The Federal Court of Appeal recently released its decision in Canada (Prime Minister) v. Hameed (2025 FCA 118).
This dispute arose as a result of a letter Chief Justice of Canada Richard Wagner wrote to then-Prime Minister Justin Trudeau in May 2023 to express "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."
Shortly thereafter, a judicial review application was brought to compel the Prime Minister and Minister of Justice to fill these judicial vacancies. Ultimately, the Federal Court issued a declaration expressing its "expectation" that the federal government take steps to reduce the total number of vacancies in order to rectify an "untenable and appalling crisis."
On appeal, however, a panel of three judges of the Federal Court of Appeal unanimously found that the Federal Court lacked jurisdiction to hear the matter and dismissed the application in its entirety. This decision is an important reminder of the practical challenges and complexities associated with litigating disputes against the government.
First, understanding the machinery of government and how various institutions and bodies work together in operationalizing government decision-making is critical. The applicant in this case decided to name the Prime Minister and Minister of Justice as respondents given that, in practice, the Prime Minister and Minister of Justice play critical advisory roles in the naming, selection, and appointment of judges throughout the country.
However, it is the Governor General who is formally vested with the authority to make appointments to the provincial superior courts under s. 96 of the Constitution Act, 1867. Meanwhile, the Governor in Council is vested with the authority to make appointments to the Federal Courts under the Federal Courts Act.
Accordingly, the Federal Court of Appeal found that there was no express grant of statutory jurisdiction by Parliament to the Prime Minister and Minister of Justice, which would be required in order for the Federal Court to exercise its jurisdiction in hearing this application.
Second, the Federal Court of Appeal re-affirmed that some disputes are inherently political, such as constitutional conventions. Although the Court found that there was no constitutional convention requiring the government to fill judicial vacancies, it reiterated that breaches of convention are remedied through the political process by political actors. Therefore, resolving such disputes falls outside the purview of the litigation system – even if the courts may recognize the existence of a convention.
Justice Boivin, writing for the Court of Appeal, ruled that such conventions cannot be characterized as "judge-made rules" given that conventions "are not law, and more specifically they do not form part of the law of the Constitution" unless there is a crystallization of the convention into law through statute.
Decisions like Hameed only further illustrate the importance of having legal counsel with deep knowledge and understanding of the machinery of Canadian government and the Westminster system. This decision also highlights the importance of understanding the inherent political dynamics of government decision-making for selecting the appropriate time and forum for initiating a dispute or further engagement with government and public bodies.
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