The Trials and Tribulations of the Federal Courts' Jurisdiction

AuthorCraig Forcese
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 2
The Trials and Tribulations of the
Federal Courts’ Jurisdiction
Craig Forcese*
     of an institution’s power.1 In a
judicial context, it “is shorthand for the collection of attributes that enables
a court or tribunal to issue an enforceable order or judgment.2 A court has
jurisdiction “if its authority extends to ‘the person and the subject matter in
question and, in addition, has authority to make the order sought’.3
Jurisdiction is a preoccupation for any court. It is, however, an especially
pressing concern for the Federal Courts. In our interviews, Federal Courts
judges regularly expressed preoccupations with the Federal Courts’ jurisdic-
tion and concern with how the Supreme Court of Canada had construed it.
Cases like Windsor(City) v Canadian Transit Co,4 discussed below, hang over the
Federal Courts. Windsor ranked behind only Dunsmuir v New Brunswick5 (the
then-most important decision in administrative law) as the Supreme Court
* The author would like to thank uOttawa JD-candidates Francesca Ghossein and
Stephanie Wright for their diligent research assistance in preparing this chapter, and
more generally for their work in compiling the oral history that accompanied this book
1 Oxford English Dictionary, “Jurisdiction,” accessed August 2019.
2 Canada (Attorney General) v TeleZone Inc, [2010] 3 SCR 585 [TeleZone].
3 Ibid, citing Mills v The Queen, [1986] 1 SCR 863, McIntyre J, at 960, quoting Brooke J in
R v Morgentaler (1984), 41 CR (3d) 262 (Ont CA) at 271.
4 Windsor (City) v Canadian Transit Co, [2016] 2 SCR 617 [Windsor].
5 Dunsmuir v New Brunswick, [2008] 1 SCR 190.
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        
case having had the greatest impact on the Federal Courts, according to the
judges and former judges interviewed for this book. Interviewees sometimes
regard features of Supreme Court cases as displacing, unpredictably, prior
understandings of the Federal Courts’ role a view shared also by some
academic commentators. Put another way, jurisdiction is an occasional source
of inter-judicial tension.
e chapter discusses the basis for Federal Courts jurisdiction and espe-
cially the role and interpretation of the Federal Courts Act.6 I begin with a brief
overview of the constitutional basis for the Federal Courts, and then distin-
guish between “statutory courts” and courts of “inherent jurisdiction.” In the
second part, I examine the waxing and waning of Federal Courts jurisdiction
under the Federal Courts Act, focusing on the Federal Courts’ origin in the
Exchequer Court of Canada, the troublesome f‌irst iteration of Federal Court
jurisdiction in the original Federal Court Act, ,7 and the impact of Supreme
Court jurisprudence on that Act. e third part focuses on the “reboot” of
Federal Court jurisdiction, mostly through amendments to the Federal Court
Act enacted in  and in force in . Finally, the fourth part examines
the current situation and new uncertainties (and reactions to those uncer-
tainties) sparked by the Supreme Court’s recent pronouncements on Federal
Courts jurisdiction.
Jurisdiction in Constitutional Context
     jurisdiction ref‌lects their place in
the pantheon of Canadian courts. Con stitutionally, Parliament created the
Federal Courts under section  of the Constitution Act, 1867.8 In addition to
authorizing a national supreme appeal court, that provision empowers Par-
liament to “provide for the Constitution, Maintenance, and Organization
. . . of any additional Courts for the better Administration of the Laws of
Canada.”9 As created by Parliament in the Federal Courts Act, Federal Courts
6 Federal Courts Act, RSC 1985, c F-7 [Federal Courts Act].
7 Federal Court Act, SC 1970-71-72, c 1 [Federal Court Act, 1970].
8 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3 [Constitution Act, 1867].
9 Ibid, s 101. Other section 101 courts include the Tax Court of Canada and the Court
Martial Appeal Court of Canada. The f‌irst court deals with tax matters and is, essen-
tially, a special, tax-specif‌ic, administrative court. The second hears appeals from
court martials applying the Code of Service Discipline to members of the Canadian
Forces. As such, it is principally a criminal law court, albeit one that applies rules
more extensive than those applicable to civilians.

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