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

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 are writing on behalf of the Federal Courts Bench and Bar Liaison Committee, the Tax Court Bench and Bar Committee, the Access to Justice Subcommittee and the French Speaking Common Law Members, the Immigration Law, the Family Law, Intellectual Property Law and the Charities Law Sections (collectively, the CBA Sections and Committees) in response to the Government of Canada’s 2026 Pre-Budget Consultations.

Courts occupy a unique role within Canada’s constitutional framework: unlike other areas of government, their mandate is not discretionary. Parliament must ensure that courts are adequately resourced to interpret and apply the laws it enacts. Sustained under-investment has made court access a national crisis, one that affects Canadians at every level of the justice system and in every region of the country. Addressing this crisis directly supports the Government’s commitment to economic security, public trust in institutions, and a strong, rules-based Canada.

Recommendations

1. That Finance Canada provide sustained, targeted funding to address the Courts Administration Service’s (CAS) three critical operational pressures: cybersecurity infrastructure, expired immigration caseload capacity, and translation services under the Official Languages Act.
2. That the Government work with the CBA to commission an independent review to identify and quantify how departmental policies, particularly at IRCC, create unintended pressures on federal courts, with evidence-based recommendations for policy reform.
3. That the Government establish a politically independent, evidence-based process for implementing stable, multi-year funding for CAS that recognizes the courts’ constitutional mandate and keeps pace with caseload growth, including consideration of a standing court capacity assessment mechanism modelled on the Judicial Compensation and Benefits Commission.
4. That the Government provide sustained federal funding for new judicial appointments to expand Unified Family Courts (UFCs) alongside long-term reinvestment in base funding for Legal Aid to all provinces and territories across Canada.
5. That the Government remedy the unintended consequences of the 2022 Anti-Directed Giving amendments to paragraph 168(1)(f) of the Income Tax Act, either by repealing those amendments or replacing them with a targeted rule applicable only to gifts that are not qualifying disbursements.

I. National court capacity

Across Canada, provincial and territorial courts are under sustained and growing pressure. Staffing shortages, deferred infrastructure investment, rising caseloads, and inadequate operational funding combine to produce a failing justice system to deliver timely and regional access to Canadians. These are not temporary disruptions. Rather, they are the predictable consequences of years of under-investment, and they are worsening.

The situation in Newfoundland and Labrador illustrates this in practice. The Provincial Court there has been effectively closed since November 2025 for civil, small claims, traffic, and other matters across St. John's, Grand Falls-Windsor, Stephenville, and several circuit courts. In April 2026, a high-profile murder trial was postponed because of sheriff staffing shortages. These developments illustrate the risks of sustained court underfunding.

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.

Canada currently lacks an independent national body to assess court resourcing needs, standardized national data on court capacity, or a stable funding mechanism insulated from short-term fiscal pressures. The result is a web of justice systems that operate in perpetual crisis management rather than long-term planning. The recommendations below propose targeted, costed solutions at the federal level, and a framework to address the national picture.

The Government recognizes that courts are categorically different from other federal departments. In 2025, CAS was exempted from the Comprehensive Expenditure Review that required 15% cost savings across government — a recognition that judicial independence and access to justice cannot be subordinated to across-the-board fiscal targets. The CBA advocated for that exemption. But an exemption from cuts is not a funding solution: courts that cannot be cut on constitutional grounds should not be funded on discretionary ones.

II. Courts Administration Service: Three urgent funding pressures

The CAS² has operated under a structural funding shortfall for years, managing a cumulative deficit of approximately $35 million that must be repaid in 2028 and 2029 despite repeated requests for relief. Recent internal reallocations have addressed some immediate gaps but created longer-term vulnerabilities in three areas.

Cybersecurity

The Government has made cybersecurity a stated priority across federal institutions. Unlike other federal departments, CAS lacks centralized cybersecurity support and bears sole responsibility for securing its digital infrastructure. Courts that handle highly sensitive information, whether it’s personal, commercial, or related to national security, must ensure uninterrupted operations. Sustained, dedicated cybersecurity investment is not optional: it is a requirement for institutional integrity and public trust, and is the minimum required to bring the courts in line with the security standards the Government has set for itself.

Immigration caseloads

The Federal Court is experiencing a sharp rise in cases without additional funding, largely driven by immigration matters. The sunset funding that supported increased judicial capacity expired in 2023 and was not renewed. By 2025, new proceedings are projected to reach 32,859 annually, a 311% increase from the pre-pandemic average of 7,976, while the number of self-represented litigants is expected to grow by 340% since 2022, from 1,727 to 7,600. The administrative workload is also increasing, with weekly documents received by the registry rising 38% from 5,082 in 2024 to 7,034, alongside a dramatic 2,360% surge in mandamus applications since 2019, from 284 to 6,989 per year.

As documented in the CBA’s May 2025 submission³, applicants face months or years of delay resulting in lost employment, family separation, and restricted access to basic services. Reduced Federal Court capacity deepens these harms and undermines the integrity of Canada’s immigration and border system, a direct concern for the Government’s sovereignty and security objectives.

The immigration backlog illustrates a broader structural failure. Major policy and legislative decisions can substantially increase demand on the courts, yet there is no formal mechanism requiring government to assess the resulting impact on judicial capacity, restore funding, or ensure the courts can absorb that demand before those decisions are finalized.

Translation services

Funding for court decision translation under the Official Languages Act is temporary, with only two years remaining. A backlog of 2,000 decisions was already awaiting translation as of November 2025. Without sustained, demand-adjusted funding, this backlog will grow, impeding access to justice in both official languages.

Departmental policies as a driver of court backlogs

A material proportion of Federal Court caseload is generated by departmental policies with unintended consequences. IRCC’s practice of withholding reasons for certain refusals has led thousands of applicants to seek judicial review simply to understand why their applications were denied. Although refusal letters now include partial GCMS notes, key reasons often remain undisclosed in sections such as pre-screens and interview notes. Furthermore, IRCC has been slow in triaging Federal Court cases that are based upon patently obvious errors, such as refusals with no justification. This often requires applicants to file voluminous and costly Records before DOJ and IRCC will consider consent.

The problem is compounded by the reality that major government decisions are routinely finalized without assessment of their downstream impact on judicial capacity.

The CBA offers to work with Finance Canada and IRCC to commission an independent review that identifies, quantifies, and recommends reforms for policies that create avoidable court demand and access to justice.

III. A framework for sustainable court funding

The CAS deficit and the broader provincial court capacity crisis share a common cause: the absence of any independent, evidence-based mechanism for determining court resourcing needs. Courts are funded through the same annual budget process as discretionary government programs, despite having a constitutionally non-discretionary mandate.

The Judicial Compensation and Benefits Commission⁴ offers a proven model: an arm’s-length body that assesses needs, considers evidence, and makes recommendations that are public, transparent and require a formal government response. The CBA recommends that the Government explore an analogous mechanism for court operational funding that would collect standardized national justice data, assess resourcing needs across federal and provincial court systems, and provide the independent evidence base that sustainable, multi-year funding frameworks require.

This recommendation directly supports the Government’s commitment to data-driven policy, transparency, and long-term fiscal responsibility. It would also provide a national platform for addressing the kind of provincial court crisis currently unfolding in Newfoundland and Labrador, where no such framework exists at present.

IV. Unified Family Courts

For 50 years, the CBA has advocated for the expansion of Unified Family Courts.⁵ Canada’s current multi-court framework for family law creates jurisdictional confusion, increased costs, and bifurcated proceedings that harm families at their most vulnerable. UFCs consolidate all family law matters, including parenting arrangements, child and spousal support and division of property, in a single, specialized forum with judges trained in family law and the dynamics of family violence.

The 2025 federal budget took an important step by funding the reallocation of superior court judges to Ontario’s UFC through Bill C-15, Division 30.⁶ The CBA commends this decision and appeared before the Standing Senate Committee on Legal and Constitutional Affairs to support the legislation.⁷ But UFCs are not yet universally available. Rising caseloads and the increased complexity introduced by Divorce Act amendments⁸, particularly around family violence, make continued and expanded investment urgent.

We urge the Government to build on the 2025 commitment with sustained federal funding for new judicial appointments that would bring UFCs to all remaining provinces and territories.

V. Anti-Directed Giving Rule — Income Tax Act

The Charities Law Section recommends that action be taken to remedy problems created for the charitable sector by the amendments to paragraph 168(1)(f) of the Income Tax Act (ITA) that were introduced at the same time as the new qualifying disbursement rules that came into force on June 23, 2022 (“Anti-Directed Giving Rule”) The problems could be solved either by deleting the amendments made to par. 168(1)(f) of the ITA or by deleting those changes and inserting a specific rule that would apply to gifts other than qualified disbursements, for example a new paragraph 168(1)(g) could be added as follows:

in the case of a registered charity, accepts a gift the granting of which was expressly or implicitly conditional on the charity making a gift, other than a gift that is a qualifying disbursement, to another person, club, society, association or organization.

The qualifying disbursement regime was introduced by Parliament to enable registered charities to provide funding to organizations that are not registered as charities or other qualified donees themselves, but that carry on activities that are charitable at law. This enhancement was long sought by the charitable sector because the prior regime made it very challenging for registered charities to do their work, including work being carried out internationally and/or to support Indigenous organizations in Canada that are not qualified donees. The changes made to paragraph 168(1)(f) undermined what Parliamen t intended with the introduction of the qualifying disbursement regime. Further details about this proposal can be found in the letter sent to the Minister of Finance and National Revenue dated March 5, 2026.⁹

VI. New CRA Powers Resulting in an Increase in Tax Disputes

Bill C-31 expands the Canada Revenue Agency’s (CRA) authority in ways likely to increase tax disputes and court activity. It raises the monetary threshold for informal Tax Court procedures, encouraging more appeals, often by self-represented taxpayers, while also granting the CRA broader powers to demand information “in a reasonable manner,” including from foreign sources, and to seek compliance orders. The Bill introduces significant penalties of up to 10% of tax payable for non-compliance and allows the CRA to issue notices that pause limitation periods and trigger penalties. Together, these changes are expected to drive more judicial review applications in Federal Court and more appeals in the Tax Court of Canada, contributing to increased litigation and potential court backlogs.

VII. Access to Justicepolitically

Equal access to justice is not a reality in Canada. Legal aid, the country’s primary access-to-justice program, is often uneven, even for essential needs. As federal funding has declined, provinces and territories have filled gaps inconsistently, leading to greater variation than in other core public services. Research shows every $1 invested in legal aid saves about $6 in other government costs.¹⁰

We look forward to working with the Department of Finance to strengthen the effectiveness and accessibility of Canada’s justice 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.