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Federal Courts Advocacy: What Works, What Doesn't

Speech to the "Ontario Bar Association" by Chief Justice John D. Richard  on Tuesday, December 13, 2005 in the Third Floor Boardroom A of the Clarica Building in Ottawa 

Opening Remarks

  • You have invited me to share with you my thoughts on what works and what doesn’t on judicial review and constitutional proceedings before the Federal Courts.
  • I have chosen to respond to your invitation by inviting you to take a journey.  I will provide you with a road map but it is up to you to reach the destination.  There is no magic Global Positioning System on which you can rely, but I will do my best to assist you with this road map.
  • You ask me “What works?”  As for any journey, what works is planning and execution.  You must identify your destination and carefully plan the best and most effective route.  This, in turn, involves you knowing the answer to “Where?, When? Who?, and How?”
  • You have also asked me “What doesn’t work?”  What doesn’t work is being disorganized.  What doesn’t work is a lack of preparation.
  • Advocacy, which is the art of persuasion, is founded on preparation and exhibits itself in both the written and oral form.
  • While these general observations apply to court proceedings in all Canadian jurisdictions, my comments will be directed at proceedings in the Federal Courts, that is, the Federal Court of Appeal and the Federal Court.

Where?

  • You will wish to familiarize yourself with your destination: its history, its characteristics, what it offers and its rules.
  • The Federal Courts have been established by Parliament pursuant to section 101 of the Constitution Act, 1867 1 as courts for the better administration of the laws of Canada.  Therefore, the jurisdiction of the Federal Courts is founded on federal law.
  • The Federal Court of Appeal and the Federal Court have a long history.  Since 2003, they are the successors of the Appeal and Trial Divisions of the Federal Court of Canada, which in 1971 succeeded the Exchequer Court of Canada, which itself was created in 1875.
  • Being statutory courts, their composition and jurisdiction have been conferred by statute, in particular, the Federal Courts Act2.
  • The Federal Courts are bilingual courts, offering their services in both official languages of Canada, and are bi-jural courts, administrating the two legal systems – common law and civil law.  Both courts are itinerant, in the sense that they sit and transact business at any place in Canada, to suit, as close in proximity as may be, the convenience of the parties.  It is the objective of both Courts to secure the just, most expeditious and least expensive determination of every proceeding based on its merits.
  • July 2003 saw the coming into force of an important piece of legislation, the Courts Administration Services Act3.  This statute was enacted in order to facilitate the coordination and cooperation among Federal Courts, to enhance accountability of court services and to enhance judicial independence, by placing administrative services at arm’s length from the Canadian government. 
  • The Act created a single service to serve the administrative needs of all the courts of federal jurisdiction, including the services of a Registry for the Courts.  The principal registry office is located in Ottawa, and there are a total of 17 local offices across Canada, with Iqaluit being the most recent addition (in the territory of Nunavut). 
  • Pursuant to the Courts Administration Services Act, the Federal Court of Appeal also became a distinct court from the Federal Court, formerly known as the Trial Division. 

Areas of Jurisdiction

  • The principal areas of jurisdiction of the Federal Court are federal Crown litigation, judicial review, maritime litigation, intellectual property and other matters such as aeronautics, or provisions in other statutes that confer jurisdiction.  It is presently composed of the Chief Justice, 29 judges, 4 supernumerary judges and 6 prothonotaries. 
  • The Federal Court of Appeal, has jurisdiction to hear appeals from judgments and orders, whether final or interlocutory, of the Federal Court and of the Tax Court of Canada.  It has original judicial review jurisdiction with respect to the fourteen federal tribunals listed in section 28 of the Federal Courts Act and also exercises jurisdiction to hear appeals under other Acts of Parliament.  It is presently composed of the Chief Justice, 10 judges and 2 supernumerary judges.
  • The principal subject areas of the Courts are found in the following sections of the Federal Courts Act:
  • Actions against the Crown and Crown officers and servants (s. 17)
  • Judicial review (s. 18.1 & 28)
  • Appellate jurisdiction (s. 18.5)
  • References (s. 18.3(1))
  • Intellectual property (s. 20)
  • Maritime litigation (s. 22)
  • Other Federal Matters (s. 23) and
  • Other statutory grants (for example, s. 36 of the Competition Act)

Overview of Other Applicable Legislation

  • Another statute you should consult in preparing for a proceeding before the Federal Courts is the Crown Liability and Proceedings Act 4
  • Part I of this Act sets out the liability of the Federal Crown while Part II provides for the procedural and substantive rules that apply to litigation involving the Federal Crown whether based in tort, contract or otherwise.

Federal Courts Rules 5

  • The Federal Courts Rules are an essential tool in preparing for proceedings before the Federal Courts.  To be a truly effective advocate, mastery of these Rules is essential. 
  • The Federal Court of Appeal, as well as the Federal Court, is a court of easy access.  Several provisions of the Federal Courts Rules enhance the Court’s accessibility, including the use of teleconference and video conference facilities.  The Federal Courts Rules also provide for case management services which are intended to avoid delays and facilitate dispute resolution.
  • Another feature of this accessibility is that every person who is a lawyer in a province may practice before the Federal Court of Appeal or the Federal Court.
  • The Federal Courts Rules are simple and user-friendly and apply to all proceedings before the Federal Court of Appeal and the Federal Court, unless the use of alternative rules is provided for in an Act of Parliament. 
  • One example of these alternative rules are the Federal Court Immigration and Refugee Protection Rules 6, which apply to special immigration and refugee proceedings, under the authority of section 75 of the Immigration and Refugee Protection Act.  These provide for a special code that governs judicial review in immigration matters, including the requirement to obtain leave and the right of appeal from decisions of the Federal Court.
  • The Federal Courts Rules address all procedural questions with respect to the preparation of actions (Part 4), applications (Part 5), appeals (Part 6) and motions (Part 7) under the Federal Courts Act.  Part 3 of the Rules contains rules applicable to all proceedings.

Available Practice Resources

  • I would like to draw your attention to useful practice resources.
  • Federal Courts Practice 7, by Saunders, Kinnear, Rennie and Garton is a very useful and accurate guide to practice before the Federal Courts.  It is an annotated resource, containing the Federal Courts Act, the Federal Courts Rules the Federal Courts Immigration and Refugee Protection Rules, as well as sections of the Courts Administration Service Act and the Canada Evidence Act 8
  • You may also wish to consult the website of the Courts Administration Service on a regular basis.  This website contains general information about the Service and well as publications and contact information.  It also contains links to the sites of the Federal Courts, all which regularly post valuable, up-to-date information on proceedings, decisions and bulletins.
  • Proceeding queries will allow you to search the Federal Courts databases using the Internet.  You may search the database using one of four methods: (1) the court number, (2) party information, (3) intellectual property, or (4) related cases.

When? / Who?

Procedural Steps in a Typical Application for Judicial Review

  • The “When?”, as well as the “Who?” are found in the governing statute.  In subsection 18.1(2), the Federal Courts Act provides that an application for judicial review must be commenced in the prescribed manner within 30 days after the time the decision or order was first communicated by the federal board to the Attorney General of Canada or to the party directly affected by it.  A judge may allow further time before or after the expiration of the 30 days.  However, the applicant must justify the delay and establish a reasonable chance of success on the merits.
  • In the case of statutory appeals, the governing statute will prescribe the time limits, the grounds and whether leave is required. 
  • Before commencing the application, there are four “threshold questions” which must be answered:
  • The first question you must ask is whether the review is being sought against a “federal board, commission or other tribunal”, as defined in section 2 of the Act.
  • Second, you must consider whether review is precluded by section 18.5 of the Act, meaning that the impugned decision or order must be appealed to another body referred to in the section.
  • Third, you must determine whether the review is precluded by subsection 28(3) which excludes Federal Court jurisdiction where the Federal Court of Appeal has jurisdiction.
  • And finally, you must know whether an appeal is available only with leave of the Court.
  • Unless there are special circumstances, there should not be any immediate judicial review of a tribunal’s interlocutory decision.
  • Throughout your journey, be aware that subsection 18.4(1) of the Federal Courts Act mandates that such applications shall be heard and determined without delay and in a summary way.  Therefore, enjoy the trip, but don’t linger too long in any one spot!  The Court discourages motions to strike or interlocutory proceedings in the case of such applications.
  • You will have noticed that the “Who?” in subsection 18.1(1) does not include the tribunal, unless another statutory provision requires it.  Absent any respondent who falls within Rule 303(1), or if the Attorney General is unable or unwilling to act as a respondent, the Court may substitute another person or body including the tribunal (R. 303(3)).  Subsection 18.1(1) does not preclude the granting of public interest standing to another person or body.
  • The role of a tribunal whose decision is at issue before the Court is limited to explaining the record before the tribunal and to make representations with respect to jurisdiction.   
  • Subsection 18.1(3) describes the relief that the Court may grant.  They are basically the relief that could be obtained under the prerogative and extraordinary remedies set out in section 18.  The Court has no jurisdiction to award damages in judicial review proceedings. 
  • Subsection 18.1(4) sets out the grounds which an applicant must establish.  They are broadly stated and include a jurisdictional error, an error of law, an erroneous finding of fact and procedural fairness.

How?

  • Now, we come to the “How?”.  I have reproduced a table of the procedural steps in a typical application.
  • Applications for judicial review are normally conducted on the basis of the material before the decision-maker.  Additional evidence may be admitted on issues of procedural fairness and jurisdiction.

Procedural Steps in a Typical Application

STEP

RULE

Notice of Application

Rule 301 – application commenced by notice of application in Form 301

Rule 304(1) – to be served on respondents within ten days after issuance of notice.

Rule 304(3) – proof of service to be filed within ten days of service.

Request for Material in Possession of Tribunal

Rule 317 – applicant may include in notice of application or any party may file written request.

Tribunal Response to Request for Material

Rule 318 – tribunal must transmit material within 20 days of request unless it objects.

Notice of Appearance

Rule 305 – served and filed by respondent within ten days after being served with notice of application.

Applicant’s Affidavits and Documentary Exhibits

Rule 306 – served and filed within 30 days after issuance of notice of application.

Respondent’s Affidavits and Documentary Exhibits

Rule 307 – served and filed within 30 days after service of applicant’s affidavits.

Cross-examination on Affidavits

Rule 308 – parties must complete within 20 days after filing of respondent’s affidavits or expiration of time for doing so.

Applicant’s Record

Rule 309 – served and filed within 20 days after completion of cross-examinations of expiration of time for doing so.

Respondent’s Record

Rule 310 – served and filed within 20 days after service of applicant’s record

Additional Affidavits, Cross-Examination, or Supplementary Record

Rule 312 – with leave of the Court.

Requisition for Hearing Date

Rule 314 – applicant must serve and file requisition within 10 days after service of respondent’s record or expiration of time for doing so, whichever is earlier.

Pre-hearing Conference Status Review

Rule 315 – Court may order.

Rule 380(1)(b) – held if 180 days have elapsed since issuance of notice of application and no requisition for hearing has been filed.

Source: Brian J. Saunders et al., Federal Courts Practice, (Toronto: Thomson Carswell, 2005) at 691.

Stays of Execution

  • A request for a stay of a Tribunal’s order, pending the determination of an application for judicial review, is brought by way of a motion (Federal Courts Rules, Part 7). Many motions in the Federal Court and most motions in the Federal Court of Appeal are heard without personal appearance, pursuant to Rule 369.
  • The motion must be accompanied by a motions record (364(1)) containing the notice of motion, all affidavits and other material necessary for the hearing, as well as written representations.
  • Counsel appearing on an application or a motion should guard against relying on affidavits which they have sworn.
  • With respect to applications for interlocutory injunctions and for stays in private law and Charter 9 cases, the three-stage test from RJR-Macdonald Inc. v. Canada (A.G.) 10 must be applied. (1) At the first stage, the applicant must demonstrate a serious question to be tried. (2) At the second stage, the applicant must establish that it will suffer irreparable harm if relief is not granted. (3) The third stage, requiring an assessment of the balance of convenience by the Court, will often determine the result in applications involving the Charter rights. The public interest must be taken into account and the effect a decision on the application will have upon the public interest may be relied upon by either party.

The Standard of Review

Generally

  • In recent years, no aspect of the law of judicial review has captivated the Courts’ attention as much as standards of review and the methodology for determining which standard is applicable.
  • In a very recent decision of the Federal Court of Appeal, The Attorney General of Canada v. Diane Sketchly11, Mr. Justice Linden, for a unanimous court, carefully and thoroughly reviewed the principles underlying the determination of the standard of review.
  • As stated by Mr. Justice Linden, the pragmatic and functional approach must be undertaken anew by the reviewing Court with respect to each decision of an administrative decision-maker, not only each general type of decision of a particular decision-maker under a particular provision. The pragmatic and functional analysis does not apply to allegations concerning fairness, which are always reviewed as questions of law.

Analysis

  • The pragmatic and functional approach to determining the degree of deference to be accorded to the administrative decision-maker in the circumstances involves a consideration of four contextual factors: (a) the presence or absence of a privative clause or statutory right of appeal; (b) the expertise of the tribunal relative to a court on the issue in question; (c) the purposes of the legislation and the provision in question; and (d) the nature of the question as one of fact, of law, or of mixed fact and law.

The Primacy of the Pragmatic and Functional Approach

  • In Dr. Q v. College of Physicians and Surgeons of British Columbia, the Supreme Court of Canada plainly stated that the pragmatic and functional approach must be undertaken by a reviewing judge “in every case where a statute delegates power to an administrative decision-maker”.12
  • It must be recalled that the “overall aim is to discern legislative intent, keeping in mind the constitutional role of the courts in maintaining the rule of law.” 13 It can therefore be said that the pragmatic and functional approach is applied in determining the central issue of the proper degree of curial deference owed to administrative decision-makers by the Courts.

The Importance of Identifying the Particular Question at Issue in the Decision Under Review

  • As stated by Mr. Justice Linden, the requirement that a pragmatic and functional analysis be applied to every case emphasizes the importance of identifying the particular question at issue in the decision under review in any given case.
  • It is incorrect to conclude that the same standard of review will necessarily apply to all aspects of a tribunal’s decision, especially if the tribunal is dealing with multiple complaints at once.

The Distinction Between Procedural Fairness Analysis and the Standard of Review Analysis

  • There is an important distinction between judicial review on the grounds of breach of procedural fairness and other cases of substantive judicial review. The pragmatic and functional approach properly applies only to the latter.
  • As stated by Mr. Justice Binnie in Canadian Union of Public Employees v. Ontario (Minister of Labour) 14 (CUPE), “it is for the courts, not the Minister, to provide the legal answer to procedural fairness questions.”15 CUPE directs a court, when reviewing a decision challenged on the grounds of procedural fairness, to isolate any act or omission relevant to procedural fairness. This procedural fairness element is reviewed as a question of law. No deference is due.
  • Procedural fairness concerns the manner in which the decision is made. The duty applicable in a given context will be determined according to the factors set out in Baker v. Canada (Minister of Citizenship and Immigration)16 and Suresh v. Canada (Minister of Citizenship and Immigration). 17
  • (1) First, you must ask yourself how close the administrative process is to the judicial process. (2) The second factor is the nature of the statutory scheme. (3) Third you must identify what is the importance of the decision to the individual affected. (4) And fourth, what are the legitimate expectations of the person challenging the decision, where undertakings were made concerning the procedure to be followed?
  • The choice of procedure made by the administrative decision-maker must be considered, especially where the statute is silent on the issue. As stated by Madam Justice L’Heureux-Dubé, while this is not determinative, “important weight must be given to the choice of procedures made by the agency itself and its institutional constraints.”18
  • If the duty of fairness is breached in the process of decision-making, the decision in question must be set aside. By contrast, the normal standard of review analysis concerns only the final substantive decision, and this standard of review is determined according to the pragmatic and functional analysis.

The Different Review Roles of a Secondary Appellate Court as Compared to a Lower Court

  • The distinct review roles of secondary appellate courts as compared to lower courts must be borne in mind. Dr. Q clearly establishes that the standard of review at the secondary appellate level proceeds according to different principles than the pragmatic and functional analysis employed at the first court level.
  • The question of the appropriate standard of review is a question of law, and therefore must be answered correctly by a lower court reviewing judge. If the reviewing judge has erred in choosing or applying the standard of review, the Federal Court of Appeal must correct the error, substitute the appropriate standard, and assess or remit the administrative decision-maker’s decision on that basis.

Standards of Review in Constitutional Cases

  • As stated by Justice Gonthier in Nova Scotia (Workers’ Compensation Board) v. Martin 19, “administrative tribunal decisions based on the Charter are subject to judicial review on a correctness standard. An error of law by an administrative tribunal interpreting the Constitution can always be reviewed fully by a superior court.”20
  • With respect to determining the standard of review applicable to issues related to constitutional validity, the clear principle, as expressed by the Supreme Court in Slaight Communications Inc. v. Davidson21, is that a discretionary decision (in this case, by the CRTC) cannot be contrary to the Charter.
  • As noted by Mr. Justice Létourneau in Genex Communications Inc. v. Canada (Attorney General)22, at paras 56 and 57:

In Slaight Communications Inc., supra, Mr. Justice Lamer, at page 1080, suggests an approach that varies according to whether or not the infringement of a Charter right is authorized by a statute that, either expressly or by necessary implication, confers the power to infringe that protected right. Where such power is conferred, it is then necessary to submit the text of the provision to the test set out in section 1 of the Charter by ascertaining whether it constitutes a reasonable limit that can be demonstrably justified in a free and democratic society.

However, where the legal provision on which the impugned decision is based confers an imprecise discretion and does not, either expressly or by necessary implication, provide the authority to limit the rights guaranteed by the Charter, it is the decision itself that must be submitted to the section 1 test. If the decision does not meet this test, it must be concluded that the administrative tribunal has exceeded its jurisdiction. Conversely, if it is justified under the section 1 criteria, the tribunal has acted within the limits of its jurisdiction.23

The Canadian Charter of Rights and Freedoms

  • In preparing your cases, you must determine whether there has been a breach of guaranteed Charter rights. This involves an analysis of the applicable legislation and regulations. The most frequently invoked Charter rights in administrative proceedings are sections 2, 7 and 15.
  • In preparing your case, you should also consider the applicability of Human Rights legislation, the Canadian Bill of Rights24 and, if applicable, the Québec Charter.
  • Prior to 1982, judicial review of administrative decisions on constitutional grounds was based on the distribution of legislative powers between Canada and the provinces. You will recall the marketing boards jurisprudence. Since 1982, judicial review on constitutional grounds is concentrated on the Charter.
  • In recent years, the Federal Courts have seen a large number of cases alleging Charter violations and are increasingly called upon to rule on constitutional questions.
  • The first step in your Charter analysis is section 1. This section authorizes the courts to balance the guaranteed rights against competing values in our society.
  • Because of section 1, any Charter claim involves two stages. The first stage is to demonstrate that the challenged law derogates from a Charter right. At this stage, you may be required to bring evidence in support of your claim.
  • If a breach is established, then at the second stage, the Attorney General and any party supporting the law will be called upon to show the Court whether the breach is justified under section 1.

Standard of Review in Civil Cases

  • The standard of review in civil cases has been described in a decision of the Federal Court of Appeal under Elders Grain Co. v. Ralph Misener (The) (F.C.A.), [2005] 3 F.C. 367, at paragraphs 6 to 13.

New Developments

  • At this time, I would like to draw your attention to new developments which have arisen from decisions of the Supreme Court of Canada and the Federal Court of Appeal. These could well impact on your journey.

Dueling Jurisdictions

  • The first new development concerns choice of forum, or what has been defined by Professor David Mullan as questions of “dueling jurisdictions”. There are two outcomes, the first being shared jurisdiction and the second, exclusive jurisdiction.

Morin25 and Charette26

  • Two recent cases on “dueling jurisdictions” are the decisions of the Supreme Court of Canada in Morin and Charette, which were both on appeal from the Québec Court of Appeal.
  • In Morin, the dueling parties were a labour arbitrator and the Québec Human Rights Commission. The majority found that labour arbitrators do not always have exclusive jurisdiction in employer-union disputes. Depending on the legislation and the nature of the dispute, other tribunals may possess overlapping jurisdiction, concurrent jurisdiction, or themselves be endowed with exclusive jurisdiction.
  • The question in each case is whether the relevant legislation applied to the dispute at issue, taken in its full factual context, establishes that the labour arbitrator has exclusive jurisdiction over the dispute. The first step is to look at the relevant legislation and what it says about the arbitrator’s jurisdiction. The second step is to look at the nature of the dispute, and see whether the legislation suggests it falls exclusively to the arbitrator.
  • As a result, the majority found that the Human Rights Tribunal was a “better fit” for the dispute than the appointment of a single arbitrator to deal with a single grievance within the statutory framework of the Québec Labour Code27.
  • In Charette, the dueling parties were the Commission des affaires sociales (CAS) and the Québec Human Rights Commission. The Supreme Court held that where there is a comprehensive administrative scheme that gives a specialized administrative body, and that body alone, the jurisdiction to apply and interpret that scheme, this administrative body (the CAS) will not lose its exclusive jurisdiction simply because a case raises a human rights issue or involves declaring a legislative provision to be of no force of effect. The legislature did not make a distinction between disputes that are based on human rights grounds and those that are not. The legal factors that favoured the jurisdiction of the Commission in Morin do not apply here.
  • There are also two other recent cases decided by the Supreme Court of Canada on appeal from the Federal Court of Appeal.

Vaughan v. Canada28

  • In Vaughan v. Canada the applicant, a federal public servant, was denied early retirement incentive benefits which were available, in some circumstances, to federal public servants, pursuant to regulation.
  • With respect to exclusivity of jurisdiction, the Supreme Court of Canada upheld the decision of the Federal Court of Appeal and came to the conclusion that, even though the Public Service Staff Relations Act29 does not expressly reject jurisdiction30 of the courts’ in matters which are grievable under section 91 and not arbitrable under section 92, Mr. Vaughn should have proceeded by way of grievance since the dispute related to employment benefits in labour relations.31
  • “The appellant ought to have proceeded with the remedies granted by Parliament under the PSSRA. It was not open to him to ignore the PSSRA scheme and litigate his claim to ERI [early retirement incentive] benefits in the courts by dressing it up as a “negligence” action.” 32

Canada (House of Commons) v. Vaid33

  • In Canada (house of Commons) v. Vaid, Mr. Vaid filed a grievance under the Parliamentary Employment and Staff Relations Act34 (“PESRA”) after being laid-off from his position as chauffeur to the Speaker of the House of Commons.

  • The Supreme Court ruled that although the Canadian Human Rights Act35 does apply to all employees of the Federal Public Service, including employees of Parliament36, Mr. Vaid was obliged by PESRA to pursue his complaints by way of a grievance under that Act since the context of his claim fell within the grievance procedure established under PESRA which runs parallel to the enforcement machinery provided under the Canadian Human Rights Act

Collateral Attacks

Grenier v. Canada37

  • The Grenier decision rendered by Justice Létourneau, on behalf of the Federal Court of Appeal, on October 27th of this year, has also brought about an important development relating to jurisdictions and the choice of forum.
  • An inmate sued the federal government for damages after having been detained in solitary confinement following a disciplinary hearing.  The inmate did not contest the decision of the warden of the penitentiary within thirty (30) days of the disciplinary measures being handed down, as required by sections 18 and 18.1 of the Federal Courts Act, but rather contested it three years later.
  • In his judgment Justice Létourneau stated two important developments.  First, it is impossible to circumvent section 18.1 by way of declaratory action and to thereby seek to obtain extraordinary remedies.
  • He added that the Federal Courts, as well as superior courts, must not allow actions for relief against the Crown until applicable mechanisms for judicial review have been exhausted.38 
  • Judicial review should be viewed as a precondition to proceeding against the Crown by way of action, so as to prevent collateral attacks on decisions. A decision rendered by an administrative federal body continues to have a judicial effect so long as it is not invalidated.39 

New Twists in the Road

  • A number of other new developments, have also occurred in the last few years. 

Converting Judicial Review to an Action

  • Subsection 18.4(2) allows the Federal Court, if it considers it appropriate, to direct that an application for judicial review be treated and proceeded as an action.  This does not apply to applications for judicial review which originate in the Federal Court of Appeal.
  • Consideration to using subsection 18.4(2) should be given where the facts cannot be satisfactorily established or weighed through affidavit evidence. 
  • The test is whether affidavit evidence will be inadequate, not whether trial evidence might be superior.  The fact that the case involves Charter of Rights issues, that it requires substantial evidence to be files, or that a party wants to testify, is irrelevant to an application under subsection 18.4(2).

Class Proceedings: Actions and Judicial Review

  • Rules 299.1 to 299.42 of the Federal Courts Rules establish a modern class action regime which came into effect in 2002.  The new regime addresses questions related to representative plaintiffs, certification as a class action, notice to class members, individual claims of class members, appeals and costs. 
  • The availability of class actions is defined not only by the rules, but also by the jurisdiction of the Federal Court, across Canada.  Every class proceeding is prima facie a national proceeding and must meet the ordinary requirements of jurisdiction over the subject-matter of the dispute, the parties, and the remedy.
  • It is now proposed to extend class proceedings to applications as well as to actions.  However, this would apply only to judicial review applications which originate at the Federal Court and not in the Federal Court of Appeal.

Advocacy Dos and Don’ts

  • Now that we have traveled together through the “Where?”, “When?”, “Who?” and “How?” of judicial review applications, I invite you to complete the journey with some practical effective strategies for advancing your case before the Federal Courts.

Book of Authorities

  • The presentation of a well-organized book of authorities is an important part of advocacy. 
  • Pursuant to Rule 348, it should be filed no later than 30 days prior to the date fixed for the hearing of an appeal, and with the memorandum of fact and law in other cases.  It is preferable that a joint book of authorities be prepared by all parties. 
  • A useful book of authorities should contain only the authoritative and relevant jurisprudence and applicable statutes and regulations, the latter in both official languages.
  • Counsel should also take time to highlight the passages they wish the Court to note.

Written Advocacy

  • The importance of the written argument cannot be overestimated.  It plays an essential role at all stages of an application for judicial review or an appeal.  The factum is as, if not more, important than the oral argument since usually, counsel’s time for oral argument is limited.
  • Written argument serves as a judge’s first impression of the proceedings and acts as a roadmap of counsel’s oral argument.  The factum is read by the judge before the hearing, it is with the judge during the hearing, and it stays with the judge after the hearing.  It is also used as an important reference in drafting reasons for judgment.    It leaves the judge with an initial and even lasting impression of your case. 
  • Allow me to suggest the following techniques which may assist you in assuring the quality of your memorandum of fact and law.
  • The memorandum of fact and law should comply with the requirements of Rule 70.
  • You should also be aware of, and follow, the practice directions issued by the Chief Justices to members of the profession.  In particular, I draw your attention to Circulars 1/2000 and 1/2001 concerning judgment citations and hearings in the Federal Court of Appeal.
  • It is essential that the memorandum of fact and law be written simply and concisely.  Writing well is hard work and writing concisely is harder than writing at length.  A badly written memorandum detracts from your arguments.  You should take time to properly edit your memorandum in order to achieve clarity and simplicity.
  • Take the time and trouble to write better and you will be a better advocate.  You must put yourself in the place of the judge and ask yourself what this case is all about.  What are the issues?  How can I help the Court to reach the best solution?
  • Preface your memorandum with an Overview Statement.  While the rules of procedure do not require such a statement, it is often helpful, especially where the case is complex.   
  • When stating the key issues, do not state them too broadly and do not list too many issues.  Over-issuing is a common problem.  Where there are several issues, they may distract from the party’s argument.  In cases where it is impossible to raise three issues or less, I recommend that these be grouped together into major subheadings.
  • It is important that the court be able to follow the argument of counsel with ease.  Don’t try to cram too much onto each page.  Where the record is voluminous, I suggest that you provide the Court with a compendium of the documents to be referred to during oral argument such as exhibits and extracts from transcripts. 
  • You must be fair with the record, especially in relation to facts.  Meet any weakness in your case head-on.  State your opponent’s argument fairly – and then rebut it.
  • It should also be noted that your arguments with respect to the applicable standard of review should be addressed in the law portion of your factum.
  • Finally, remember to give the court credit for knowing a little law.  

Oral Advocacy

  • In oral advocacy, unlike written advocacy, the judge can see and hear you.  The way you deliver the content of your case is important.  Be precise, be fair and be objective.
  • Look composed and confident, use plain language and do not read your memorandum.
  • A slow purposeful and well-crafted opening statement will serve you well as it will give the judge a map to where you are going.
  • Begin the argument by telling the judge what it is all about and why you should succeed.
  • Do not emphasize unimportant details and arguments.  However, you should also avoid generalities.
  • Come to court prepared, do not oversell and acknowledge weakness.  Know the record and demonstrate expertise over the subject matter.

Civility

  • An important aspect of advocacy is the level of civility with which you treat your colleagues. 
  • The Codes of Professional Conduct of both the Law Society of Upper Canada and the Canadian Bar Association stress that lawyers should be courteous and civil to opposing counsel, always acting in good faith.  Acrimony or ill feelings which may exist between clients or even between lawyers, should never influence a lawyer’s conduct or demeanour in his dealings with opposing counsel.

Continuing Legal Education (CLE)

  • Another important responsibility which comes with the privilege of practicing law is continuing legal education (CLE) and you are demonstrating your interest in this continued education by your presence this evening.
  • Lawyers, at all stages of their career, should strive to increase their knowledge and skill and stay abreast of the most recent legal developments in their areas of practice in order to serve their clients with utmost competence. 

Closing Remarks

  • Our journey is now completed.  We will go our separate ways, but will undoubtedly meet again, each of us serving the best interests of the Canadian judicial system. 
  • Bon voyage!   

References

SAUNDERS, J. et al. Federal Courts Practice, (Toronto:Thomson Carswell, 2005).

The Honourable Justice John I. Laskin, “What persuades (or, What’s going on inside the judge’s mind)”, The Advocates’ Society Journal, David Stockwood, Q.C., ed. June 2004, vol. 23, no. 1.

The Honourable Justice John I. Laskin, “Forget the windup and make the pitch: Some suggestions for writing more persuasive factums” The Advocates’ Society Journal, David Stockwood, Q.C., ed., August 1999, vol. 18, no. 2.


1 (U.K.), 30 & 31 Vict., C. 3, reprinted in R.S.C. 1985, App. II, No. 5.

2 R.S. 1985, c. F-7

3 2002, c. 8

4 R.S.C. 1985, c.C-50.

5 SOR/2004-283, s.2

6 SOR/93-22

7 Brian J. Saunders et al., Federal Courts Practice, (Toronto: Thomson Carswell, 2005).

8 R.S. 1985, c. C-5

9 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

10 [1994] 1 S.C.R. 311, 54 C.P.R. (3d) 114.

11 2005 FCA 404.

12 [2003] 1 S.C.R. 226, 2003 SCC 19 at para. 21.

13 Ibid. at para. 26.

14 [2003] 1 S.C.R. 539, 2003 SCC 29.

15 Ibid. at para. 100.

16 [1999] 2 S.C.R. 817 at paras. 21-28.

17 [2002] 1 S.C.R. 3, 2002 SCC 1 at para. 115.

18 Baker, supra, at para. 27.

19 [2003] 2 S.C.R. 504.

20 Ibid. at para. 31

21 [1989] 1 S.C.R. 1038

22 [2005] F.C.J. No. 1440, 2005 FCA 283

23 Ibid. at paras. 56 and 57.

24 1960, c. 44.

25 Québec (Commission des droits de la personne et des droits de la jeunesse) v. Québec (Attorney General), [2004] 2 S.C.R. 185.

26 Québec (Attorney General) v. Québec (Human Rights Tribunal) [2004] 2 S.C.R. 223.

27 R.S.Q. c. C-27.

28 [2005] SCC 11

29 R.S. 1985, c. P-35

30 The Appellant relied on Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, where the disputed legislation clearly ousted the jurisdiction of the Courts.

31 Vaughan, supra at para. 2.

32 Ibid. at para. 42.

33 [2005] 1 S.C.R. 667, 2005 SCC 30

34 R.S. 1985, c. 33 (2nd Supp.)

35 R.S. 1985, c. H-6

36 Ibid. at para. 79.

37 2005 CAF 348

38 Grenier, supra, at para 33.

39 Ibid. at para 18.

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Date Modified: 2015-09-09