FCA sets aside decision that declared Ottawa must fill judicial vacancies ‘within a reasonable time’

Law360 Canada (June 19, 2025, 5:37 PM EDT) -- A novel Federal Court action that tried to compel Ottawa to fix its chronic tardiness in filling superior court vacancies has been dismissed for lack of jurisdiction by the Federal Court of Appeal; however, the law firm that launched the case to help its clients and other litigants says its efforts were not in vain.

On June 18, the Federal Court of Appeal overturned a groundbreaking Federal Court declaration last year that recognized a “constitutional convention that judicial vacancies on the provincial superior courts and federal courts must be filled [by Ottawa] within a reasonable time.”

The federal government had appealed Federal Court Justice Henry Brown’s judgment, arguing that the national trial court erred, in fact and law, in several ways, such as “by overstepping its constitutionally limited role, and acting without jurisdiction, including by … reading in a timeliness requirement [for making federal judicial appointments] pursuant to s. 96 of the Constitution Act, 1867 and s. 5.2 of the Federal Courts Act; substituting its own view on the timeliness of federal judicial appointments for that of the executive branch; and attempting to compel the executive branch to comply with a constitutional convention under the guise of declaratory relief.”

The Federal Court of Appeal agreed that the lower court went beyond its jurisdiction.

The Appeal Court ruled that the judge erred in concluding that ss. 18 and 18.1 of the Federal Courts Act provided a statutory grant of jurisdiction, pursuant to the test in ITO, to review the advice-giving role of the prime minister and minister of justice with respect to judicial appointments to the federal courts and provincial superior courts: Canada (Prime Minister) v. Hameed, 2025 FCA 118.

“The Prime Minister and Minister of Justice, when advising in respect of judicial appointments made under s. 96 of the Constitution Act, 1867 and s. 5.2 of the Federal Courts Act, cannot be qualified as federal boards for the purposes of ss. 18 and 18.1 of the Federal Courts Act,” Federal Court of Appeal Justice Richard Boivin wrote, backed by Justices George Locke and Gerald Heckman.

“Since sections 18 and 18.1 of the Federal Courts Act are inapplicable to the Prime Minister and Minister of Justice in this case, there is no statutory grant of jurisdiction and therefore, the first step of the ITO test is not met. The Federal Court thus erred in law in determining that it could exercise its jurisdiction in hearing the respondent’s application.”

(The ITO test provides that in order to make a finding of jurisdiction of the Federal Court there must be: a statutory grant of jurisdiction by the federal Parliament; an existing body of federal law, which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction; and the law on which the case is based must be “a law of Canada” as the phrase is used in s. 101 of the Constitution Act,1867.)

Of the challenge to chronically tardy judicial appointments, Justice Boivin commented that “no one disputes the utmost importance of filling judicial vacancies to ensure a healthy judiciary, and relatedly, a healthy democracy.”

“But it remains that the judicial branch of government, like the other two branches of government — the executive and the legislative — fortify themselves by acting properly within their legitimate spheres of competence,” he remarked. “In the case at hand, in deciding as it did, the Federal Court overstepped its jurisdictional bounds. … That being said, just as the judiciary must accord respect and deference to the legislative and executive branches, so too must those branches reciprocate that respect and deference,” Justice Boivin wrote.

“This appeal serves as an important reminder that maintaining reciprocal respect and deference between the branches of government is a fundamental principle in a democracy under the rule of law.”

Nicholas Pope of Ottawa’s Hameed Law, who launched the case on behalf of his colleague Yavar Hameed, said his client won’t be seeking leave to appeal to the Supreme Court of Canada.

“The judicial vacancies crisis has been resolved, and the Court of Appeal’s decision doesn’t prevent a similar challenge from being brought in the future,” he told Law360 Canada. “So, we see no reason to waste judicial resources on a purely academic matter.”

(As of June 1, superior trial and appellate court vacancies stood at a near-record low — 22 vacancies on a full-time bench of 1,002 judges (2.2 per cent). By contrast, there were 79 vacancies when Hameed, an Ottawa human rights lawyer, asked the Federal Court in June 2023 to issue a mandamus order requiring the prime minister and justice minister to fill the then-current vacancies within three months of the court’s order, or within nine months of when the federal government became aware that each judicial post would be vacant, whichever was later.)

“This court case was a success regardless of the Court of Appeal’s ruling,” Pope said. “There was [when it was filed] a serious problem with 75 to 80 vacancies,” he explained, adding that, in his opinion, the federal government failed to act speedily to a May 2023 letter from Chief Justice of Canada Richard Wagner to the prime minister, which warned that “the current [vacancy] situation is untenable and I am worried that it will create a crisis in our justice system.”

“The government ignored the chief justice’s letter saying there was a problem, so Mr. Hameed had to step up and file this application” in June 2023, Pope said. “We won [in Federal Court], and immediately the government began filling the vacancies,” he said. “Within a little more than a year, the vacancies were down to a very acceptable 15,” Pope remarked. “The problem has been solved, so we are content.”

Pope said he doesn’t see the Federal Court of Appeal’s ruling as stopping a similar future challenge in Federal Court if the federal government were to begin dragging its feet on judicial appointments again.

If an applicant named the Governor in Council and Governor General as respondents, rather than the prime minister and federal justice minister, they may be able to bring a similar application in Federal Court, he suggested. “Or the application could simply be brought in a provincial superior court, since they have inherent jurisdiction,” Pope advised. “We filed in Federal Court because it meant we could bring one application for the whole country instead of one in each province, and the Federal Court is often much quicker than provincial courts,” he remarked. “However, a provincial superior court application would be a viable option for the future.”

The Barreau du Québec and the Canadian Constitutional Law Initiative of the University of Ottawa Public Law Centre intervened in the appeal.

Andrew Bernstein of Toronto’s Torys LLP, who with Jeremy Opolsky represented the intervener University of Ottawa Public Law Centre, said they argued on behalf of the centre’s Constitutional Law Initiative that conventions are not law, and also expressed the initiative’s concern that the decision of the Federal Court at first instance conflated them in a way that ignored the distinct roles of the executive and the judiciary under Canada’s Constitution. “We were pleased to see that the Court of Appeal took the time to reiterate this important principle, even if it was not the ultimate basis for its decision, which was about the jurisdiction of the Federal Courts,” Bernstein said. “The Constitutional Law Initiative is committed to the orderly development of Canadian constitutional law, and we believe that the Court of Appeal’s decision helps correct some misconceptions that might have arisen in the decision below.”

In February 2024, Federal Court Justice Brown refused to order the previous Trudeau government to fill the then-high level of about 75 superior court vacancies within specified timeframes. Instead, the judge recognized a “constitutional convention” that judicial vacancies “must be filled within a reasonable time,” and declared his “expectation” that Ottawa would begin to discharge its unfulfilled constitutional duty to fix the country’s “untenable and appalling crisis and critical judicial vacancy situation,” including by reducing the vacancies to the mid-40s “within a reasonable time.”

A 2023 investigation by Law360 Canada found that the Trudeau government took more than eight months, on average, to appoint judges to fill 349 superior court vacancies from Jan. 1, 2019, to Aug. 1, 2023.

Since then, the Liberals’ judicial appointments have been made at a faster pace, reducing the country’s vacancies on the bench to a near-historic low this year.

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