“We understand that the [four] federal courts are facing worsening budget shortfalls with the possibility of cutting hearings due to insufficient resources,” CBA president Lynne Vicars told Justice Minister Arif Virani at the association’s annual general meeting Feb. 5.
“So how can your government prioritize this issue to address the persistent lack of funding and ensure our courts are equipped to carry out their mandate effectively?” she asked.
CBA president Lynne Vicars, left, and Justice Minister Arif Virani
“I've received that information, and I'm advocating for the needs of the court in terms of their resources, and will continue to do so,” vowed the Toronto lawyer, who five days later announced that he won’t be running in the next federal election. “My commitment is there to ensure that our courts are functioning at a high level,” he said.
Yet despite the pledges of support since 2015 from Virani and his two predecessor Liberal justice ministers, the resource requests and business cases made by the Federal Court’s registry, the Courts Administration Service (CAS), have often run into brick walls within government.
(CAS also serves as the registry for the Federal Court of Appeal, the Tax Court and the Court Martial Appeal Court of Canada.)
Meanwhile, 24,780 new immigration proceedings were filed in the Federal Court in 2024 — about quadruple the annual average for the five years immediately preceding the COVID-19 pandemic, according to the itinerant national trial court.
(The Federal Court issues thousands of judgments annually in administrative law, Aboriginal law, citizenship, immigration and refugee law, class proceedings, intellectual property, national security and maritime and admiralty law.)
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Chief Justice Paul Crampton
He noted the Federal Court’s judicial complement has failed to keep pace with the court’s escalating workload.
“Despite the surge [of cases], the only new judicial appointments that we have received have been to fill the three positions that were created in Budget 2019 and the single position that was created in 2018,” the chief justice said in an exclusive interview last fall. “Those positions were created in anticipation of increases in our workload that were contemplated prior to the [COVID19] pandemic. In other words, they have nothing to do with the recent extraordinary surge.”
As well, the Federal Court’s “ability to deal with the surging volume of applications for judicial review of immigration-related decisions is being severely constrained by the unprecedented budgetary pressures and constraints being experienced by the CAS,” Chief Justice Crampton said. “Unfortunately, the considerable efforts that have been made to demonstrate the need for additional funding have not been successful. Indeed, the court continues to await a response and remains hopeful that one will be provided in Budget 2025.”
For translation services, Budget 2024 allocated CAS $9.6 million for three years, with no ongoing funding, but “we asked for $84 million over six years and $15 million in ongoing,” the chief justice said. The registry’s request for Budget 2024 to fund digital and other court services was almost $62 million over six years, plus $11.7 million ongoing,” he said, “and we didn’t get any of it.”
In the meantime, the CAS is asking for “off-cycle” funding from the government to deal with the courts’ burgeoning translation costs and backlog of untranslated judgments as well as to provide the millions of dollars the court needs for digital services and “program integrity.”
(Off-cycle funding addresses needs that can’t wait for the normal federal budgetary process and can’t be internally funded due to “an immediate, unanticipated pressure with in-year funding requirements.”)
In a letter supporting the CAS’s off-cycle funding request, the 40,000-member bar association wrote Virani last December stating “we understand that, without adequate funding, the courts will be forced to reduce services both in terms of number of hearings and support to litigants. They could see case reductions of 400 per year, with the backlog growing by 20 per cent to 30 per cent per year.”
If the necessary funding fails to emerge, Chief Justice Crampton told Law360 Canada, “access to justice is going to suffer.”
“CAS has already started cutting, . . .putting a staffing freeze on and cutting certain other things, because we don't have the money,” he said.
“The public's going to see more delays at a minimum,” he elaborated. “We've got to really . . .start drastically cutting . . .training, staffing,” providing “reduced levels of service for litigants,” he said. “These are. . . all things that are going to happen because you’ve got less staff at the registry counter, . . .there's going to be less service for Canadians.”
The dire budgetary situation at the Federal Court is not new.
Almost eight years ago, Chief Justice Crampton warned, in an exclusive interview with Law360 Canada, that despite the Federal Court’s implementation of many efficiency measures and “cutting not just into the muscle, but . . into the bone,” judges might have to stop hearing cases, at least one day a week, in response to an annual multi-million-dollar “structural” funding shortfall (and consequential severe staff shortages) that began under the predecessor Conservative government and worsened under the Liberals.
The possibility of shutting down hearings for one or two days of the week is still on the table in 2025, the chief justice warned, “because we’re not in a situation of program integrity. In other words we don’t have the required funding to minimally — minimally —fulfill our mandate and so something has to give.”
He explained, “if you don't have enough money to run your family budget, you’ve got to stop buying certain things. You’ve got to stop doing certain things. And we're basically in the same position, unfortunately.”
As an example, last December CAS notified the public that “due to an extraordinary increase in the number of documents filed with the Federal Court over the past few months,” the registry was unable to process 47 per cent of its applications within CAS’s 48-hour time standard — despite the registry making “every effort to provide the fastest possible service.”
CAS indicated those delays can add three to 30 days to the overall time a file is active, and can also prevent judges from getting documents in time to prepare for hearings, or lead judges to write decisions after matters have already been discontinued.
For fiscal 2025-26 (starting April 1 this year), CAS told Law360 Canada by email that the registry is making “difficult budget cuts to ensure a balanced budget, which will have significant impacts on core court operations, digital modernization and our workforce.”
This means “increased backlogs and wait times, including potential reductions in hearing days/weeks.”
CAS added other fallout from the courts’ funding crunch includes: “halting translation of most decisions; lack of technical support in courtrooms during proceedings; ongoing cyber-security risks for both standard and secure court operations; and ongoing reliance on obsolete IT equipment, including courtroom video technology.”
Virani’s spokesperson, Chantalle Aubertin, said by email that the justice minister met with the chief justices of the four federal courts that are supported by CAS “to discuss their needs and try to identify sustainable solutions.”
“It should be noted that under the supplementary estimates passed in December [2024], we will be providing $3.19 million to the Federal Court to respond to rising immigration caseloads and in Budget 2024, we provided $9.6 million over three years to CAS to enhance its capacity to deliver translated decisions by the Federal Court,” Aubertin said.
“In addition, Budget 2024 provided $273.7 million over five years, starting in 2024-2025, and $43.5 million ongoing for immigration and refugee legal aid services. This is on top of the existing base funding $11.5 million per year.”
However, the Federal Court has indicated that if underfunding of the Federal Court’s core operations continues, “worst-case” scenarios loom.
“We’ve been at an impasse for some time [with funding requests to the government] but now … we’re at risk of our [IT] system failing,” Chief Justice Crampton told Law360 Canada in 2017. “Our [1980s-era IT] system is like the old quill pen — and we’re running out of feathers. There’s definitely a looming crisis … and it is reasonably foreseeable that it will fail, and that we grind to a halt.”
The situation prompted the chief justice to propose in 2019 a new mechanism to give the four federal courts some control over their budgets — an idea endorsed at the time by Chief Justice of Canada Richard Wagner who told Law360 Canada all courts should be able to control their own budgets
Under Chief Justice Crampton’s proposal — which aims to constrain the executive from unreasonably denying the four federal lower courts the resources they need to function and carry out their constitutional role — the federal government would have to explain publicly if it were to reject budget requests from the CAS that had been independently vetted and approved by an independent expert body as legitimate, reasonable and justified.
“Of course at the end of the day, government or Parliament could decide otherwise” than to follow what a new statutory advisory body recommends on the CAS’s proposed budgets, the chief justice told Law360 Canada at the time.
“But at least if we had checks and balances, in my view … [it ]would be a good start in terms of helping to strengthen not just the judicial branch of government but our ability to do our job, including ensuring that the other branches respect the rule of law.”
Chief Justice Crampton suggested that it was preferable to examine the structural problem at the time, rather than when there is a serious breakdown in court services due to budget constraints.
Fundamentally, court budgets are a constitutional matter “of administrative institutional independence,” he said. “The courts have not said very much ever about institutional independence, and I think, if and when a case does come along — and it’s only a question of … when, as opposed to whether … I think the current process by which we literally go ‘cap in hand’ to the executive branch, and then the executive branch can say ‘Yes’ or “No’ without any transparency — without [the public having] any knowledge of what we requested, why it was refused, I would have to think is going to be the subject of some commentary that is not going to be extremely flattering for our democracy,” he observed in 2019. “I think a democracy needs to have an independent judicial branch that is able to establish its priorities.”
Photo of Federal Court Chief Justice Paul Crampton: Balfour
Photo of Lynne Vicars and Arif Virani: Courtesy Canadian Bar Association.
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