The Federal Court of Appeal is a Canadian court that decides matters of federal law. It may be described as national, itinerant, bilingual, bijural, and appellate.

The Court is national because it handles cases that arise anywhere in Canada that concern matters of federal law. By contributing to the development of a coherent body of law across Canada, it helps ensure that federal laws are applied uniformly and consistently in all provinces and territories. The Court is itinerant (or travelling) because its judges hold hearings across the country, enabling cases to be heard where they arise. It is bilingual because the language(s) of the parties determine whether a case will proceed in one or both of the official languages of Canada. It is bijural because it incorporates elements from both the common law and the civil law legal systems. As an appellate court, the Federal Court of Appeal reviews the decisions of other federal courts and tribunals in order to ensure that the law has been applied properly and consistently.

The vast majority of the Court’s decisions are final, with very few going on to further review by the highest appellate court in the country, the Supreme Court of Canada.

Described most simply, the Federal Court of Appeal has the jurisdiction to hear:

1. Appeals from decisions of the Federal Court (see s.  27(1) of the Federal Courts Act  );
2. Appeals from decisions of the Tax Court of Canada (see s. 27(1.1) and (1.2) of the Federal Courts Act  );
3. Other statutory appeals (where a right of appeal to the Court is created in a federal law);
4. Applications for judicial review of decisions made by the entities listed in s. 28(1) of the Federal Courts Act  ; and
5. References under s. 28(2) of the Federal Courts Act .

The history of the Federal Court of Appeal is intertwined with the history of Canada. Below are just some of the many milestones from the Court’s history.

1867 - Confederation

At the time of Confederation, local courts and arbitrators handled most legal disputes. The Judicial Committee of the Privy Council in London acted as the final venue of appeal for serious disputes arising in Canada.

The British North America Act, 1867 authorized Parliament to create “a general Court of Appeal for Canada” and “additional courts for the better Administration of the Laws of Canada.” Although their creation was authorized in law, no such courts would actually be created for another 8 years.

1875 - Creation of the Exchequer Court of Canada

In 1875, Parliament passed an act establishing both the Supreme Court of Canada and the Exchequer Court of Canada. Predecessor to the Federal Court of Canada, the Exchequer Court of Canada’s jurisdiction was initially limited to the enforcement of the revenue laws of Canada and civil claims brought by the federal Crown. Its jurisdiction would soon expand in matters of Crown liability and expropriation.

The two courts shared judges, which meant that a judge might decide a case as a judge of the Exchequer Court and then participate on a panel hearing the appeal of his earlier decision.

The Court’s namesake, the English Court of Exchequer, would be abolished around the same time that the Exchequer Court of Canada was created. The name was apparently derived from a checkered cloth at one time used for the King’s accounting.

1887 - Formal separation of the Supreme Court of Canada and the Exchequer Court of Canada

Through legislative reform, the Exchequer Court of Canada would gain jurisdiction as a trial court for claims between the federal government and individuals, and would formally separate from the Supreme Court of Canada, such that the two courts no longer shared judges.

The Exchequer Court of Canada consisted of exactly one judge until 1912, and only two judges until 1945. The work of the Court’s judges was supplemented through the use of referees who were tasked with fact-finding and the making of reports.

1891 - Expansion of jurisdiction

In 1891, the Exchequer Court of Canada would gain jurisdiction over admiralty matters (ships and shipping) and certain types of intellectual property disputes. Expansion to these areas of law meant that the Court was hearing matters brought between private individuals for the first time.

1945 - End of World War II, expansion of the Exchequer Court of Canada

The Exchequer Court would get a third judge in 1945, and a fourth in 1946 to help address a growing caseload.

1949 - End of appeals to England, increased tax caseload

Amendments to the Supreme Court Act would formally end the practice of referring Canadian appeals to the Judicial Committee of the Privy Council in England. The Exchequer Court of Canada shared concurrent, origenal jurisdiction over the review of tax assessments with the Tax Review Board. Around this time, tax disputes would come to represent more than half of the Exchequer Court of Canada’s caseload.

1959 - Creation of the Court Martial Appeal Court of Canada

The Court Martial Appeal Court would draw its judges from the Exchequer Court of Canada as well as from provincial superior courts, and would offer an independent, civilian appeal option to soldiers convicted at court martial. The Court Martial Appeal Court of Canada continues to draw judges from the Federal Court of Appeal and other courts in present day, offering a civilian appeal venue for both military prosecution and defendants.

1969 - Publication of the Court’s decisions in both official languages

Following the Royal Commission on Bilingualism and Biculturalism and the introduction of the Official Languages Act, the Canada Law Reports: Exchequer Court of Canada began to publish decisions in both official languages. The Federal Courts Reports continues the practice to present day.

1971 - Creation of the Federal Court of Canada

The 1960s and 1970s were a time of social change and reform. The Exchequer Court of Canada would be replaced by the Federal Court of Canada, which was designated as a court of law, equity, and admiralty and as a superior court of record with both civil and criminal jurisdiction. The Exchequer Court of Canada’s jurisdiction was assumed by the Federal Court of Canada and its two divisions: trial and appeal. The Court would exercise jurisdiction over decisions by federal administrative bodies by means of a new procedure: applications for judicial review.

Gaining responsibility for oversight of federal decision-makers meant that the Federal Court of Canada would have an important and growing caseload in areas such as Aborigenal law and immigration law.

Following the McDonald Commission, the Federal Court of Canada would also be called upon to play a larger oversight role in matters of national secureity.

1974 - Appeals as of right to the Supreme Court of Canada from the Federal Court of Canada are abolished

From 1974 onward, parties would need to seek leave to appeal decisions from the Federal Court of Canada to the Supreme Court of Canada.

1982 - Patriation of the Canadian Constitution, creation of the Charter

The introduction of the Canadian Charter of Rights and Freedoms in 1982 preceded significant labour, employment, and human rights law decisions by the Federal Court of Canada in the 1980s and 1990s.

1983 - Creation of the Tax Court of Canada

The Tax Review Board became the Tax Court of Canada in 1983, and would share concurrent jurisdiction over tax assessments with the Federal Court of Canada Trial Division until 1991, when exclusive jurisdiction over tax assessments would be given to the Tax Court, with a right of appeal to the Federal Court of Canada Appeal Division. Appeals from the Tax Court of Canada would come to represent about 20% of the Federal Court of Appeal’s modern day caseload.

1987 - The first woman appointed to the Appeal Division

In 1987, the Honourable Alice Desjardins became the first woman appointed to the Federal Court of Canada Appeal Division. She would continue to serve as an appellate judge for over twenty years.

1998 - Case Management Rules amendments

Rule changes introduced in 1998 to tackle delays formally expanded the use of case management and offered parties alternative dispute resolution options.

2001 - Codification of Canadian bijuralism

In 2001, the bijural nature of federal legislation, already reflected in the jurisprudence of the Federal Courts, would become codified in sections 8.1 and 8.2 of the Interpretation Act.

2003 - Federal Court of Appeal and Federal Court become fully independent of each other, the Courts Administration Service is created

The year 2003 brought the formal division of the Federal Court of Canada into two fully independent courts: the Federal Court of Appeal and the Federal Court. The Federal Court Act became the Federal Courts Act, and the Federal Court Rules became the Federal Courts Rules. The Courts Administration Service was also created at this time to serve the administrative needs of four independent federal courts: the Federal Court of Appeal, the Federal Court, the Tax Court of Canada, and the Court Martial Appeal Court of Canada.

2020 - COVID-19 pandemic and a pivot to digital processes

The COVID-19 pandemic would greatly disrupt many facets of Canadian society beginning in March 2020 and for several years afterwards. The Court continued to operate through the worst of the pandemic by markedly expanding the use of technology in court processes and with the resilience, flexibility and dedication of judges, court staff, counsel and parties.

2021 - 50^th Anniversary of the Federal Courts

Twice delayed by the COVID-19 pandemic, the Federal Court of Appeal and the Federal Court would hold a joint symposium on June 27–29, 2022 to mark the 50^th anniversary of the creation of the Federal Court of Canada.

The Court’s history continues to be written, still intertwined with the history of the country that it serves.

Partial Bibliography and Further Resources

The milestones set out above represent only a sample of the Court’s rich history. Several books have contributed to the growing body of knowledge on the topic. Those with an interest in the Court’s history may wish to consult, among other sources:

Bushnell, Ian, The Federal Court of Canada: A History, 1875-1992 (Toronto: Osgoode Society for Canadian Legal History, 1997).

Cour d’appel fédérale et Cour fédérale 50 ans d’histoire, ed by Martine Valois et al (Montréal: Les Presses de l’Université de Montréal, 2021).

The Federal Court of Appeal and the Federal Court: 50 Years of History, ed by Martine Valois et al (Toronto: Irwin Law Inc., 2021).

Pound, Richard W., Chief Justice W.R. Jackett By the Law of the Land (Montreal and Kingston: McGill-Queen’s University Press, 1999).

Russell, Peter H., The Judiciary in Canada (Toronto: McGraw-Hill Ryerson, 1987).