The Federal Court of Appeal

The Federal Court of Appeal, as well as the Federal Court, is a bilingual court, offering its services in both of the official languages of Canada, and is a bi-jural court, administrating the two legal systems - common law and civil law. Both courts are itinerant, in the sense that they sit and transact business at any place in Canada, to suit, as close in proximity as may be, the convenience of the parties. It is the objective of both Courts to secure the just, most expeditious and least expensive determination of every proceeding based on its merits.

1. The Courts Administration Service Act

Following the coming into force of the Courts Administration Service Act, on July 2, 2003, the administrative and jurisdictional structure of the Federal Court of Appeal has undergone three fundamental changes. ¹

First, the Act, known as the "Courts Administration Service" creates a model of court governance which respects the independence of the judiciary. This is clear from the objectives of the Act which are to facilitate coordination and cooperation among the Federal Court of Appeal, the Federal Court, the Court Martial Appeal Court and the Tax Court of Canada for the purpose of ensuring the effective and efficient provision of administrative services to those courts; to enhance judicial independence by placing administrative services at arm's length from the federal government and by affirming the roles of chief justices and judges in the management of the courts; and to enhance the accountability for the use of public money in support of court administration while safeguarding the independence of the judiciary.

To fulfill its objectives, the Act establishes a single administrative structure for the Federal Court of Appeal, Federal Court, the Court Martial Appeal Court and the Tax Court of Canada. The Chief Administrator of the Courts Administration Service has all the powers necessary for the effective management and administration of court services, including court facilities, libraries, corporate services and staffing. Notably, the powers of the Chief Administrator do not extend to any matter assigned by law to the judiciary. This underscores the separation between the judicial function carried out by the courts and the Government of Canada. Second, the Act amends the Federal Court Act to create a separate Federal Court of Appeal. Third, the Act changes the status of the Tax Court of Canada to that of a superior court. Accordingly, all decisions of the Tax Court of Canada, as of July 1, 2003, will be subject to the appellate, as opposed to the judicial review, jurisdiction of the Federal Court of Appeal.

2. A Court of Easy Access

The Federal Court of Appeal, as well as the Federal Court, is a court of easy access. We place considerable importance on accessibility due to the national and itinerant nature of the Court. Easy access to the Court is also essential as many of the litigants who appear before us are self-represented and often have no legal training.

Several features enhance the accessibility of the Federal Court of Appeal, as well as the Federal Court. There is no need for a special call to appear before the Federal Court of Appeal in a province other than the one counsel was called in. Every person who is a barrister or a solicitor in a province may practice as a barrister or a solicitor in the Court and is an officer of the Court. The Federal Court of Appeal is easily accessible through its local offices. While the Court's principal office is located in Ottawa, the Court has sixteen local offices established throughout Canada. Any document may be filed in any of these local offices. The original is transmitted to the principal office and a certified copy is kept at the local offices. Documents may also be deposited by mail or fax.

Several provisions of the rules of procedure enhance the Court's accessibility. Rule 32 permits parties to use tele-conference and video conference facilities in Ottawa, Toronto, Montreal, Quebec, Halifax, Fredericton, Winnipeg, Calgary, Edmonton and Vancouver. Rule 33 allows the court to give directions to facilitate the conduct of a hearing by the use of any electronic or digital technology it considers appropriate. Further, certain motions, known as Rule 369 Motions, may be disposed of without personal appearance and may be based on written representations. Any issue that may be the subject of an oral hearing may be dealt with in writing pursuant to Rule 369 if the parties agree. This is a very useful and widely used rule, which increases the Court's flexibility to dispose of matters.

Finally, the Federal Court of Appeal is accessible in both official languages. In keeping with section 133 of the Constitution Act, 1867, section 19 of the Charter and Part III of the Official Languages Act, parties appearing before the Federal Court of Appeal are able to use either official language in their written and oral pleadings. Where the Crown is a party, it is required to use the language of the other party. Further, pursuant to Rule 31, simultaneous translation is available at the request of either party.

3. Jurisdiction of the Federal Court of Appeal

The Federal Court of Appeal has a dual judicial review and appellate jurisdiction. 2

It is well known that the Court's jurisdiction is unique, but the relevance of its jurisdiction is sometimes overlooked. In fact, from the food we eat, 3 to the entertainment we enjoy, ⁴ the Federal Court of Appeal touches the lives of everyday Canadians. It's decisions affect the mobility of every Canadian, be it by car, ⁵ plane or train. ⁶

The Federal Court of Appeal is also responsible for enforcing the various rights and duties existing between Canadians and the federal government. The Federal Court of Appeal frequently resolves issues pertaining to the benefits conferred on Canadians by the federal government, ⁷ the taxation of Canadian individuals and businesses by the federal government, ⁸ and labour relations between the federal government and its employees. ⁹

The Federal Court of Appeal is also influenced by and has effects in the international arena. On the one hand, the Federal Court of Appeal plays an essential role in interpreting and enforcing Canada's international obligations. The Court has highlighted the importance of international instruments in copyright protection, ¹⁰ in international trade, ¹¹ and in immigration matters. ¹² The decisions of the Federal Court of Appeal also impact the international arena. For example, the Federal Court of Appeal has judicial review jurisdiction to determine the nature and scope of Canada's obligations under NAFTA. ¹³ The Court of Appeal resolves disputes, at the appellate level, regarding the taxation on exports as well as imports in certain circumstances. ¹⁴

i. The Judicial Review Jurisdiction

The Court has the jurisdiction to hear and determine judicial review applications from the federal boards, commissions and tribunals set out in paragraph 28(1)(a) through (p) of the Federal Courts Act. These include:

• the Board of Arbitration established by the Canada Agricultural Products Act;
• the Review Tribunal established by the Canada Agricultural Products Act;
• the Canadian Radio-television and Telecommunications Commission established by the Canadian Radio-television and Telecommunications Commission Act;
• the Pension Appeals Board established by the Canada Pension Plan;
• the Canadian International Trade Tribunal established by the Canadian International Trade Tribunal Act;
• the National Energy Board established by the National Energy Board Act;
• the Canada Industrial Relations Board established by the Canada Labour Code;
• the Public Service Staff Relations Board established by the Public Service Staff Relations Act;
• the Copyright Board established by the Copyright Act;
• the Canadian Transportation Agency established by the Canada Transportation Act;
• umpires appointed under the Employment Insurance Act;
• the Competition Tribunal established by the Competition Tribunal Act;
• assessors appointed under the Canada Deposit Insurance Corporation Act; and
• the Canadian Artists and Producers Professional Relations Tribunal established by subsection 10(1) of the Status of the Artist Act.

The powers of the Federal Court of Appeal on judicial review are set out in subsections 18.1(3) and (4) of the Act. ¹⁵

Where the Court of Appeal is satisfied that a federal board, commission or tribunal has acted without, beyond or has refused to exercise, its jurisdiction; has failed to observe a principle of natural justice or procedural fairness that it was required by law to observe; has erred in law in making a decision or an order, whether or not the error appears on the face of the record; has based its decision or order on an erroneous finding of fact which it has made in a perverse or capricious manner or without regard for the material before it; has acted or failed to act, by reason of fraud or perjured evidence; or has acted in any other way that was contrary to law; the Court of Appeal may grant any form of relief available under subsection 18.1(3) of the Act. According to that subsection, the Court may order the federal board, commission or other tribunal to do any act or thing it has failed or refused to do or has unreasonably delayed in doing. The Court may also declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. Notably, the Court of Appeal may refuse to grant any relief, pursuant to subsection 18.1(5) of the Act where the sole ground for relief is a defect in form or a technical irregularity.

A discussion of the judicial review jurisdiction of the Federal Court of Appeal would not be complete without mentioning the standard of review. The standard of review applicable to a federal board, commission or tribunal is to be determined by reference to four factors. ¹⁶

First, is the statutory mechanism of review which is often in the form of a privative clause. Second, is the relative expertise of the decision-maker. The third factor is the purpose of the statute; whether it is concerned with the protection of the public, engages policy issues or involves the balancing of competing policy objectives. The fourth factor is the nature of the problem; whether it is a question of fact, law or mixed fact and law. Based on these factors, the applicable standard of review will either be correctness, reasonableness or patently unreasonable.

ii. The Appellate Jurisdiction

The Federal Court of Appeal also has the jurisdiction to hear and determine appeals from any final judgment, judgment on a question of law determined before trial, or interlocutory judgment of the Federal Court or the Tax Court of Canada pursuant to section 27 of the Federal Courts Act. ¹⁷

The Federal Court of Appeal also has a statutory appellate jurisdiction. For example, the Federal Court of Appeal has exclusive appellate jurisdiction over the Competition Tribunal, ¹⁸ the Canadian Radio-television and Telecommunications Commission ¹⁹ and the Canadian Transportation Agency, ²⁰ to name a few.

The powers of the Federal Court of Appeal in the appellate context are set out in section 52 of the Federal Courts Act. Where the appeal is from the Federal Court, the Court of Appeal may dismiss the appeal, give the judgment and award the process or other proceedings that the Federal Court should have given or awarded; order a new trial if it is in the ends of justice to do so; or the Court may make a declaration as to the conclusions that the Federal Court should have reached on the issues decided by it and refer the matter back to the Federal Court on that basis. In the case of all other appeals, the Federal Court of Appeal may dismiss the appeal, give the decision that should have been given; or it may refer the matter back for determination in accordance with such directions it considers appropriate.

As in the judicial review context, it is important to determine the applicable standard of review. The Supreme Court recently discussed the standards of review on appeal of a trial court decision in Housen v. Nikolaisen. ²¹

On appeal from an exercise of discretion by a trial judge, regard should be had to Elders Grain Company Limited et al. v. The Vessel M/V “Ralph Misener” et al., 2005 FCA 139, at par. 13:

An appellate court is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the trial judge. However, if the decision was based on an error of law or if the appellate court reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations or that the trial judge considered irrelevant factors or failed to consider relevant factors, then an appellate court is entitled to exercise its own discretion.

On appeal of a judicial review decision regard should be had to the standard of appellate review in the Dr. Q. case cited earlier. On an appeal of an interlocutory order regard should be had to the decision of this Court in Canada v. Aqua Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.) as modified in Merck & Co. v. Apotex Inc. (2003) 315 N.R. 175.

As for statutory appeals, the enabling statute may indicate the standard of review. In addition, these statutes will indicate whether leave to appeal is required. For example, the Competition Tribunal Act provides that leave is required for the Federal Court of Appeal to hear an appeal from the Competition Tribunal on a question of fact. ²²

4. The rules of practice ²³

The Court's procedures are modern and accessible. Amended rules have been published as a consequence of the coming into force of the Courts Administation Service Act. Their effective date is November 29, 2004, and the rules are now to be cited as the Federal Courts Rules. Three groups of rules are especially important: the rules governing the procedure on judicial review applications; the rules governing the procedure on appeal and the rules governing case management and dispute resolution services. These rules must be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits. ²⁴

(i) Rules Governing the Procedure of Judicial Review Applications: Rules 300-319

A judicial review is commenced by a notice of application (R. 301). The notice of application must relate to a single order, unless the Court otherwise orders (R. 302). The notice of application must name every person directly affected by the order or required to be named by statute as a respondent (R. 303). The tribunal whose decision is under review should not be named as respondent. Where there are no such persons, the Attorney General of Canada must be named as the default respondent (R. 303(2)). Where the Attorney General is unwilling or unable to act, the Court may appoint a substitute, including the tribunal which made the decision, as a respondent (R. 303(3)).

The notice of application must be served within the guidelines of Rule 304. The respondent must serve and file a notice of appearance where he or she intends to oppose the application (R. 305). The service, filing and cross-examination of affidavits must be completed within the time limits set out in Rules 306, 307 and 308. The content, service and filing of the applicant's and respondent's records are outlined in Rules 309 and 310. Generally, the applicant's record is filed within 20 days after the completion of all parties' cross-examinations or the expiration of the time for doing so and the respondent's record is filed 20 days after the service of the applicant's record. The contents of these records include affidavits and documentary exhibits; the transcript of a cross-examination of the affidavits; portions of the oral evidence before the tribunal that are to be used by the parties; a description of any physical exhibits as well as the parties' memorandum of fact and law. In addition, the applicants's record must contain the notice of application as well as any order in respect of which the application was made. Where necessary, the Court may order the Registry to prepare a record on a party's behalf pursuant to Rule 311 or to add other material where the record is incomplete pursuant to Rule 313. Parties may only file additional material with leave of the Court (R. 312).

Once the application is perfected, the applicant must file a requisition requesting a hearing date (R. 314). The requisition must set out the place at which the hearing should be held; the maximum number of hours or days required for the hearing; set out the name, address, telephone number and fax number of the solicitor for every party to the application or, where a party is not represented by a solicitor, the person's name, address telephone number and fax number; and list any days within the following 90 days on which the parties are not available for a hearing. The requisition must also indicate whether the hearing will be in English or French, or both. The Court may order a pre-hearing conference following the requisition (R. 315). It may also authorize a witness to testify in relation to an issue of fact raised in an application where special circumstances exist (R. 316). Rules 317-319 outline the circumstances under which a party may request material from the tribunal, the transmission of that material from the tribunal to the party and the return of the material to the tribunal.

(ii) Rules Governing the Procedure of Appeals

An appeal is commenced by a notice of appeal (R. 337). The notice of appeal must name as respondents, every party in the first instance who is adverse in interest to the appellant in the appeal as well as any other person required by statute to be named (R. 338). Where there are no such persons, the Attorney General of Canada must be named as the respondent (R. 338(2)). Where the Attorney General is unwilling or unable to act, the court may appoint a substitute, including the tribunal whose order is being appealed, as a respondent (R. 338(2)).

The notice of appal must be served within the guidelines established by Rule 339. The respondent must serve and file a notice of appearance where he or she intends to participate in the appeal (R. 341). Where the respondent seeks a different disposition, he or she must file a notice of cross-appeal pursuant to Rule 341.

The content, service and filing of the appeal book is regulated by Rules 343, 344 and 345. Generally, the parties agree to the content of the appeal book. It contains the notice of appeal as well as any notice of cross-appeal; the order appealed from; the originating document, any other pleadings and other documents filed in the first instance; all documents, exhibits and transcripts agreed on by the parties; any order made in respect of the content of the appeal; any other document relevant to the appeal and the agreement reached as to the contents of the appeal book (R. 344).

Rule 346 pertains to the memoranda. The appellant's memorandum of fact and law must be filed within 30 days after filing an appeal book. The respondent's memorandum of fact and law must be filed within 30 days after service of the appellant's memorandum. Where a cross-appeal has been filed, the respondent must serve and file a memorandum of fact and law as appellant and the appellant must serve and file a memorandum of fact and law as respondent.

The appellant must serve and file a requisition for hearing once the appeal has been perfected (R. 347). The requisition sets out the location at which the hearing should be held; the maximum number of hours or days required for the hearing; the name, address, telephone number and fax number of the solicitor, or where the person is not represented by a solicitor, the name, address, telephone number and fax number of the person; and must list any dates within the following 90 days on which the parties are not available for a hearing.

Rule 70 sets out the requirements for all memoranda of fact and law. Counsel must adhere to all of its requirements, including the requirement that extracts of federal statutes and regulations be reproduced in both official languages.

Following the requisition for hearing, but 30 days prior to the hearing, the parties must file a joint book of authorities (R. 348). Where the parties cannot agree on the contents, they may file separate books of authorities taking care not to reproduce documents included in the book of another party. Notably, the Court may grant leave to a party to present evidence on a question of fact where special circumstances exist (R. 351).

The procedure governing motions for leave to appeal is governed by Rules 352 through 356.

iii. Rules Governing Case Management and Dispute Resolution Services

Case management consists of status reviews and specially managed proceedings and applies to both applications and appeals. Status reviews arise when parties fail to reach specific steps within a certain time (R. 380-382). The Court, at a status review, may require an applicant or an appellant to show cause why the proceeding should not be dismissed for delay, and if it is not satisfied that the proceeding should continue, dismiss the proceeding; require a respondent to show cause why default judgment should not be entered and, if it is not satisfied that the proceeding should continue, grant judgment in favour of the applicant or appellant or order the applicant or appellant to proceed to prove entitlement to the judgment claimed; or if it is satisfied that the proceeding should continue, order that it continue as a specially managed proceeding.

A specially managed proceeding is one which is managed by a case management judge and is taken out of the usual flow of proceedings dictated by the Rules. A case management judge may give any directions that are necessary for the just, most expeditious and least expensive determination of the proceedings on its merits; fix the period for completion of subsequent steps in the proceedings notwithstanding any period provided for in the Rules; fix and conduct any dispute resolution or pre-trial conferences that he or she considers necessary; or subject to subsection 50(1) hear and determine all motions arising prior to the assignment of a hearing date; or may order that a status review be held in accordance with Rule 382.

The Rules provide for various forms of dispute resolution processes including mediation (R. 387(a)); early neutral evaluation of a proceeding (R. 387(b)), or a mini-trial (R. 387(c)). Notably, discussions in a dispute resolution conference and documents prepared for such purposes are confidential and should not be disclosed (R. 388). Accordingly, a case management judge who conducts a dispute resolution conference in an action, application or appeal shall not preside at the hearing unless all parties consent (R. 391). Generally, a dispute resolution conference shall be completed within 30 days of its commencement (R. 386(2)). Where a settlement of all or part of the proceedings is reached at a dispute resolution conference, it shall be reduced to writing and signed by the parties or their solicitors and filed within 10 days of the settlement being reached (R. 389).

5. Notices to Parties and the Profession

The Notices to Parties and the Profession issued by the Chief Justice explain, and in some cases supplement, the Rules. ²⁵

The following is a highlight of four of these notices. The first is Circular No. 1 /2000 which discusses the sittings of the Court; the Requisition for hearing; the estimates of duration of hearing; appeals from interlocutory orders of the Federal Court; requests for adjournment; motions in person; requests for expedited hearings; composition of panels and books of authorities. The second is Circular No. 1 /2001 which outlines the courts direction regarding neutral citations, judgment citations and the book of authorities. Also of note is Circular No. 2 /2000 pertaining to Class Proceedings in the Federal Court and Circular No. 4 /2000 dealing with the proper manner to address the Judges in Court.

6. The Rules Committee

The currency and clarity of the Federal Court Rules is ensured by the Rules Committee established pursuant to section 45.1 of the Federal Courts Act. The mandate of the Rules Committee is to review the Rules and to suggest any amendments or additions. The Rules Committee also suggests amendments to the Rules as a result of new federal legislation, such as the new Courts Administration Service Act, discussed earlier. The drafters at the Department of Justice Canada ultimately draft the changes to the Rules and the Committee approves them for pre-publication.

The composition of the Rules Commission recently changed as a result of the Courts Administration Service Act. ²⁶

It is composed of the Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court; three judges designated by the Chief Justice of the Federal Court of Appeal and five judges designated by the Chief Justice of the Federal Court; the Chief Administrator of the Courts Administration Service, a representative of the Attorney General of Canada and five members of the bar of any province designated by the Attorney General of Canada, after consultation with the Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court, who themselves make a practice of consulting the Canadian Bar Association. Notably, the latter should be representative of the different regions of Canada and have experience in fields of law in respect of which the Federal Court of Appeal and the Federal Court have jurisdiction.

The Rules Committee generally meets twice a year, but can meet more often depending on the need.

¹   S.C. 2002, c. 8.
²   For a general discussion of the jurisdiction of the Federal Court of Appeal and Federal Court please see D. Sgayias, M. Kinnear, D. Rennie and B. Saunders, Federal Court Practice 2005 (Toronto: Thomson Carswell) at 1.
³   Pursuant to subsection 28(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, the Federal Court of Appeal has exclusive judicial review jurisdiction over the Board of Arbitration and the Review Tribunal established by the Canadian Agricultural Products Act, R.S.C. 1985 c. 20 (4^th supp.). These bodies make decisions treating the marketing of agricultural products in import, export and interprovincial trade as well as provide for national standards and grades of agricultural products, for their inspection and grading.
⁴   Pursuant to subsection 28(1) of the Federal Courts Act, supra, the Federal Court of Appeal has exclusive judicial review jurisdiction over the Canadian Artists and Producers Professional Relations Tribunal established by subsection 10(1) of the Status of the Artist Act, S.C. 1992, c.33 which treats the status of the artist and professional relations between artists and producers in Canada. The Federal Court of Appeal also has exclusive judicial review jurisdiction over the Canadian Radio-television and Telecommunications Commission established by the Canadian Radio-television and Telecommunications Commission Act, R.S.C. 1985, c. C-22 which broadly regulates radio, television, and other telecommunications in Canada. An appeal on any question of law or jurisdiction lies from the Commission to the Federal Court of Appeal pursuant to the Telecommunications Act, S.C. 1993, c. 38.
⁵   The Federal Court of Appeal has exclusive appellate jurisdiction over appeals arising from matters under the Petroleum and Gas Revenue Tax Act, R.S.C. 1985, c. P-12:Tax Court of Canada Act, R.S.C. 1985, c. T-2, s. 12.
⁶   Pursuant to subsection 28(1) of the Federal Courts Act, supra, the Federal Court of Appeal has exclusive judicial review jurisdiction over the Canadian Transportation Agency which regulates and licences airlines in railways. The Canadian Transportation Agency is established by the Canadian Transportation Agency Act, S.C. 1990, c. 13. An appeal lies from the Agency with leave pursuant to the Canada Transportation Act, S.C. 1996, c. 10.
⁷   The Federal Court of Appeal has exclusive appellate jurisdiction over the administration of federal government programs such as employment insurance, disability insurance, old age security, war veterans allowance and the Canada pension plan. The Federal Court of Appeal has exclusive appellate jurisdiction to hear these matters on appeal from the Tax Court of Canada who has exclusive original jurisdiction over these matters: Tax Court of Canada Act, R.S.C. 1985, c. T-2, s. 12. Pursuant to subsection 28(1) of the Federal Courts Act, supra, the Federal Court also has exclusive judicial review jurisdiction over the decisions of umpire appointed under the Employment Insurance Act< /i>, R.S.C. 1985, c. E-5.6.
⁸   The Federal Court of Appeal has exclusive appellate jurisdiction over appeals from the Tax Court of Canada’s decisions pertaining to the Excise Tax Act, R.S.C. 1985, c. E-15 and the Income Tax Act, R.S.C. 1985, c. 1 (5^th Supp.).
⁹   Pursuant to subsection 28(1) of the Federal Courts Act, the Federal Court of Appeal has exclusive judicial review jurisdiction over the Canada Industrial Relations Board established by the Canada Labour Code, R.S.C. 1985, c. L-2 and the Public Service Staff Relations Board established by the Public Service Staff Relations Act, R.S.C. 1985, c. P-35.
¹⁰   The applicability of the WIPO Copyright Treaty, adopted in Geneva on December 20, 1996 and the WIPO Performances and Phonograms Treaty, adopted in Geneva on December 20, 1996 to Canadian intellectual property law were discussed in Society of Composers, Authors and Music Publishers in Canada v. Canadian Assn. of Internet Providers, [2002] 4 F.C. 3 at para. 183 (C.A.). Pursuant to subsection 28(1) the Federal Court of Appeal has exclusive judicial review jurisdiction over the Copyright Board.
¹¹   The North American Free Trade Agreement and the Agreement on Government Procurement, signed at Marrakesh, 15 April 1994 were discussed in Canada (Attorney General) v. McNally Construction Inc. [2002] 4 F.C. 633 (C.A.).
¹²   The Federal Court of Appeal hears appeals from the Federal Court on immigration matters where the Federal Court judge has certified a question: Federal Court Immigration and Refugee Protection Rules, SOR/93-22 as am.
¹³   Pursuant to subsection 28(1) of the Federal Courts Act, supra, the Federal Court of Appeal has exclusive judicial review jurisdiction over the Canadian International Trade Tribunal. See for example, Canada (Attorney General) v. McNally Construction Inc. [2002] 4 F.C. 633.
¹⁴   The Federal Court of Appeal has exclusive appellate jurisdiction over appeals arising from matters under the Cultural Property Export and Import Act, R.S.C. 1985, c. C-51 and the Excise Tax Act: Tax Court of Canada Act, R.S.C. 1985, c. T-2, s. 12.
¹⁵   Subsection 28(2) of the Federal Courts Act, supra, confers on the Federal Court of Appeal the powers set out in section 18.1, except subsection 18.4(2) with such modifications as the circumstances require.
¹⁶   Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. These factors were recently reiterated by the Supreme Court of Canada in Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] S.C.J. No. 18 at paras. 26-35.
¹⁷   Paragraph 27(1)(d) also provides that an appeal lies to the Federal Court of Appeal from any determination on a reference made by a federal board, commission or other tribunal or the Attorney General of Canada of the Federal Court.
¹⁸   Competition Tribunal Act, R.S.C. 1985, c. 19 (2^nd supp) s. 13.
¹⁹   Broadcasting Act, S.C. 1991, c. 11 s. 31; Telecommunications Act, S.C. 1993, c. 38.
²⁰   Canada Transportation Act, S.C. 1996, c. 10 s. 41.
²¹   2002 SCC 33, [2002] S.C.J. No. 31.
²²   R.S.C. 1985, c. 19 (2^nd supp.), s. 13.
²³   This paper merely provides an overview of the Federal Courts Rules. Please see David Sgayias, Meg Kinnear, Donald Rennie and Brian Saunders, Federal Court Practice 2005 (Toronto: Thomson Carswell) for more details.
²⁴   Rule 3 of the Federal Courts Rules.
²⁵   These can be found on the Federal Court of Appeal’s website: http://www.fca-caf.gc.ca/bulletins/notices.html.
²⁶   Supra, s. 43.