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By the Honourable John D. Richard Chief Justice Federal Court of Appeal
Continuing Legal Education Seminar,
Law Society of British Columbia, Vancouver - September 19, 2003
My paper is divided into two parts. The first concerns the structure, jurisdiction and workings of the Federal Court of Appeal. The second deals with oral and written advocacy before 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 Services 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, 8and 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. 13The 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 powers of the Federal Court of Appeal on judicial review are set out in subsections 18.1(3) and (4) of the Act. 15Where 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 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.,  2 F.C. 425 (C.A.).
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 procedure 23
To be a truly effective advocate before the Federal Court of Appeal, mastery of the rules of procedure is necessary. 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
An effective advocate must also have regard to the Notices to Parties and the Profession issued by the Chief Justice which explain, and in some cases supplement, the Rules. 25
I would like to highlight four. 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 or less often depending on the need.
An advocate is one who pleads for another. Advocacy is the art of persuasion. It is a skill which must be developed and practiced.
There is no single rule to being a great advocate. Rather, as Justice Sopinka has said: "[t]here are many faces to the art of advocacy." 27
Advocacy has a written and an oral component. It can involve an appeal or a judicial review. It can be interlocutory or final. While the following advice is applicable to all of these, it is important to adapt your style to the type of advocacy you are engaged in.
A good appellate advocate must be thoroughly prepared, be candid, succinct and accurate.
1. Written Advocacy
The importance of the written argument cannot be overestimated. It plays an essential role at all stages of the appeal. Before the hearing, it is judge's first impression of the appeal. During the hearing, it acts as the roadmap of counsel's oral argument. Following the hearing, it serves as an important reference for drafting reserve reasons. The following are techniques to improve the quality of your memorandum of fact and law.
Use simple, concise language
It is essential that the memorandum of fact and law is written simply and concisely. A badly written memorandum detracts from counsel's legal argument. Editing plays a key role in achieving clarity and simplicity.
The overview statement
While the rules of procedure do not require an overview statement, it is often helpful, especially where the case is complex. The statement should include the parties, a succinct review of the facts, the issues and the solution.
Avoid too many issues
Over-issuing is a common problem. Where there are several issues, the may become distracted from the party's argument. The Honourable Mr. Justice George D. Finlayson posits that "[i]n any given case, the most significant issues cannot number more than three." 28
Where this in not the case, and I stress that this does not arise frequently, I recommend that issues should be grouped together into major subheadings.
The standard of review
The Federal Court of Appeal engages the standard of review in some form or another in every case it hears whether it be an original judicial review, an appeal of a judicial review decision, an appeal of a trial decision or an appeal of an interlocutory order. The Federal Court of Appeal does not retry cases. Rather, it looks for errors made by trial courts and federal boards, commissions or tribunals. Thus, counsel must proceed accordingly.
Provide the court with all relevant documents
It is important that the court be able to follow the argument of counsel. Where the record is voluminous, I suggest that you provide the Court with a compendium of the documents to be referred to during oral argument such as exhibits and extracts from transcripts. Whenever possible, counsel should prepare a joint book of documents and authorities. A judge wants to be able to quickly follow documents during the hearing, to make sure that he or she understands all the important elements of the case and is able to ask questions if certain points seem obscure or insufficiently explained. In cases where the documents are voluminous, consideration should be given to electronic reproduction.
2. Oral Advocacy
Two key words to remember when you appear before the court are: be prepared. Good preparation is essential to good advocacy. You must thoroughly understand your case and in order to do so you must master the facts and the law. Overlooking this can have seriously detrimental effects not only on counsel's case, but also on the efficiency of the legal system and its capacity to render justice.
The following do's and dont's may be helpful to you.
Avoid requesting an adjournment
Save in exceptional cases, counsel should always avoid requesting an adjournment.
Avoid last minute motions before the hearing
Counsel should present any motions well in advance of the hearing. When brought on the day of the hearing, these motions produce unnecessary delays. Counsel should also avoid requests to file supplementary authorities on the eve of the hearing.
Prepare an opening statement
Prepare an opening statement carefully setting out the grounds of the review or the appeal, their legal framework and the appropriate standard of review.
Respect the time allocated by the court
Hearing schedules are developed in consultation with counsel. Counsel should therefore take care when preparing for the hearing to distinguish important points from irrelevant details. This not only shortens the hearing time required, but also assists the Court in arriving at its decision. As Justice Sopinka has said:
.oral argument that is planned to accommodate the time requirements can be more effective than argument that is not confined. An oral argument that moves immediately to the point of contention in a case is much more effective than one that wallows in background information at the very time that the tribunal is most attentive. Time limits not only make it imperative to zero in on the main issue but also make it feasible to do so. It is only feasible because the Court must prepare itself fully for oral argument that is limited. 29
Provide accurate references to the material and provide proper citations for authorities. Cite only those authorities that are necessary.
3. The Etiquette of Advocacy
I would like to conclude this paper with a reminder of the lawyer's professional responsibility.
The essence of professional responsibility is that the lawyer must act at all times with utmost good faith to the Court, to the client, to other lawyers and to members of the public. A lawyer must be frank and candid in all dealings with the Court, fellow lawyers and other parties to proceedings, subject always to not betraying the client's cause, abandoning the client's legal rights or disclosing the client's confidences.
Therefore, when acting as an advocate, the lawyer must treat the tribunal with courtesy and respect and must represent the client resolutely, honourably and within the limits of the law. The lawyer's conduct towards other lawyers should also be characterized by courtesy and good faith. It has often been said that it is the duty of counsel to try the merits of the cause and no to try each other.
It is also important to preserve counsel's credibility with the Court. Counsel must be scrupulously fair in their submissions, particularly factual submissions, and face up to the legal difficulties of their position.
Every effort consistent with the legitimate interest of the client should be made to expedite litigation and to avoid unnecessary delays.
The office of the lawyer does not permit, much less does it demand for any client, violation of law or any manner of fraud. The lawyer must obey his or her own conscience and not that of the client.
As we have discussed there are many elements of the art of advocacy. Lord Denning, quite rightly concluded that language and the use of words lies at the heart of great advocacy. He said:
To succeed in the profession of the law, you must seek to cultivate command of language. Words are the lawyers tools of trade. When you are called upon to address a judge, it is your words which count most. It is by them that you will hope to persuade the judge of the rightness of your cause. 30