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The Honourable John D. Richard
Chief Justice of the Federal Court of Canada
The Federal Court consists of two divisions, the Trial Division and the Court of Appeal. It is a national court, a bilingual court and a bi-juridical court. A judgment of the Court has force and effect across Canada. The court regularly sits across the country and has offices in seventeen locations throughout Canada. It is a court which is easily accessible.
Consistency of judgments across the country was one of the goals of the legislation establishing the Federal Court. Another of the goals was to enhance the rights of the citizen against the state by means of a judicial review proceeding which must be heard and determined without delay and in a summary manner.
The jurisdiction of the Federal Court of Canada is statutory. It was created in 1971 by the Federal Court Act, R.S.C. 1985, c. F-7, and is the successor to the Exchequer Court of Canada, which was created in 1875. Both Courts were established under the authority of section 101 of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c.3, which confers upon Parliament the authority to establish courts for the better administration of the laws of Canada.
In Thomas Fuller,  1 S.C.R. 695, at p. 713, the Supreme Court of Canada stated that although
".the basic principle governing the Canadian system of judicature is the jurisdiction of the superior courts of the provinces in all matters federal and provincial [.] [t]he federal Parliament is empowered to derogate from this principle by establishing additional courts only for the better administration of the laws of Canada."The Federal Court has no jurisdiction except that assigned by statute. However, statutory language conferring jurisdiction on the Federal Court must be given a fair and liberal interpretation.
"These are the historical and constitutional factors which led to the development of the notion of inherent jurisdiction in provincial superior courts, which to a certain extent has been compared and contrasted to the more limited statutory jurisdiction of the Federal Court of Canada. But in my view, there is nothing in this articulation of the essentially remedial concept of inherent jurisdiction which in any way can be used to justify a narrow, rather than a fair and liberal, interpretation of federal statutes granting jurisdiction to the Federal Court. The legitimate proposition that the institutional and constitutional position of provincial superior courts warrants the grant to them of a residual jurisdiction over all federal matters where there is a "gap" in statutory grants of jurisdiction, is entirely different from the proposition that federal statutes should be read to find "gaps" unless the words of the statute explicitly close them. The doctrine of inherent jurisdiction raises no valid reasons, constitutional or otherwise, for jealously protecting the jurisdiction of provincial superior courts as against the Federal Court of Canada."The Federal Court has an implied jurisdiction to exercise such powers as are necessary for the Court to exercise fully the jurisdiction expressly conferred by statute. It follows that jurisdiction cannot be conferred on the Federal Court by consent or by acquiescence.
1. There must be a statutory grant of jurisdiction by the federal Parliament.In Quebec North Shore Paper Co. v. Canadian Pacific Ltd.,  2 S.C.R. 1054, at pages 1065-1066, the Supreme Court acknowledged the existence of federal common law adequate to support Federal Court jurisdiction. The requirement for applicable and existing federal law could be satisfied by statute, regulation or common law.
2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction.
3. The law on which the case is based must be "a law of Canada" as the phrase is used in s. 101 of the Constitution Act, 1867.
"The Federal Court is constituted for the better administration of the laws of Canada. It is not, however, restricted to applying federal law in cases before it. Where a case is in "pith and substance" within the court's statutory jurisdiction, the Federal Court may apply provincial law incidentally necessary to resolve the issues presented by the parties;"Recently, the Federal Court of Appeal in Attorney General of Canada et al. v. Constance St-Hilaire, 2001 FCA 63, recognized the suppletive nature of the civil law in relation to federal law in a dispute concerning civil rights. Having said that, the Court recognized that it must attempt to harmonize the effect of federal statutes throughout the country wherever this is possible in private law.
1. Is the matter within the jurisdiction of the Federal Court;It should be noted that the grant of exclusive jurisdiction to the Federal Court cannot act to obstruct the role of the provincial superior courts. The provincial superior courts retain the jurisdiction to make a declaration on the constitutional validity of federal legislation.
2. Is there a grant of exclusive jurisdiction to the Federal Court; and,
3. If there is concurrent jurisdiction, where should I assert the claim?
1) Every person who is a barrister or solicitor in a province may practice as a barrister or solicitor in the Federal Court and is an officer of the Court. There is no need for a special call to appear before the Court in a province other than the one you were called in. Attorneys can represent their clients before the Court anywhere in Canada.Clearly, the success of this objective for the just, most expeditious and least expensive determination of a proceeding on its merits requires the support and co-operation of all members of the Bar who practise before this Court.
2) The principal office of the Court is in Ottawa, but there are sixteen other local offices established throughout Canada. Any document may be filed in any of the offices. The original is transmitted to the principal office and a certified copy is kept at the local office. Documents may be deposited by mail.
3) The Court registry officers are well trained and helpful.
4) A trial coordinator is available to arrange for urgent matters and there is always a duty judge.
5) Tele-conference and video-conference facilities are available and are frequently used.
6) Motions, known as Rule 369 motions, may be disposed of without personal appearance and be based on written representations. Any issue that may be the subject of an oral hearing may be dealt with in writing pursuant to Rule369 if the parties agree. This is a very useful and widely used rule.
7) The Trial Division is prepared to sit in many locations across Canada to meet the needs and, when possible, the convenience of the parties.
1. A Courts Administration ServiceThere is an indispensable role for the Federal Court in Canada. I and my colleagues are proud to be members of a court that is a truly national, bilingual institution dispensing justice from coast to coast.
The administrative services of the Courts will be consolidated into a single Courts Administration Service, headed by a senior order-in-council appointee, which will serve the administrative needs of both Courts.
2. Creation of a Separate Federal Court of Appeal
The existing two divisions of the Federal Court will be divided to create a separate court of appeal and trial court. The current Chief Justice of the Federal Court will become the Chief Justice of the Court of Appeal and continue to have precedence among the judges of the two Courts. The position of Associate Chief Justice will be converted to that of Chief Justice of the trial court to be called the Federal Court. The Chief Justices will each preside over their respective Courts.
3. Superior Court Status for the Tax Court
The status of the Tax Court of Canada would be changed to that of a superior court. The jurisdiction and remedial powers of the Tax Court would remain the same.