Executive Summary: Key Legal and Evidentiary Issues

• Whether the Federal Court had jurisdiction under sections 18 and 18.1 of the Federal Courts Act to compel judicial appointments.

• Dispute over whether the Prime Minister and Minister of Justice qualify as a “federal board” under the statutory definition.

• Attempt by the Federal Court to declare a new constitutional convention requiring timely judicial appointments.

• Evaluation of whether a non-binding constitutional convention can be judicially enforced.

• Discussion on public interest standing and admissibility of the respondent’s evidence.

• Consideration of mootness due to reduction in judicial vacancies since the application was filed.

Facts and outcome of the case

The case arose after Yavar Hameed filed an application in the Federal Court in June 2023, seeking an order to compel the Prime Minister and Minister of Justice to appoint judges to the Federal and provincial superior courts in a timely manner. His application was based partly on a letter dated May 3, 2023, from the Chief Justice of Canada, which warned of the serious impact judicial vacancies were having on democratic institutions. Hameed asked the court to issue either an order of mandamus or a declaration under sections 18 and 18.1 of the Federal Courts Act, arguing that the government had a duty to act on judicial appointments under section 5.2 of the Federal Courts Act and section 96 of the Constitution Act, 1867.

The Federal Court partly agreed with Hameed. While it refused to grant mandamus, it issued declaratory relief, recognizing what it called a constitutional convention that judicial vacancies must be filled within a reasonable time. It expected the number of vacancies to return to mid-2016 levels (around the mid-40s). The Court framed this as an acknowledgment of the executive's advisory role in judicial appointments and attempted to place legal weight on a newly recognized convention.

The Prime Minister and Minister of Justice appealed. They argued that the Federal Court lacked jurisdiction and that it erred in recognizing a constitutional convention as enforceable law. The Federal Court of Appeal agreed with the appellants, holding that the Federal Court had no jurisdiction because the Prime Minister and Minister of Justice did not qualify as a “federal board, commission or other tribunal” under subsection 2(1) of the Federal Courts Act. Without this designation, the Federal Court could not exercise powers under sections 18 and 18.1. The appellate court further criticized the lower court’s attempt to judicially enforce a constitutional convention, reaffirming that conventions are not legally binding unless adopted by statute.

Additionally, the appeal court noted that even if judicial vacancies had declined significantly (from 79 to 15), the appeal was not moot because the legal controversy—over the existence and enforceability of an alleged duty—remained live.

As a result, the Federal Court of Appeal allowed the appeal, set aside the lower court’s decision, and dismissed Hameed’s application for lack of jurisdiction. Importantly, no costs were awarded; each party was to bear its own legal fees, as previously agreed.