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{{quote|'''58'''. The Exchequer Court shall have and possess concurrent original jurisdiction in the Dominion of Canada, in all cases in which it shall be sought to enforce any law of the Dominion of Canada relating to the revenue, including actions, suits, and proceedings, by way of information, to enforce penalties and proceedings by way of information ''in rem'', and as well in ''qui tam'' suits for penalties or forfeitures as where the suit is on behalf of the Crown alone; and the said Court shall have exclusive original jurisdiction in all cases in which demand shall be made or relief sought in respect of any matter which might in England by the subject of a suit or action in the Court of Exchequer on its revenue side against the Crown, or any officer of the Crown.
{{quote|'''58'''. The Exchequer Court shall have and possess concurrent original jurisdiction in the Dominion of Canada, in all cases in which it shall be sought to enforce any law of the Dominion of Canada relating to the revenue, including actions, suits, and proceedings, by way of information, to enforce penalties and proceedings by way of information ''in rem'', and as well in ''qui tam'' suits for penalties or forfeitures as where the suit is on behalf of the Crown alone; and the said Court shall have exclusive original jurisdiction in all cases in which demand shall be made or relief sought in respect of any matter which might in England by the subject of a suit or action in the Court of Exchequer on its revenue side against the Crown, or any officer of the Crown.



'''59'''. The Exchequer Court shall also have concurrent original jurisdiction with the Courts of the several Provinces in all other suits of a civil nature at common law or equity in which the Crown in the interest of the Dominion of Canada is plaintiff or petitioner.<ref name=1875Act/>}}
'''59'''. The Exchequer Court shall also have concurrent original jurisdiction with the Courts of the several Provinces in all other suits of a civil nature at common law or equity in which the Crown in the interest of the Dominion of Canada is plaintiff or petitioner.<ref name=1875Act/>}}

Revision as of 04:07, 6 September 2020

This article is about the federal court before it was split in 2003. For the active federal courts, see Federal Court (Canada) and Federal Court of Appeal (Canada).

The Federal Court of Canada, which succeeded the Exchequer Court of Canada in 1971, was a national court of Canada that had limited jurisdiction to hear certain types of disputes arising under the federal government's legislative jurisdiction. Originally composed of two divisions, the Appellate Division and the Trial Division, in 2003 the Court was split into two separate Courts, the Federal Court and the Federal Court of Appeal. The jurisdiction and powers of the two courts remained largely unchanged from the predecessor divisions.

The court used facilities as the Supreme Court of Canada Building as well as Thomas D'Arcy McGee Building and registry office at 90 Elgin Street.

History

Pre-Confederation to Confederation

Prior to Confederation, the predominantly English-speaking Canada West (which succeeded Upper Canada) and the predominantly French-speaking Canada East (which succeeded Lower Canada) each had a separate system of courts. During pre-Confederation negotiations, the creation of a national court had been contemplated to deal with matters relating to federal law.[1] The Constitution Act, 1867 thus provided under s. 101 that:

The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.[2]

Despite the language in the constitution, a national court was not established until 1875.[1] Prime Minister John A. Macdonald made several attempts between 1869 and 1873 to create a national court under the powers granted to Parliament under s. 101 of the Constitution Act, 1867.[1] However, these early attempts were rebuffed due to concerns over jurisdiction, particularly because the early proposals would have established a federal Supreme Court exercising both original (trial) jurisdiction and concurrent appellate jurisdiction potentially in conflict with existing courts administered by Ontario and Quebec.[1]

While no court per se was created, provision was made for the appointment of Official Arbitrators,[3] whose decisions soon became subject to a final appeal to a Board of Arbitrators,[4] until a further right of appeal to the new Exchequer Court was created in 1879.[5]

Exchequer Court

In 1875, the Liberal government of Prime Minister Alexander Mackenzie passed The Supreme and Exchequer Court Act[6] (introduced by Minister of Justice Telesphore Fournier), which was based on Macdonald's earlier unsuccessful bill of 1870. This act created both the Supreme Court of Canada and the Exchequer Court. The jurisdiction of the Exchequer Court was provided under sections 58 and 59 of the Act:

58. The Exchequer Court shall have and possess concurrent original jurisdiction in the Dominion of Canada, in all cases in which it shall be sought to enforce any law of the Dominion of Canada relating to the revenue, including actions, suits, and proceedings, by way of information, to enforce penalties and proceedings by way of information in rem, and as well in qui tam suits for penalties or forfeitures as where the suit is on behalf of the Crown alone; and the said Court shall have exclusive original jurisdiction in all cases in which demand shall be made or relief sought in respect of any matter which might in England by the subject of a suit or action in the Court of Exchequer on its revenue side against the Crown, or any officer of the Crown.


59. The Exchequer Court shall also have concurrent original jurisdiction with the Courts of the several Provinces in all other suits of a civil nature at common law or equity in which the Crown in the interest of the Dominion of Canada is plaintiff or petitioner.[6]

The Supreme and Exchequer Court Act made it clear that the Exchequer Court of Canada was inspired by the Court of Exchequer in England, both in name and in jurisdiction, focusing as it did on matters of revenue.[7] In the same year, however, England abolished the Court of Exchequer, merging its jurisdiction into the High Court of Justice.[1] Nonetheless, the jurisdiction provided to the Exchequer Court of Canada initially consisted of:

  • concurrent original jurisdiction over all cases relating to the enforcement of the revenue laws;
  • exclusive original jurisdiction over any demand or relief sought in like manner as the English Court of Exchequer in its revenue side; and
  • concurrent original jurisdiction over all civil cases where the Crown is the plaintiff or petitioner.

The independence of the Exchequer Court was not immediately established. Indeed, justices of the Supreme Court also sat as justices of the Exchequer Court in the early years.[7] The two Courts were not separated until 1887, at which time the functions of the Official Arbitrators were subsumed into the Exchequer Court.[8] George W. Burbidge, a lawyer from New Brunswick, was the first Exchequer Court judge appointed under this new arrangement.[7] At the same time, the Court's jurisdiction was expanded to include exclusive original jurisdiction over all claims against the Crown.[9]

Acquisition of admiralty jurisdiction

While s. 96 of the BNA Act, 1867 constituted the superior courts in the provinces, admiralty law jurisdiction was not conferred on them, which continued to be vested in the vice-admiralty courts under the British Vice Admiralty Courts Act, 1863.[10] Separate courts existed in British Columbia, Lower Canada, New Brunswick and Nova Scotia.[11] The absence of such a court for Ontario led to the Parliament of Canada, exercising its power under s. 101, to create the Maritime Court of Ontario through the passage of the Maritime Jurisdiction Act 1877.[12] This was held to be a valid exercise of federal jurisdiction by the Supreme Court of Canada in 1879.[13]

This mix of courts was rationalized after the British Parliament passed the Colonial Courts of Admiralty Act 1890,[14] where British possessions were authorized to create their own courts of admiralty jurisdiction.[15] This was followed shortly with the passage of the Admiralty Act 1891,[16] which consolidated such jurisdiction throughout Canada in the Exchequeur Court of Canada, which under the British Act "may exercise such jurisdiction in like manner and to as full an extent as the High Court in England, and shall have the same regard as that Court to international law and the comity of nations."[17]

The extent of this jurisdiction was held to be only that which existed on 1 July 1891, in an appeal decided in 1927 by the Judicial Committee of the Privy Council.[18] This situation only changed after the Statute of Westminster 1931 came into force, after which Canada passed the Admiralty Act 1934,[19] which broadened Canadian admiralty jurisdiction to match that of the High Court of England at that time:

18(1) The jurisdiction of the Court on its Admiralty side shall extend to and be exercised in respect of all navigable waters, tidal and non-tidal, whether naturally navigable or artificially made so, and although such waters be within the body of a county or other judicial district, and, generally, such jurisdiction shall, subject to the provisions of this Act, be over the like places, persons, matters and things as the Admiralty jurisdiction now possessed by the High Court of Justice in England, whether existing by virtue of any statute or otherwise, and be exercised by the Court in like manner and to as full an extent as by such High Court.[20]

Federal Court of Canada

In 1971, the Federal Court of Canada was established, consisting of two divisions (the "Federal Court – Trial Division" and the "Federal Court – Appeal Division"), inheriting much of the jurisdiction of the Exchequer Court.[21] The Federal Court of Canada gained the jurisdiction to hear judicial reviews from federal agencies and tribunals.[22] With respect to maritime jurisdiction, the Trial Division was declared to have:

concurrent original jurisdiction ... in all cases in which a claim for relief is made or a remedy is sought under or by virtue of Canadian maritime law or any other law of Canada relating to any matter coming within the class of subject of navigation and shipping except to the extent that jurisdiction has been otherwise specially assigned.[23]

On July 2, 2003 the Court was split into two separate Courts, with the "Trial Division" continued as the Federal Court and the "Appeal Division" continued as the Federal Court of Appeal.[24]

Until 1976, there was substantial judicial support[25][26] for the view that Parliament could give a federal court jurisdiction over any matter (even a matter not regulated by federal statute law), on the basis that "the Laws of Canada" meant not only federal statutes, but provincial ones as well. However, in Quebec North Shore Paper Co. v. Canadian Pacific,[27] the Supreme Court of Canada rejected this notion, as:

  • provincial law is not pro tanto federal law, nor can it be transposed into federal law for the purposes of giving jurisdiction to the Federal Court.
  • judicial jurisdiction of the Federal Court is not co-extensive with legislative jurisdiction of Parliament, as "the Laws of Canada" carries the requirement that there be applicable and existing federal law

Organization

The Court consisted of a first-level trial court, known as the Federal Court of Canada – Trial Division, and an appellate Court, known as the Federal Court of Canada – Appeal Division (more commonly referred to as the Federal Court of Appeal).

The Trial Division had jurisdiction to hear judicial review of decisions of federal boards and tribunals, including most immigration matters, as well as jurisdiction in admiralty, intellectual property, and disputes involving the federal government.

The Appeal Division had jurisdiction to hear appeals of decisions of the Trial Division, as well as to determine applications for judicial review of decisions made by specific boards and tribunals, set out in section 28 of the Federal Court Act. Decisions of the Appeal Division could be appealed to the Supreme Court of Canada, but only if leave (permission) was granted by either court.

The court did not use juries so all matters were decided by judge alone: a single judge in the Trial Division and a panel of three judges at the appeal level. Some pre-trial steps such as motions were decided by prothonotaries, a role similar to a master in other courts. The judges and prothonotaries were appointed by the Cabinet of the federal government.

Jurisdiction

Unlike the general courts set up by each province, matters could not be brought before the Federal Court of Canada unless a law explicitly allowed the proceeding. The docket of the court primarily consisted of judicial reviews of immigration, intellectual property, and federal employment disputes. The court could also deal with incidental aspects of a dispute that fell outside its jurisdiction if the primary dispute was within its jurisdiction.

The court was a national court so trials and hearings occurred throughout Canada. Any orders rendered by the court were enforceable in all the provinces and territories. This contrasts with the provincial superior courts which are organized by each province and require additional steps to enforce decisions in other provinces.

Presidents of the Exchequer Court of Canada

The position of President of the Court was not created until 1923. Before that time, justices of the Supreme Court of Canada sat as judges of the Exchequer Court from 1875 to 1887, at which time George Wheelock Burbidge was appointed as the first full-time judge of the Court. He served until 1908. when Walter Gibson Pringle Cassels was appointed. In 1912, authority was given to appoint an associate judge to the Court, and Louis Arthur Audette was appointed to that position. In 1945, authority was given to appoint more judges to the Court.

From 1923, the Presidents of the Court were:

Judges

Current Judges

Name[28] Appointed Nominated By Prior Position(s)
Chief Justice Paul Crampton [29]
Justice Elizabeth Heneghan [30] 1999 Jean Chretien
Justice Luc Martineau [31] 2002
Justice James O'Reilly
Justice Richard Mosley
Justice Michel M.J. Shore
Justice Anne L. Mactavish
Justice Robert L. Barnes [32] November 23, 2005 Paul Martin Burchell, MacAdam Hayman -> Burchell Hayman Barnes -> Burchell Hayman Parish, Halifax (1989-2005)
Justice Russel W. Zinn [33] February 20, 2008 Stephen Harper
Justice Jocelyne Gagné
Justice Catherine M. Kane
Justice Michael D. Manson
Justice Yvan Roy
Justice Cecily Y. Strickland
Justice Peter B. Annis
Justice Glennys L. McVeigh
Justice René LeBlanc
Justice Martine St-Louis
Justice George R. Locke
Justice Henry S. Brown
Justice Alan Diner
Justice Keith M. Boswell
Justice Simon Fothergill
Justice B. Richard Bell
Justice Denis Gascon [34] February 26, 2015 Stephen Harper
Justice Richard F. Southcott
Justice Patrick K. Gleeson
Justice E. Susan Elliott [35] June 26, 2015 Stephen Harper Good Elliott Hawkins LLP [Kingston] (1981 to 2015)
Justice Sylvie E. Roussel [35] June 26, 2015 Stephen Harper Intelligence Review Committee (2007 to 2015)
Noël & Associés (1987 to 2007)
Justice Ann Marie McDonald [35] June 26, 2015 Stephen Harper McInnes Cooper (Fredericton) (2000 to 2015)
Allen Dixon Bell (1995 to 2000)
Justice Roger Lafrenière
Justice William F. Pentney
Justice Shirzad S. Ahmed
Justice Sébastien Grammond
Justice Paul Favel

Supernumerary

Name Appointed Nominated By Prior Position(s)
Justice Douglas R. Campbell [36]
Justice Sean J. Harrington
Justice Leonard S. Mandamin
Justice Simon Noël [37] August 8, 2002 Noël & Associates (1977–79)
Noël, Décary, Aubry & Associés (1979–90)
Noël, Berthiaume, Aubry (1990–93)
Noël, Berthiaume (1994–98)
Noël & Associates (1998–2002)
Justice Michael L. Phelan
Justice James Russell [38] December 11, 2002
Justice Sandra J. Simpson [39] 1993 Fraser Milner Casgrain (1975 to 1993)

Previous Judges

The judges of this court are listed below.[40]

  = former judge of the Exchequer Court of Canada
  = stepped down from original appointment
† = died in office
Judges of the Federal Court of Canada, June 1, 1971 – July 2, 2003
Name Trial Division Appeal Division Associate Chief Justice Chief Justice Left office Transferred to
Federal Court Federal Court of Appeal
Wilbur R. Jackett June 1, 1971 October 1, 1979
Camilien Noël June 1, 1971 July 4, 1975
Jacques Dumoulin June 1, 1971 December 1, 1972
Arthur L. Thurlow June 1, 1971 December 4, 1975 January 4, 1980 May 5, 1988
Alexander Cattanach June 1, 1971 July 26, 1984
Hugh F. Gibson June 1, 1971 December 14, 1981
Allison Walsh June 1, 1971 June 30, 1986
Roderick Kerr June 1, 1971 September 1, 1975
Louis Pratte June 10, 1971 January 25, 1973 January 1, 1999
Darrel V. Heald June 30, 1971 December 4, 1975 August 27, 1994
Frank U. Collier September 15, 1971 December 31, 1992
John J. Urie April 19, 1973 December 15, 1990
Raymond G. Décary September 13, 1973 January 31, 1984
Patrick M. Mahoney September 13, 1973 July 18, 1983 October 31, 1994
George A. Addy September 17, 1973 September 28, 1990
William F. Ryan April 11, 1974 August 1, 1986
Jean-Eudes Dubé April 9, 1975 November 6, 2001
Gerald Le Dain September 1, 1975 May 28, 1984[41]
Louis Marceau December 23, 1975 July 18, 1983 May 1, 2000
James Alexander Jerome February 18, 1980 March 4, 1998
Paul U.C. Rouleau August 5, 1982 ✓[42]
James K. Hugessen June 23, 1998 July 18, 1983 ✓[43]
Arthur J. Stone July 18, 1983 ✓[44]
John McNair July 18, 1983 August 31, 1990
Francis C. Muldoon July 18, 1983 September 4, 2001
Barry L. Strayer July 18, 1983 August 30, 1994 ✓[45]
Barbara Reed November 17, 1983 July 22, 2000
Mark R. MacGuigan June 29, 1984 †January 12, 1998
Pierre Denault June 29, 1984 November 1, 2001
Louis-Marcel Joyal June 29, 1984 December 31, 1998
Bud Cullen July 26, 1984 August 31, 2000
Bertrand Lacombe October 29, 1985 December 7, 1989
Leonard Martin October 29, 1985 October 24, 1991
Max M. Teitlebaum October 29, 1985 ✓[46]
Alice Desjardins June 29, 1987 ✓[47]
Frank Iacobucci September 2, 1988 January 6, 1991[41]
W. Andrew MacKay September 2, 1988 ✓[48]
Robert Décary March 14, 1990 July 1, 2001
Allen M. Linden July 5, 1990 October 7, 2009
Julius A. Isaac September 1, 1999 December 24, 1991 ✓[49]
Gilles Létourneau May 13, 1992 ✓
Joseph Robertson May 13, 1992 July 27, 2000
Donna McGillis May 13, 1992 May 15, 2003
Marc Noël June 24, 1992 June 23, 1998 ✓
Marshall E. Rothstein June 24, 1992 January 22, 1999 ✓[50]
Francis J. McDonald April 1, 1993 September 6, 2001
Frederick E. Gibson April 1, 1993 ✓[51]
William P. McKeown April 1, 1993 September 1, 2002
Marc Nadon June 10, 1993 December 14, 2001 ✓
Howard Wetston June 16, 1993 January 11, 1999
John D. Richard June 23, 1998 November 4, 1999 ✓[52]
J. Edgar Sexton June 23, 1998 ✓[53]
Pierre Blais June 23, 1998 ✓[54]
John Maxwell Evans June 26, 1998 December 30, 1999 ✓
Karen Sharlow January 21, 1999 November 4, 1999 ✓
J.D. Denis Pelletier February 16, 1999 December 14, 2001 ✓
Brian D. Malone November 4, 1999 ✓[55]
Allan Lutfy December 8, 1999 ✓[56]
Eleanor Dawson December 8, 1999 ✓[57]
Carolyn Layden-Stevenson January 25, 2002 ✓[58]
Johanne Gauthier December 11, 2002 ✓[59]
Robin Camp [60]

See also

References

  1. ^ a b c d e Ian Bushnell (1997). The Federal Court of Canada: A History, 1875-1992. Toronto: University of Toronto Press. ISBN 0-8020-4207-4. Retrieved 2013-01-06.
  2. ^ Constitution Act, 1867, s 101.
  3. ^ An Act respecting the Public Works of Canada, S.C. 1867, c. 12, s. 31-48
  4. ^ An Act to extend the powers of the Official Arbitrators, to certain cases therein mentioned, S.C. 1870, c. 23
  5. ^ An Act respecting the Official Arbitrators, S.C. 1879, c. 8
  6. ^ a b The Supreme and Exchequer Court Act, S.C. 1875, c. 11
  7. ^ a b c Frank Iacobucci (1990). "The Federal Court of Canada: Some Comments on its Origin, Traditions and Evolution". Advocates Quarterly. 11: 318. – via HeinOnline (subscription required)
  8. ^ An Act to amend "The Supreme and Exchequer Courts Act," and to make better provision for the Trial of Claims against the Crown, S.C. 1887, c. 16
  9. ^ 1887 Act, ss. 15-17
  10. ^ Vice-Admiralty Courts Act 1863, 1863, c. 24
  11. ^ 1863 Act, Schedule A
  12. ^ The Maritime Jurisdiction Act, 1877, S.C. 1877, c. 21
  13. ^ The Picton, 1879 CanLII 42, 4 SCR 648 (13 December 1879)
  14. ^ Colonial Courts of Admiralty Act, 1890, 1890, c. 27
  15. ^ 1890 Act, s. 3
  16. ^ The Admiralty Act, 1891, S.C. 1891, c. 29
  17. ^ 1890 Act, s. 2(2)
  18. ^ The Yuri Maru [1927] UKPC 69, [1927] AC 906, (1927) 28 Ll L Rep 221 (5 July 1927) (on appeal from Canada)
  19. ^ The Admiralty Act, 1934, S.C. 1934, c. 31
  20. ^ 1934 Act, s. 18
  21. ^ Federal Court Act, S.C. 1970-72, c. 1
  22. ^ 1970-72 Act, s. 18
  23. ^ 1970-72 Act, s. 22(1)
  24. ^ Courts Administration Service Act, S.C. 2002, c. 8, s. 13-58
  25. ^ Stephen A. Scott (1982). "Canadian Federal Courts and the Constitutional Limits of Their Jurisdiction" (PDF). McGill Law Journal. 27 (2). McGill Law School: 137–195.
  26. ^ Consolidated Distilleries, Limited, and another v The King [1933] UKPC 34, [1933] AC 508 (10 April 1933), P.C. (on appeal from Canada)
  27. ^ Quebec North Shore Paper v. C.P. Ltd., 1976 CanLII 10, [1977] 2 SCR 1054 (29 June 1976)
  28. ^ [1]
  29. ^ [2]
  30. ^ [3]
  31. ^ [4]
  32. ^ [5]
  33. ^ [6]
  34. ^ [7]
  35. ^ a b c "Federal Court Judicial Appointments Announced". Retrieved 18 July 2018.
  36. ^ [8]
  37. ^ [9]
  38. ^ [10]
  39. ^ [11]
  40. ^ "Former Judges and Prothonotaries". Federal Court (Canada). Archived from the original on February 9, 2012. Retrieved February 1, 2012.
  41. ^ a b Elevated to the Supreme Court of Canada
  42. ^ Served until July 25, 2007.
  43. ^ Served until July 26, 2008.
  44. ^ Served until November 19, 2004.
  45. ^ Served until May 1, 2004.
  46. ^ Served until January 27, 2007.
  47. ^ Served until August 11, 2009.
  48. ^ Served until March 20, 2004.
  49. ^ Served until July 18, 2003.
  50. ^ Served until March 9, 2006, before being elevated to the Supreme Court of Canada.
  51. ^ Served until August 30, 2008.
  52. ^ Became Chief Justice of the new Federal Court of Appeal on July 3, 2003, in which post he served until July 30, 2009.
  53. ^ Served until October 28, 2011.
  54. ^ Served until February 19, 2008, before being elevated to the Federal Court of Appeal.
  55. ^ Served until September 27, 2007.
  56. ^ Became Chief Justice of the Federal Court on July 3, 2003, in which post he served until September 30, 2011.
  57. ^ Served until November 26, 2009, before being elevated to the Federal Court of Appeal.
  58. ^ Served until December 12, 2008.
  59. ^ Served until October 21, 2011, before being elevated to the Federal Court of Appeal.
  60. ^ [12]

Further reading

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