have therefore been providing access to justice in allowing litigants to appear before a national court in their home province or territory. This is a unique feature of the Federal Courts, compared to any other courts in Canada.

In addition, at the Federal Court of Appeal, as is the case throughout the federal judiciary in Canada, the justices were formerly members of a provincial bar prior to being appointed to the bench, meaning that they used to be lawyers. Indeed, unlike many countries, Canada selects and appoints its judges from the practice of law, as opposed to training jurists to become judges from the outset. Personally, I view this as a particular strength of the Canadian judiciary, which is composed of highly accomplished lawyers with extensive experience prior to joining the bench.


So, what do we do at the Federal Court of Appeal? Our jurisdiction is broad and varied. For instance, we hear cases pertaining to administrative law, prison law, tax law, labour law, constitutional law, intellectual property law, and maritime law. Much of our docket is dedicated to hearing appeals of applications for judicial review of decisions from federal boards, commissions or tribunals. As noted earlier, a judicial review is when an affected person asks the Court to review the decision of an administrative decision maker, i.e. a decision that was made by a bureaucrat or a public servant, or by a federally created board, but was not decided in a court of law. Courts will show deference to administrative decision makers, given the executive's prerogative to make these administrative decisions, provided such decisions are not unreasonable or arbitrary and remain within the bounds of legality. Otherwise, judicial intervention is required.

One area of the Federal Court of Appeal's jurisdiction of interest, given that Mexico and Canada are both parties to NAFTA/USMCA, is over the Canadian International Trade Tribunal (the CITT). The CITT is one of the select administrative tribunals from which affected parties have direct access to judicial review at the Federal Court of Appeal and do not first have to apply for judicial review at the Federal Court. While pure NAFTA issues are not adjudicated by the CITT, many types of trade matters are. Many of the cases in front of the CITT are (1) unfair trading practice cases, i.e., dumping cases, where foreign manufacturers sell their products in Canada for less than the price for which they could sell the products in their home country, and (2) subsidy cases, where the CITT determines whether a given subsidy unfairly distorts trade.

The specificity of Canada in this regard is that jurisdiction over such unfair practice cases is split between two bodies, rather than one. These include the Canada Border Services Agency (the CBSA), which is the agency responsible in Canada for facilitating the flow of both persons and goods and enforcing related legislation, i.e., border enforcement. The CBSA decides whether goods have been dumped or subsidized. In parallel, the CITT determines whether the dumping or subsidizing has injured Canadian producers or threatens to harm them in the future. In other words, the CBSA looks at what occurred, while the CITT looks at the effect of what occurred. If either the CBSA or the CITT reaches a negative determination, the inquiries of both bodies end immediately. (8)

In coming to its decisions, the CITT considers relevant decisions of the World Trade Organization (the WTO). While WTO decisions are not binding on the CITT, they are persuasive authority and are regularly argued by parties and relied upon by the CITT.

The CITT also has jurisdiction to inquire into issues that are referred to it by the government and to make recommendations. These inquiries notably include what are called...

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