Federal Court of Appeal overturns decision requiring action on judicial vacancies

The Calgary Courts Centre pictured in Calgary, Monday, May 6, 2024. THE CANADIAN PRESS/Jeff McIntosh

OTTAWA — A panel of judges has overturned a court ruling that directed the federal government to step up the pace of judicial appointments to address an “untenable” number of vacancies.

The Federal Court of Appeal allowed the government’s challenge of the ruling, saying the Federal Court lacked jurisdiction to hear the case in the first place.

In a February 2024 ruling, Federal Court Justice Henry Brown said constitutional convention requires Ottawa to appoint a new judge to a vacancy within a reasonable period of time.

The government asked the Federal Court of Appeal to set aside the judgment and dismiss the underlying application brought by lawyer Yavar Hameed.

In his application, Hameed said he had experienced significant delays in litigation proceedings in the courts on behalf of vulnerable clients.

Among the material filed in the initial case was a May 2023 letter to then-prime minister Justin Trudeau from Chief Justice Richard Wagner, chair of the Canadian Judicial Council, expressing his “deep concern” about the 85 judicial vacancies on superior and federal courts.

“It should be noted that the difficulties brought on by the judge shortage are exacerbating an already critical situation within several courts -- namely a serious lack of resources due to chronic underfunding by the provinces and territories,” the letter said.

“However, while several factors explain the crisis currently facing our justice system, the appointment of judges in due course is a solution within reach that could help quickly and effectively improve the situation.”

In his 2024 ruling, Brown found the “significant and unacceptably large” number of vacancies remained essentially unchanged and said the prime minister and justice minister “are simply treading water.”

“They have failed to take the actions requested by the Chief Justice of Canada and the Canadian Judicial Council. And with the greatest respect, they have also failed all those who rely on them for the timely exercise of their powers in relation to filling these vacancies.”

Brown said he would “recognize and declare” the constitutional convention that judicial vacancies on the provincial superior courts and federal courts “must be filled within a reasonable time.”

The judge also noted his expectation that this “untenable and appalling crisis” would be resolved through steps to lower the total number of judicial vacancies to the mid-40s, where it stood in the spring of 2016.

The government’s appeal said Brown erred in concluding the Federal Court had jurisdiction over judicial appointments to provincial superior courts and federal courts.

It also said Brown mistakenly recognized a constitutional convention that does not exist, and argued that the court substituted its own view on the timeliness of federal judicial appointments for that of the executive branch.

At his recent annual news conference, Wagner said he was “delighted that the government of Canada has reduced vacancies by around 75 per cent over the last year-and-a-half.”

“That is great progress and I hope it continues,” he said. “Every timely appointment supports more efficient justice for Canadians.”

This report by The Canadian Press was first published June 19, 2025.

Jim Bronskill, The Canadian Press