Pre-Confederation to Confederation

Prior to Confederation, the predominantly English-speaking Canada West (which succeeded Upper Canada) and the predominantly French-speaking Canada East (which succeeded Lower Canada) each had a separate system of courts. During pre-Confederation negotiations, the creation of a national court had been contemplated to deal with matters relating to federal law.^[1] The Constitution Act, 1867 thus provided under s. 101 that:

The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.^[2]

Despite the language in the constitution, a national court was not established until 1875.^[1] Prime Minister John A. Macdonald made several attempts between 1869 and 1873 to create a national court under the powers granted to Parliament under s. 101 of the Constitution Act, 1867.^[1] However, these early attempts were rebuffed due to concerns over jurisdiction, particularly because the early proposals would have established a federal Supreme Court exercising both original (trial) jurisdiction and concurrent appellate jurisdiction potentially in conflict with existing courts administered by Ontario and Quebec.^[1]

While no court per se was created, provision was made for the appointment of Official Arbitrators,^[3] whose decisions soon became subject to a final appeal to a Board of Arbitrators,^[4] until a further right of appeal to the new Exchequer Court was created in 1879.^[5]

Exchequer Court

In 1875, the Liberal government of Prime Minister Alexander Mackenzie passed The Supreme and Exchequer Court Act^[6] (introduced by Minister of Justice Telesphore Fournier), which was based on Macdonald's earlier unsuccessful bill of 1870. This act created both the Supreme Court of Canada and the Exchequer Court. The jurisdiction of the Exchequer Court was provided under sections 58 and 59 of the Act:

58. The Exchequer Court shall have and possess concurrent original jurisdiction in the Dominion of Canada, in all cases in which it shall be sought to enforce any law of the Dominion of Canada relating to the revenue, including actions, suits, and proceedings, by way of information, to enforce penalties and proceedings by way of information in rem, and as well in qui tam suits for penalties or forfeitures as where the suit is on behalf of the Crown alone; and the said Court shall have exclusive original jurisdiction in all cases in which demand shall be made or relief sought in respect of any matter which might in England by the subject of a suit or action in the Court of Exchequer on its revenue side against the Crown, or any officer of the Crown. 59. The Exchequer Court shall also have concurrent original jurisdiction with the Courts of the several Provinces in all other suits of a civil nature at common law or equity in which the Crown in the interest of the Dominion of Canada is plaintiff or petitioner.^[6]

The Supreme and Exchequer Court Act made it clear that the Exchequer Court of Canada was inspired by the Court of Exchequer in England, both in name and in jurisdiction, focusing as it did on matters of revenue.^[7] In the same year, however, England abolished the Court of Exchequer, merging its jurisdiction into the High Court of Justice.^[1] Nonetheless, the jurisdiction provided to the Exchequer Court of Canada initially consisted of:

• concurrent original jurisdiction over all cases relating to the enforcement of the revenue laws;
• exclusive original jurisdiction over any demand or relief sought in like manner as the English Court of Exchequer in its revenue side; and
• concurrent original jurisdiction over all civil cases where the Crown is the plaintiff or petitioner.

The independence of the Exchequer Court was not immediately established. Indeed, justices of the Supreme Court also sat as justices of the Exchequer Court in the early years.^[7] The two Courts were not separated until 1887, at which time the functions of the Official Arbitrators were subsumed into the Exchequer Court.^[8] George W. Burbidge, a lawyer from New Brunswick, was the first Exchequer Court judge appointed under this new arrangement.^[7] At the same time, the Court's jurisdiction was expanded to include exclusive original jurisdiction over all claims against the Crown.^[9]

Jurisdiction over railway insolvency

Beginning in 1901, railways gained the ability under the Railway Act to apply to the Court to secure a scheme of arrangement in the event of insolvency.^[10]

Acquisition of admiralty jurisdiction

While s. 96 of the BNA Act, 1867 constituted the superior courts in the provinces, admiralty law jurisdiction was not conferred on them, which continued to be vested in the vice-admiralty courts under the British Vice Admiralty Courts Act, 1863.^[11] Separate courts existed in British Columbia, Lower Canada, New Brunswick and Nova Scotia.^[12] The absence of such a court for Ontario led to the Parliament of Canada, exercising its power under s. 101, to create the Maritime Court of Ontario through the passage of the Maritime Jurisdiction Act 1877.^[13] This was held to be a valid exercise of federal jurisdiction by the Supreme Court of Canada in 1879.^[14]

This mix of courts was rationalized after the British Parliament passed the Colonial Courts of Admiralty Act 1890,^[15] where British possessions were authorized to create their own courts of admiralty jurisdiction.^[16] This was followed shortly with the passage of the Admiralty Act 1891,^[17] which consolidated such jurisdiction throughout Canada in the Exchequeur Court of Canada, which under the British Act could "exercise such jurisdiction in like manner and to as full an extent as the High Court in England, and shall have the same regard as that Court to international law and the comity of nations."^[18]

The extent of this jurisdiction was held to be only that which existed on 1 July 1891, in an appeal decided in 1927 by the Judicial Committee of the Privy Council.^[19] This situation only changed after the Statute of Westminster 1931 came into force, after which Canada passed the Admiralty Act 1934,^[20] which broadened Canadian admiralty jurisdiction to match that of the High Court of England at that time:

18(1) The jurisdiction of the Court on its Admiralty side shall extend to and be exercised in respect of all navigable waters, tidal and non-tidal, whether naturally navigable or artificially made so, and although such waters be within the body of a county or other judicial district, and, generally, such jurisdiction shall, subject to the provisions of this Act, be over the like places, persons, matters and things as the Admiralty jurisdiction now possessed by the High Court of Justice in England, whether existing by virtue of any statute or otherwise, and be exercised by the Court in like manner and to as full an extent as by such High Court.^[21]

Federal Court of Canada

In 1971, the Federal Court of Canada was established, consisting of two divisions (the "Federal Court – Trial Division" and the "Federal Court – Appeal Division"), inheriting much of the jurisdiction of the Exchequer Court.^[22] The Federal Court of Canada gained the jurisdiction to hear judicial reviews from federal agencies and tribunals.^[23] With respect to maritime jurisdiction, the Trial Division was declared to have:

concurrent original jurisdiction ... in all cases in which a claim for relief is made or a remedy is sought under or by virtue of Canadian maritime law or any other law of Canada relating to any matter coming within the class of subject of navigation and shipping except to the extent that jurisdiction has been otherwise specially assigned.^[24]

On July 2, 2003, the Court was split into two separate Courts, with the "Trial Division" continued as the Federal Court and the "Appeal Division" continued as the Federal Court of Appeal.^[25]

Until 1976, there was substantial judicial support^[26][27] for the view that Parliament could give a federal court jurisdiction over any matter (even a matter not regulated by federal statute law), on the basis that "the Laws of Canada" meant not only federal statutes, but provincial ones as well. However, in Quebec North Shore Paper Co. v. Canadian Pacific,^[28] the Supreme Court of Canada rejected this notion, as:

• provincial law is not pro tanto federal law, nor can it be transposed into federal law for the purposes of giving jurisdiction to the Federal Court.
• judicial jurisdiction of the Federal Court is not co-extensive with legislative jurisdiction of Parliament, as "the Laws of Canada" carries the requirement that there be applicable and existing federal law

Presidents of the Exchequer Court of Canada

The position of President of the Court was not created until 1923. Before that time, justices of the Supreme Court of Canada sat as judges of the Exchequer Court from 1875 to 1887, at which time George Wheelock Burbidge was appointed as the first full-time judge of the Court. He served until 1908. when Walter Cassels was appointed. In 1912, authority was given to appoint an associate judge to the Court, and Louis Arthur Audette was appointed to that position. In 1945, authority was given to appoint more judges to the Court.

From 1923, the Presidents of the Court were:

• Sir Walter Gibson Pringle Cassels, 1920–1923
• Alexander Kenneth Maclean, 1923–1942
• Joseph Thorarinn Thorson, 1942–1964
• Wilbur Roy Jackett, 1964–1971 (subsequently Chief Justice of the Federal Court of Canada)

Current judges

Prior judges

The judges of this court are listed below.^[30]

  = former judge of the Exchequer Court of Canada

  = stepped down from original appointment

† = died in office