Is the Federal Courts Act a Quasi-Constitutional Statute? Deegan v. Canada (Attorney General), 2019 FC 960
The term “quasi-constitutional” is sometimes attached to statutes said or held to have special status relative to other statutes. Typically, the “quasi-constitutional” statute is one which protects or seeks to entrench important individual rights. But there is no reason that only statutes concerned with rights should be eligible for the “quasi-constitutional” label (see Vanessa MacDonnell). Prompted by the insightful discussion of Mactavish J in Deegan v. Canada (Attorney General), 2019 FC 960, I suggest that Canada’s Federal Courts Act should also be classed as “quasi-constitutional”.
At issue in Deegan was a constitutional challenge to Canadian legislation obliging financial institutions to transfer financial information about account holders to the American taxation authorities (who have a keen interest in the income of American citizens, who are liable to tax in their country of citizenship, as the current UK Prime Minister found out to his cost several years ago).
A preliminary question arose, however, about whether the Federal Court of Canada has the authority to issue a declaration of unconstitutionality. Dicta in recent Supreme Court of Canada opinions has cast some doubt on the scope of the Federal Court’s jurisdiction (at paras. 216-219; and see also my comment on Windsor Bridge). Mactavish J’s response to these dicta was robust: “The fact is that the Federal Court is neither an inferior court nor an administrative tribunal…It is, rather, a superior court of record having civil and criminal jurisdiction…As a superior court, the Federal Court has plenary jurisdiction to determine any matter of law arising out of its original jurisdiction. This includes constitutional jurisdiction in matters that are properly before the Court” (at para. 227). She went on to hold, persuasively in my view, that Federal Court had jurisdiction over the taxation legislation at issue in the present case (at paras. 228-234), a point copperfastened by an analysis of the provisions of the Federal Courts Act which contemplate Federal Court consideration of constitutional issues (at paras. 235-236).
The following passage was also eye-catching:
In contrast to the inherent jurisdiction enjoyed by provincial superior courts, the Supreme Court held in Windsor Bridge that the Federal Courts have only the jurisdiction that has been conferred on them by statute, and that they are without inherent jurisdiction: at para. 33. This of course begs the question: if the Federal Courts’ jurisdiction is constrained by the fact that they are statutory courts created under section 101 of the Constitution Act, 1867, how is it that the jurisdiction of the Supreme Court of Canada – another statutory court created under section 101 of the Constitution Act, 1867 – is not similarly constrained?
This is an excellent question. Why is sauce for the Supreme Court goose not sauce for the Federal Court gander? The cynical answer is that the Supreme Court is the final and therefore infallible arbiter of the constraints on judicial power (with an obvious interest in entrenching its own position), whereas the Federal Courts do not have the last word on the scope of their jurisdiction. A more measured answer would be that insufficient attention has been paid to the possibility that the Federal Courts Act is a “quasi-constitutional statute”.
That label tends to be applied to rights-protecting statutes. As Lamer J once put it: “When the subject matter of a law is said to be the comprehensive statement of the ‘human rights’ of the people living in that jurisdiction, then there is no doubt in my mind that the people of that jurisdiction have through their legislature clearly indicated that they consider that law, and the values it endeavours to buttress and protect, are, save their constitutional laws, more important than all others” (Insurance Corp. of British Columbia v. Heerspink,  2 SCR 145, at pp. 157-158). In Laws J’s well-known analysis of “constitutional statutes” he suggested the label could be applied in two situations: “a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights” (Thoburn v Sunderland City Council  QB 151, at para. 62). Even the first of his two situations, which is not explicitly about “rights”, emphasizes the individual’s interest in being treated appropriately by the state.
But if we are to have a category of “constitutional” or “quasi-constitutional” legislation, there is no reason to limit it to statutory provisions concerned with rights or individual interests (see MacDonnell above. See also Feldman, “The Nature and Significance of ‘Constitutional’ Legislation” (2013) 129 LQR 343-358, suggesting at 357 that we should “concentrate on the contribution of Acts, subordinate legislation and individual provisions or groups of provisions to establishing institutions of the state, defining their roles and authority, and regulating their relationships with each other.”). After all, the point of attaching the label to a statute is to ensure that it will be “interpreted in a liberal and purposive manner” and “not only be given expansive meaning, but also offered accessible application” (Tranchemontagne v. Ontario (Director, Disability Support Program),  1 SCR 513, at para. 33, per Bastarache J). This rationale applies just as much to institutionally important legislation — laws which establish and empower bodies which play a significant role in the exercise and/or control of public power — as it does to statutes protective of individual interests and fundamental rights.
suggests that we should “concentrate on the contribution of Acts, subordinate
legislation and individual provisions or groups of provisions to establishing
institutions of the state, defining their roles and authority, and regulating
their relationships with each other”,
 David Feldman, “The nature and significance of ‘constitutional’ legislation” (2013) 129 LQR 343, at p. 357.
). After all, the point of attaching the label to a statute is to ensure that it will be “interpreted in a liberal and purposive manner” and “not only be given expansive meaning, but also offered accessible application” (Tranchemontagne v. Ontario (Director, Disability Support Program),  1 SCR 513, at para. 33, per Bastarache J). This rationale applies just as much to institutionally important legislation — laws which establish and empower bodies which play a significant role in the exercise and/or control of public power — as it does to statutes protective of individual interests and fundamental rights.
Far from being a mere statutory tribunal, the Federal Court is the direct descendant of the Exchequer Court which was one of the earliest federal institutions and today oversees the vast array of federal administrative activity. The Federal Court’s role in ensuring the legality, rationality and procedural propriety of areas as diverse as competition law, immigration law and prison law marks it out as a vital federal institution. That its jurisdiction springs from the same source as the Supreme Court of Canada underscores its national significance. It might be said that creating a Federal Court was (and remains) a “constitutional imperative“. Accordingly, it is entirely appropriate to give the terms of the Federal Courts Act as large and liberal an interpretation as is required “for the better administration of the laws of Canada” (Federal Courts Act, s.3).
And, as Mactavish J rightly pointed out, the Supreme Court of Canada has already recognized that it is appropriate to give a broad scope to the powers of the Federal Court:
As is clear from the face of the Federal Court Act, and confirmed by the additional role conferred on it in other federal Acts, in this case the Human Rights Act, Parliament intended to grant a general administrative jurisdiction over federal tribunals to the Federal Court. Within the sphere of control and exercise of powers over administrative decision-makers, the powers conferred on the Federal Court by statute should not be interpreted in a narrow fashion. This means that where an issue is clearly related to the control and exercise of powers of an administrative agency, which includes the interim measures to regulate disputes whose final disposition is left to an administrative decision-maker, the Federal Court can be considered to have a plenary jurisdiction.Canada (Human Rights Commission) v. Canadian Liberty Net,  1 SCR 626, at para. 36, per Bastarache J.
Although the current Supreme Court’s apparent hostility to federal jurisdiction is hard for me to fathom (see here, here and here), there is the potential for disagreement over the role of the Federal Court to turn into an ugly and unseemly scrap between competing judicial bodies. Mactavish J’s reasons represent an important corrective to an unfortunate recent tendency in the Supreme Court’s jurisprudence. For my part, I would go further than Mactavish J and, building on her careful and patient analysis, argue the Federal Courts Act is a “quasi-constitutional” statute, which should be interpreted in a large and liberal fashion.
This content has been updated on September 9, 2019 at 19:42.