Federal Courts Act and Rule of Law (CANADA)

Federal Courts Act s 2(1):

“federal board, commission or other tribunal” means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prereogative of the Crown, other than the Tax Court of Canada or any of its judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96”.

There are exceptions to the above definition:
-if statute gives power to another Court
-if remedy is not provided by Federal Court act e..g habeus corpus application

There are two grounds for judicial review – Procedural and Substantive.

Procedural occurs if you are unhappy with the process in which a decision was made. Substantive review occurs if you think the decision that was reached was wrong or unreasonable. Even if you have no statutory right of appeal…it is still available…it is part of the inherent jurisdiction of the court.

Why do we consider the role of the court (i.e. inherent jurisdiction) important? It’s because it relates to the fundamental relationships between the different branches of government. Should the legislature be allowed to create a body that is immune to judicial review (i.e. Guantanamo)? What would the consequences of having no legal recourse from administrative decisions? There would be no protection against arbitrary uses of power. Inherent jurisdiction of courts makes them the guardians of The Rule of Law. They ensure that entitites exercising public power will not abuse that power.

Three elements of the Rule of Law (as per Manitoba Language Rights Reference):

1. The law is supreme over the acts of both government and private persons.
2. The rule of law requires the creation and maintenance of an actual order of positive laws
3. The exercise of all public power must find its ultimate source in a legal rule. The relationship between the state and the individual must be regulated by law

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