Le prochain budget du Canada devrait alléger la pression exercée sur les tribunaux fédéraux

Veuillez noter : Ce mémoire a été modifié par rapport à la version originale: Le prochain budget du Canada devrait alléger la pression exercée sur les tribunaux fédéraux

(Disponible uniquement en anglais)

Via email: FINA@parl.gc.ca

The Honourable Karina Gould, P.C., M.P.
Chair, Standing Committee on Finance
House of Commons
Ottawa, ON K1A 0A6

Dear Ms. Gould:

Re: Pre-Budget Consultation 2026 — Ensuring Canada’s Courts Can Fulfill Their Constitutional Mandate

We write on behalf of the Federal Courts Bench and Bar Liaison Committee, the Tax Court Bench and Bar Committee, the Access to Justice Subcommittee, the French Speaking Common Law Members, and the Immigration Law, Family Law, Intellectual Property Law, and Charities and Not-for-Profit Law Sections of the Canadian Bar Association (collectively, the CBA Sections and Committees).

Courts occupy a unique role in Canada's constitutional framework. Unlike most public institutions, their functions are not discretionary. Parliament relies on courts to interpret and apply the laws it enacts, safeguard constitutional rights, and maintain the rule of law. Yet courts across Canada face growing pressures caused by rising caseloads, staffing shortages, aging infrastructure, and inadequate operational funding. Addressing these challenges supports economic growth, public confidence in institutions, and a strong rules-based democracy.

Recommendations

1. Finance Canada provide sustained, targeted funding to address the Courts Administration Service's (CAS) critical operational pressures, including cybersecurity infrastructure, immigration caseload capacity, and translation services under the Official Languages Act.
2. Government work with CBA to commission an independent review of how departmental policies, particularly at Immigration, Refugees and Citizenship Canada (IRCC), create unintended pressures on federal courts and identify evidence-based reforms.
3. Government establish a politically independent, evidence-based process for implementing stable, multi-year court funding, including consideration of a standing court-capacity assessment mechanism modelled on the Judicial Compensation and Benefits Commission.
4. Government provide sustained federal funding for new judicial appointments to expand Unified Family Courts and strengthen long-term federal support for legal aid across Canada.
5. Government remedy the unintended consequences of the 2022 Anti-Directed Giving amendments to paragraph 168(1)(f) of the Income Tax Act.

Court Capacity and Sustainable Funding

Court systems across Canada are experiencing sustained operational pressures. Caseloads continue to grow in areas such as immigration, family law, intellectual property, major infrastructure projects, administrative law, and national security. Courts must be equipped to hear these matters fairly and expeditiously.

According to Statistics Canada, civil, family, intellectual property and criminal caseloads continue to rise across Canada.¹ As Parliament legislates in increasingly complex areas, immigration, national security, major project development, courts must be resourced to match. A justice system that cannot hear cases in a timely manner is not a functional justice system.

Federal courts must also be positioned to hear judicial reviews involving major infrastructure and resource projects expeditiously and fairly. These proceedings often sit at the intersection of economic development, environmental assessment, Indigenous rights, administrative law and public trust in government decision-making. Constrained resources undermine both the speed and perceived legitimacy of those proceedings. They also create unnecessary project risk for the government’s own agenda: where courts lack the capacity to resolve challenges in a timely way, uncertainty increases for proponents, affected communities, governments and the public.

Despite their constitutional importance, courts are funded through ordinary budget processes and there is no independent mechanism to assess court-capacity needs or support long-term planning. As a result, many court systems operate in a cycle of short-term crisis management rather than sustainable investment.

The federal government's decision to exempt CAS from recent government-wide expenditure reductions recognized that access to justice and judicial independence require special consideration. However, protection from cuts is not a substitute for a stable funding framework.

The CBA recommends the creation of an independent, evidence-based process for assessing court-resourcing needs. An approach modelled on the Judicial Compensation and Benefits Commission could provide transparent recommendations based on objective data, support long-term planning, and strengthen accountability for court funding decisions.

Courts Administration Service Pressures

CAS continues to face significant operational challenges that affect the Federal Court, Federal Court of Appeal, Court Martial Appeal Court, and Tax Court of Canada, operated under a structural funding shortfall for years, managing a cumulative deficit of approximately $35 million that must be repaid.

Cybersecurity

Federal courts manage highly sensitive personal, commercial, and national-security information. Sustained investment is necessary to ensure CAS’ secure digital operations, protect public confidence, and maintain continuity of court services. Cybersecurity is now a core requirement of modern judicial administration.

Immigration Caseloads

The Federal Court continues to experience a sharp increase in caseload, a 311% increase from pre-pandemic levels, increasing demands on judges, registry staff, and court administration. Applicants face months to years of delays resulting in family separation, lost employment opportunities, prolonged uncertainty, and increased costs for applicants and government alike.

Translation Services

Providing access to court decisions in both official languages is a legal obligation and an important aspect of access to justice. Existing translation funding remains temporary while translation backlogs persist. Long-term, demand-responsive funding is necessary to ensure compliance with the Official Languages Act and equal access to justice.

Departmental Policies and Court Demand

Certain departmental policies create avoidable litigation and place additional strain on court resources. In immigration matters, incomplete explanations for refusals and delays in triaging patently obvious errors can force applicants to pursue judicial review simply to understand or correct decisions.

The federal government routinely finalizes major decisions without assessment of their downstream impact on judicial capacity. The CBA recommends an independent review to identify and address policies that generate avoidable court demand and access to justice.

Framework for sustainable court funding

The court capacity crisis, including the CAS deficit, arises from the absence of an independent, evidence-based system for determining funding, leaving courts subject to standard budget processes despite their constitutional role. The CBA proposes an arm’s-length body—modeled on the Judicial Compensation and Benefits Commission—to collect data, assess needs, and issue transparent funding recommendations, enabling more accountable, data-driven, and sustainable court resourcing.

Unified Family Courts and Legal Aid

For decades, the CBA has supported the expansion of Unified Family Courts (UFCs). The family justice system requires families to navigate multiple courts and overlapping jurisdictions, increasing costs and delay and creation of redundancy.

UFCs provide a specialized forum with judges trained in family law and family violence issues and allow related family matters to be resolved in a single court. Recent federal investments represent important progress, but access remains uneven across Canada. Additional federal funding for judicial appointments is needed to complete the expansion of UFCs.

Access to justice also depends on access to legal representation. Legal aid remains uneven across Canada despite serving essential legal needs. Sustained federal support would improve Canadians’ access to legal representation while reducing costly downstream impacts in the justice, health, and social-service systems.

Charities and Tax Administration

The Charities and Not-for-Profit Law Section recommends that the Government address unintended consequences arising from the 2022 Anti-Directed Giving amendments to paragraph 168(1)(f) of the Income Tax Act.

Parliament introduced the qualifying disbursement regime to enable charities to work more effectively with organizations carrying out charitable activities that are not themselves qualified donees. The Anti-Directed Giving amendments have created uncertainty that undermines this objective, particularly for charities working internationally and with Indigenous organizations. The issue could be addressed by repealing the amendments or replacing them with a more targeted rule applicable only outside the qualifying disbursement framework.

The Tax Court Bench and Bar Committee is also concerned that recent expansions of Canada Revenue Agency powers under Bill C-31 are likely to increase tax disputes, appeals before the Tax Court of Canada, and judicial review applications in Federal Court. These impacts should be considered as part of future court-capacity planning.

Access to Justice

Equal access to justice remains out of reach for many Canadians. Chronic underfunding and uneven legal aid across provinces and territories leave essential legal needs unmet, despite evidence that every $1 invested in legal aid saves governments about $6.

Conclusion

A well-functioning justice system is essential to economic prosperity, democratic governance, and public confidence in public institutions. Courts cannot fulfill their constitutional responsibilities without adequate and sustainable resources.

The recommendations in this submission address both immediate operational pressures and the longer-term structural reforms needed to ensure Canada's courts remain capable of serving Canadians effectively. We look forward to working with the Government of Canada to strengthen access to justice and support a sustainable, well-resourced court system.

Yours truly,

(original letter signed by Julie Terrien for Jordana Sanft, Marie-France Dompierre, Jatin Shory, Tracy C. Brown, Kristina Graburn, Charlotte McDonald, Peter Kingsley and Ruphine Djuissi)

About the Canadian Bar Association

The Canadian Bar Association (CBA) is a national association representing over 40,000 legal professionals, including lawyers, notaries, law professors, and students across Canada. Founded in 1896, the CBA’s mandate includes promoting the rule of law, improving access to justice, advocating for law reform, and enhancing the administration of justice.

The CBA regularly engages with Parliament, government, and the judiciary on matters of national legal importance. Its sections, committees, and branch organizations bring together practitioners with deep expertise across every area of law, providing government with independent, practitioner-grounded perspectives on how law and policy affect Canadians.

Further information on the CBA and its advocacy work is available at cba.org.