Federal Court of Canada

The Federal Court of Canada, which succeeded the Exchequer Court of Canada in 1971, was a national court of Canada that had limited jurisdiction to hear certain types of disputes arising under the federal government's legislative jurisdiction. Originally composed of two divisions, the Appellate Division and the Trial Division, in 2003 the Court was split into two separate Courts, the Federal Court and the Federal Court of Appeal. The court used facilities at the Supreme Court of Canada Building as well as Thomas D'Arcy McGee Building and registry office at 90 Elgin Street.

History

Pre-Confederation to Confederation

Prior to Confederation, the predominantly English-speaking Canada West (which succeeded Upper Canada) and the predominantly French-speaking Canada East (which succeeded Lower Canada) each had a separate system of courts. During pre-Confederation negotiations, the creation of a national court had been contemplated to deal with matters relating to federal law.<ref name=Bushnell>Template:Cite book</ref> The Constitution Act, 1867 thus provided under s. 101 that:

The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.<ref>Constitution Act, 1867, s 101.</ref>

Despite the language in the constitution, a national court was not established until 1875.<ref name=Bushnell/> Prime Minister John A. Macdonald made several attempts between 1869 and 1873 to create a national court under the powers granted to Parliament under s. 101 of the Constitution Act, 1867.<ref name=Bushnell/> However, these early attempts were rebuffed due to concerns over jurisdiction, particularly because the early proposals would have established a federal Supreme Court exercising both original (trial) jurisdiction and concurrent appellate jurisdiction potentially in conflict with existing courts administered by Ontario and Quebec.<ref name=Bushnell/>

While no court per se was created, provision was made for the appointment of Official Arbitrators,<ref>Template:Cite canlaw</ref> whose decisions soon became subject to a final appeal to a Board of Arbitrators,<ref>Template:Cite canlaw</ref> until a further right of appeal to the new Exchequer Court was created in 1879.<ref>Template:Cite canlaw</ref>

Exchequer Court

In 1875, the Liberal government of Prime Minister Alexander Mackenzie passed The Supreme and Exchequer Court Act<ref name=1875Act>Template:Cite canlaw</ref> (introduced by Minister of Justice Telesphore Fournier), which was based on Macdonald's earlier unsuccessful bill of 1870. This act created both the Supreme Court of Canada and the Exchequer Court. The jurisdiction of the Exchequer Court was provided under sections 58 and 59 of the Act:

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The Supreme and Exchequer Court Act made it clear that the Exchequer Court of Canada was inspired by the Court of Exchequer in England, both in name and in jurisdiction, focusing as it did on matters of revenue.<ref name=Iacobucci>Template:Cite journalTemplate:Subscription required</ref> In the same year, however, England abolished the Court of Exchequer, merging its jurisdiction into the High Court of Justice.<ref name=Bushnell/> Nonetheless, the jurisdiction provided to the Exchequer Court of Canada initially consisted of:

• concurrent original jurisdiction over all cases relating to the enforcement of the revenue laws;
• exclusive original jurisdiction over any demand or relief sought in like manner as the English Court of Exchequer in its revenue side; and
• concurrent original jurisdiction over all civil cases where the Crown is the plaintiff or petitioner.

The independence of the Exchequer Court was not immediately established. Indeed, justices of the Supreme Court also sat as justices of the Exchequer Court in the early years.<ref name=Iacobucci/> The two Courts were not separated until 1887, at which time the functions of the Official Arbitrators were subsumed into the Exchequer Court.<ref>Template:Cite canlaw</ref> George W. Burbidge, a lawyer from New Brunswick, was the first Exchequer Court judge appointed under this new arrangement.<ref name=Iacobucci/> At the same time, the Court's jurisdiction was expanded to include exclusive original jurisdiction over all claims against the Crown.<ref>1887 Act, ss. 15-17</ref>

Jurisdiction over railway insolvency

Beginning in 1901, railways gained the ability under the Railway Act to apply to the Court to secure a scheme of arrangement in the event of insolvency.<ref>Template:Cite canlaw, later consolidated as Template:Cite canlaw</ref>

Acquisition of admiralty jurisdiction

While s. 96 of the BNA Act, 1867 constituted the superior courts in the provinces, admiralty law jurisdiction was not conferred on them, which continued to be vested in the vice-admiralty courts under the British Vice Admiralty Courts Act 1863 (26 & 27 Vict. c. 24 (UK)).<ref>Template:Cite canlaw</ref> Separate courts existed in British Columbia, Lower Canada, New Brunswick and Nova Scotia.<ref>1863 Act, Schedule A</ref> The absence of such a court for Ontario led to the Parliament of Canada, exercising its power under s. 101, to create the Maritime Court of Ontario through the passage of the Maritime Jurisdiction Act 1877.<ref>Template:Cite canlaw</ref> This was held to be a valid exercise of federal jurisdiction by the Supreme Court of Canada in 1879.<ref>Template:Cite CanLII</ref>

This mix of courts was rationalized after the British Parliament passed the Colonial Courts of Admiralty Act 1890,<ref>Template:Cite canlaw</ref> where British possessions were authorized to create their own courts of admiralty jurisdiction.<ref>1890 Act, s. 3</ref> This was followed shortly with the passage of the Admiralty Act 1891,<ref>Template:Cite canlaw</ref> which consolidated such jurisdiction throughout Canada in the Exchequeur Court of Canada, which under the British Act could "exercise such jurisdiction in like manner and to as full an extent as the High Court in England, and shall have the same regard as that Court to international law and the comity of nations."<ref>1890 Act, s. 2(2)</ref>

The extent of this jurisdiction was held to be only that which existed on 1 July 1891, in an appeal decided in 1927 by the Judicial Committee of the Privy Council.<ref>Template:Cite BAILII</ref> This situation only changed after the Statute of Westminster 1931 came into force, after which Canada passed the Admiralty Act 1934,<ref>Template:Cite canlaw</ref> which broadened Canadian admiralty jurisdiction to match that of the High Court of England at that time:

18(1) The jurisdiction of the Court on its Admiralty side shall extend to and be exercised in respect of all navigable waters, tidal and non-tidal, whether naturally navigable or artificially made so, and although such waters be within the body of a county or other judicial district, and, generally, such jurisdiction shall, subject to the provisions of this Act, be over the like places, persons, matters and things as the Admiralty jurisdiction now possessed by the High Court of Justice in England, whether existing by virtue of any statute or otherwise, and be exercised by the Court in like manner and to as full an extent as by such High Court.<ref>1934 Act, s. 18</ref>{{#if:|

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Federal Court of Canada

In 1971, the Federal Court of Canada was established, consisting of two divisions (the "Federal Court – Trial Division" and the "Federal Court – Appeal Division"), inheriting much of the jurisdiction of the Exchequer Court.<ref>Template:Cite canlaw</ref> The Federal Court of Canada gained the jurisdiction to hear judicial reviews from federal agencies and tribunals.<ref>1970-72 Act, s. 18</ref> With respect to maritime jurisdiction, the Trial Division was declared to have:

concurrent original jurisdiction ... in all cases in which a claim for relief is made or a remedy is sought under or by virtue of Canadian maritime law or any other law of Canada relating to any matter coming within the class of subject of navigation and shipping except to the extent that jurisdiction has been otherwise specially assigned.<ref>1970-72 Act, s. 22(1)</ref>{{#if:|

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On July 2, 2003, the Court was split into two separate Courts, with the "Trial Division" continued as the Federal Court and the "Appeal Division" continued as the Federal Court of Appeal.<ref>Template:Cite canlaw</ref>

Until 1976, there was substantial judicial support<ref>Template:Cite journal</ref><ref>Template:Cite BAILII</ref> for the view that Parliament could give a federal court jurisdiction over any matter (even a matter not regulated by federal statute law), on the basis that "the Laws of Canada" meant not only federal statutes, but provincial ones as well. However, in Quebec North Shore Paper Co. v. Canadian Pacific,<ref>Template:Cite CanLII</ref> the Supreme Court of Canada rejected this position, as:

• provincial law is not pro tanto federal law, nor can it be transposed into federal law for the purposes of giving jurisdiction to the Federal Court.
• judicial jurisdiction of the Federal Court is not co-extensive with legislative jurisdiction of Parliament, as "the Laws of Canada" carries the requirement that there be applicable and existing federal law

Organization

The Court consisted of a first-level trial court, known as the Federal Court of Canada – Trial Division, and an appellate Court, known as the Federal Court of Canada – Appeal Division (more commonly referred to as the Federal Court of Appeal).

The Trial Division had jurisdiction to hear judicial review of decisions of federal boards and tribunals, including most immigration matters, as well as jurisdiction in admiralty, intellectual property, and disputes involving the federal government.

The Appeal Division had jurisdiction to hear appeals of decisions of the Trial Division, as well as to determine applications for judicial review of decisions made by specific boards and tribunals, set out in section 28 of the Federal Court Act. Decisions of the Appeal Division could be appealed to the Supreme Court of Canada, but only if leave (permission) was granted by either court.

The court did not use juries so all matters were decided by judge alone: a single judge in the Trial Division and a panel of three judges at the appeal level. Some pre-trial steps such as motions were decided by prothonotaries, a role similar to a master in other courts. The judges and prothonotaries were appointed by the Cabinet of the federal government.

Jurisdiction

Unlike the general courts set up by each province, matters could not be brought before the Federal Court of Canada unless a law explicitly allowed the proceeding. The docket of the court primarily consisted of judicial reviews of immigration, intellectual property, and federal employment disputes. The court could also deal with incidental aspects of a dispute that fell outside its jurisdiction if the primary dispute was within its jurisdiction.

The court was a national court so trials and hearings occurred throughout Canada. Any orders rendered by the court were enforceable in all the provinces and territories. This contrasts with the provincial superior courts which are organized by each province and require additional steps to enforce decisions in other provinces.

Presidents of the Exchequer Court of Canada

The position of President of the Court was not created until 1923. Before that time, justices of the Supreme Court of Canada sat as judges of the Exchequer Court from 1875 to 1887, at which time George Wheelock Burbidge was appointed as the first full-time judge of the Court. He served until 1908. when Walter Cassels was appointed. In 1912, authority was given to appoint an associate judge to the Court, and Louis Arthur Audette was appointed to that position. In 1945, authority was given to appoint more judges to the Court.

From 1923, the Presidents of the Court were:

• Sir Walter Gibson Pringle Cassels, 1920Template:Endash1923
• Alexander Kenneth Maclean, 1923Template:Endash1942
• Joseph Thorarinn Thorson, 1942Template:Endash1964
• Wilbur Roy Jackett, 1964Template:Endash1971 (subsequently Chief Justice of the Federal Court of Canada)

Judges

Prior judges

The judges of this court are listed below.<ref>Template:Cite web</ref>

Template:Color box = former judge of the Exchequer Court of Canada

Template:Color box = stepped down from original appointment

† = died in office

Judges of the Federal Court of Canada, June 1, 1971 Template:Endash July 2, 2003

Name	Trial Division	Appeal Division	Associate Chief Justice	Chief Justice	Left office	Transferred to
						Federal Court	Federal Court of Appeal
Wilbur R. Jackett				June 1, 1971	October 1, 1979
Camilien Noël			June 1, 1971		July 4, 1975
Jacques Dumoulin		June 1, 1971			December 1, 1972
Arthur L. Thurlow		June 1, 1971	December 4, 1975	January 4, 1980	May 5, 1988
Alexander Cattanach	June 1, 1971				July 26, 1984
Hugh F. Gibson	June 1, 1971				December 14, 1981
Allison Walsh	June 1, 1971				June 30, 1986
Roderick Kerr	June 1, 1971				September 1, 1975
Louis Pratte	June 10, 1971	January 25, 1973			January 1, 1999
Darrel V. Heald	June 30, 1971	December 4, 1975			August 27, 1994
Frank U. Collier	September 15, 1971				December 31, 1992
John J. Urie		April 19, 1973			December 15, 1990
Raymond G. Décary	September 13, 1973				January 31, 1984
Patrick M. Mahoney	September 13, 1973	July 18, 1983			October 31, 1994
George A. Addy	September 17, 1973				September 28, 1990
William F. Ryan		April 11, 1974			August 1, 1986
Jean-Eudes Dubé	April 9, 1975				November 6, 2001
Gerald Le Dain		September 1, 1975			May 28, 1984<ref name="ReferenceA">Elevated to the Supreme Court of Canada</ref>
Louis Marceau	December 23, 1975	July 18, 1983			May 1, 2000
James Alexander Jerome			February 18, 1980		March 4, 1998
Paul U.C. Rouleau	August 5, 1982					Template:Y&<ref>Served until July 25, 2007.</ref>
James K. Hugessen	June 23, 1998	July 18, 1983				Template:Y&<ref>Served until July 26, 2008.</ref>
Arthur J. Stone		July 18, 1983					Template:Y&<ref>Served until November 19, 2004.</ref>
John McNair	July 18, 1983				August 31, 1990
Francis C. Muldoon	July 18, 1983				September 4, 2001
Barry L. Strayer	July 18, 1983	August 30, 1994					Template:Y&<ref>Served until May 1, 2004.</ref>
Barbara Reed	November 17, 1983				July 22, 2000
Mark R. MacGuigan		June 29, 1984			†January 12, 1998
Pierre Denault	June 29, 1984				November 1, 2001
Louis-Marcel Joyal	June 29, 1984				December 31, 1998
Bud Cullen	July 26, 1984				August 31, 2000
Bertrand Lacombe		October 29, 1985			December 7, 1989
Leonard Martin	October 29, 1985				October 24, 1991
Max M. Teitelbaum	October 29, 1985					Template:Y&<ref>Served until January 27, 2007.</ref>
Alice Desjardins		June 29, 1987					Template:Y&<ref>Served until August 11, 2009.</ref>
Frank Iacobucci				September 2, 1988	January 6, 1991<ref name="ReferenceA"/>
W. Andrew MacKay	September 2, 1988					Template:Y&<ref>Served until March 20, 2004.</ref>
Robert Décary		March 14, 1990			July 1, 2001
Allen M. Linden		July 5, 1990			October 7, 2009
Julius A. Isaac		September 1, 1999		December 24, 1991			Template:Y&<ref>Served until July 18, 2003.</ref>
Gilles Létourneau		May 13, 1992					Template:Y&
Joseph Robertson		May 13, 1992			July 27, 2000
Donna McGillis	May 13, 1992				May 15, 2003
Marc Noël	June 24, 1992	June 23, 1998					Template:Y&
Marshall E. Rothstein	June 24, 1992	January 22, 1999					Template:Y&<ref>Served until March 9, 2006, before being elevated to the Supreme Court of Canada.</ref>
Francis J. McDonald		April 1, 1993			September 6, 2001
Frederick E. Gibson	April 1, 1993					Template:Y&<ref>Served until August 30, 2008.</ref>
William P. McKeown	April 1, 1993				September 1, 2002
Marc Nadon	June 10, 1993	December 14, 2001					Template:Y&
Howard Wetston	June 16, 1993				January 11, 1999
John D. Richard			June 23, 1998	November 4, 1999			Template:Y&<ref>Became Chief Justice of the new Federal Court of Appeal on July 3, 2003, in which post he served until July 30, 2009.</ref>
J. Edgar Sexton		June 23, 1998					Template:Y&<ref>Served until October 28, 2011.</ref>
Pierre Blais	June 23, 1998					Template:Y&<ref>Served until February 19, 2008, before being elevated to the Federal Court of Appeal.</ref>
John Maxwell Evans	June 26, 1998	December 30, 1999					Template:Y&
Karen Sharlow	January 21, 1999	November 4, 1999					Template:Y&
J.D. Denis Pelletier	February 16, 1999	December 14, 2001					Template:Y&
Brian D. Malone		November 4, 1999					Template:Y&<ref>Served until September 27, 2007.</ref>
Allan Lutfy			December 8, 1999			Template:Y&<ref>Became Chief Justice of the Federal Court on July 3, 2003, in which post he served until September 30, 2011.</ref>
Eleanor Dawson	December 8, 1999					Template:Y&<ref>Served until November 26, 2009, before being elevated to the Federal Court of Appeal.</ref>
Carolyn Layden-Stevenson	January 25, 2002					Template:Y&<ref>Served until December 12, 2008.</ref>
Johanne Gauthier	December 11, 2002					Template:Y&<ref>Served until October 21, 2011, before being elevated to the Federal Court of Appeal.</ref>

See also

• Court system of Canada
• Law of Canada

Further reading

• Template:Cite book
• Template:Cite journal
• Template:Cite book

Historic procedure of the Court

• Template:Cite book Second Edition. Copeland-Chatterson-Crain. 1909. Google Books
• Template:Cite book

External links

• Official web site as of October 2002 (via the Internet Archive Wayback Machine)
• Courts Administration Service Act, S.C. 2002, c. 8Template:Dead link (restructuring the Court, effective July 2, 2003) (as originally enacted)