Role of the Federal Court of Appeal

The Federal Court of Appeal is a national, bijural and bilingual judicial institution with jurisdiction extending throughout all of Canada. Its regular sittings may be held in the nation’s capital, Ottawa, as well as in urban centers in each Canadian province or territory. The Court may sit in St. John’s, Charlottetown, Fredericton, Saint John, Quebec City, Montreal, Toronto, Winnipeg, Regina, Saskatoon, Calgary, Edmonton, Vancouver, Whitehorse, Yellowknife or Iqaluit. Any lawyer in good standing in a Canadian jurisdiction may appear before it.

Canada’s national legal system reflects two long-standing and important legal traditions, that of the English common law and that of the French and Roman civil law. The Federal Court of Appeal is structured so as to ensure that both legal traditions are taken into account and respected in the interpretation and administration of federal laws.

The basic role of the Federal Court of Appeal is to ensure that federal law is interpreted and applied consistently throughout Canada by the federal government and its agents, to supervise the legality of the decisions of federal decision makers, and to provide a national appellate or review forum over the Federal Court, the Tax Court of Canada and federal boards, commissions, tribunals and administrative decision makers. In light of its wide jurisdiction in federal matters, it is called upon to review decisions involving most types of claims against the federal government. It is also called upon to review decisions relating to claims between private parties and resulting from certain matters falling under federal jurisdiction, notably Canadian maritime claims and claims related to patents of invention, copyright and other intellectual property rights.

The Federal Court of Appeal was established pursuant to section 101 of the Constitution Act, 1867, which enables Parliament to establish courts for the better administration of the laws of Canada. It is the successor to the Appeal Division of the former Federal Court of Canada established in 1971, which was itself a successor to the Exchequer Court established in 1875. As part of a federal judicial reform coming into force in 2003, the Appeal Division of the Federal Court of Canada became an autonomous court of appeal designated as the Federal Court of Appeal.

The Federal Court of Appeal is a court of law, of equity and of admiralty, and it is a superior court of record having both civil and criminal jurisdiction: Federal Courts Act, section 3.

There are three essential requirements for the Federal Court of Appeal to have jurisdiction over a matter: (1) a statutory grant of jurisdiction by Parliament; (2) an existing body of federal law, essential to the disposition of the case, which nourishes the statutory grant of jurisdiction; (3) the law on which the case is based must be “a law of Canada” as that expression is used in section 101 of the Constitution Act. 1867: ITO-Int’l Terminal Operators v. Miida Electronics, [1986] 1 S.C.R. 752 at p. 766.

The appellate jurisdiction of the Federal Court of Appeal may therefore extend both to litigation involving the federal government and to litigation between individuals and corporations, so long as the three essential conditions are met. In fact, the Federal Court of Appeal hears many appeals which do not involve the federal government as a party, notably in the fields of intellectual property and admiralty.

The Federal Court of Appeal is a statutory court. That is, its jurisdiction arises from the terms of enabling legislation adopted by Parliament. However, its statutory jurisdiction is interpreted in a large and liberal manner: Canada (Human Rights Commission) v. Canada Liberty Net, [1998] 1 S.C.R. 626 at paras. 34-35.

A central part of the jurisdiction of the Federal Court of Appeal involves judicial review of the decisions of federal boards, commissions, tribunals, and administrative decision makers, including ministers of the federal government. The Federal Court of Appeal exercises this supervisory jurisdiction either directly with regard to the decisions of the boards and tribunals listed in subsection 28(1) of the Federal Courts Act, or through appeals from the judgments of the Federal Court involving judicial review of all other federal boards, commissions, tribunals and administrative decision makers. This is an exclusive jurisdiction.

Prior to the establishment of the Federal Court of Canada in 1971, the provincial superior courts exercised certain supervisory powers over federal decision-makers. Significant confusion however arose in the case law, since the superior courts of the various provinces often reached different conclusions with respect to several of the legal principles involved. In particular, there was considerable confusion with respect to the appropriate criteria to apply in order to initiate a judicial review, and with respect to the geographical reach of decisions handed down by provincial superior courts: Canada (Human Rights Commission) v. Canada Liberty Net, above at para. 33; I. Bushnell, The Federal Court of Canada: A History, 1875-1992 (1997), at p.159.

It was chiefly to relieve this confusion and to unify federal administrative law that Parliament undertook to establish a new federal court with national reach. In 1971, Parliament removed from provincial superior courts the jurisdiction to supervise federal boards, commissions and other tribunals, entrusting this responsibility instead to the Federal Court of Canada and its respective Trial and Appeal Divisions. This responsibility is now exercised by the Federal Court and the Federal Court of Appeal. This significant transfer of jurisdiction was upheld by the Supreme Court of Canada in many decisions, notably Pringle et al. v. Fraser, [1972] S.C.R. 821; and Howarth v. National Parole Board, [1976] 1 S.C.R. 453 at pages 470‑472.

This exclusive jurisdiction over judicial review of federal decision makers does not deprive the provincial superior courts of their jurisdiction to determine the constitutionality of a federal statute: Canada Labour Relations Board v. Paul L’Anglais Inc. et al., [1983] 1 S.C.R. 147. Nevertheless, the Federal Court of Appeal also has jurisdiction to determine the constitutionality of federal legislation, and has often been called upon to do so in the course of an application for judicial review or of an appeal from a judgment of the Federal Court or of the Tax Court of Canada. In addition, when a provincial superior court is seized of a matter where the issue raised is in substance one of judicial review falling within the exclusive jurisdiction of the Federal Court or Federal Court of Appeal, but in the course of which a constitutional issue also arises incidentally, generally speaking, the provincial court declines jurisdiction in favour of the Federal Court or the Federal Court of Appeal: European Marine Transporters v. Paquette, [1993] R.D.J. 108 (Que. C.A.), State Farm Mutual Automobile Insurance Co. v. Canada (Privacy Commissioner) and Attorney General of Canada, 2009 NBCA 5, 307 D.L.R. (4th) 495.

The Federal Court of Appeal therefore acts as a reviewing or appellate court over all administrative decision-makers exercising powers granted pursuant to various federal laws. Its jurisdiction over judicial review (exercised either directly under section 28 of the Federal Courts Act or in appeal from the Federal Court) extends to all remedies sought against a federal board, commission or other tribunal.

To a large extent, the Federal Court of Appeal’s role is thus to ensure that the federal government and all its agents act within the bounds of the law when making decisions affecting individual Canadians.

The Federal Court of Appeal also exercises an important role in federal taxation matters.

The Tax Court of Canada has exclusive jurisdiction over judicial challenges brought by taxpayers under almost all federal taxation laws, including the Income Tax Act, the Excise Tax Act, 2001, the Excise Tax Act, the Customs Act, and the Petroleum and Gas Revenue Tax Act. The Tax Court of Canada also has exclusive jurisdiction over challenges to contributions assessed under numerous contributory social security measures, including the Canada Pension Plan, the Employment Insurance Act, the Old Age Security Act, the War Veteran Allowances Act and the Civilian War-related Benefits Act.

Most of the judgments of the Tax Court of Canada concerning these matters may be appealed as of right to the Federal Court of Appeal. Since the judgments of the Federal Court of Appeal may themselves be appealed only with leave granted by either the Federal Court of Appeal itself or the Supreme Court of Canada, and since such leave to appeal is rarely granted in taxation matters, the Federal Court of Appeal acts as a de facto final decision maker in most matters involving federal taxation law. Since many provincial income tax and sales tax laws are harmonized with federal legislation, the Federal Court of Appeal’s judgments in the matter of taxation have a reach beyond the sphere of federal legislation.

Through its appellate jurisdiction over judgments of the Federal Court, and through its direct supervisory jurisdiction over the boards and tribunals enumerated in subsection 28(1) of the Federal Courts Act, the Federal Court of Appeal also considers legal issues in a large variety of areas falling under federal jurisdiction. As examples, the Federal Court of Appeal may be called upon to consider the federal laws related to telecommunications and broadcasting, to energy transportation, to international trade, to labour matters, to business and competition, to aboriginal issues, to immigration matters and to national security, to name just a few of the areas of law which are dealt with by the Court. It is also often called upon to decide matters which involve either the common law or the civil law.

In conclusion, the Federal Court of Appeal has a wide jurisdiction in most legal matters falling under federal jurisdiction or involving the federal government. It provides a unique national, bijural and bilingual appellate forum in which to decide these matters, a forum which no other appellate court in Canada can provide, save the Supreme Court of Canada.