The Trials and Tribulations of the Federal Courts' Jurisdiction

• Author: Craig Forcese
• Pages: 73-102

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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

project.

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.