Kusugak v. Northern Transportation Co., 2004 FC 1696

Date: 20041203

Docket: T-1375-02

Citation: 2004 FC 1696

Ottawa, Ontario, this 3^rd day of December 2004

Present:           The Honourable Madam Justice Heneghan                                    

BETWEEN:

WENDY KUSUGAK, THE ESTATE OF SANDY SATEANA by its Administratrix WENDY KUSUGAK, and CARMEN J. KUSUGAK, DEAN KUSUGAK and NEIL SATEANA, who sue by their next friend WENDY KUSUGAK,

SARAH KADJUK, THE ESTATE OF DAVID KADJUK by its Administratrix SARAH KADJUK, and LEO KADJUK, ANYTHYME KADJUK, LORANDA KADJUK and SEAN KADJUK, who sue by their next friend SARAH KADJUK,

JENNY USSAK, aka TABITHA USSAK, also aka TABITHA KIDLAPIK, THE ESTATE OF LARRY USSAK by its Administratrix JENNY USSAK, and SAPORAH

KAVVIAYOK USSAK, TOMMY SIMO KUSUGAK KOLIT LARRY JR. USSAK, BAPTISTE QINURAAT USSAK and LEO WILLIAM USSAK, who sue by their next friend JENNY USSAK, UNA NATALIE TAGALIK USSAK, KEELY ELISE QUANGATALUGITOK USSAK and SHAUNA USSAK,     

                                                                                                                                            Plaintiffs,

                                                                           and

NORTHERN TRANSPORTATION COMPANY LIMITED, COMPANY A, AVATAQ ENTERPRISES LTD., THE ESTATE OF THE LATE LOUIS PILAKAPSI, COMMISSIONER OF NUNAVUT, THE GOVERNMENT OF NUNAVUT, THE MINISTER responsible for the CIVIL EMERGENCY MEASURES ACT, JOHN DOE NUMBER ONE, JOHN DOE NUMBER TWO, JOHN DOE NUMBER THREE, HUDSON BAY PORT COMPANY carrying on business under the firm name and style of OMNITRAX PORT AUTHORITY, COMPANY B, DEPARTMENT OF FISHERIES AND OCEANS, TRANSPORT CANADA MARINE SAFETY and THE ATTORNEY GENERAL OF CANADA,

                                                                                                                                         Defendants

                                            REASONS FOR ORDER AND ORDER

[1]                This is an action for damages arising from the sinking of a vessel, the "Avataq", on August 25, 2000, while enroute from Churchill, Manitoba to Arviat, Nunavut. At the time, the vessel was laden with a cargo of propane and building materials. The crew consisted of Louis Pilakapsi as Master and Sandy Sateana, David Kadjuk and Larry Ussak. All perished as the result of the sinking.

INTRODUCTION

[2]                Mrs. Wendy Kusugak, widow of the late Sandy Sateana and mother of their children, is the Administratrix of the Estate of her late husband. She brings this action on behalf of the Estate, her infant children and in her own right.

[3]                Mrs. Sarah Kadjuk, widow of the late David Kadjuk and mother of their children, is the Administratrix of the Estate of her late husband. She brings this action on behalf of the Estate, her infant children and in her own right.

[4]                Mrs. Jenny Ussak, widow of the late Larry Ussak and mother of their children, is the Administratrix of the Estate of her late husband. She brings this action on behalf of the estate, her infant children and in her own right. Una Natalie Tagalik Ussak, Keely Elise Quangatalugitok Ussak and Shauna Ussak, children of Mrs. Jenny Ussak and the late Larry Ussak, sue on their own behalf.

[5]                The Plaintiffs bring this action pursuant to The Fatal Accidents Act of Manitoba, C.C.S.M. c. F50, the Fatal Accidents Act of Nunavut, R.S.N.W.T. 1988, c. F-3, the Canada Shipping Act, R.S.C. 1985, c. S-9, the Marine Liability Act of Canada, S.C. 2001, c. 6, the Fisheries Act, R.S.C. 1985, c. F-14 and any applicable international conventions.

[6]                On November 18, 2003, the Commissioner of Nunavut, the Government of Nunavut and the Minister responsible for the Civil Emergency Measures Act, R.S.N.W.T. 1988, c. C-9, referred to collectively as the "Nunavut Defendants", filed a notice of motion challenging the jurisdiction of this Court over the cause of action asserted against them. The Nunavut Defendants seek the following relief:

(a)             an Order striking out the Statement of Claim as against the Government of Nunavut;

(b)            in the alternative, an Order staying the action as against the Government of Nunavut;

(c)             in the further alternative, an Order requiring the plaintiffs to provide further and better particulars of the allegations contained in paragraph 30(q) of the Statement of Claim;

(d)            an Order extending the time provided for the delivery of a Statement of Defence on behalf of the Government of Nunavut;

(e)             the costs of the motion; and

(f)             such further and other relief as counsel may advise and this Honourable Court may permit.

[7]                On January 28, 2004, the Plaintiffs served and filed a notice of motion seeking leave to amend the statement of claim to introduce better particulars of their claim, relative to the Nunavut Defendants. The proposed amendments are as follows:

13.            The defendant Commissioner of Nunavut is, by virtue of the Nunavut Act, S.C. 1993 ch.28 as amended, the Chief Executive Officer of Nunavut and responsible for the administration of all matters within the legislative competence of the Government of the Nunavut as defined in the Nunavut Act.

14.            The defendant the Government of Nunavut is the body that is responsible for governing the jurisdiction of Nunavut in accordance with the Nunavut Act.

15.            The defendant the Minister responsible for the Civil Emergency Measures Act is the Minister within the Executive Council for Nunavut that was assigned the administration of the Civil Emergency Measures Act, R.S.N.W.T. ch. C-9 and made part of the law of Nunavut by the Nunavut Act.

16.            All of the defendants described in paragraphs 13 - 15 inclusive hereof are hereinafter referred to as "Nunavut".

16.1          Nunavut Emergency Services ("NES") was established by Nunavut for, inter alia, the purpose of dealing with emergency situations including maritime emergency situations that might arise in the Hudson Bay.

16.2          At all material times, NES was operated by Nunavut;

16.3          At all material times, John Doe Number One, John Doe Number Two, and John Doe Number Three, as further described in paragraph 17 herein, were employees of Nunavut and worked as part of NES;

...

25.            Prior to sinking, the crew members and/or Pilakapsi had contacted Arviat Emergency Measures Organization to inform them of the situation, which then contacted Nunavut, through NES, and John Doe. Nunavut and John Doe did not inform, or did not promptly inform, the appropriate authorities, including the appropriate Rescue Coordination Centre and/or the Canadian Coast Guard, of the situation to ensure a timely search and rescue operation.

...

29.1          Being established for, inter alia, the purpose of dealing with maritime emergency situations, including maritime emergency situations that might arise in the Hudson Bay, NES was responsible to, inter alia, ensure that prompt notification was given to the appropriate Rescue Coordination Centre and/or the Canadian Coast Guard of any maritime emergency situation developing in the Hudson Bay.

...

As to Nunavut and John Doe:

(q)            once being informed by Arviat Emergency Measures Organization, through NES, of the occurrence, in failing to take steps to notify appropriate authorities, including the appropriate Rescue Coordination Centre and/or the Canadian Coast Guard, within a reasonable time, of the occurrence in order to allow a timely search and rescue operation.

(r)             in failing to have in place clear and appropriate procedures to ensure that the appropriate Rescue Coordination Centre and/or the Canadian Coast Guard is notified promptly in situations when search and rescue resources may be needed, inter alia, as a result of a maritime emergency in the Hudson Bay.

(s)             once being informed by Arviat Emergency Measures Organization, through NES, of the occurrence, in failing to implement a proper search and rescue operation.

(t)             in failing to properly correct deficiencies directed at the territory that is now Nunavut with respect to the timeliness of reporting maritime emergencies to the appropriate Rescue Coordination Centre and/or the Canadian Coast Guard identified in Transportation Safety Board of Canada Report No. M94H0002, relating to a maritime accident in which a ship sunk in waters off the territory that is now Nunavut resulting in the loss of lives;

(u)            In failing to implement an agreement relating to the region involving the territory that is now Nunavut that Rescue Coordination Centre Trenton or Rescue Coordination Centre Halifax be immediately notified of marine accidents.

[8]                These two motions were heard in Winnipeg on February 16, 2004. The Nunavut Defendants' motion to strike proceeded as if the motion to amend had been granted but, with the agreement of counsel, a decision on the Plaintiffs' motion to amend was reserved pending a determination on the issue of jurisdiction.

[9]                Following the hearing on February 16, 2004, an Order was issued requesting the parties to address the issue of this Court's jurisdiction over the Nunavut Defendants, as parties, and the hearing of the Nunavut Defendants' motion was adjourned until April 6, 2004 when it proceeded that day by conference call.

SUBMISSIONS

[10]            The Nunavut Defendants argue that this Court lacks jurisdiction to entertain the claims advanced against them. First, they submit that the claims do not arise from "Canadian maritime law" as those words are used in section 22 of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended (the "Act"). Rather, they argue that the Plaintiffs' claims arise from the common law of negligence and should be adjudicated before the Nunavut Court of Justice or in the Manitoba Court of Queen's Bench where actions have already been commenced.

[11]            Second, the Nunavut Defendants argue that this Court lacks jurisdiction over them as parties because although not enjoying status as part of the federal Crown or as a provincial Crown, nonetheless they are public authorities who cannot be sued in this Court. This Court's jurisdiction over actions is limited to the Crown in right of Canada or to actions "between subject and subject".

[12]            The Plaintiffs argue that their claim derives from Canadian maritime law because its claim arises from the operation of a ship. Relying on the decision in ITO-International Terminal Operators Ltd. v. Miida Electronics et al., [1986] 1 S.C.R. 752, the Plaintiffs say that they have shown the existence of the three factors that are required to establish jurisdiction in this Court.

[13]            Specifically, the Plaintiffs argue that section 22 of the Act provides a statutory grant of jurisdiction, that Canadian maritime law is an existing body of federal law that is essential to the disposition of the case which nourishes the statutory grant of jurisdiction, and maritime law, together with other laws dealing with shipping and navigation, falls within the ambit of section 91(1) of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No.5 (the "Constitution Act").      

[14]            The Plaintiffs submit that their claim for "loss of life ... in connection with the operation of a ship" clearly comes within the scope of section 22(2)(g) of the Act. They further argue that, as in ITO, supra, there is a "close practical relationship" between their section 22(2)(g) claim and the alleged negligence of the Nunavut Defendants in responding to the maritime emergency situation in Hudson Bay.

[15]            The Plaintiffs also submit that courts have recognized jurisdiction to adjudicate land-based claims in tort as long as those claims are "integrally connected" with maritime matters, relying in this regard on Whitbread v. Walley, [1990] 3 S.C.R. 1273 and Dreifields v. Burton (1998), 156 D.L.R. (4^th) 662.

[16]            Further, the Plaintiffs argue that the Nunavut Emergency Service was established for the purpose of responding to maritime emergencies. They allege that performance of the search and rescue operation was negligent. They say that the combined effect of these factors supports a finding of jurisdiction in the Federal Court. As well, they say that the Federal Court is a more convenient forum than either the Nunavut Court of Justice of the Manitoba Court of Queen's Bench and that at least one Defendant, Hudson Bay Port Company, challenges the jurisdiction of these Courts over it, as a party.

[17]            As for the status of the Nunavut Defendants, the Plaintiffs argue that the doctrine of Crown immunity does not apply to the territory of Nunavut since the territory is not part of the federal Crown nor is it a Crown in right of a province. In this regard they refer to Liquidators of the Maritime Bank v. Receiver General of New Brunswick, [1892] A.C. 437 (P.C.).

DISCUSSION

i)           Defendants' Motion

[18]            The Nunavut Defendants bring this motion pursuant to Rule 221 of the Federal Court Rules, 1998, SOR/98-106 (the "Rules"). Rule 221 provides as follows:

[19]            In the present case, the Nunavut Defendants allege lack of jurisdiction over both the cause of action alleged against them and over their jurisdiction as parties.

[20]            The basis for this action is the sinking of a ship with consequent loss of life. The Plaintiffs' base their claim against the Nunavut Defendants upon sections 22(2)(d) and 22(2)(g) of the Act which provide as follows:

[21]            In ITO, supra, the Supreme Court identified three requirements for establishing the jurisdiction of the Federal Court over a particular matter. At page 766, the Court said as follows:

The question of the Federal Court's jurisdiction arises in this case in the context of Miida's claim against ITO, a claim involving the negligence of a stevedore-terminal operator in the post-discharge storage of the consignee's goods. The general extent of the jurisdiction of the Federal Court has been the subject of much judicial consideration in recent years. In [1977] 2 S.C.R. 1054">Quebec North Shore Paper Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054, and in [1977] 2 S.C.R. 654">McNamara Construction (Western) Ltd. v. The Queen, [1977] 2 S.C.R. 654, the essential requirements to support a finding of jurisdiction in the Federal Court were established. They are:

1. There must be a statutory grant of jurisdiction by the federal Parliament.

2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction.

3. The law on which the case is based must be "a law of Canada" as the phrase is used in s. 101 of the Constitution Act, 1867.

[22]            Section 22 of the Federal Court Act, supra, meets the first part of this test. However, as noted by the Court in ITO, supra, section 22 is only the source of jurisdiction, it "does not create operative law".

[23]            The next question is whether that body of law that is recognized as "Canadian maritime law" is essential to the disposition of the Plaintiffs' claims against the Nunavut Defendants.

[24]            As I understand their argument, the Plaintiffs submit that because Canadian maritime law includes claims arising from loss of life caused by a ship or in connection with the operation of a ship, then the fact that their husbands and fathers, respectively, died while on board the ship "Avataq" leads to the conclusion that Canadian maritime law applies to their claim against the Nunavut Defendants, respecting the alleged negligence of these Defendants. In my opinion, this argument is flawed.

[25]            In Radil Bros. Fishing Co. v. Canada (Department of Fisheries and Oceans, [2002] 2 F.C. 219 (C.A.), the Federal Court of Appeal rejected an argument similar to the one advanced here by the Plaintiffs. At page 239, the Court said as follows:

The appellant then jumps, at paragraph 17, to the conclusion that "the grant of jurisdiction by section 22(1) is very broad" and "includes any claim under or by virtue of Canadian maritime law or any other law of Canada relating to any matter coming within the class of subject of navigation and shipping and encompasses the common law principles of tort, i.e. negligence, fraud and fiduciary duty". I pause here to note that these common law principles of tort are only encompassed by subsection 22(1) to the extent that the matters in which they arise are integrally connected to maritime law.

[26]            The essence of the Plaintiffs' claim against the Nunavut Defendants is negligence. In ITO, supra, the Supreme Court recognized Canadian maritime law has adopted and applied the common law principles of tort, where necessary, to adjudicate claims in admiralty. At page 776, it said as follows:

Having found that Miida's claim against ITO falls within the scope of Canadian maritime law, the question then arises as to the substantive content of that law. Canadian maritime law, as a body of substantive law, encompasses the principles of English maritime law as they were developed and applied in the Admiralty Court of England (The Queen v. Canadian Vickers Ltd., supra, and authorities cited therein, pp. 683-84). In 1934 when, as has been noted, a body of admiralty law from England was incorporated into Canadian law, the Admiralty side of the High Court of Justice had jurisdiction in cases of contract and tort which were considered to be admiralty matters. In dealing with such cases, the court applied the necessary common law principles of tort and contract in order to resolve the issues. Common law rules of negligence, for example, were applied in collision cases ("Cuba", (The) v. McMillan (1896), 26 S.C.R. 651, at pp. 661-62, and E. Mayers, Admiralty Law and Practice in Canada (1916), at p. 146). Bailment principles were applied in loss of cargo cases ("Winkfield" (The), [1902] P. 42 (C.A.)). Thus, the body of admiralty law, which was adopted from England as Canadian maritime law, encompassed both specialized rules and principles of admiralty and the rules and principles adopted from the common law and applied in admiralty cases as these rules and principles have been, and continue to be, modified and expanded in Canadian jurisprudence. ...

[27]            Similarly, in Dreifelds v. Burton (1998), 38 O.R. (3d) 393 (C.A.), the Ontario Court of Appeal cautioned that not every water-borne activity gives rise to a claim under Canadian Maritime law, saying the following at page 400:

In my view, the jurisprudence I have referred to yields the conclusion that not every tortious activity engaged in on Canada's waterways is subject to Canadian maritime law. Only if the activity sued about is sufficiently connected with navigation or shipping that the case meets the test set out by McIntyre J. in ITO which I have quoted above, will it fall to be resolved under Canadian maritime law.

[28]            In that case, the Court concluded that the basis of the claim was negligence in the preparation and conduct of a dive, not negligence in the operation of the charter boat. Accordingly, the claim was a matter of property and civil rights within the scope of section 92(13) of the Constitution Act and not a matter of maritime law.

[29]            In my opinion, that approach applies here although I need not refer to nor rely upon section 92(13) of the Constitution Act. It is sufficient to refer to common law principles of negligence which are the basis of the Plaintiffs' claim.

[30]            The Plaintiffs allege that the Nunavut Defendants were negligent in responding to an emergency situation on the waters of Hudson Bay and in providing emergency services in accordance with the Civil Emergency Measures Act, supra, a statute of the Northwest Territories that applies to Nunavut pursuant to section 29(1) of the Nunavut Act, S.C. 1993, c. 28. Section 29(1) provides as follows:

[31]            The Civil Emergency Measures Act, supra defines "emergency" in section 1 as follows:

[32]            The powers of the Minister responsible for administering this Act are set out in section 5 as follows:

[33]            Contrary to the submissions of the Plaintiffs, there is nothing in the Civil Emergency Measures Act, supra, that specifically addresses the provision of emergency response services to incidents on water. However, assuming that the Defendant Minister has the authority to respond to such an emergency, that ability does not convert an incident on the waters of Hudson Bay into a matter of maritime law for the purposes of establishing jurisdiction in the Federal Court.

[34]            Indeed, the "water-based" aspect of the Nunavut Emergency Service could be only a part of such service. In my opinion, it would be incongruous to find that such territorial emergency service could give rise to a claim in maritime law if arising from the water but not if arising in relation to the land.

[35]            The prevailing jurisprudence requires that there be an integral connection between the allegations raised in a statement of claim and Canadian maritime law. I refer again to the decision in Radil, supra where the Federal Court of Appeal said the following at page 242:

None of these cases is helpful to the appellant. Quite to the contrary, they tend to show that the Court will not assert its admiralty jurisdiction in agency claims unless the true essence of the contract relied upon is maritime. This is not the case here, where the sole factor possibly connected to maritime law is the fact that the licence with respect to which the agency contract was entered into happens to be issued in relation to an activity occurring at sea. There is no contract for carriage of goods by sea. There is no marine insurance. There are no goods at issue. Nothing has happened at sea. There is no issue as to the seaworthiness of the ships. The ships are not party to the action. There are no in rem proceedings. There are no shipping agents. There are no admiralty laws or principles or practices applicable. The claim, at best and incidentally, may be said to relate to the ability of a ship to perform certain fishing activities in accordance with requirements that have nothing to do with navigation and shipping and everything to do with fisheries.

[36]            These principles apply in the present case. The Plaintiffs' claim against the Nunavut Defendants has nothing to do with the subject of navigation and shipping. These Defendants had nothing to do with the ship "Avataq". They were not engaged with the operation of that ship in any of the capacities identified in section 22(2)(g) of the Act. The claim against them is grounded solely in the common law principles of negligence, independent of the principles of Canadian maritime law, and is beyond the jurisdiction of this Court.

[37]            I do not accept the Plaintiffs' argument that the land-based activities of the Nunavut Defendants, that is for the provision of emergency aid, constitutes an integral link with maritime activities and Canadian maritime law. The primary role of the Nunavut Defendants is to administer their respective duties in the governance of Nunavut. The involvement of the Nunavut Defendants with maritime matters or shipping and navigation is merely incidental. That incidental connection is insufficient to support a finding that the Plaintiffs' claim arises from Canadian maritime law.

[38]            The mandate granted to the Defendant Minister under the Civil Emergency Measures Act, supra, is open-ended. It authorizes him to establish response programs to emergency situations. Such a situation is broadly defined in the Act. The Act does not specifically address emergencies on water but for present purposes, I accept that the Minister has the authority, under the statute, to devise a plan to respond to such an emergency.

[39]            The Plaintiffs argue that one of the purposes of the Nunavut Emergency Services is to respond to emergency situations such as the incident that occurred in Hudson Bay on August 25, 2000.

[40]            There is no basis for classifying the emergency service of Nunavut as being a matter falling within navigation and shipping, pursuant to the Constitution Act. Alternatively, the intersection with "navigation and shipping", a matter of federal legislative competence, is tangential to the purpose of the territorial legislative competence.

[41]            In my opinion, the maritime element of the Plaintiffs' claim vis à vis the Nunavut Defendants is the fact that the underlying incident involved the operation of a ship. That is insufficient to find that this fact gives rise to a claim in Canadian maritime law in the absence of any allegation that any of the Nunavut Defendants had any involvement with, or responsibility for, the operation, control or possession of that ship.

[42]            I turn now to the issue of this Court's jurisdiction over the Nunavut Defendants as parties. The Plaintiffs seem to be arguing that this Court is the most convenient forum for the adjudication of this action. However, jurisdiction does not depend upon convenience. It is well established that the jurisdiction of this Court must exist over the parties, as well as over the asserted cause of action. In this regard, I refer to Greeley v. Ship Tami Joan (1996), 113 F.T.R. 66 (T.D.), an action upon a ship's mortgage.

[43]            In that case, the Plaintiff had commenced his action against the Government of New Brunswick in its capacity as the mortgagee. This Court has jurisdiction to entertain a claim relative to a ship's mortgage pursuant to section 22(2)(c) of the Act. The Court found that there was no jurisdiction over this mortgagee as a party and said the following at page 73:

I am also not persuaded that this court has jurisdiction over the proceedings for relief in personam against a Minister or an agent of a Province, by virtue of its jurisdiction over maritime law under the Federal Court Act. The question of whether this court has jurisdiction over a particular subject matter is separate from the question of whether the court has jurisdiction over a particular party.

[44]            This decision is relevant as it emphasizes that a plaintiff must establish jurisdiction over the party, as well as over the cause of action. This is an essential, not an optional or purely formal requirement, according to the decision of the Federal Court of Appeal in Fédération Franco-Ténoise v. Canada, [2001] 3 F.C. 641 (F.C.A.).

[45]            In that case, the issue of this Court's jurisdiction over the Commissioner of the Northwest Territories, the Speaker of the Legislative Assembly of the Northwest Territories and the Language Commissioner of the Northwest Territories was addressed. The Federal Court of Appeal decided that these parties did not fall within the definition of "Crown", as set out in section 2 of the Act, and consequently, there was no jurisdiction pursuant to section 17 of the Act.

[46]            It is not necessary to make a finding as to the status of the Nunavut Defendants in relation to the Crown, either in right of Canada or otherwise. There is no plea that the Defendants are governed by the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50. The pleading is based upon section 22(1) of the Act, and that section addresses jurisdiction in actions between "subject and subject" as follows:

[47]            The meaning of the word "subject" has been considered in Sjouwerman v. Canada Post Corp. and Valance, 37 O.A.C. 294. In that case, the Appellants were seeking to avoid the application of a time limitation imposed by the Public Authorities Protection Act, R.S.O., 1980, c. 406. That limitation had been raised as a defence by the Respondents to an action commenced relating to a motor vehicle accident.

[48]            The issues before the Ontario Court of Appeal were whether the words "between subject and subject", as used in the former Crown Liability Act, R.S.C. 1970, c. C-38 incorporated the limitation period of the Public Authorities Protection Act, supra or the longer limitation period created under the Highway Traffic Act, R.S.O. 1980, c. 198. At pages 296 to 297, the Court said the following:

That the term "subject" and "citizen" are today synonymous -- the first applicable in a monarchy and the latter in a republic -- can be seen in the definition of "subject" in Black's Law Dictionary as:

"One that owes allegiance to a sovereign and is governed by his laws. The natives of Great Britain are subjects of the British Government. Men in free governments are subjects as well as citizens; as citizens they enjoy rights and franchises; as subjects they are bound to obey the laws. The term is little used, in this sense, in countries enjoying a republican form of government."

In the light of these definitions, clearly what Parliament intended with the reference to an action "between subject and subject" was an action between "persons" or "individuals". That that was the intention can be seen in the French version of both ss. 11(a) and 19(1), which states the analogous phrase as "entre particuliers", i.e., "between individuals".

The four very brief judicial references available on the definition of "subject" all support the conclusion that the term does not include the Crown's servants or agents: Jefferys v. Boosey (1854), 4 H.L.C. 815; Life Publishing Company v. Rose Publishing Company (1906), 12 O.L.R. 386 (Div. Ct.); R. v. Felton (1915), 28 D.L.R. 372 (Alta. C.A.); Arnerich v. R., [1942] N.Z.L.R. (C.A.). It is necessary, as well, to refer to and approve of the decision of Mandell D.C.J. in an unreported decision of February 29, 1988, Toronto Electric Commission v. Canada Post Corporation and Eldon, wherein he comes to the same conclusion as I regarding the inapplicability of the word "subject" to Canada Post.

[49]            As well, I refer to the decision of the Federal Court Trial Division in Canadian Olympic Association v. Canada (Registrar of Trade Marks), [1982] 2 F.C. 274 at page 277, the Court provided a useful discussion of the defining features of a "public authority", as follows:

Jurisprudence as to the definition of what is, or is not, a public authority has generally, if not invariably, arisen in the context of legislation that imposed special limitations on rights of action against public authorities. Halsbury sums it up as follows [See Note 4 below]:

"A Public authority may be described as a person or administrative body entrusted with functions to perform for the benefit of the public and not for private profit. Not every such person or body is expressly defined as a public authority or body, and the meaning of a public authority or body may vary according to the statutory context."

I think it fair to say that the issue in the jurisprudence has been the public nature of the authority rather than whether the person or body has been an authority. It is otherwise here.

The relevant definition of "public" in The Oxford English Dictionary is:

"Of or pertaining to the people as a whole; that belongs to, affects, or concerns the community or nation;"

and The New Webster Encyclopedic Dictionary definition includes:

"Not private; pertaining to the whole people; relating to, regarding, or affecting a state, nation or community ... belonging to people in general ... regarding not private interest, but the good of the community...."

As to "authority", the definitions respectively, include:

"Those in authority; the body or persons exercising power or command."

and:

"...a person or persons exercising power or command...."

The Federal Court of Appeal endorsed this view in its judgment, reported at (1982), 67 C.P.R. (2d) 59 (F.C.A.).

[50]            The Nunavut Defendants are not, in my opinion, "subjects". Each of these Defendants plays a role in the governance and administration of Nunavut. They discharge public functions. They represent institutions of the government of Nunavut. They enjoy the status of public authorities. They are not a "subject" and scrutiny of their actions is beyond the jurisdiction of this Court.

[51]            The test upon a motion to strike is whether it is plain and obvious that the claim discloses no reasonable cause of action; see Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959. When the basis of a motion to strike is an alleged lack of jurisdiction, the lack of jurisdiction must be "plain and obvious", according to Hodgson et al. v. Ermineskin Indian Band et al. (2000), 180 F.T.R. 285; aff'd. (2000), 267 N.R. 143; leave to appeal refused (2001), 276 N.R. 193n. (S.C.C.).

[52]            I am satisfied that the Nunavut Defendants have met this test. They have shown that the claim against them is not a matter of maritime law and does not come within statutory jurisdiction of this Court. Furthermore, they have shown that they are not parties over whom this Court has jurisdiction. Lack of jurisdiction means that there is no reasonable cause of action; see Pacific Western Airlines Limited v. The Queen, [1979] 2 F.C. 477 (T.D.); aff'd. [1980] 1 F.C. 86. In the result, the motion of the Nunavut Defendants is granted and this action against them is struck out.

[53]            As alternative relief, the Nunavut Defendants seek a stay of the proceedings commenced in this Court. Section 50 of the Act authorizes the Court, in its discretion, to grant a stay of proceedings when an action has been commenced in another jurisdiction. According to the motion materials, the Plaintiffs have already commenced proceedings before the Manitoba Court of Queen's Bench and the Nunavut Court of Justice. Section 50(1) provides as follows:

[54]            In the exercise of my discretion, I decline to order a stay of this action. The Plaintiffs may wish to consider whether they will continue their action in this Court against the remaining Defendants, with concurrent proceedings against the Nunavut Defendants in another Court, or whether they will proceed against all Defendants in a court of competent jurisdiction.

DISCUSSION

ii)          Plaintiffs' Motion

[55]            Finally, there remains the matter of the Plaintiffs' motion to amend the Statement of Claim. This motion is governed by Rule 75(1) which provides as follows:

[56]            This Rule affords broad discretion in the matter of allowing amendments to pleadings. Recent decisions of the Federal Court of Appeal confirm that approach and in that regard, I refer to Society of Composers, Authors and Music Publishers of Canada v. Landmark Cinemas of Canada Ltd. et al.(2004), 316 N.R. 387 (F.C.A.) and Iris, Le Groupe Visuel (1990) Inc. v. Trustus International Trading Inc., [2004] F.C.J. No. 752.

[57]            However, since I have concluded that the Court lacks jurisdiction over both the causes of action alleged against the Nunavut Defendants and over those Defendants as parties, no purpose is served by allowing the proposed amendments. In the exercise of my discretion, I dismiss the Plaintiffs' motion to amend the Statement of Claim.

[58]            The question of costs is reserved. If the parties are unable to agree, brief submissions may be presented within fifteen days of the date of this order.

                                               ORDER

1.          The Nunavut Defendants' motion is granted and this action against them is struck out.

2.          The Plaintiffs' motion to amend the Statement of Claim is dismissed.

3.          The question of costs is reserved.

                                                                                      "E. Heneghan"

                                                                                                   J.F.C.

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-1375-02

STYLE OF CAUSE: WENDY KUSUGAK ET AL. v. NORTHERN            

                                                                        TRANSPORTATION COMPANY LIMITED ET AL.

PLACE OF HEARING:                                 WINNIPEG, MANITOBA and OTTAWA, ONTARIO

DATE OF HEARING:                                   FEBRUARY 16, 2004 and APRIL 6, 2004

REASONS FOR ORDER

AND ORDER:         THE HONOURABLE MADAM JUSTICE HENEGHAN

DATED:                     DECEMBER 3, 2004

APPEARANCES:

Shane Perlmutter                                               FOR PLAINTIFF

David Ramsey                                                   FOR DEFENDANT

Bryan Schwartz                                                 FOR DEFENDANT

SOLICITORS OF RECORD:

Thompson, Dorfman, Sweatman                                    FOR PLAINTIFF

Barristers and Solicitors

Toronto, Ontario

Pitbaldo                                                             DEFENDANT

Barristers and Solicitors

Winnipeg, Manitoba