FEDERAL COURT ACT - ADMINISTRATIVE LAW JURISDICTION CANADA

• NCJ Number: 47852
• Author(s): D J MULLEN
• Date Published: 1977
• Length: 120 pages
• Corporate Author: Law Reform Cmssn of Canada
• Sale Source: Law Reform Cmssn of Canada
• Language: English
• Country: Canada
• Note: ADMINISTRATIVE LAW SERIES

Annotation

THE DIFFICULTIES ARISING FROM THE FEDERAL COURT ACT ARE EXAMINED AS THEY CONCERN THE CANADIAN JUDICIAL SYSTEM IN THE DEVELOPMENT OF A COHERENT BODY OF SUBSTANTIVE LAW OF JUDICIAL REVIEW.

Abstract

THE BACKGROUND PAPER OF THE LAW REFORM COMMISSION OF CANADA DISCUSSES PROBLEMS AND PROPOSALS SIMILAR TO THOSE EXAMINED IN THE WORKING PAPER CONCERNING THE CANADIAN FEDERAL COURT ACT OF 1971, BUT WITH SOME VARIANCE IN EMPHASIS. THE STATUTORY FRAMEWORK OF THE COURT'S JUDICIAL REVIEW POWERS IS OUTLINED, AND THE PROBLEMS ENCOUNTERED CONCERNING ITS JUDICIAL REVIEW JURISDICTION ARE DISCUSSED. RECOMMENDATIONS ARE PRESENTED WHICH INCLUDE VARIOUS ALTERNATIVES FOR THE RESTRUCTURING OF THE JURISDICTION. PARTICULAR CONCERN IS EXPRESSED OVER THE DIVISION OF JURISDICTION BETWEEN THE TRIAL DIVISION AND THE COURT OF APPEAL, THE ADEQUACY OF THE JUDICIAL REVIEW AND THE STATUTORY APPEAL RELATIONSHIP ESTABLISHED UNDER THE ACT, AND THE TRIAL DIVISION'S ABILITY TO COPE WITH A JURISDICTION BASED ON THE OLD MODES OF JUDICIAL REVIEW IN COMPARISON WITH THE NEW REMEDY CREATED FOR THE COURT OF APPEAL'S ORIGINAL JURISDICTION. THE WORK OF THE FEDERAL COURT IN THE SUBSTANTIVE FIELDS OF JUDICIAL REVIEW ARE AVOIDED IN FAVOR OF EXAMINING THE MORE OBVIOUS REMEDIAL PROBLEMS. THE OPERATION OF THE ACT IS DISCUSSED AFTER A REVIEW OF THE CONSTITUTIONAL QUESTION CONCERNING THE VALIDITY OF THE ACT ITSELF. THE ELEMENTS OF THE DISCUSSION INCLUDE THE ORIGINAL AND APPELLATE JURISDICTION OF THE TRIAL DIVISION AND THE STANDING REQUIREMENTS OF THE COURT OF APPEAL. THE NATURAL LAW CASES INVOLVING THE FEDERAL COURT OF APPEAL ARE SURVEYED AND INDICATE THAT THE COURT HAS BEEN ASKING THE PROPER QUESTIONS, EVEN IF ITS ANSWERS HAVE NOT BEEN ACCEPTED UNIVERSALLY. THE PRINCIPAL RECOMMENDATIONS INCLUDE THE ELIMINATION OF THE DIVISION OF ORIGINAL JURISDICTION BETWEEN THE TRIAL DIVISION AND THE COURT OF APPEAL. A FUNDAMENTAL RECASTING OF THE JURISDICTION IS SEEN AS BEING VITALLY NECESSARY. NOTES AND REFERENCES ARE PROVIDED. (TWK)