Federal Judicial Review Jurisdiction under the Federal Court Act: when is a "federal board, commission or other tribunal" not a "federal board, commission or tribunal"?
Judicial Review, Jurisdiction, Federal Court Act, federal board, commission, tribunal, Governor-in-Council, judges, Canadian Crown corporations, North-West Territories
The precise scope of the judicial review jurisdiction of the Federal Court has always been a matter of some doubt and controversy.' Over the past decade problems have arisen with respect to federal reviewability of decisions of the Governor-in-Council, 2 of section 96 judges, 3 of Canadian Crown corporations, 4 of various officials in the North-West Territories, 5 and of decision-makers acting pursuant to the federal power over Indians. 6 In many of these cases, seemingly conflicting judicial decisions as to the effect of section 2(g) of the Federal Court Act 7 have been rendered: sometimes courts have been uncertain as to the meaning of the attributive phrase "jurisdiction or powers conferred by or under an Act of the Parliament of Canada"; sometimes they have been troubled by the limiting clause "other than . . . any such person or persons appointed . . . under section 96 of the British North America Act, 1867". Moreover, the full effect of section 101 of the B.N.A. Act on the judicial review jurisdiction of the Court has yet to be established. 8 Finally, in several decisions, judges have questioned whether the Federal Court indeed has exclusive jurisdiction where an issue of constitutional division of powers is raised.
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R. A. Macdonald, “Federal Judicial Review Jurisdiction under the Federal Court Act: when is a "federal board, commission or other tribunal" not a "federal board, commission or tribunal"?” (1980-1981) 6:3 DLJ 449.