History

The Federal Court of Appeal has a long history. It is the successor to the Appeal Division of the Federal Court of Canada. The Federal Court of Canada is itself the successor to the Exchequer Court of Canada, first created in 1875.

Today, the Federal Court of Appeal has jurisdiction to hear appeals from the judgments of the Federal Court and of the Tax Court of Canada. It also has jurisdiction over judicial reviews and appeals from the federal tribunals and decision makers enumerated in subsection 28(1) of the Federal Courts Act, including the Canadian Radio-television and Telecommunications Commission, the Canadian International Trade Tribunal, the National Energy Board, the Appeal Division of the Social Security Tribunal, the Canada Industrial Relations Board, the Public Service Labour Relations Board, the Copyright Board, the Competition Tribunal, the Public Servants Disclosure Protection Tribunal, and the Specific Claims Tribunal (for the complete list, refer to subsection 28(1) of the Federal Courts Act).

The history of the Federal Court of Appeal can be briefly set out as follows.

When Canada was founded, the British North America Act, 1867 (now the Constitution Act, 1867) did not establish specific courts but, by section 101, 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." It is generally accepted that the "Laws of Canada" referred to in section 101 of the Constitution Act, 1867 are federal laws, as opposed to provincial laws.

Pursuant to this provision of the Constitution, an act establishing both the Supreme Court of Canada and the Exchequer Court of Canada was passed by Parliament in 1875. Although its jurisdiction was quite limited at its inception, the Exchequer Court was eventually provided by Parliament with broad and exclusive jurisdiction over most claims made against the federal Crown (i.e. the federal government) and claims arising out of a contract entered into by or on behalf of the federal Crown. It also held exclusive jurisdiction over appeals in patent registration matters and non-exclusive jurisdiction over claims between private litigants involving a patent of invention, copyright, trade mark, or industrial design. As its name indicated, it also held jurisdiction over various federal taxation matters.

Appeals from judgments of the Exchequer Court were made directly to the Supreme Court of Canada.

The Exchequer Court existed between 1875 and 1971, when the Federal Court Act was adopted by Parliament establishing the new Federal Court of Canada as the successor to the Exchequer Court. The Federal Court of Canada was a court of law, equity and admiralty constituted as a superior court of record having both civil and criminal jurisdiction. Unlike the Exchequer Court, it consisted of two divisions: the Trial Division and the Appeal Division.

The Trial Division of the Federal Court of Canada had original and mostly exclusive jurisdiction in all cases where relief was claimed against the federal Crown. It also held concurrent original jurisdiction in matters of maritime law and in other areas of federal law such as aeronautics and interprovincial undertakings, and in matters involving bills of exchange and promissory notes where the Crown was a party. It also had exclusive jurisdiction to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or to grant declaratory relief against federal boards, commissions and tribunals. It exercised exclusive jurisdiction over appeals in patent registration matters and non-exclusive jurisdiction over claims between private litigants involving a patent of invention, copyright, trade mark, or industrial design. It also acted as a court of admiralty with regard to all matters involving Canadian maritime law. As well, it shared jurisdiction in certain fiscal matters with the Tax Court of Canada.

The Appeal Division of the Federal Court of Canada dealt with appeals from decisions of the Trial Division. It also had original and exclusive jurisdiction to determine an application to review and set aside a decision made by a federal board, commission or tribunal acting in a judicial or quasi-judicial capacity. A judgment of the Appeal Division could be appealed only to the Supreme Court of Canada with leave.

Subsequent to the creation of the Federal Court of Canada in 1971, the Supreme Court of Canada rendered decisions which made it difficult to prosecute some types of claims against the federal Crown before the Trial Division of the Federal Court of Canada. Furthermore, the choice of the appropriate administrative law remedy in the Trial Division was also causing some difficulties. In addition, some confusion had emerged in the case law surrounding the identification of federal boards, commissions or tribunals acting in a judicial or quasi-judicial capacity, the decisions of which were subject to review in the Appeal Division, as opposed to the other federal boards, commissions or tribunals which were subject to the supervisory authority of the Trial Division. To address these matters, Parliament adopted significant amendments to the Federal Court Act and to the Crown Liability Act,which amendments came into force on February 1, 1992.

First, under these amendments, the exclusive jurisdiction of the Trial Division of the Federal Court of Canada over claims against the federal Crown was repealed. Instead, such claims could thereafter be pursued either in the Federal Court of Canada or before a provincial superior court. Second, the exclusive jurisdiction of the Trial Division to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or to grant declaratory relief against most federal boards, commissions and tribunals was maintained and reaffirmed by Parliament. However, those remedies would thereafter be obtained using a new unified procedure designated as “an application for judicial review”. Third, the exclusive jurisdiction of the Appeal Division over the judicial review of the decisions of certain federal boards, commissions and tribunals was clarified by specifically enumerating the concerned entities in the Federal Court Act.

Additional legislative amendments came into force on July 2, 2003. Under those amendments, the Federal Court Act became the Federal Courts Act. The Appeal Division of the Federal Court of Canada became an independent appellate court designated the Federal Court of Appeal, while the Trial Division of the Federal Court of Canada became the Federal Court.