The Federal Courts and Administrative Law

• Author: Paul Daly & Vincent-Alexandre Fournier
• Pages: 267-294

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 8

The Federal Courts and

Administrative Law

Paul Daly & Vincent-Alexandre Fournier*

  ,   the Federal Court Act, making

the newly created Federal Court of Canada the principal reviewing court in

administrative law.1 Before its adoption, “judicial review of federal adminis-

trative action was conducted by the provincial superior courts as an aspect of

their inherent jurisdiction.”2 Letting provincial superior courts review federal

administrative action presented many problems. Decentralization was under-

mining the uniformity of the interpretation and application of federal law,

which was becoming increasingly crucial with the emergence of the federal

regulatory state and the resulting profusion of federal administrative deci-

sion-makers.3 Conf‌licts between provincial courts over the interpretation of

federal law were exacerbated by the absence of a binding doctrine of stare

decisis between them and the impossibility of resolving discordance with-

out the intervention of the Supreme Court.4 For example, Alberta courts

* Vincent-Alexandre Fournier would like to note that the views he expresses in this

chapter are solely his own and do not express the views or opinions of the Supreme

Court of Canada.

1 Federal Court Act, SC 1970-71-72, c 1. Now the Federal Courts Act, RSC 1985, c F-7.

2 Strickland v Canada (Attorney General), [2015] 2 SCR 713 at para 17, Cromwell J.

3 Canada (Attorney General) v TeleZone Inc, [2010] 3 SCR 585 at para 49, Binnie J [Tele-

zone]; Donald JM Brown & John M Evans, Judicial Review of Administrative Action in

Canada (Toronto: Thomson Reuters, 2017) at para 2:4100.

4 Ibid.

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

could uphold the authorization for building a pipeline, and British Columbia

courts quash it, forcing the Supreme Court to resolve the conf‌lict, even if the

case involved no important point of law.5 e federal government believed

that a single reviewing court would bring uniformity to federal law and pro-

vide the opportunity for its judges to develop subject matter expertise that

superior court judges mostly lacked since they encountered federal law only

occasionally.6 As a result, Parliament dissolved the Exchequer Court dating

from , created the Federal Court of Canada, and granted it exclusive

jurisdiction over judicial review of federal administrative action.7 In ,

its Trial and Appeal Divisions became two separate courts: the Federal Court

and the Federal Court of Appeal.

e Federal Court has judicial review jurisdiction over acts of “any fed-

eral board, commission or other tribunal.”8 But some applications against

certain bodies such as the National Energy Board and the Canada Transpor-

tation Agency are subject to the f‌irst-instance judicial review jurisdiction of

the Federal Court of Appeal by virtue of section  of the Federal Courts Act.

Since their creation, judicial review in Federal Courts has touched many

central aspects of the federation. It ranges from the construction of billion-dol-

lar pipelines in the West9 to f‌isheries in the Atlantic,10 passing by railway ship-

ping in the Prairies11 and foreign aairs decisions of the federal government.12

e Federal Courts’ relevance to the interpretation and application of federal

law is undeniable. However, their impact on administrative law nationwide

is also signif‌icant. Because of their more limited jurisdiction over private law

5 See Canada (Human Rights Commission) v Canadian Liberty Net, [1998] 1 SCR 626 at

para 33, Bastarache J [Liberty Net]; TeleZone, above note 3 at para 50.

6 Ibid at para 49; Brown & Evans, above note 3 at para 2:4100.

7 Federal Courts Act, above note 1 at ss 18 and 28. See Canada Labour Relations Boardv

Paul L’Anglais Inc, [1983] 1 SCR 147, Chouinard J, where the Supreme Court found con-

stitutional the grant of this exclusive jurisdiction pursuant to section 101 of the Constitu-

tion Act, 1867 (UK), 30 & 31 Vict, c 3. See also Liberty Net, above note 5 at para 33, and

TeleZone, above note 3 at para 49. For a full discussion of these issues, see Chapter 6.

8 Federal Courts Act, above note 1 at s 18. To alleviate the text, the shorter expression

“federal board” will be used.

9 Gitxaala Nation v Canada, 2016 FCA 187, leave to appeal to the SCC refused, Rain-

forest Conservation Foundation v Canada, [2016] SCCA 386 [Gitxaala].

10 Association des crevettiers acadiens du Golfe inc v Canada (Attorney General), 2011 FC

305, Bédard J.

11 Louis Dreyfus Commodities Canada Ltd v Canadian National Railway Company, 2018

FCA 87, Near J.

12 Turp v Canada (Foreign Af‌fairs), 2018 FCA 133, Nadon J.