Federal Courts Act (R.S.C., 1985, c. F-7)

41 [Repealed, 1990, c. 8, s. 11]

Marginal note:Maritime law continued

42 Canadian maritime law as it was immediately before June 1, 1971 continues subject to such changes therein as may be made by this Act or any other Act of Parliament.

Marginal note:Jurisdiction in personam

• 43 (1) Subject to subsection (4), the jurisdiction conferred on the Federal Court by section 22 may in all cases be exercised in personam.

• Marginal note:Jurisdiction in rem

  (2) Subject to subsection (3), the jurisdiction conferred on the Federal Court by section 22 may be exercised in rem against the ship, aircraft or other property that is the subject of the action, or against any proceeds from its sale that have been paid into court.

• Marginal note:Exception

  (3) Despite subsection (2), the jurisdiction conferred on the Federal Court by section 22 shall not be exercised in rem with respect to a claim mentioned in paragraph 22(2)(e), (f), (g), (h), (i), (k), (m), (n), (p) or (r) unless, at the time of the commencement of the action, the ship, aircraft or other property that is the subject of the action is beneficially owned by the person who was the beneficial owner at the time when the cause of action arose.

• Marginal note:Where action in personam may be commenced

  (4) No action in personam may be commenced in Canada for a collision between ships unless

  • (a) the defendant is a person who has a residence or place of business in Canada;

  • (b) the cause of action arose in Canadian waters; or

  • (c) the parties have agreed that the Federal Court is to have jurisdiction.

• Marginal note:Exception

  (5) Subsection (4) does not apply to a counter-claim or an action for a collision, in respect of which another action has already been commenced in the Federal Court.

• Marginal note:Where suit pending outside Canada

  (6) Where an action for a collision between ships has been commenced outside Canada, an action shall not be commenced in Canada by the same person against the same defendant on the same facts unless the action in the other jurisdiction has been discontinued.

• Marginal note:Ship owned by sovereign power

  (7) No action in rem may be commenced in Canada against

  • (a) any warship, coast-guard ship or police vessel;

  • (b) any ship owned or operated by Canada or a province, or any cargo laden thereon, where the ship is engaged on government service; or

  • (c) any ship owned or operated by a sovereign power other than Canada, or any cargo laden thereon, with respect to any claim where, at the time the claim arises or the action is commenced, the ship is being used exclusively for non-commercial governmental purposes.

• Marginal note:Arrest

  (8) The jurisdiction conferred on the Federal Court by section 22 may be exercised in rem against any ship that, at the time the action is brought, is owned by the beneficial owner of the ship that is the subject of the action.

• Marginal note:Reciprocal security

  (9) In an action for a collision in which a ship, an aircraft or other property of a defendant has been arrested, or security has been given to answer judgment against the defendant, and in which the defendant has instituted a cross-action or counter-claim in which a ship, an aircraft or other property of the plaintiff is liable to arrest but cannot be arrested, the Federal Court may stay the proceedings in the principal action until security has been given to answer judgment in the cross-action or counter-claim.

Marginal note:Mandamus, injunction, specific performance or appointment of receiver

44 In addition to any other relief that the Federal Court of Appeal or the Federal Court may grant or award, a mandamus, an injunction or an order for specific performance may be granted or a receiver appointed by that court in all cases in which it appears to the court to be just or convenient to do so. The order may be made either unconditionally or on any terms and conditions that the court considers just.

Procedure

Marginal note:Giving of judgment after judge ceases to hold office

• 45 (1) A judge of the Federal Court of Appeal or the Federal Court who resigns or is appointed to another court or otherwise ceases to hold office may, at the request of the Chief Justice of that court, at any time within eight weeks after that event, give judgment in any cause, action or matter previously tried by or heard before the judge as if he or she had continued in office.

• Marginal note:Taking part in giving of judgment after judge of Federal Court of Appeal ceases to hold office

  (2) If a judge of the Federal Court of Appeal who resigns or is appointed to another court or otherwise ceases to hold office has heard a cause, an action or a matter in the Federal Court of Appeal jointly with other judges of that court, the judge may, at the request of the Chief Justice of the Federal Court of Appeal, at any time within eight weeks after the resignation, appointment or other ceasing to hold office, take part in the giving of judgment by that court as if he or she had continued in office.

• Marginal note:If judge unable to take part in giving of judgment

  (3) If a person to whom subsection (2) applies or any other judge by whom a matter in the Federal Court of Appeal has been heard is unable to take part in the giving of judgment or has died, the remaining judges may give judgment and, for that purpose, are deemed to constitute the Federal Court of Appeal.

Marginal note:Rules Committee

• 45.1 (1) There shall be a rules committee composed of the following members:

  • (a) the Chief Justice of the Federal Court of Appeal;

  • (a.1) the Chief Justice or the Associate Chief Justice of the Federal Court;

  • (b) three judges designated by the Chief Justice of the Federal Court of Appeal, and five judges and one associate judge designated by the Chief Justice of the Federal Court;

  • (b.1) the Chief Administrator of the Courts Administration Service;

  • (c) five members of the bar of any province designated by the Attorney General of Canada, after consultation with the Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court; and

  • (d) the Attorney General of Canada or a representative thereof.

• Marginal note:Representation

  (2) The persons referred to in paragraph (1)(c) should be representative of the different regions of Canada and have experience in fields of law in respect of which the Federal Court of Appeal and the Federal Court have jurisdiction.

• Marginal note:Chief Justice shall preside

  (3) The Chief Justice of the Federal Court of Appeal or a member designated by the Chief Justice shall preside over the rules committee.

• Marginal note:Term

  (4) The persons referred to in paragraphs (1)(b) and (c) shall be designated to serve for a period not exceeding three years.

• Marginal note:Expenses

  (5) Each person referred to in paragraphs (1)(c) and (d) is entitled to be paid travel and living expenses incurred in carrying out duties as a member of the rules committee while absent from the person’s ordinary place of residence but those expenses shall not exceed the maximum limits authorized by Treasury Board directive for employees of the Government of Canada.

Marginal note:Rules

• 46 (1) Subject to the approval of the Governor in Council and subject also to subsection (4), the rules committee may make general rules and orders

  • (a) for regulating the practice and procedure in the Federal Court of Appeal and in the Federal Court, including, without restricting the generality of the foregoing,

    • (i) rules providing, in a proceeding to which the Crown is a party, for examination for discovery of a departmental or other officer of the Crown,

    • (ii) rules providing for discovery and production, and supplying of copies, of documents by the Crown in a proceeding to which the Crown is a party,

    • (iii) rules providing for production of documents by the Crown in a proceeding to which the Crown is not a party,

    • (iv) rules providing for the medical examination of a person in respect of whose injury a claim is made,

    • (v) rules governing the taking of evidence before a judge or any other qualified person, in or outside Canada, before or during trial and on commission or otherwise, of any person at a time either before or after the commencement of proceedings in the Federal Court of Appeal or the Federal Court to enforce the claim or possible claim in respect of which the evidence is required,

    • (vi) rules providing for the reference of any question of fact for inquiry and report by a judge or other person as referee,

    • (vii) rules respecting the service of documents within Canada and rules authorizing and governing the service of documents outside Canada,

    • (viii) rules governing the recording of proceedings in the course of a hearing and the transcription of that recording,

    • (ix) rules governing the appointment of assessors and the trying or hearing of a cause or other matter wholly or partly with the assistance of assessors, and

    • (x) rules governing the material to be furnished to the Federal Court of Appeal or the Federal Court by the Tax Court of Canada or any federal board, commission or other tribunal, for the purposes of any appeal, application or reference;

  • (b) for the effectual execution and working of this Act and the attainment of its intention and objects;

  • (c) for the effectual execution and working of any Act by or under which jurisdiction is conferred on the Federal Court of Appeal or the Federal Court or on any judge of either court in respect of proceedings in that court and the attainment of the intention and objects of that Act;

  • (d) for fixing the fees to be paid by a party to the Registry of the Federal Court of Appeal and of the Federal Court for payment into the Consolidated Revenue Fund in respect of proceedings in those courts;

  • (e) for regulating the duties of officers of the Federal Court of Appeal or the Federal Court;

  • (f) for fixing the fees that sheriffs, marshals or other persons to whom process may be issued may receive and take, and for regulating their obligation, if any, to account for those fees to the persons or departments by whom they are employed, or their right to retain them for their own use;

  • (g) for awarding and regulating costs in the Federal Court of Appeal or the Federal Court in favour of or against the Crown, as well as the subject;

  • (h) empowering an associate judge to exercise any authority or jurisdiction, subject to supervision by the Federal Court, even though the authority or jurisdiction may be of a judicial nature;

  • (i) permitting a judge or associate judge to vary a rule or to dispense with compliance with a rule in special circumstances;

  • (j) despite subsection 28(3), providing for the enforcement of orders of the Federal Court of Appeal in the Federal Court;

  • (k) designating an act or omission of a person to be in contempt of court, respecting the procedure to be followed in proceedings for contempt and establishing penalties for a finding of contempt; and

  • (l) dealing with any other matter that any provision of this Act contemplates being the subject of a rule or the Rules.

• Marginal note:Extent of rules

  (2) Rules and orders made under this section may extend to matters arising out of or in the course of proceedings under any Act involving practice and procedure or otherwise, for which no provision is made by that Act or any other Act but for which it is found necessary to provide in order to ensure the proper working of that Act and the better attainment of its objects.

• Marginal note:Uniformity

  (3) Rules and orders made under this section may provide for a procedure that is uniform in whole or in part in respect of all or any class or classes of matters and for a uniform nomenclature in any such matters.

• Marginal note:Advance publication of rules and amendments

  (4) Where the rules committee proposes to amend, vary or revoke any rule or order made under this section or to make any rule or order additional to the general rules and orders first made under this section and published together, the committee

  • (a) shall give notice of the proposal by publishing it in the Canada Gazette and shall, in the notice, invite any interested person to make representations to the committee in writing with respect thereto within sixty days after the day of that publication; and

  • (b) may, after the expiration of the sixty days referred to in paragraph (a) and subject to the approval of the Governor in Council, implement the proposal either as originally published or as revised in such manner as the committee deems advisable having regard to any representations so made to it.

• Marginal note:Rules to be laid before Parliament

  (5) A copy of each rule or order and of each amendment, variation or revocation of a rule or order made under this section shall be laid before each House of Parliament on any of the first fifteen days after the approval by the Governor in Council of the making thereof on which that House is sitting.

47 [Repealed, 1990, c. 8, s. 15]

Marginal note:How proceeding against Crown instituted

• 48 (1) A proceeding against the Crown shall be instituted by filing in the Registry of the Federal Court the original and two copies of a document that may be in the form set out in the schedule and by payment of the sum of $2 as a filing fee.

• Marginal note:Procedure for filing originating document

  (2) The original and two copies of the originating document may be filed as required by subsection (1) by being forwarded, together with a remittance for the filing fee, by registered mail addressed to “The Registry, The Federal Court, Ottawa, Canada”.

Marginal note:No juries

49 All causes or matters before the Federal Court of Appeal or the Federal Court shall be heard and determined without a jury.

Marginal note:Stay of proceedings authorized

• 50 (1) The Federal Court of Appeal or the Federal Court may, in its discretion, stay proceedings in any cause or matter

  • (a) on the ground that the claim is being proceeded with in another court or jurisdiction; or

  • (b) where for any other reason it is in the interest of justice that the proceedings be stayed.

• Marginal note:Stay of proceedings required

  (2) The Federal Court of Appeal or the Federal Court shall, on application of the Attorney General of Canada, stay proceedings in any cause or matter in respect of a claim against the Crown if it appears that the claimant has an action or a proceeding in respect of the same claim pending in another court against a person who, at the time when the cause of action alleged in the action or proceeding arose, was, in respect of that matter, acting so as to engage the liability of the Crown.

• Marginal note:Lifting of stay

  (3) A court that orders a stay under this section may subsequently, in its discretion, lift the stay.