Federal Court of Appeal Rules that Courts Can’t Tell Government to Fill Judicial Vacancies

Key Takeaways

In Canada (Prime Minister) v. Hameed,^[1] the Federal Court of Appeal set aside a controversial lower court ruling that declared, among other things, that judicial vacancies must be filled within a reasonable time. The Court of Appeal sent a clear message on the importance of the separation of powers, noting that its decision was “an important reminder” for branches of government to maintain “reciprocal respect and deference” for other branches of government.^[2]

Background

The application at the heart of the matter followed the Chief Justice of Canada publicizing his “deep concern with regard to the significant number of vacancies within Federal Judicial Affairs and the government’s inability to fill these positions in a timely manner.”^[3] 

The applicant, Yavar Hameed, sought a writ of mandamus to compel the Prime Minister and the Minister of Justice to appoint judges to fulfill vacancies at the Federal Courts and the provincial superior courts. Alternatively, the applicant sought a series of declarations.

The Federal Court declined to issue mandamus. However, it made four declarations, including that appointments to the Federal Courts and provincial superior courts “must be made within a reasonable time of the vacancy” and that the total number of vacancies should “return to the mid-40s”.^[4]  

The Prime Minister and the Minister of Justice appealed, arguing that the Federal Court lacked jurisdiction and made several errors, including by recognizing a new constitutional convention.

The Court of Appeal’s Decision

Writing for a unanimous Court, Justice Boivin first held that the appeal was not moot. The nature and existence of the alleged duty remained a live controversy within an adversarial context.

The next issue was therefore whether the Federal Court had jurisdiction to hear the case. The Court of Appeal held that the Prime Minister and the Minister of Justice were not a “federal board, commission or tribunal” within the meaning of ss. 18 and 18.1 of the Federal Courts Act.^[5] Since those provisions did not apply to the Prime Minister and Minister of Justice in this case, the Federal Court erred in determining that it had jurisdiction to consider the application.^[6]

The Federal Court did not have jurisdiction at common law either. There was no “Act of Parliament or an order made under a prerogative of the Crown specifically [conferring] on the Prime Minister and Minister of Justice the duty to advise the Governor General regarding the appointment of judges.”^[7]

Ultimately, the Federal Court of Appeal concluded that the Federal Court had overstepped its judicial boundaries, extending its reach into other areas of government. The Court had created a new constitutional convention.

Justice Boivin set out two important principles regarding constitutional conventions. First, they are not legally enforceable, and their repeated use in precedent does not elevate them to the status of the common law; rather, constitutional conventions may only be validly established through statutory enactment.^[8] Second, in articulating constitutional conventions, courts must respect the separation of powers and the authority of the judicial branch.^[9]

The Court of Appeal ended with a message about judicial restraint, noting that the “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.”^[10]

^[1] Canada (Prime Minister) v. Hameed, 2025 FCA 118 [“Hameed”].

^[2] Hameed, at para. 62.

^[3] Hameed, at para. 1.

^[4] Hameed, at paras. 4-5.

^[5] R.S.C. 1985, c. F-7.

^[6] Hameed, at para. 55.

^[7] Hameed, at para. 54.

^[8] Hameed, at para. 58, citing Reference re Resolution to amend the Constitution, [1981] 1 S.C.R. 753, at p. 882 [“Patriation Reference”]. See also Democracy Watch v. Canada (Prime Minister), 2023 FCA 41, at para. 24.

^[9] The Court of Appeal emphasized the importance of the Supreme Court of Canada’s test requiring “courts to consider three questions before declaring a constitutional convention”: Hameed, at para. 59, citing Patriation Reference, at p. 888.

^[10] Hameed, at para. 62.