46 S. C. L. Rev. 761 (1994-1995)
Brief History of Canadian Federal Court Jurisdiction, A; Johnson, Herbert A.

handle is hein.journals/sclr46 and id is 777 raw text is: Note: A Brief History
of Canadian Federal
Court Jurisdiction
Herbert A. Johnsoid
At the time of Canadian confederation in 1867 there existed a system of
superior courts in all of the provinces that dated to the settlement of each
province as an independent colony. These tribunals were continued by Section
92(14) of the British North America Act, currently known as the Constitution
Act, 1867. The Act also provided that the Canadian governor general, not a
provincial official, would appoint the judges of the superior, district, and
county courts of each province.' The superior court judges received good
behavior tenure, and they are removable only by the governor general upon
a joint address of the Federal Senate and House of Commons.'
Provincial superior courts continue to occupy a central place in the
Canadian court structure. By virtue of Section 92(14), the provinces may
empower their courts to adjudicate provincial and federal questions. Thus,
Canada does not need a full-blown system of separate Federal Courts.
Provincial superior courts were the major trial courts after confederation,
subject to appeals either to the Supreme Court of Canada or to the Judicial
Committee of the Privy Council. Even today, if a federal law does not specify
which court shall exercise jurisdiction, it is presumed that the provincial
superior courts are the appropriate forum.'
When the Supreme Court of Canada was established in 1875, the
Canadian Parliament also instituted an exchequer court for the protection of
the Crown's financial interests and the collection of taxes.4 In 1971 the
Exchequer Court was replaced by the Federal Court of Canada, which
absorbed its jurisdiction and also received a broader grant of jurisdiction in
non-Crown litigation.5 The Federal Court of Canada is a court of law,
* A.B., M.A., Ph.D., LL.B., Ernest F. Hollings Professor of Law, University of South
Carolina.
1. CAN. CONST. (Constitution Act, 1867) § 96 (originally enacted at 30 & 31 Viet., ch. 3
(U.K.)).
2. Id. § 99. However, in 1961, the Constitution was amended to provide for a mandatory
retirement when superior court judges reach the age of seventy-five. CAN. CONST. (Constitution
Act, 1982) § 99(2).
3. See PETER W. HOGG, CONSTITUTIONAL LAW OF CANADA 135 (2d ed. 1985).
4. Supreme Court and Exchequer Court Act, 1875, S.C. ch. 11 (1875) (Can.); see Supreme
Court Act, R.S.C., ch. S-26 (1985) (Can.) (codifying the 1875 legislation concerning the
Supreme Court of Canada).
5. Federal Court Act, R.S.C., ch. F-7 (1985) (Can.). In addition, a Tax Review Board was

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