In Canada, there is a under-known level of court known as the Federal Court of Canada. Save and except in larger urban areas, and even to lawyers, the Federal Court is not as well-known as its peer court, the superior courts of Canada such as the Supreme Court of British Columbia, the Court of Queen's Bench of Alberta or the Superior Court of Quebec.

Many a lawyer will conclude a busy litigation practice without ever appearing before the Federal Court but for more, the day of reckoning will arrive and on their desk will be that case which will have them run to their law library, Revised Statutes of Canada, and dust off a copy of the Federal Court Act

The Federal Court can seem remote to some lawyers. For example, the Law Society of British Columbia in its 2011 law admission course materials cryptically announced:

"The jurisdiction of the Federal Court will not be considered in these materials...."1

[flag of Canada @ Niagara Falls]And yet the Federal Court is an essential component of a Canadian justice system. The court assures a bench knowledgeable on federal law generally and federal administrative law specifically. federal law must be buttressed by a court that can make decisions binding across Canada. The decisions of provincial superior level courts are not binding outside the borders of the relevant province or territory.

The best place to start is the generic description offered by the Federal Court itself, circa 2012:

"The Federal Court is Canada's national trial court which hears and decides legal disputes arising in the federal domain, including claims against the Government of Canada, civil suits in federally-regulated areas and challenges to the decisions of federal tribunals. Its authority derives primarily from the Federal Courts Act.

"The Federal Court was created in 1971... It is a successor to the Exchequer Court of Canada, established in 1875.... Until 2003, the Federal Court of Canada consisted of two divisions: an Appeal and a Trial Division. With amendments to the Federal Courts Act coming into force on July 2, 2003, these divisions became two separate courts: the Federal Court of Appeal and the Federal Court.

"The Court consists of a Chief Justice and 32 other judges.... The Court may sit anywhere in Canada and regularly conducts hearings and renders decisions in disputes across the country, with Registry offices conveniently located in all major cities. Orders of the Court are binding in every province and territory, thus providing efficient, national coverage."

The Federal Court does not have inherent jurisdiction. For a matter to fall within the Federal Court's jurisdiction, it must be assigned to it by a statute enacted by the Parliament of Canada.2

In Roberts v Canada, relying on ITO-Int'l Terminal Operators v. Miida Electronics, Justice Wilson of the Supreme Court of Canada wrote (with slight re-ordering of the extract for readability):

"Because the Federal Court is without any inherent jurisdiction such as that existing in provincial superior courts, the language of the (enabling federal statute) is completely determinative of the scope of the Court's jurisdiction....

"The test to be applied in assessing whether the Federal Court is properly seized of a matter (is):

  • There must be a statutory grant of jurisdiction by the federal Parliament;
  • 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; and
  • The law on which the case is based must be a law of Canada as the phrase is used in §101 of the Constitution Act, 1867.... "

[flag of Canada, stylized]Justice Roger Hughes, in his 2011 book, wrote:

"The Federal Court ... has jurisdiction wherever a statute or regulation of the federal government expressly confers such jurisdiction... Additionally, the Court has jurisdiction in respect of the maritime laws of Canada.... The Court has powers to review decisions of federal boards and tribunals as well as to entertain specific actions against the (federal) Crown.

"The Court has jurisdiction in most intellectual property matters and in maritime and aeronautical matters. Many federal acts, such as the Income Tax Act, the Immigration and Refugee Protection Act and the Customs Act, give jurisdiction to the Federal Court."

Brian Saunders writes:

"(T)he jurisdiction of the (Federal Court) is exceptional and statutory. It is to be contrasted with the jurisdiction of the provincial superior courts, which is general and inherent.... The Federal Court has no jurisdiction except that assigned by statute."

Generally, the Federal Court has jurisdiction in the following areas:

  • National security issues;
  • Immigration and refugee matters
  • Federal election issues;
  • Official languages;
  • Federal access to information and privacy
  • Passports and citizenship;
  • Prisoners in federal institutions;
  • War veterans;
  • Contract disputes relating to the provision of goods and services to the federal government;
  • Tort/personal injury claims for alleged injury by employees or agents of the federal government;
  • Maritime law and admiralty law disputes;
  • International law including war crimes or crimes against humanity (jurisdiction pending);
  • Charter of Human Rights;
  • Federal environmental impact assessments;
  • Federal public works;
  • Labour relations in regards to federal government and Crown corporation employees;
  • National defence;
  • Public service employment
  • Aeronautics and transportation;
  • Oceans and fisheries
  • First Nations;
  • Judicial review of decisions of federal agencies, boards, commissions and tribunals; and
  • Intellectual property rights.

Contrary to trials in superior-level courts of each priovince, there are no jury trials in the Federal Court. But then the Federal Court can and often does conduct hearings and trials in either of Canada's official languages, and the Court also welcomes pleadings and evidence in either of English or French, contrary to many superior-level courts in Canada (eg. British Columbia and Alberta) which do not allow pleadings or trials in French.

Federal Court practice is very similar to the Court Rules of superior level courts in allowing for examinations for discovery, costs, judicial case management, interlocutory motions, production of documents, consent orders, summary judgment, summary trial, third party claims, admissions, expert witnesses, pre-trial conferences and trials.

Judges and lawyers are gowned for trials.

Decisions of the Court, both final and interlocutory, are reviewable by a separate court, the Federal Court of Appeal which sits in panels of at least three judges.

REFERENCES:

  • Federal Courts ActRSC 1985, c F-7
  • Hughes, Toger, and others, Canadian Federal Courts Practice (Toronto: LexisNexis, 2011).
  • ITO-Int'l Terminal Operators v. Miida Electronics, [1986] 1 SCR 752
  • NOTE 1: Law Society of British Columbia, Professional Legal Training Course, May 2011, "Civil Litigation", page 7. When the Federal Court was established in 1971, "some provinces, notably British Columbia, believed that it was not necessary to create such a court and advocated for the dissolution of the Exchequer Court with its jurisdiction devolving to the superior courts of the provinces" [Justice Roger Hughes, "The Federal Court", materials presented to the Continuing Legal Education Society of BC, May 2007 and published in CLEBC's Federal Court Practice 2007].
  • NOTE 2: R. v. Thomas Fuller Construction, (1958) Ltd., [1980] 1 SCR 695, Justice Pigeon of the Supreme Court of Canada, at page 707
  • Roberts v. Canada, [1989] 1 SCR 322
  • Saunders, Brian, Federal Court Practice (Toronto: Carswell, 2011).