Symposium Remarks by Allen Linden, J.A.
When I first arrived at the Federal Court of Appeal in 1990, 19 years ago, it had already developed an enviable reputation for quality and efficient judicial work. It was 19 years after Justice Minister John Turner, Chief Justice Jackett and Mr. Maxwell, Deputy Minister of Justice conceived and created the Federal Court of Canada, to replace the Exchequer Court and to create a new appellate division. There was considerable controversy over the creation of this court, with some lawyers and government officials worried about the need for the court and the scope of the new court’s operations. In partial response to this worry, particularly outstanding lawyers were appointed to join the existing superb members of the court, whose hard work and considerable talents over the years overcame most of the objections to the establishment of the court, which has been described by Professor Peter Russell as "the best administered Court in this country".
Our Court, from the start, was conceived to be a “People’s Court”, traveling across Canada, deciding cases from coast to coast to coast, making it unnecessary for the litigants to travel to Ottawa. C’était une cour bilingue, qui travaillait fièrement en deux langues. When I arrived, Frank Iacobucci was Chief Justice, and my new colleagues were Pratte, Marceau, Urie, Heald, Mahoney, Hugessen, MacGuigan, Stone, Desjardins and Décary. This celebration marks the departure of the last three of this great group of jurists whom I joined in 1990. In all those years, we may have disagreed occasionally, but we were never, ever disagreeable. During my time on the Court, our judges have included a diverse group of individuals from across Canada, from a variety of backgrounds. Among them, in addition to the usual outstanding practitioners, have been former Chief Justices and puisine judges of provincial courts, former Ministers of Justice and other cabinet ministers, former provincial Attorneys-General, former Speakers and Members of Parliament and Members of Provincial Assemblies, University Presidents, law school Deans and professors, provincial Ombudsmen, Royal Commissioners, Law Reform Commission Chairmen and members, Deputy Ministers of Justice and other high justice departments officials, members of important tribunals dealing with Human Rights, Competition, Parole and others, many holding graduate degrees from Harvard, Oxford, Cambridge, Columbia and Chicago, many having written law books and other works. It is a wonder that only three of our colleagues have been elevated to the Supreme Court of Canada. The new judges, who will carry on our work, are no less distinguished and are equally committed to delivering quality and efficient justice to Canadians.
The history of the Federal Court has been well recorded in the book written by Professor Bushnell, but its treatment concluded in 1992, with the advent of Chief Justice Isaac, and, coincidentally, my arrival. If I may suggest, the story of the last two decades should also be told in book form by a distinguished historian, Mr. Bushnell or some one else. Many cases and imaginative institutional developments have transpired in the last 17 years that should be fully recorded in the volume II, including a fuller examination of the changes in jurisdiction in 1992 and the creation of the Courts Administration Service in 2003. I urge the next Chief Justice to make arrangements to have completed the history of the Federal Courts to this date. Perhaps the Osgoode Society would help with this, as it did with the first volume.
When I arrived in 1990, this court was described as the “Unknown Court” or the “Invisible Court” and in many ways it still is, although less so today. It was relatively new and most lawyers knew little about it and few had any need to. Some fields of law became the primary domain of the Federal Court and lawyers pleading here got to know us and we them.
We decided some great cases. We gave the bar outstanding service, quick hearings and usually expeditious decisions. How fascinating it was to be able to participate in the Harvard Mouse case, about whether a patent could be granted on a living, breathing creature. After much deliberation Marshall Rothstein said, “yes”, but Julius Isaac said, “no”, and I agreed with Marshall (and Sheila). Of course, the Supreme Court reversed us (Harvard College). In another case we had to decide whether there was copyright in the headnotes written about court decisions; we said yes and miraculously the Supreme Court agreed (L.S.U.C). Were gay and lesbian couples entitled to the rights of heterosexual couples? We split, but the Supreme Court said, “yes”. (Egan and Chambers). Did the search and seizure provisions of the Charter apply to Department of Justice officials seeking a search in Switzerland of a Swiss bank account? “Yes”, we said, but the Supreme Court said, “no” (Schreiber). Can aboriginals living off the reserves lose their right to vote in Band Elections? “No”, we said, and on this we were affirmed (Batchewana). These are only a few of the scores of delicious issues we dealt with in my time, hopefully helping to improve and modernize our law. The Bar, the public and the media took greater note of our decisions, many of which had major constitutional, political and economic repercussions.
Fresh from the Law Reform Commission of Canada, and fresh from our superb redraft of a new Criminal Code of Canada, made in Canada, by Canadians, for Canadians, which has sadly not yet been legislated by Parliament, I harboured an ambitious vision for the Federal Court. Some said at the time that I suffered from an “edifice complex” at the Law Reform Commission and that I brought it to the Federal Court of Appeal. I thought the court should develop into a more powerful institution, not unlike the U.S. Federal Court and the Australian Federal Court, that would adjudicate not only narrow federal law matters, but also cases with interprovincial and international aspects. Some of us thought then that it would be a good idea to integrate the different federal courts into one institution – the Federal Court of Canada – with four or five divisions – appeals, (public law, commercial law), tax law and military law – with one Chief Justice and four or five Associate Chief Justices. All would be housed in a spectacular building beside the Supreme Court of Canada. (We prepared the plans). The Court’s divisions would have been informal, like the Superior Court of Justice in Ontario, where judges may move around from informal division to other informal divisions (Criminal Law, Commercial Law, Family Law, Divisional Court), if they choose to. This measure would enable a more efficient deployment of judicial resources for our clientele. It is confusing for litigants to confront a list of five judicial institutions on a plaque in the Toronto Federal Judicial Centre lobby reading: Federal Court of Appeal, Federal Court, Court Martial Appeal Court of Canada, Tax Court of Canada, Courts Administrations Services. One Federal Court of Canada plaque would have been better.
This rebuilt institution would have been regionalized, with some judges, located in groups in major centres across Canada. Did you know that two thirds of our work is in Toronto and Montreal; only 14% in Ottawa? Last month in Toronto there were 20 Federal Judicial Officers working in the Federal Judicial Centre, involving considerable financial and personal cost, which could be minimized by regionalization. This measure might help to recruit some outstanding judges who are reluctant to move to Ottawa, something we Ottawans cannot understand. This could be tried informally by locating a few judges in Toronto and Montreal, as we always have had a judge in Vancouver, and as we have done with some prothonotaries. We have the space available in two excellent buildings. With regionalization, our court could then truly be a People’s Court, not just an itinerant court where judges appeared for a few days or weeks and then returned to Ottawa.
Although discussed for a time, these ideas did not prevail, the government choosing instead to create the Courts Administration Service in 2003, combining the administration of the courts, but not the courts themselves, which were in fact separated into four distinct courts. This arrangement has certainly been an improvement, I believe, at least after the end of the reign of the first Chief Administrator, who seemed to believe he was the Super Chief Justice.
I always dreamt as well, that each panel of the appeal division would be comprised of judges of both languages – no more exclusive English panels in the English parts of the land and no more French-speaking panels in the French speaking parts of the land – but all bilingual, bijural panels across the entire land, a true reflection of the country’s proud bilingual heritage in each hearing.
Although not yet a reality, my dreams remain alive, in my head at least, in the hope that future generations will recognize their wisdom and revisit the issues of expanded jurisdiction, merger and regionalization.
Another dream I had when I arrived here was to help reduce the procedural and jurisdictional problems the Federal Court had to contend with. Too much of our work on this court, all courts, involves procedural matters, delaying and making more expensive the cases that we must decide. I respect the need for fair procedures to avoid unjust, hasty decisions, but too often never-ending procedural safeguards thwart the cause of justice. Lawyers who have institutional clients or clients willing to pay are able to delay and complicate disputes, making them endless. While some efforts to modernize and simplify have succeeded brilliantly, like fixing the judicial-administrative morass, for example, by just listing the 14 agencies that were supervised directly by the Federal Court of Appeal, other problems seem intractable. I know a criminal lawyer, who proudly proclaims that “justice delayed is justice”. I disagree.
I believe we must keep trying to do better. We have enacted new Rules of Court, but skilled lawyers, who want to, are able to use any court rules to delay and make more complex the litigation they are paid to resolve – eventually. And sadly, our world has become very complicated and our public legislation, like our tax law, reflects this fact. Efforts at alternative dispute resolution may be helpful but it really requires a change in legal culture to instill in lawyers the desire to resolve matters speedily and fairly, rather than to serve their clients’ so-called “best” interests in lengthy litigation. We have rewritten the refugee procedures several times but we still have not got a really efficient system. We are trying to explain the Notice of Compliance procedures, but many questions remain unresolved. Our extradition law, which incidentally should be adjudicated by the Federal Courts in my view, can be circumvented for years by skillful lawyers, if they are paid well or have a legal aid certificate. Ever since ITO, we have been plagued by the problem of the interpretation of the wording of section 101 of the Constitution Act – “to administer the laws of Canada” – and of the accident of history of being a “statutory court”, even though we seem to have almost all the powers of ordinary superior courts. I must confess my frustration at the intractable nature of the complexity of legal processes and our continuing struggle to simplify and expedite our procedures.
And then there is the Grenier issue—which looks like a competition for jurisdiction with the provincial courts—In Grenier, as you will recall, our court held, solidly based on the statutory language, that it was not open to a claimant to launch a claim for damages against a federal agency prior to making an application for judicial review of the impugned action. Last December, the Ontario Court of Appeal declined to follow Grenier in its decision in TeleZone, finding that the collateral attack doctrine did not apply in circumstances where the plaintiff was seeking an award of damages without challenging the validity or legal effect of a federal body’s decision. The Ontario Court of Appeal expressed some concern, that if judicial review were a prerequisite to an action in damages wherever the decision of a federal board is engaged, litigants would be left going from court to court in an attempt to obtain justice, a predicament that the 1990 amendments to the Federal Courts Act sought to eliminate.
Without weighing into this lively debate myself, I must express my desire that this court not be inhibited jurisdictional issues as we have been in the past, and that these issues not hinder access to justice for the people this court was intended to serve. In this latter regard, I want to especially commend my colleague Justice Sexton for the creative solution he proposed in Hinton—namely, that an application for judicial review may be converted into an action without the need for the application to first be fully decided. His approach allows claimants to follow the law set down in Grenier while allowing a streamlined proceeding that hopefully will allow litigants to save time and money. Recall that one can sue civilly for violation of a penal statute without first getting a conviction.
Yet I feel some closure is needed to end the contest with the provincial superior courts that seems to have arisen post-Grenier. As the situation currently stands, a litigant may not commence an action in our courts relating to a federal action without having made an application for judicial review. However, he or she may launch the same action in a provincial superior court, subject of course to the collateral attack doctrine. I fear this will produce fragmentation and confusion for ordinary litigants. The Supreme Court has just granted leave applications in several cases, including Telezone, Manuge, and Parish, so that we will ultimately receive its thoughts on the matter; it would be preferable if we could get Parliament to work again and provide some clarity to the area. While they are at it Parliament should think about giving us, inter alia, concurrent jurisdiction where other private litigants are involved with the government, ending the monopoly of the provincial courts in these cases.
Some Other Thoughts
These outstanding Federal Court jurists assembled here need no advice from me as I leave, and I shall not offer any, save for only one reminder- an idea that has become rather controversial in the U.S. recently – the desirability of “empathy” in judges. Other words have been used to describe this quality such as compassion or humanity. This of course, does not mean that judges should ignore the legal principles that bind us – not at all. We are bound to apply the law as professionally as we can- we cannot be governed by empathy. But we must keep in mind that even in our Court, a Court that is technical and seemingly abstract – that human beings are involved in the cases we hear and decide and that our decisions have consequences to them, sometimes serious consequences. Refugee cases, social welfare matters, E.I. claims, injury cases and, surprisingly even some tax cases involve ordinary citizens in legal struggles that may over power them. Though rationality is and must be our primary guide, humanity, compassion, yes empathy, should also be part of the judicial process in all of our courts in this good and generous land.
When some judicial oaths and draft jury charges contain the words, as they sometimes do: “The law must have no respect for persons,” I cringe. Some say there should be no “sympathy” shown to litigants. This is not the best language to describe this idea; when it is said by some that the law should not evince respect for the litigants before them – it means, rather, that, as litigants, the rich and powerful should not be shown more respect than the poor and weak as litigants – in other words, there must be equality before the law, something we always strive to abide by and is fundamental for our legal system.
It has been said that, “Hard cases make bad law”. Sometimes that is true, but hard cases may also provide an opportunity to make better law, so as to avoid “hard” results that are not reflective of the essential decency that the law strives to embody. Such cases embroider the history of out law – Donohue v. Stevenson of course, is one example of a hard case allowing the Court to make some good law. There are many other such cases in the history of common law.
These are some rambling thoughts – Retrospectives and Perspectives – if you will, of someone who has, over 19 wonderful years here, sought to administer justice fairly and effectively in accordance with the laws of Canada. I have served alongside some great jurists who have contributed mightily to the just resolution of scores of significant disputes. Together we have developed a worthy, federal jurisprudence that we can be most proud of. I am confident that those who are blessed with the opportunity to continue our work will rise to even greater heights. I expect that these matters I have raised will continue to be addressed and improved upon, but I expect that 19 or even 38 years from now, when this court convenes another meeting such as this, there will remain, inevitably, some thorny issues for future generations of Federal Court judges to confront and resolve.