In Canada (Citizenship and Immigration) v. Tennant, 2018 FCA 132, the Federal Court of Appeal developed a narrow exception to the seemingly absolute bar to its jurisdiction to hear an appeal from the disposition of a judicial review application under the federal Citizenship Act. Under that Act, the Federal Court of Appeal has no statutory appellate jurisdiction unless the first-instance judge “certifies that a serious question of general importance is involved and states the question.” Justice Stratas invoked constitutional principles to develop a narrow exception to this statutory limit where the judgment below raises serious rule of law issues. This is significant, as a non-statutory exception to a jurisdictional limit is, in effect, a non-statutory expansion of appellate jurisdiction.

As discussed in Sopinka and Gelowitz on the Conduct of an Appeal, Fourth Edition, appeals are creatures of statute, and appellate jurisdiction generally extends only so far as statute allows (see Chapter 1, Part A). Tennant is seemingly inconsistent with this bedrock of appellate law. That bedrock has caveats, however, as there are lines of authority suggesting the existence of non-statutory or common law jurisdictional appeals in limited circumstances allowing hierarchically superior appellate courts to ensure that lower courts comply with mandatory jurisdictional rules. This is discussed in more detail in Sopinka and Gelowitz on the Conduct of an Appeal at §§1.4-1.6.

Tennant was decided in the spirit of these non-statutory jurisdictional appeals, but Justice Stratas expressly jettisoned the word “jurisdiction” and commented that the existing case law’s references to “jurisdiction” did not define the exception particularly well. In his view, “‘[j]urisdiction’ is an unhelpful word that too often is thrown around with abandon.” The word “jurisdiction” is “not some sort of a magic password” and “is nothing more than a rhetorical label people sometimes use to try to boost a garden-variety issue of statutory interpretation into something more significant.”

Justice Stratas found the source of appellate jurisdiction to be the “constitutional principle [of] the rule of law, recognized in the preamble to the Constitution Act, 1982 and in the unwritten principles of the Constitution.” Seen this way, the exception could be articulated in terms of the “rule of law”, rather than “jurisdiction”. On this basis, Justice Stratas framed two exceptional situations where the Federal Court of Appeal has jurisdiction notwithstanding the lack of a properly certified issue:

  • Where “it is alleged that there is a fundamental flaw going to the very root of the Federal Court’s judgment or striking at the Federal Court’s very ability to decide the case—examples include a blatant exceedance of authority obvious from the face of the judgment or an infringement of the rule against actual or apparent bias supported by substantial particularity in the notice of appeal”, and
  • Where “the flaw raises serious concerns about the Federal Court’s compliance with the rule of law”.

This re-articulated exception to the statutory limits of the Federal Court of Appeal’s appellate jurisdiction continues to have a high threshold that is “exceedingly difficult to meet”, save for the “most rare cases where concerns based on the constitutional principle of the rule of law are the most pronounced”. The narrow exception is not triggered by debates over statutory interpretation, errors of law, exercises of judicial discretion, or the weight accorded to, or assessment of, evidence.

In Tennant itself, Justice Stratas concluded that an appeal lay to the Federal Court of Appeal notwithstanding that the judge at first instance did not certify a question under the Citizenship Act. The judge below had granted the respondent citizenship, even though the Act gave this power exclusively to the Minister. In the old parlance, it was alleged that the Federal Court made an order without jurisdiction. In the new framing, there was alleged “a fundamental flaw going to the very root of the Federal Court’s judgment or striking at the Federal Court’s very ability to decide the case in the way it did”, and “[t]he clear, apparent exceedance of authority implicates the rule of law in a serious way”. It followed that the Federal Court of Appeal had jurisdiction over the appeal.