Federal Court of Canada

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.^[1] 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.^[2]

Despite the language in the constitution, a national court was not established until 1875.^[1] 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.^[1] 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.^[1]

While no court per se was created, provision was made for the appointment of Official Arbitrators,^[3] whose decisions soon became subject to a final appeal to a Board of Arbitrators,^[4] until a further right of appeal to the new Exchequer Court was created in 1897.^[5]

Exchequer Court

In 1875, the Liberal government of Prime Minister Alexander Mackenzie passed The Supreme and Exchequer Court Act^[6] (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:

58. The Exchequer Court shall have and possess concurrent original jurisdiction in the Dominion of Canada, in all cases in which it shall be sought to enforce any law of the Dominion of Canada relating to the revenue, including actions, suits, and proceedings, by way of information, to enforce penalties and proceedings by way of information in rem, and as well in qui tam suits for penalties or forfeitures as where the suit is on behalf of the Crown alone; and the said Court shall have exclusive original jurisdiction in all cases in which demand shall be made or relief sought in respect of any matter which might in England by the subject of a suit or action in the Court of Exchequer on its revenue side against the Crown, or any officer of the Crown.

59. The Exchequer Court shall also have concurrent original jurisdiction with the Courts of the several Provinces in all other suits of a civil nature at common law or equity in which the Crown in the interest of the Dominion of Canada is plaintiff or petitioner.^[6]

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.^[7] In the same year, however, England abolished the Court of Exchequer, merging its jurisdiction into the High Court of Justice.^[1] 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.^[7] The two Courts were not separated until 1887, when the Supreme and Exchequer Courts Act was amended.^[8] George W. Burbidge, a lawyer from New Brunswick, was the first Exchequer Court judge appointed under this new arrangement.^[7] At the same time, the Court's jurisdiction was expanded to include exclusive original jurisdiction over all claims against the Crown. It subsequently was conferred admiralty jurisdiction in 1891.^[9]

Federal Court of Canada

In 1971, the Federal Court of Canada was established, inheriting much of the jurisdiction of the Exchequer Court. The Federal Court of Canada gained the jurisdiction to hear judicial reviews from federal agencies and tribunals. The Federal Court of Canada had two divisions, the Federal Court – Trial Division and Federal Court – Appeal Division.

On July 2, 2003 the court was again restructured. 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.

Until 1976, there was substantial judicial support^[10][11] 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,^[12] the Supreme Court of Canada rejected this notion, 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

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 Gibson Pringle 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:

• Walter Gibson Pringle Cassels, 1920–1923
• Alexander Kenneth Maclean, 1923–1942
• Joseph Thorarinn Thorson, 1942–1964
• Wilbur Roy Jackett, 1964–1971 (subsequently Chief Justice of the Federal Court of Canada)

Current Judges

Supernumerary

Previous Judges

The judges of this court are listed below.^[16]

     = former judge of the Exchequer Court of Canada

     = stepped down from original appointment

† = died in office