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...

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...

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...

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...

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...

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...

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...

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...

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...

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...

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...

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...

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...

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]...

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...

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....