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Reflections on the Federal Court of Appeal

Robert Décary,
Justice at the Federal Court of Appeal
Ottawa, June 25, 2009

Twenty years, twenty minutes, not a second to lose!

On March 14, 1990, the Honourable, Minister of Justice of Canada, upset my life.

Changes in the Court’s composition and structures

I have served under three chief justices (Justices Iacobucci, Isaac and Richard) and with 26 colleagues. In fact, there have only been six judges appointed to the Federal Court of Appeal since its creation in 1971 with whom I have not served, even though I have been a member of the Court for only half of its existence.

I witnessed the arrival of the first judge and the first chief justice belonging to a visible minority. I witnessed the arrival of the first bilingual and bijural chief justice. I witnessed the arrival of the second, third and fourth woman. I witnessed the second (Frank Iacobucci) and third (Marshall Rothstein) member of the Court elevated to the Supreme Court of Canada, the first one having been Gerald LeDain. I witnessed the arrival of the first Franco-Ontarian and of the first Fransaskois. I witnessed the appointment of the first three lawyers who had specialized in tax law.

I witnessed the arrival of the first supernumerary judge and at one point in time there were five of them. During my term, Justices MacGuigan and McDonald passed away while still sitting judges. I witnessed the arrival of four-day weeks outside of Ottawa. I lived through times when there were only nine judges to perform the work of the Court. I witnessed Justice Desjardins presiding in running shoes.

I sat on the last five-member panel struck by a Chief Justice, the infamous Aqua-Gem case. I lived through motions weeks where box after box of immigration files were delivered to our offices and where stays had to be decided over the phone by panels of three. I remember hearing four immigration cases a day and sitting full weeks in the summer in Montreal and Toronto. I witnessed, with my very own eyes, muddy water flowing out of my ventilation fan and flooding the main floor and basement of the Supreme Court building. That was an important moment in the history of the Court because I have always thought that after that day, the Supreme Court decided once and for all to get rid of these overly industrious judges who worked on weekends and left windows open in the dead of winter.

I have seen, I swear I did, the scale model of our eternal new building. On a more positive note I witnessed the construction of our own facilities in Fredericton, Montreal, Vancouver and Toronto. I lived through the (relative) merger of the four federal courts and the establishment of the Courts Administration Service. I have just witnessed the arrival at the Federal Court of the first "honourable" law clerk, 19 years after he began his career with me.

In short, in almost twenty years, important changes, particularly in the composition of a Court that has become increasingly representative of the people it serves.

Evolution of the work of the Court

I have heard about 2060 cases and drafted the reasons in a little over seven hundred of them. I have written concurrent reasons in only ten cases and have dissented only twelve times. This may be a small detail, but I believe it demonstrates the extent to which members of the Court force themselves to compromise in the interest of the people before them. From the outset, moreover, I was surprised to discover, during the pre-trial conference, how often three members of a panel had separately come to an identical preliminary opinion.

In all, I sat 1425 days, 525 in Montréal, 327 in Ottawa, 185 in Vancouver and 174 in Toronto. I went to Montréal 132 times, Toronto 53 times, Vancouver 45 times and Québec 23 times. I have heard cases everywhere in Canada, except in the Yukon.

The quantity and nature of the work has varied over the years. At times because of the absence of one or more members of the Court for health reasons or reasons of state (such as chairing a commission of inquiry). At times because of changes to the Court’s jurisdiction. At times because of important legislative changes that give more freedom to litigants.

The individual workload of members of the Court has diminished. Whereas, I heard over 150 cases in the mid-1990’s and made over twenty five-day trips outside of Ottawa in a single year, it is now rare for us to hear a hundred cases in the same year and to be outside of Ottawa for more than twelve four-day weeks. From 1992 to 1997, I sat from 90 to 97 days per year. From 1998 to 2001, between 75 and 84 days per year. Since 2002, the average is about 60 days per year. In 1993, the Court sat for 13 full weeks in Vancouver, 17 in Montréal and 28 in Toronto; in 2008, it sat 8 shortened weeks in Vancouver, 10 in Montréal and 23 in Toronto. However, it is possible, and it may become clear in the near future, that, with the simultaneous departure of three supernumerary judges, the working days of the past will return. I almost hope you experience it because they were extraordinary years, marked by productivity, solidarity and team spirit. I lived the golden years long before I was eligible to join the golden age club.

Most of my time was devoted to employment insurance (424 cases), tax law (407 cases) and immigration (325 cases). The times change, however. In 1993, I heard 93 immigration cases. In 1996, I heard 72 employment insurance cases. Today, tax law clearly predominates, as if after forty years the Court is rediscovering its roots in the Exchequer Court.

A fascinating and challenging feature of the Federal Court of Appeal is its constantly evolving jurisdiction. Parliament simply keeps feeding us year after year with new legislation that reaches the Court sometimes within months. Amendments, many of them substantial, are regularly made to the laws that we apply on a routine basis. The GAAR Rules, in the 1988 Income Tax Act. The Federal Court Act was substantially reworked on February 1, 1992. The Notice of Compliance Regulations, in 1993. The Employment Insurance Act came into force in 1996. The Federal Court Rules were completely rewritten in 1998. The Immigration Act was updated in 2002.

I was amazed, when I prepared myself for this conference, by the multitude and the diversity of the statutes Parliament has adopted since 1990 and which have reached the Court. To name a few: the Canadian Environmental Assessment Act, the Referendum Act,  the Corrections and Conditional Release Act (1992), the Carriage of Goods by Water Act, the Marine Insurance Act, the Telecommunications Act, the North American Free Trade Agreement Implementation Act (NAFTA) (1993), the Employment Equity Act (1995), the Canada Transportation Act (1996), the Crimes against Humanity and War Crimes Act, the Personal Information Protection and Electronics Documents Act (PIPEDA), the Proceeds of Crime (Money Laundering) Act (2000), the Anti-Terrorism Act, the Federal Law - Civil Law Harmonization Act (2001), the Public Service Labour Relations Act (2003), the Canada Border Services Agency Act (2005). All this to say that when you are appointed to this Court, what you see is not what you'll get and God knows what judges will be hearing twenty years from now.

The future: some points to ponder

  • collegiality

The departure from our cramped quarters in the Supreme Court building in 2003, the arrival of many supernumerary judges sitting only six months per year, the impact of the Internet that enables judges to more easily work from home and the reduction in the number of hearings outside of Ottawa mean that the members of the Court no longer have the same opportunities to be together in Ottawa or elsewhere.

  • bilingualism

A few years ago, the Federal Court of Appeal came within a whisper of having a Francophone majority on the bench. This "threat", if I can call it that, has passed, but it has been replaced with the opposite threat: the number of judges capable of judging (by which I mean reading, understanding and writing) in French is in steep decline. The departure of Chief Justice Richard and Justice Desjardins as well as my departure do not help the situation.

  • judicial review

The bread and butter of the Court is judicial review.

Judicial review, when I joined the Court, was marred by never-ending battles as to whether a decision was a decision, as to whether a decision was quasi-judicial, as to whether a proceeding had to be instituted in the Trial Division or in the Appeal Division of the Federal Court. Thanks to amendments to the Federal Court Act, in 1992, these battles came to an end. Counsel, judges and litigants enjoyed many years where the Court was able to devote its attention to the merits of the case. Then came the never-ending and ever-confusing era of the standard of review. Counsel and judges are now spending fewer and fewer time on the merits of the case and more and more on the infamous standard of review.

Judicial whims have become rules of law. Administrative law has become more subjective, more unpredictable and less stringent. It should be acknowledged that, in most cases, the choice of standard of review is made after the decision whether to intervene has been made. Counsel no longer know what standard to rely on and the neither does the Court. At the end of the day, the entire justice system is discredited and we should not be surprised if more and more litigants abandon the courts that are less and less concerned about them.

  • jurisdiction of the Federal Court

Furthermore, as we all know too well, our Court (I mean, here the Federal Court and the Federal Court of Appeal), ever since it continued the Exchequer Court in 1970, has endured challenges based on its statutory, as opposed to common law jurisdiction.

Parliament has put in place a distinct regime to deal with judicial review of federal administrative decisions. It wants the Federal Court to have exclusive jurisdiction in that area. Parliament had its reasons for doing so. It spoke in unmistakable terms, in 1970, and again in 1992. Yet, lately, other courts have challenged that regime. I fear that challenge might find support in the recent decision of the Supreme Court of Canada in Khosa, where six members of the Court have but ignored the very clear wording of section 18.1 of the Federal Courts Act. If our Court derives its powers from its enabling statute and if that statute is to be ignored, what is ahead?

It seems to me that it is time to recognize that the Federal Court is a statutory court like the Supreme Court of Canada, that it was established pursuant to the same provision in the Constitution as the Supreme Court was and, pursuant to a provision of the Federal Courts Act that is similar to the one in the Supreme Court Act, that it has existed, as a continuation of the Exchequer Court, for as long as the Supreme Court, specifically 135 years. Thus, over the years, the Federal Court has acquired a respectability equivalent to that held by superior courts in 1867.

We have to stamp out once and for all this condescending myth that the Federal Court is a type of inferior superior court. If, as we like to say, the Constitution is a living tree, we should let a court that is rooted in this Constitution grow and flourish. And we should respect the will of Parliament to make it the Court with exclusive jurisdiction over judicial review of federal administrative decisions.

Conclusion

With these reflections, Mr. Chief Justice, I end this overview of my twenty years at the Federal Court of Appeal.

Robert Décary
June 25, 2009

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Date Modified: 2015-09-09