The Federal Court of Canada

The Federal Court of Canada: A History, 1875-1992

IAN BUSHNELL
Copyright Date: 1997
Pages: 476
https://www.jstor.org/stable/10.3138/9781442681262
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  • Book Info
    The Federal Court of Canada
    Book Description:

    This book is an authoritative history of the Federal Court of Canada. The judges' work in various areas of substantive law provides illustrations of the functioning of the Court in the adjudication of disputes.

    eISBN: 978-1-4426-8126-2
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Foreword THE OSGOODE SOCIETY FOR CANADIAN LEGAL HISTORY
    (pp. ix-x)
    R. Roy McMurtry and Peter N. Oliver

    The purpose of The Osgoode Society for Canadian Legal History is to encourage research and writing in the history of Canadian law. The Society, which was incorporated in 1979 and is registered as a charity, was founded at the initiative of the Honourable R. Roy McMurtry, a former attorney general for Ontario, now Chief Justice of Ontario, and officials of the Law Society of Upper Canada. Its efforts to stimulate the study of legal history in Canada include a research support program, a graduate student research assistance program, and work in the fields of oral history and legal archives. The...

  4. Preface
    (pp. xi-xvi)
  5. Acknowledgments
    (pp. xvii-xx)
  6. Illustrations
    (pp. xxi-2)
  7. PART 1: INTRODUCTION
    • 1 Introduction
      (pp. 5-17)

      The history of a court can be written from different perspectives. As a social institution, the court can be examined from a social and political perspective, focusing on its institutional characteristics and its role in the governing of society. Another perspective would focus on the court as part of the legal system and that systemʹs legal profession. From this point of view, the subjects of examination would be the judges and their work – the cases they decided and the reasons for a particular conclusion.

      The individuals who constitute the court – the judges – are the heart and soul...

    • 2 Establishment
      (pp. 18-24)

      Throughout the ninety-five-year history of the Exchequer Court of Canada, from 1876 to 1971, and the almost quarter-century of existence of the Federal Court of Canada, from 1971 to 1992, the one word, more than any other, that characterizes them is ʹanonymity.ʹ

      The Exchequer Court was created in anonymity, its existence and work hidden behind the bulk of the Supreme Court of Canada. The road that had led to the establishment of the Supreme Court of Canada in 1875 had not been easily travelled, and had taken eight years following Confederation, even though the creation of a national appeal court...

  8. PART 2: THE FIRST COURT, 1875–1887
    • 3 Jurisdiction
      (pp. 27-34)

      The Supreme and Exchequer Court Act gave the Exchequer Court jurisdiction partly concurrent with provincial courts and partly exclusive to itself. The concurrent jurisdiction dealt with any proceedings that involved the enforcement of the revenue laws of the Dominion, and any action of a civil nature, as opposed to criminal, in which the government of Canada initiated the proceedings. The part that was exclusive consisted of litigation in ʹcases in which demand shall be made or relief sought in respect of any matter which might in England be the subject of a suit or action in the Court of Exchequer...

    • 4 The Judges
      (pp. 35-41)

      The initial appointments of the judges to the Supreme and Exchequer Court were highly unusual, and such a dramatic mix has not been seen since. The six judges appointed to the court were evenly split regarding their approach to law and legal decision making. As might be expected, battles were fought over which methodology should be used. Undoubtedly the appointments were made with the Supreme Court of Canada in mind; the fact that the judges would have trial duties in the Exchequer Court was not likely of any moment.

      Edward Blake, then minister of justice in the Liberal government of...

    • 5 The Work
      (pp. 42-49)

      The workload in the eleven years that the judges of the Exchequer Court were also the judges of the Supreme Court was very light. Although the court had been created to deal with revenue cases, its jurisdiction was made concurrent with the provincial courts and the federal government continued to use the local courts for revenue matters.¹

      A survey of the docket book for the period reveals eighty-five cases, an average of approximately eight per year. Actions against the government involving a contract or a property dispute accounted for sixty-seven cases (79 per cent), while there were four expropriation cases...

    • 6 Appeals and Attacks
      (pp. 50-56)

      There is little doubt that certain practices of the past that were considered normal in their time would today shock the sensibilities of most people. This is the way of change. However, the approach to decision making of most of the legal profession today is still very much grounded in the formalism of the nineteenth century, which also favours an attitude that things are fixed and unchanging. Therefore there is a tendency to accept the Victorian era as part of the fabric of the present-day legal system. Thus it appears incomprehensible that a value that is today considered fundamental to...

  9. PART 3: THE SECOND COURT, 1887–1971
    • 7 Court of Claims
      (pp. 59-63)

      As the nineteenth century progressed, there was a growth in industrialization and in government involvement in the daily affairs of society. In Canada, government was involved in matters of business, building and operating public works – canals, harbours, roads, bridges, log slides, dams, locks, and buildings. Along with such activity came a growing increase in the number of contract disputes between the government and individuals. The Judicial Committee of the Privy Council noted at this time that colonial governments were acting as pioneers of improvements and had engaged in activities that might otherwise have been left to private enterprise.¹ In...

    • 8 The Burbidge Years, 1887–1908 (I)
      (pp. 64-80)

      George Burbidge was the judge of the Exchequer Court from October 1, 1887, until his death on February 18, 1908 – for twenty-one years and four months.¹ The new life of the Exchequer Court as an institution independent of the Supreme Court got off to a solid start with this lengthy period of continuity. At forty, Burbidge was one of the youngest judges ever appointed to a federal court. Before his appointment, he had been Canadaʹs deputy minister of justice, a position he had held for over five years. He was a Maritimer, born in Nova Scotia, who lived and...

    • 9 The Burbidge Years, 1887–1908 (II)
      (pp. 81-92)

      Burbidgeʹs judgments were marked by an earthiness and lack of pretension. He displayed a keen grasp of the reality of everyday life in the society in which he lived. There was little doubt that he leaned towards the approach of the contextualists in his decision making.

      In the area of statutory interpretation, where the different approaches show so clearly, he began the task by asking the prime question: What was the problem that the legislation in question was attempting to solve or prevent from occurring? In other words, what was the policy behind the law? The policy would imbue the...

    • 10 The Cassels Years, 1908–1923
      (pp. 93-103)

      Two weeks after Burbidge passed away, the new judge was appointed. Walter Gibson Pringle Cassels was an intellectual property lawyer from Toronto, who had experience before the court. His brother, Robert, as registrar of the Supreme Court of Canada from 1875 to 1898, had been the first registrar of the Exchequer Court. Walter had been born in Quebec City, where he received his early education. He attended the University of Toronto, and obtained his legal education in Ontario. At sixty-two, he was older than Burbidge had been when he died.

      The state of equanimity that had characterized the institution during...

    • 11 The Maclean Years, 1923–1942
      (pp. 104-123)

      Eight months after the death of Walter Cassels, on November 23, 1923, Alexander Kenneth Maclean was appointed president of the court. The Liberal government of Mackenzie King appears to have given some thought to the selection. Although Louis Arthur Audette was the choice of certain francophones, it was almost certainly assumed that the leadership of the institution would fall to an anglophone.¹ Audette was almost sixty-seven at the time. Maclean was fifty-four. He had been born on Cape Breton Island, Nova Scotia, and had received both his legal and general education in the province. Following his graduation from Dalhousie University...

    • 12 The Thorson Years, 1942–1964
      (pp. 124-137)

      A.K. Maclean died on July 31, 1942, at the age of seventy-two, after several years of battling cancer. Noted for his independence of spirit and the breadth of his culture (acquired through his voluminous reading), Maclean had illustrated the contextual approach to law and lawyering. Although he had apparently been on very friendly terms with Sir Lyman Duff, the chief justice of Canada, and had seen Duff through his notorious drinking bouts, the two men were virtually polar opposites when it came to the nature of their decision making.

      The new president was appointed on October 6, 1942, two months...

    • 13 The Jackett Years, 1964–1971
      (pp. 138-154)

      Wilbur Jackett was fifty-one years of age when he was appointed president of the Exchequer Court following Joseph Thorsonʹs retirement. The appointment followed the established practice of selecting someone from outside the court as president. At the time the practice for the Supreme Court of Canada – selecting the chief justice by seniority – had coincidentally produced alternating anglophone and francophone chief justices since 1944. With direct appointments for the Exchequer Court, the government continued to choose only anglophones.

      Jackett had been born, raised, and educated in Saskatchewan. After graduating from the University of Saskatchewan in law, he went to...

  10. PART 4: THE THIRD COURT, 1971–1992
    • 14 Creation of the Federal Court
      (pp. 157-167)

      The Federal Court Act¹ was proclaimed in force on June 1, 1971. The legislation declared that the Exchequer Court of Canada would continue under a new name as the Federal Court of Canada,² but there was much more to it than simply a change of name.

      Change was the watchword of the governing Liberals following Pierre Elliott Trudeauʹs selection as party leader and prime minister in April 1968, and the general election victory in June 1968. The prime minister made no secret of his governmentʹs attitude that social institutions were subject to change. Citizens were exhorted to keep pace: ʹ[to]...

    • 15 An Administrative Court
      (pp. 168-182)

      When the Federal Court acquired its extensive jurisdiction to review federal administrative action, a great deal of controversial baggage arrived with it.

      ʹAdministrative lawʹ (the law that applies to government and its activities) can be traced back to the earliest work of the Exchequer Court in England.¹ At the beginning it related to Crown liability. It is thus possible to say that establishment of the Exchequer Court of Canada as the court of claims in 1887 created an administrative court. However, the term ʹadministrative law,ʹ did not develop until much later, when what preoccupied those thinking about legal control of...

    • The Jackett Years, 1971–1979
      • 16 The New Court
        (pp. 185-194)

        When the Federal Court of Canada came into being on June 1, 1971, it was an amalgam, with some characteristics indicating it was one court, and others pointing to the existence of two distinct courts – the Court of Appeal and the Trial Division.

        The Trial Division was essentially the Exchequer Court with a broader jurisdiction, particularly with respect to maritime matters.¹ In contrast, the Federal Court of Appeal was entirely new, both as an intermediate appeal court between the Trial Division and the Supreme Court of Canada, but especially as an administrative court. That newness makes the Court of...

      • 17 The Life of the Court
        (pp. 195-202)

        At a conference dealing with administrative law held at the University of British Columbia in October 1979, David Mullan, a leading administrative law scholar, opened his presentation with the statement: ʹBashing the Federal Court is an easy act to get into and I am not going to hesitate.ʹ He concluded with the comment that the procedural and remedial aspects of judicial review of federal administrative action had been complicated ʹbeyond anyoneʹs wildest dreams.ʹ¹ These two statements highlight the life of the court as an administrative court in the 1970s.

        The Exchequer Court had existed in virtual anonymity, but such was...

      • 18 The Work of the Court
        (pp. 203-219)

        As always, it is the work of the court – the cases considered – which provides information about the performance of the judges, as well as clues to the sources of future difficulties (and how they might have been avoided), and other matters concerning the courtʹs existence.

        It was not long before the Federal Court was asked to exercise its new administrative law jurisdiction. The Federal Court Act had been proclaimed in force on June 1, 1971. Just two weeks later, the National Indian Brotherhood, Indian-Eskimo Association, Union of Ontario Indians, and Canadian-Indian Centre of Toronto applied to the Trial...

      • 19 Relationship with the Supreme Court
        (pp. 220-231)

        The relationship between an intermediate court of appeal and the highest court in the judicial hierarchy invites investigation. Though the cases presented in the previous chapter illustrate some of the points of interest, the cases surveyed in this chapter expose the tensions between the two courts acutely.

        InP.P.G. Industries Canada Ltd. v. Attorney General of Canadathere was an unprecedented proceeding: the federal government moved for an order ofcertiorariin the Federal Courtʹs Trial Division to quash a decision of the Anti-Dumping Tribunal because of alleged bias on the part of the chairman.¹ The tribunal had considered a...

      • 20 The Mystery of Section 101
        (pp. 232-247)

        Whatever the difficulties associated with sections 18 and 28, or the courtʹs new jurisdiction over federal matters such as aeronautics (section 23), or the expanded maritime jurisdiction (section 22), they did not compare with the confusion and even despair that arose from a trio of decisions of the Supreme Court of Canada that were said to have laid ʹconstitutional land-minesʹ¹ for the Federal Court. The ensuing problems raised the question of whether the very existence of the court was worthwhile. Two of these profoundly important decisions are discussed in this chapter, and the third in the next one.

        The first,...

      • 21 A Lamentable Situation
        (pp. 248-258)

        The litigation inThe Queen v. Thomas Fuller Construction Co. (1958) Ltd.¹ began when the government halted work on the construction of a federal building in Ottawa. Blasting by the company engaged to install sewers for the new building had damaged a footing supporting part of a foundation wall. The construction company brought an action against the government based on the contract between them for damages resulting from the delay which ensued. The government issued a third party notice against the sewer company claiming indemnity. It was this third party notice that created a jurisdictional issue for the Federal Court...

    • The Thurlow Years, 1980–1988
      • 22 The Judges
        (pp. 261-270)

        Wilbur Jackettʹs resignation as chief justice of the Federal Court of Canada took effect on October 1, 1979. His successor was Arthur Thurlow, the associate chief justice. Thurlow, who had been appointed to the Exchequer Court in 1956, was the most senior judge on the court. He was sixty-six and had been associate chief justice since the end of 1975, when he had succeeded Camilien Noël. His appointment as chief justice of the Federal Court was dated January 4, 1980.

        Thurlowʹs appointment was notable because it marked a departure from the practice of appointing the head of the court from...

      • 23 The Work of the Court
        (pp. 271-281)

        Despite the cloud over the future of the court at the end of the Jackett years, and the patronage issue of 1984, the years of Arthur Thurlowʹs tenure as chief justice were not marked by the sense of turmoil which had plagued the Federal Court earlier. It was a period of relative tranquillity. ʹJurisdictionʹ was still a buzzword; one writer commented, ʹIt is almost impossible to pick up a volume of any Canadian series of law reports and not find at least one judgment in which the jurisdiction of the Federal Court is (or should be) in issue.ʹ¹

        Criticism of...

      • 24 The Charter
        (pp. 282-291)

        When Pierre Trudeau came to Ottawa in the late 1960s, he proposed that a bill of rights be entrenched in the constitution,¹ an achievement which had eluded Prime Minister John Diefenbaker when the Canadian Bill of Rights was created because of the political and social climate in 1960. At that time the Liberals, in opposition, had felt secure about making legal protections for constitutional rights and freedoms a partisan issue. They simply argued that the proposed Bill of Rights was unnecessary. Times changed, and at a Constitutional Conference in 1971 Prime Minister Trudeau reached agreement with the provincial premiers on...

      • 25 A Matter of Status
        (pp. 292-304)

        The Federal Courtʹs position in Canadaʹs judicial world depended on its status in relation to the provincial superior courts. While this had been an ongoing concern, the concern became acute in the early 1970s.

        It began with the bringing of an action in the Ontario High Court for a declaration that a federal statute was invalid;¹ in an attempt to end the proceedings, lawyers for the federal government argued that the Federal Court had exclusive jurisdiction. The federal strategy suggested that the Federal Court was being used to enhance federal power, and if the argument had succeeded it would have...

    • The Iacobucci Years, 1988–1991
      • 26 The Life of the Court
        (pp. 307-314)

        Arthur Thurlow retired on May 5, 1988, at the age of seventy-five. He was the last of the judges who had served on the Exchequer Court; he had been a judge of the Exchequer/Federal Court for thirty-one years and eight months, a length of service in a federal court second only to Lyman Duffʹs.¹ In his years on the court Thurlow had been both a trial judge and an appeal judge, and had served as both Chief Justice and Associate Chief Justice. Whatever misgivings some may have had about his administrative ability, there was universal respect for his ability as...

      • 27 The Work of the Court
        (pp. 315-328)

        By the time that Iacobucci took over as head of the Federal Court, the Charter had settled into the legal system and newsworthy cases were common. Regular challenges to government practices and to laws which reflected conflicting social values required that the judiciary choose one over another. The traditional way of dealing with political issues within the political process – raising public awareness, discussion, debate, and lobbying in order to convince government to change its mind – not infrequently gave way to using the legal process and asking a judge to order the government to change. Even if the judge...

  11. PART 5: THE FOURTH COURT, 1992
    • 28 The Court Today
      (pp. 331-344)

      Chief Justice Iacobucci was appointed to the Supreme Court of Canada on January 7, 1991, filling the vacancy created by the resignation of Madame Justice Bertha Wilson. It was almost a year before Julius Isaac was appointed chief justice of the Federal Court (December 24, 1991). The Conservative government took the longest time ever taken to fill the position. In the end the person chosen was a very able administrator, known for his strong views and social-democratic leanings.

      It was newsworthy that Chief Justice Isaac was black, and the first black judge to be appointed in the federal court system....

  12. Appendix A: The Judges
    (pp. 345-353)
  13. Appendix B: Interviews
    (pp. 354-356)
  14. Notes
    (pp. 357-426)
  15. Index of Cases
    (pp. 427-437)
  16. Index of Names and Terms
    (pp. 438-448)
  17. PUBLICATIONS OF THE OSGOODE SOCIETY FOR CANADIAN LEGAL HISTORY
    (pp. 449-450)