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Speaking Notes of Chief Justice Blais

Presentation to the Barreau du Québec at the 4th meeting of the General Council

Friday, March 30, 2012, at Chateau Frontenac, Québec

Good morning, fellow judges and members of the bar. I would like to give you a brief overview of the history and jurisdiction of the Federal Courts on this important occasion.

Both the Federal Court of Appeal and the Federal Court have a long history. In 2003, they succeeded, respectively, the Appeal Division and the Trial Division of the Federal Court of Canada, which, in 1971, had replaced the Exchequer Court of Canada, which itself came into existence in 1875.

As you know, when Canada was created, the British North America Act, 1867 (now the Constitution Act, 1867) did not establish specific courts, but through section 101 it authorized the Parliament of Canada to provide a “General Court of Appeal for Canada” and “any additional Courts for the better Administration of the Laws of Canada.” Pursuant to that section, a separate act establishing the Supreme Court of Canada and the Exchequer Court of Canada was passed in 1875.

Over the life of the Exchequer Court, its jurisdiction gradually increased and changed. Within the first twenty-five years, it acquired exclusive jurisdiction over all litigation brought against the federal government, and its authority included admiralty matters as well as intellectual property lawsuits between individuals.

In 1971, by way of the Federal Court Act (now the Federal Courts Act), the Exchequer Court jurisdiction was inherited by its successor and expanded upon. The most important new area was the Court’s power to review the decisions of all federal boards, commissions or other tribunals.

Significant changes again occurred with the coming into force of amendments to the Federal Court Act on February 1, 1992. Parties seeking relief against the Crown were no longer required to apply to the Federal Court of Canada but were given the option of choosing the provincial courts. The Federal Court Trial Division's exclusive jurisdiction was retained only where federal statutes expressly provided for it.

At the same time, the judicial review procedure was revised and simplified, with the Trial Division being given original jurisdiction except in respect to specific boards for which review was available in the Court of Appeal.

As of July 2003, with the coming into force of the Courts Administration Service Act, the Federal Court of Canada, per se, no longer exists. Rather, we have the Federal Court of Appeal as a distinct court from the Federal Court, formerly known as the Trial Division.

Today, these Federal Courts, that is to say the Federal Court of Appeal and the Federal Court, whose authority derives from the Federal Courts Act, possess essentially the same jurisdiction as the two former divisions of the Federal Court of Canada.

The principle areas of the Federal Court’s jurisdiction are federal Crown litigation, judicial review, maritime litigation, intellectual property and other matters such as aeronautics; there are also provisions in other statutes that confer jurisdiction on it.

The Federal Court of Appeal, which I preside over as Chief Justice, has jurisdiction to hear appeals from judgments and orders, whether final or interlocutory, of the Federal Court and the Tax Court of Canada. It has original judicial review jurisdiction with respect to 17 federal tribunals listed in section 28 of the Federal Courts Act. It also exercises jurisdiction to hear appeals under other acts of Parliament. The Federal Court of Appeal is presently composed of ten judges and two supernumerary judges. I am proud to say that we are up to date with our hearings in the Federal Court of Appeal, and our judges and staff work very hard to ensure the proper administration of justice. For example, the Federal Court of Appeal disposed of approximately 500 cases in 2011, including close to 300 final judgments. Of those 300 judgments, 90% were finalized within 18 months.

The Federal Court of Appeal, like the Federal Court, is a bilingual court, offering its services in both of Canada’s official languages. In keeping with section 133 of the Constitution Act, 1867, section 19 of the Canadian Charter of Rights and Freedoms and Part III of the Official Languages Act, parties appearing before these Courts 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.

Both Federal Courts are also bijural courts, administering the two legal systems in effect in Canada, namely, common law and civil law. Both courts are itinerant, in the sense that they sit and transact business anywhere in Canada in the closest possible location for 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.

The Federal Court of Appeal, as well as the Federal Court, is a court of easy access. Several provisions of the Federal Courts Rules enhance the Courts’ accessibility, including the use of teleconference and video conference facilities. The Federal Courts Rules also provide for case management services, which are intended to avoid delays and facilitate dispute resolution. I would like to consider for a moment the importance of our Rules Committee in light of all the rules I have just mentioned.

Sections 45.1 to 46 of the Federal Courts Act state that the rules regulating the practice and procedure in the Federal Court of Appeal and the Federal Court are made by the Rules Committee of the Federal Court of Appeal and the Federal Court, subject to the approval of the Governor in Council. The Act provides that the Rules Committee shall be composed of the following members:

  • myself as Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court (the Honourable Paul Crampton);

  • three judges designated by the Chief Justice of the Federal Court of Appeal (the Honourable Carolyn Layden-Stevenson, the Honourable David Stratas and the Honourable Johanne Gauthier);

  • five judges and one prothonotary designated by the Chief Justice of the Federal Court (who are the Honourable Roger Hughes, the Honourable Richard Mosley, the Honourable Russel Zinn, the Honourable Donald Rennie, the Honourable Marie-Josée Bédard and Madam Prothonotary Mireille Tabib);

  • the Chief Administrator of the Courts Administration Service (Mr. Daniel Gosselin);

  • 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 are Peter Hutchins, Wendy Danson, Cecily Strickland, John Morrissey and Joe Fiorante); • the Attorney General of Canada or a representative thereof (who is Robert MacKinnon).

It is to be noted that the then-Chief Justice of the Federal Court, Allan Lutfy, and I designated the Honourable Roger Hughes as Chair of the Plenary Rules Committee under subsection 45.1(3) of the Federal Courts Act. A few other people who are essential to the creation of rules for the Federal Courts have been added to this committee. We also have two consultants who assist us enormously in terms of bijuralism, Professor Janet Walker of Osgoode Hall Law School and Professor Denis Ferland of the Faculty of Law at Université Laval. We also have two legislative drafters, Shane McGullam and Karine Gratton, who help us develop rules within the Department of Justice. Finally, there are the legal officers to the chief justices of the Federal Courts and the secretary of the Plenary Rules Committee, who ensure that the legislative development process is properly followed.

In conclusion, I would say that the federal courts, in conjunction with the provincial superior courts, play a vital role in the Canadian justice system. We are fortunate in Canada to have a judiciary that possesses the knowledge and experience to make tremendous contributions to the preservation and continuing evolution of our democratic society. As you all know, the role of the courts as resolvers of disputes, interpreters of the law and defenders of the Constitution and the Charter requires that they be completely separate in authority and function from all other participants in the justice system.

Our tradition of judicial independence guarantees that the courtrooms over which judges preside will continue to be accessible to all individuals and that their proceedings will remain open, transparent and free from any interference.