Docket:
A-541-12
Citation: 2013 FCA 217
CORAM:
SHARLOW J.A.
WEBB J.A.
NEAR J.A.
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BETWEEN:
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HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ALBERTA as
represented by THE MINISTER OF SUSTAINABLE RESOURCES DEVELOPMENT
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Appellant
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and
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ALAN TONEY, YVONNE TONEY and COURTENAY TONEY & REBECCA TONEY as
represented by their litigation guardian ALAN TONEY
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Respondents
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and
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HER MAJESTY THE QUEEN IN RIGHT OF CANADA in the name of THE ROYAL
CANADIAN MOUNTED POLICE and THE CANADIAN SHIP BEARING LICENSE NO. AB 1275024
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Defendants in action, not party to appeal
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REASONS
FOR JUDGMENT
NEAR J.A.
[1]
Her Majesty the Queen in right of Alberta (“Alberta”)
appeals from the December 3, 2012 Order of the Federal Court (2012 FC 1412) in
which the judge determined, as a question of law in advance of trial, that the
Federal Court has in personam jurisdiction over Alberta in the
underlying action.
[2]
The action arises from the death of five-year-old
Janessa Toney, daughter and sister to the plaintiffs, following a boating
incident on Lake Newell in southern Alberta. It is alleged that the Toney
family was out on their boat on Lake Newell on September 27, 2008, and
encountered a malfunction in their steering equipment. They called for help
and, in the course of the rescue, the rescue vessel, owned and operated by Alberta, capsized. All of the members of the rescue team and of the Toney family, except
for Janessa, were taken to shore. It is believed that she was pinned under the
rescue vessel and died of drowning.
[3]
The Statement of Claim sets out a series of allegations
against Alberta at paragraph 63, including “failing to identify and utilize the
reasonably safest method, means and route for retrieving the Plaintiffs” and
“overloading the [rescue] Vessel given the wind and wave conditions, and
otherwise operating [it] in such a manner as swamping and/or capsizing of the
Vessel was likely, and did in fact occur.”
[4]
Alberta has consistently
objected to the Federal Court’s exercise of in personam jurisdiction
over it in these proceedings.
I. ISSUES
[5]
The sole issue to be decided is whether the Federal
Court has in personam jurisdiction over Alberta in this matter. As a
question of law, the judge’s determination in this regard is reviewable on the
standard of correctness: Housen v. Nikolaisen, 2002 SCC 33 at paragraph
8; Trainor Surveys (1974) Ltd. v. New Brunswick, [1990] 2 F.C. 168 at
paragraph10.
II. ANALYSIS
A. Basic Principles
[6]
Four basic principles will frame my analysis. First,
Parliament and the provincial legislatures have “unequivocally adopted the
premise that the Crown is prima facie immune” from legislation: R. v.
Eldorado Nuclear Ltd., [1983] 2 S.C.R. 551 at 558. Alberta’s statutory
directive on this point is found in section 14 of its Interpretation Act,
R.S.A. 2000, c. I-8, and governs the approach to Alberta’s statutes (emphasis
mine):
14.
No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty’s
rights or prerogatives in any manner, unless the enactment expressly states
that it binds Her Majesty.
“Her Majesty” is
defined in section 28 of the same Act as “the Sovereign of the United Kingdom, Canada and Her other realms and territories, and Head of the Commonwealth.” The
federal equivalent, found in section 17 of the Interpretation Act,
R.S.C., 1985, c. I-21, and applicable to federal statutes, states (emphasis
mine):
17. No enactment is binding on Her Majesty or
affects Her Majesty or Her Majesty’s rights or prerogatives in any manner, except
as mentioned or referred to in the enactment.
“Her Majesty” is defined identically as in the provincial statute.
[7]
The Supreme Court of Canada has cautioned that courts
are not entitled to question the basic concept of Crown immunity (Eldorado at
558), and has emphasized that, in light of the language in the Interpretation
Acts, a clear Parliamentary intention to bind the Crown – federal or
provincial – is required to displace it: Alberta Government Telephones v.
Canadian Radio-television and Telecommunications Commission, [1989] 2
S.C.R. 225 [AGT] at paragraphs 130-131. While certainly helpful, such an
intention need not necessarily be expressed with such words as: “This Act shall
bind Her Majesty”. As set out in Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 [Oldman River] at page 53, “a
contextual analysis of a statute may reveal an intention to bind the Crown if
one is irresistibly drawn to that conclusion through logical inference”
(emphasis mine).
[8]
Second, where Parliament has the authority to legislate
in an area, a provincial Crown will be bound if Parliament so chooses: AGT
at paragraph 116.
[9]
Third, the Federal Court, created by Parliament
pursuant to section 101 of the Constitution Act, 1867, 30 &
31 Victoria, c. 3 (U.K.) obtains its jurisdiction from statute. In order for
the provincial Crowns to be sued in this Court, there must be “some legislative
provision permitting suits”: Trainor Surveys, at paragraph 13.
[10]
Fourth and finally, the Court must have jurisdiction
over both the subject matter of the dispute and the parties: Kusugak v.
Northern Transportation Co. et al., 2004 FC 1696 at paragraph 42. There is
no dispute that the claim relates to maritime law, and thus falls within the
subject matter jurisdiction of the Federal Court pursuant to section 22 of the Federal
Courts Act, R.S.C., 1985, c. F-7. The contest is strictly about whether
Parliament has shown a clear intention to grant the Federal Court in
personam jurisdiction over Alberta in this matter.
B. Has Parliament shown a clear intention to bind the Province?
[11]
In their text, Government Liability: Law and
Practice, looseleaf (Toronto: Thomson Reuters, 2011), Horsman and Morley
point out that the Crown is presumptively not bound by legislation unless (i)
it is expressly named; (ii) it is bound by necessary implication; or (iii) it
has waived its immunity. This is a useful rubric for assessing the parties’
arguments in this case, being ever mindful that the starting presumption is
that the Crown is not bound.
i. Expressly Named
(a) Section 22 of the Federal Courts Act
[12]
Section 22 of the Federal Courts Act reads, in
relevant part, as follows:
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22. (1) The
Federal Court has concurrent original jurisdiction, between subject and
subject as well as otherwise, in all cases in which a claim for relief is
made or a remedy is sought 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, except to the extent that jurisdiction has been
otherwise specially assigned.
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22. (1) La Cour
fédérale a compétence concurrente, en première instance, dans les cas —
opposant notamment des administrés — où une demande de réparation ou un
recours est présenté en vertu du droit maritime canadien ou d’une loi
fédérale concernant la navigation ou la marine marchande, sauf attribution
expresse contraire de cette compétence.
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[13]
The Respondents submit that the phrase “between subject
and subject as well as otherwise” expressly grants in personam
jurisdiction over provincial Crowns. Relying primarily on National
Association of Broadcast Employees and Technicians v. The Queen in right of
Canada, [1980] 1 F.C. 820 [N.A.B.E.], the Respondents argue that “as
well as otherwise” can only refer to public authorities, which includes
provincial and territorial governments: Kusugak at paragraph 50.
[14]
I do not find the authorities relied on by the
Respondents persuasive for two reasons: First, N.A.B.E. was decided in a
purely federal context, without regard to the potential difference between
levels of government. For its part, the Court in Kusugak did not
consider the phrase “as well as otherwise”, limiting itself only to a consideration
of the meaning of “between subject and subject”.
[15]
Second, the fact that the Crown is defined in section 2
of the Federal Courts Act as “Her Majesty in right of Canada” is contraindicative of a clear intention to bind the provinces. In Canadian
Javelin Ltd. v. Newfoundland, [1978] 1 F.C. 408, the Court noted at
paragraph 5 that “where the Federal Court Act, [R.S.C. 1970 (2nd
Supp.), c. 10] contemplates conferring jurisdiction in claims against Her
Majesty, it does so (e.g., section 17(1)) by express reference to claims
against the ‘Crown’, which is defined, for purposes of the Federal Court Act,
by section 2 thereof as ‘Her Majesty in right of Canada’”. When compared
with other statutes that contain express language of an intention to bind the provinces,
such as section 5 of the Species at Risk Act, S.C. 2002, c. 29 (“This
Act is binding on Her Majesty in right of Canada or a province”), I am not
convinced that the words “as well as otherwise” are sufficiently express to
convey Parliament’s clear intention to bind the provinces. While language as
explicit as that in the Species at Risk Act is not strictly required, my
view is supported by the absence of any indication of a Parliamentary intention
to confer on the Federal Courts in personam jurisdiction over the
provinces in the legislative history of section 22 of the Federal Courts Act.
[16]
This interpretation is equally consistent with the case
law that explicitly dealt with whether similar provisions in the Federal
Courts Act and its predecessors intended to bind the provinces. In Javelin,
for example, this Court held that section 23 of the Federal Court Act
did not confer jurisdiction in respect of Her Majesty in right of Newfoundland. While it related to bills of exchange and promissory notes, section 23 of the
former Federal Court Act contained similar language as section 22 of the
current Federal Courts Act. The Court’s holding flowed from then-section
16 of the federal Interpretation Act, which provided that Her Majesty is
bound by an enactment only where she is therein mentioned or referred to: Javelin
at paragraph 4. No mention or reference to Her Majesty was found.
[17]
In Trainor Surveys, the Federal Court adopted
the Javelin reasoning that “it is clear law that the Crown cannot be
impleaded in a court in respect of a claim against the Crown except where
statutory jurisdiction has been conferred on the court to entertain claims
against the Crown of a class in which the particular claim falls”: Trainor
Surveys at paragraph 12; Javelin at paragraph 3. While Trainor
Surveys was a case related to copyright infringement pursuant to section 20
of the Federal Courts Act, the language at issue was again the same as
in our case. The Court held that a general description of subject matter of
concurrent jurisdiction was insufficient to displace the traditional immunity
enjoyed by provincial Crowns from suits in the Federal Court (emphasis mine):
13. In
my opinion, the mere fact that the Federal Court has concurrent jurisdiction
with provincial courts to hear and determine civil actions for copyright
infringement is insufficient to vest the Court with jurisdiction to entertain
the present suit impleading the provincial Crowns and the Crown agencies named
as defendants in the absence of some specific provision to that effect, whether
contained in federal legislation or in the respective Crown proceedings
statutes of the three provinces. I concur with the reasoning of Collier J. in Avant
Inc. v. R., supra, and, paraphrasing his words, conclude that “for
the provincial Crown[s] to be sued in this court, there must, … be some
legislative provision permitting suits”, and here there is none. I am
also of the opinion that the traditional immunity of the provincial Crowns
and their agencies from suits in the Federal Court is not abrogated in the
present case by the general descriptions of subject matter of concurrent
jurisdiction with respect to copyright contained in the Federal Court Act,
on the principle of Union Oil Company v. The Queen, supra.
See also Greeley v. Tami Joan (The), [1996] F.C.J. No. 739, particularly at paragraph
21.
[18]
I am of the same mind with respect to section 22 of the
Federal Courts Act: it deals with subject matter jurisdiction, and I see
nothing in the provision, or in the remainder of the statute (other than
section 19 of the Federal Courts Act), that irresistibly draws me to the
conclusion that Parliament clearly intended to bind the provincial Crown by
express language or through logical inference: see Manitoba v. Canadian
Copyright Licensing Agency (c.o.b. Access Copyright), 2013 FCA 91 at
paragraph 48; Oldman River at pages 52-53.
(b) Section 19 of the Federal Courts Act
[19]
Section 19 of the Federal Courts Act does grant
jurisdiction to the Federal Court over the provincial crowns in cases of
intergovernmental controversies if the particular province involved has adopted
legislation accepting such jurisdiction. Alberta has accepted such jurisdiction
(section 27 of Alberta’s Judicature Act, R.S.A. 2000, c. J-2).
[20]
In Union Oil Co. of Canada v. Canada, [1974] 2
F.C. 452 the plaintiff had sold fuel oil to the Province of British Columbia
who claimed an exemption from the tax imposed under the Excise Tax Act,
R.S.C. 1970, c. E-13. The Federal government did not agree that the exemption
was applicable. The plaintiff commenced an action against both the Federal
government and the Province of British Columbia. In striking the claim against
the Province of British Columbia, Collier J. made the following comments in
relation to the argument that the Federal Court had jurisdiction over the
Province of British Columbia as a result of the provisions of section 19 of the
then Federal Court Act:
15 In my opinion section 19 has no application to this case. There
is no doubt there is a dispute or disagreement between Canada and British Columbia as to whether the diesel fuel was exempt from tax. Assuming that dispute
or disagreement to be a "controversy", it seems to me the
jurisdiction of the Federal Court can only be invoked by Canada or by the Province, and not by the commencement of legal proceedings by a private citizen.
[21]
In dismissing the appeal by Union Oil Co. of Canada
Limited, the Federal Court of Appeal ([1976] 1 F.C. 74) stated that:
3 The jurisdiction of the Federal Court is entirely statutory and,
accepting that it lies within the powers of the Parliament of Canada, when
legislating in a field within its competence, to give the Federal Court
jurisdiction to implead the Crown in right of a province, we do not think any
of the statutory provisions to which we were referred, or any others of which
we are aware, authorize the Court to entertain a proceeding at the suit of a
subject against the Crown in right of a province.
[22]
The Supreme Court of Canada, in brief reasons (16 N.R.
425) also dismissed the company’s appeal and noted that:
…the
appellant has failed to show any ground of jurisdiction in the Federal Court
over the Crown in right of British Columbia in this case.
[23]
In Fairford Band v. Canada, [1995] 3 F.C. 165
(affirmed on appeal [1996] F.C.J. No. 1242 (FCA)), the courts distinguished the
Union Oil case and held that section 19 of the Federal Court Act
could be invoked if the Federal government (against whom a claim was being
made) commenced a third party proceeding against a provincial Crown. Therefore
it seems to me that section 19 of the Federal Courts Act cannot be
invoked if an individual or a company commences an action against both the
Federal government and a provincial government but may be invoked if the action
is commenced against the Federal government and the Federal government then
commences a third party proceeding against the provincial Crown.
[24]
Even though it may be necessary or desirable to have
both the Federal government and the province of Alberta before the Federal Court
without the necessity of first commencing an action against the Federal
government and then, if the Federal government should so choose, having the
federal government commence a third party proceeding against the province of
Alberta, as noted by the Supreme Court of Canada in Newfoundland v. Québec
(Commission Hydro Électrique), [1982] 2 S.C.R. 79:
… As Collier J.
rightly stated in Union Oil Co. of Canada Ltd. v. The Queen in right of Canada (1974), 52 D.L.R. (3d) 388, in a note at the foot of p. 393:
The fact that one
defendant is properly before the Court, and another party may be a necessary or
desirable defendant, does not confer jurisdiction.
[25]
As a result, since this action was commenced by the
Toney family against the province of Alberta and the Federal government,
section 19 of the Federal Courts Act does not apply to grant the Federal
Court jurisdiction over the province of Alberta.
(c) Alberta’s Proceedings Against the Crown Act + section 22 of the Federal Courts
Act.
[26]
The Respondents argue that, even if section 22 of the Federal
Courts Act merely grants the Federal Court subject matter jurisdiction, a
clear intention to grant in personam jurisdiction is evident when it is
read in conjunction with sections 4 and 8 of Alberta’s Proceedings Against
the Crown Act, R.S.A. 2000, c. P-25 [APACA]. This is particularly so, they
posit, when compared with the equivalent provisions in the Crown proceedings
legislation in other provinces, which specify in which courts proceedings
against the Crown must be brought (generally the superior courts of the
province in question). The Respondents submit that had the Alberta legislator
intended to exclude the jurisdiction of the Federal Courts over proceedings
commenced by individuals or companies against it, it would have included
language to that effect.
[27]
I am not persuaded by this line of reasoning. Section 4
of APACA grants the right to substantive relief against the Crown, and reads as
follows:
4 A claim against the
Crown that, if this Act had not been passed, might be enforced by petition of
right, subject to the grant of a fiat by the Lieutenant Governor, may be
enforced as of right by proceedings against the Crown in accordance with this
Act, without the grant of a fiat by the Lieutenant Governor.
[28]
Section 8 of APACA describes the forum and procedural
rules that will govern proceedings against Alberta commenced in accordance with
APACA, and reads as follows (emphasis mine):
8 Except as otherwise
provided in this Act, all proceedings against the Crown in any court
shall be instituted and proceeded with in accordance with the relevant law
governing the practice in that court.
[29]
By way of comparison, the equivalent provision in British Columbia’s (“B.C.”) Crown Proceeding Act, R.S.B.C. 1996, c. 89 reads as follows:
4 (1) Subject to this
Act, all proceedings against the government in the Supreme Court must be
instituted and proceeded with under the Supreme Court Act and, if
applicable, under the Class Proceedings Act.
[30]
In Athabasca Chipewyan First Nation v. Canada
(Minister of Indian Affairs and Northern Development), 2001 ABCA 112 [Athabasca],
the Alberta Court of Appeal held that the Alberta courts had no jurisdiction
over the B.C. Crown by virtue of subsection 4(1) of B.C.’s Crown Proceeding
Act, R.S.B.C. 1996, c. 89.
[31]
The Alberta Court of Appeal in Athabasca recognized
that the B.C. Crown had largely waived its historical immunity with respect to
tort liability (particularly in paragraph 2(c) of the Crown Proceeding Act),
but reasoned that the B.C. Crown maintained part of its procedural immunity by
virtue of subsection 4(1) (emphasis mine):
19. Second,
there is a presumption that “the legislature does not intend to make any change
in the existing law beyond that which is expressly stated in, or follows by necessary
implication from, the language of the statute”. P. St. J. Langan, Maxwell on
the Interpretation of Statutes, 12th ed. (London: Sweet &
Maxwell, 1969) at 116. At common law, the general rule is that the Crown cannot
be sued. Young v. S.S. “Scotia”, 13 C.R.A.C. 168, [1903] A.C. 501 at 505
(P.C., Can.); Can. Javelin v. The Queen Nfld., [1978] 1 F.C. 408
at 409 (F.C.A.). The Crown can be sued, of course, in a court that has been
granted jurisdiction over it by statute. The B.C. Act does not expressly give
jurisdiction over the B.C. government to the Alberta Court of Queen’s Bench.
While it does not give express jurisdiction over the government to the B.C.
Supreme Court either, it does so by implication of s. 4(1). Absent more
explicit language (such as that found in the similar federal legislation), the
above principle suggests that s. 4(1) should not be interpreted as granting
jurisdiction to any court other than the B.C. Supreme Court. In the result,
while British Columbia has largely waived its substantive immunity through s.
2(c), it has only partly waived its procedural immunity through s. 4(1).
[32]
In Medvid v. Saskatchewan (Ministry of Health),
2012 SKCA 49, the Saskatchewan Court of Appeal dealt with the issue of the
interpretation of section 8 of the APACA. The decision of the Saskatchewan
Court of Appeal was released on April 25, 2012 which was over four months
before the motion that is under appeal was heard by Mactavish J. on September
4, 2012. However there is no indication that this case was brought to her
attention and this case was not included in the Joint Book of Authorities that
was submitted to this Court. Counsel for the Medvids and Coreen Hardy before
the Saskatchewan Court of Appeal were E. F. A. Merchant, Q.C. and Nicholas
Robinson.
[33]
The Saskatchewan Court of Appeal endorsed the
interpretation of section 8 of the APACA adopted by Dawson J. and repeated this
interpretation in paragraph 39:
… Section 8 of the
Alberta Act leads to the inevitable conclusion that the Alberta Legislature intended
that actions against Alberta can only proceed when brought in a court in Alberta. The Proceedings Against the Crown Act of Alberta does not open the door for
an action against Alberta in another jurisdiction.
[34]
Section 27 of Alberta’s Judicature Act, also
supports the conclusion that Alberta Legislature has not generally granted
jurisdiction to the Federal Court over Alberta but rather has only granted
jurisdiction in specific circumstances:
27
The Supreme Court of Canada and the Federal Court of Canada, or the Supreme
Court of Canada alone, according to the Supreme Court Act (Canada) and the Federal Court Act (Canada) have jurisdiction
(a) in controversies between Canada and Alberta;
(b) in controversies between Alberta and any other province or territory of Canada in which an Act similar to this Act is in force;
(c) in proceedings in
which the parties by their pleadings have raised the question of the validity
of an Act of the Parliament of Canada or of an Act of the Legislature of
Alberta, when in the opinion of a judge of the court in which they are pending
the question is material, and in that case the judge shall, at the request of
the parties, and may without request if the judge thinks fit, order the case to
be removed to the Supreme Court of Canada in order that the question may be
decided
[35]
Given the interpretation of section 8 of the APACA
adopted by the Saskatchewan Court of Appeal in Medvid and absent more
explicit language to the contrary in any other provincial statute, there is no
basis to find that the Province of Alberta has granted the Federal Court
jurisdiction over the Province of Alberta other than as provided in section 27
of the Alberta Judicature Act.
ii. Necessary Implication
[36]
The Respondents rely on various provisions that
prohibit in rem proceedings against ships owned by a province –
primarily subsections 43(7) of the Federal Courts Act and 79(3) of the Marine
Liability Act, S.C. 2001, c. 6 – to argue that, because a statutory right in
rem, without a maritime lien, does not lie without the liability of the
ship owner, the only logical interpretation of the prohibitions is to imply
that the Federal Court has in personam jurisdiction over the provinces
as the owners of vessels. Otherwise, they posit, these provisions would have no
meaning. The Federal Court judge accepted this line of argument: see reasons at
paragraphs 41-49. However, as noted above, the Federal Court does have
jurisdiction over the provinces in intergovernmental disputes where the
province has accepted such jurisdiction.
[37]
The Supreme Court of Canada recognized in AGT
that the common law doctrine of necessary implication elaborated in Bombay (Province) v. Bombay (Municipal Corporation of the City of), [1947]
AC 58 (PC) remains applicable with the advent of modern Interpretation Acts.
An intention to bind the Crown may be found “where the purpose of the statute
would be ‘wholly frustrated’ if the government were not bound, or, in other
words, if an absurdity (as opposed to simply an undesirable result) were produced”:
AGT at paragraph 130.
[38]
I fail to see how the purpose of the Federal Courts
Act – i.e. to advance the better administration of the Laws of
Canada in accordance with section 101 of the Constitution Act, 1867 – is
“wholly frustrated” if Alberta is not bound. This is particularly so given that
the plaintiffs in the underlying action are not without remedy in this case –
they could bring their action in the Alberta Court of Queen’s Bench.
[39]
I also fail to see how the purpose of the in rem provisions
referred to by the Respondents would be “wholly frustrated” if Alberta were not bound. Indeed, the Federal Court judge suggested that the purpose of the
provisions is to prevent the arrest of ships engaged in government service:
reasons at paragraph 42. Given that the starting presumption is that the Crown
is immune from such proceedings, both at common law and in the various
applicable statutes, it is not apparent that this purpose would be “wholly
frustrated” if Alberta were not bound.
iii. Waiver
[40]
In their written submissions, the Respondents argue
that Alberta has waived its immunity by its past conduct. By attorning to the
Federal Court’s jurisdiction in Scott Steel Ltd. v. The Alarissa, [1996]
2 F.C. 883, they posit, Alberta took the benefit of the Federal Courts Act
and the Federal Court Rules, S.O.R./98-106, and therefore cannot now
deny the burden of the same statutes.
[41]
The facts of the Scott Steel case, however, do
not support the Respondents’ proposition. Indeed, the Alberta entity that
purportedly took the benefit of the Federal Courts Act and Rules
was Alberta Treasury Branches. Pursuant to subsection 2(4) of the Alberta
Treasury Branches Act, RSA 2000, c. A-37, it is clear that the corporation
established as the “Alberta Treasury Branches” is to be treated, for the
purposes of in personam jurisdiction, as if it were a private party, and
not as an agent of the Crown in right of Alberta. In my view, the Scott
Steel case is of no assistance to the Respondents in seeking to establish
that Alberta has in any way waived its immunity by virtue of its conduct.
Indeed, this case would seem to indicate the contrary, given the operation of
subsection 2(4) of the Alberta Treasury Branches Act.
III. CONCLUSION
[42]
For the reasons above, I would allow the appeal, set
aside the Order of the Federal Court, and, rendering the judgment that should
have been rendered, grant the Appellant’s application for a determination on a
point of law that the Federal Court has no jurisdiction in this matter over Her
Majesty the Queen in right of Alberta.
"David G. Near"
“I agree
Wyman W. Webb J.A.”
SHARLOW J.A. Dissenting Reasons
[43]
I regret that I am unable to agree with my colleagues
on the disposition of this appeal. I would dismiss the appeal.
[44]
This is the second time in this case that the
jurisdiction of the Federal Court has been put in issue by Alberta. The subject
of this appeal is the Federal Court’s dismissal of Alberta’s application for a
determination before trial on a question of law, specifically, that the Federal
Court does not have the jurisdiction to determine the Toney family’s claim
against Alberta. That application was dismissed, and this appeal by Alberta followed.
[45]
Alberta had previously applied
to strike the Toney family’s claim against Alberta for want of jurisdiction. In
a decision that was upheld by this Court (2012 FCA 167), Justice Harrington dismissed
that motion. He concluded that “the action falls within the federal legislative
class of action of navigation and shipping, there is actual federal law to
administer, and the administration of that law has been confided to this Court
pursuant to section 22 of the Federal Courts Act (ITO-International Terminal Operators Ltd. v Miida Electronics Inc.,
[1986] 1 S.C.R. 752).” He also concluded that it was irrelevant that one of the defendants
is the Crown in right of a province because this is not an action against the Crown
as such under section 17 of the Federal Courts Act.
[46]
I might have been sympathetic to the argument that the
matter of the jurisdiction of the Federal Court in this matter was settled by Justice
Harrington. However, that argument was not made, so I will say no more about it.
[47]
Alberta’s position is rooted in
the Crown’s common law immunity, which includes immunity from legal claims and
immunity from the operation of statutes. Alberta’s position is that Alberta legislation permitting claims against the Crown in right of Alberta is not broad
enough to encompass maritime law claims brought in the Federal Court. In my
view, that position is based on the incorrect premise that the question of the
jurisdiction of the Federal Court in relation to the claims of the Toney family
against Alberta depends upon the laws of Alberta.
[48]
In my view, the jurisdiction of the Federal Court in
this matter depends solely on federal legislation. The relevant legal questions
are as follows: (1) Is the Toney family’s claim based on federal legislation?
(2) Is that federal legislation binding on the provinces? If the answer to both
questions is yes, then no Alberta legislation can prevent the Federal Court
from exercising its statutory jurisdiction.
[49]
As to the first question, it is clear that the Toney
family’s claims are based on two federal statutes. At the risk of
oversimplifying, it could be said that the substantive aspects of their claims
are governed by the Marine Liability Act, and the procedural aspects are
governed by the Federal Courts Act. In determining the answer to the
second question – whether those enactments are binding on the provinces, it is
necessary to consider section 17 of the federal Interpretation Act, which
reads as follows:
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17. No enactment is binding on Her Majesty or affects Her Majesty
or Her Majesty’s rights or prerogatives in any manner, except as mentioned or
referred to in the enactment.
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17. Sauf indication contraire y figurant, nul texte ne lie Sa
Majesté ni n’a d’effet sur ses droits et prérogatives.
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[50]
In section 17 of the federal Interpretation Act,
“Her Majesty” includes the Crown in right of Canada and the Crown in right of a
province or territory (see AGT (cited in the majority reasons) at pages
270-275). Thus, a province is immune from the application of a federal
enactment “except as mentioned or referred to in the enactment”.
[51]
There is a long line of jurisprudence
relating to the interpretation of section 17 of the federal Interpretation
Act, and in particular the meaning of the phrase “except as mentioned or
referred to in the enactment”. That jurisprudence was recently considered by
this Court in Manitoba v. Access Copyright) (cited in the
majority reasons), which followed the most recent case in the Supreme Court of
Canada, Oldman River (also
cited in the majority reasons).
[52]
According to Oldman River, the Crown is
bound by a federal statute if it meets any of the following tests:
(a)
the statute contains a provision stating that
the Crown is bound,
(b)
a purposive and contextual analysis of the
statute discloses a clear parliamentary intention to bind the Crown, or
(c)
the purpose of the statute would be wholly
frustrated unless the Crown is bound.
[53]
The subject matter of the claims of the Toney family
against Alberta in respect of the death of Janessa is a matter of admiralty and
maritime law, which is a matter within the legislative authority of Parliament.
That conclusion is not disputed and it cannot be disputed.
[54]
Nor can it be disputed that Part 2 of the Marine
Liability Act applies to the claims of the Toney family against Alberta (see section 5). The Marine Liability Act states that it is “binding on her
Majesty in right of Canada or a province” (see section 3). Therefore, Alberta
does not and cannot dispute that it can be held liable for damages for such of
the Toney family’s claims as are proved at trial in a “court of competent
jurisdiction” (see subsection 6(2) and the definition of “dependant” in section
4 of the Marine Liability Act). Indeed, Alberta admits that it would be
liable for the damages claimed by the Toney family if the claims were proved at
a trial in the Alberta Court of Queen’s Bench, which is a court of competent
jurisdiction for their claims.
[55]
The position of Alberta essentially is that the Toney
family’s claims against Alberta cannot be heard in the Federal Court because
Alberta is not bound by the provisions of the Federal Courts Act
(sections 22 and 43) in which Parliament has given the Federal Court
jurisdiction in claims under the Marine Liability Act. Thus, the key
question is whether, in the words of section 17 of the federal Interpretation
Act, there is anything “mentioned or referred to” in the Federal Courts
Act that manifests an intention on the part of Parliament to bind the
provinces to sections 22 and 43 of the Federal Courts Act.
[56]
The Toney family, like most claimants in admiralty and
maritime law matters, have a choice of forum. The jurisdiction of the Alberta
Court of Queen’s Bench is inherent. The jurisdiction of the Federal Court is
statutory. It flows from subsection 22(1) of the Federal Courts Act,
which reads as follows:
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22. (1) The Federal Court has concurrent original
jurisdiction, between subject and subject as well as otherwise, in all cases
in which a claim for relief is made or a remedy is sought 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, except to the
extent that jurisdiction has been otherwise specially assigned.
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22. (1) La Cour fédérale a compétence concurrente, en première
instance, dans les cas — opposant notamment des administrés — où une demande
de réparation ou un recours est présenté en vertu du droit maritime canadien
ou d’une loi fédérale concernant la navigation ou la marine marchande, sauf
attribution expresse contraire de cette compétence.
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[57]
This Court has held that the phrase “as well between subject and subject
as otherwise” in the predecessor to section 23 of the Federal Courts Act
(reworded in the current version of section 23 to read “between
subject and subject as well as otherwise”) is broad enough to refer to
an action against a public authority (N.A.B.E., cited in the majority
reasons, at pages 824-5). I agree, and I see no reason to give it a different
meaning in section 22 of the Federal Courts Act. I conclude that the
similar phrase in section 22, read literally, is broad enough to include a
claim against a province. Whether that literal meaning is the correct one
depends upon a purposive and contextual interpretation of the rest of section
22 and the related provision, section 43.
[58]
Subsection 22(2) of the Federal Courts Act provides a long list
of the specific types of claims that fall within the scope of subsection 22(1).
It is clear that the claims of the Toney family are within that list,
specifically, paragraphs 22(2)(d) and (g):
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22.
(2) Without limiting the generality of subsection (1), for greater
certainty, the Federal Court has jurisdiction with respect to all of the
following:
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22. (2) Il demeure entendu que, sans préjudice de la portée générale
du paragraphe (1), elle a compétence dans les cas suivants :
|
|
…
(d) any claim for damage or for
loss of life or personal injury caused by a ship either in collision or
otherwise;
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[…]
d) une demande d’indemnisation pour décès, dommages corporels ou
matériels causés par un navire, notamment par collision;
|
|
…
(g) any
claim for loss of life or personal injury occurring in connection with the
operation of a ship including, without restricting the generality of the
foregoing, any claim for loss of life or personal injury sustained in
consequence of any defect in a ship or in her apparel or equipment, or of the
wrongful act, neglect or default of the owners, charterers or persons in
possession or control of a ship or of the master or crew thereof or of any
other person for whose wrongful acts, neglects or defaults the owners,
charterers or persons in possession or control of the ship are responsible,
being an act, neglect or default in the management of the ship, in the
loading, carriage or discharge of goods on, in or from the ship or in the
embarkation, carriage or disembarkation of persons on, in or from the ship; …
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[…]
g) une demande d’indemnisation pour décès ou lésions corporelles
survenus dans le cadre de l’exploitation d’un navire, notamment par suite
d’un vice de construction dans celui-ci ou son équipement ou par la faute ou
la négligence des propriétaires ou des affréteurs du navire ou des personnes
qui en disposent, ou de son capitaine ou de son équipage, ou de quiconque
engageant la responsabilité d’une de ces personnes par une faute ou
négligence commise dans la manoeuvre du navire, le transport et le
transbordement de personnes ou de marchandises; [...]
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[59]
The scope of the Federal Court’s section 22 jurisdiction in relation to
claims for damages relating to ships and their operation is illustrated by
subsection 22(3), which reads as follows:
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22. (3) For
greater certainty, the jurisdiction conferred on the Federal Court by this
section applies
|
22. (3) Il est
entendu que la compétence conférée à la Cour fédérale par le présent article
s’étend :
|
|
(a) in relation to all ships, whether Canadian or not and
wherever the residence or domicile of the owners may be;
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a)
à tous les navires, canadiens ou non, quel
que soit le lieu de résidence ou le domicile des propriétaires;
|
|
…
(c) in
relation to all claims, whether arising on the high seas, in Canadian waters
or elsewhere and whether those waters are naturally navigable or artificially
made so, including, without restricting the generality of the foregoing, in
the case of salvage, claims in respect of cargo or wreck found on the shores
of those waters….
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[…]
c) à
toutes les demandes, que les faits y donnant lieu se soient produits en haute
mer ou dans les eaux canadiennes ou ailleurs et que ces eaux soient
naturellement ou artificiellement navigables, et notamment, dans le cas de
sauvetage, aux demandes relatives aux cargaisons ou épaves trouvées sur les
rives de ces eaux […].
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[60]
It has not been suggested that any aspect of the claims of the Toney
family, or any defence asserted by Alberta, is a matter in respect of which, in
the words of subsection 22(1) of the Federal Courts Act, “jurisdiction
has been otherwise specially assigned”. Therefore, that exception to the scope
of subsection 22(1) does not apply to this case.
[61]
Section 43 of the Federal Courts Act specifies the circumstances
in which the Federal Court may exercise its section 22 jurisdiction in
personam (that is, against a person, such as the owner or operator of a
ship), and when it may exercise its section 22 jurisdiction in rem (that
is, against a ship). As noted by Justice Harrington, subsection 43(3) of the Federal
Courts Act precludes the Toney family from pursuing an action in rem
in the Federal Court against the rescue vessel because it was not owned by the
same person when the cause of action arose and when the action was commenced.
Subsection 43(3) reads as follows:
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43.
(3) Despite subsection (2), the jurisdiction conferred on the Federal
Court by section 22 shall not be exercised in rem with respect to a claim mentioned in paragraph
22(2)(e), (f), (g), (h), (i), (k), (m), (n), (p) or (r) unless, at the
time of the commencement of the action, the ship, aircraft or other property
that is the subject of the action is beneficially owned by the person who was
the beneficial owner at the time when the cause of action arose.
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43. (3) Malgré
le paragraphe (2), elle ne peut exercer la compétence en matière réelle
prévue à l’article 22, dans le cas des demandes visées aux alinéas 22(2) e),
f), g), h), i), k), m), n), p)
ou r), que si, au moment où l’action est intentée, le véritable
propriétaire du navire, de l’aéronef ou des autres biens en cause est le même
qu’au moment du fait générateur.
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[62]
Justice Harrington also held that the Toney family can pursue their
action in the Federal Court against the party that was the owner and operator
of the rescue vessel when the cause of action arose –Alberta. Their in
personam claim against Alberta is literally within the scope of the section
22 jurisdiction of the Federal Court by virtue of subsection 43(1) of
the Federal Courts Act which reads as follows (my emphasis):
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43. (1) Subject to subsection (4), the jurisdiction conferred
on the Federal Court by section 22 may in all cases be exercised in personam.
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43. (1) Sous
réserve du paragraphe (4), la Cour fédérale peut, aux termes de l’article 22,
avoir compétence en matière personnelle dans tous les cas.
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[63]
Subsection 43(1) is subject to subsection 43(4), which does not
apply in this case but I reproduce it here for the sake of completeness. It
reads as follows:
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43. (4) No
action in personam may be
commenced in Canada for a collision between ships unless
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43. (4) Pour qu’une action personnelle puisse être intentée au
Canada relativement à une collision entre navires, il faut :
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|
(a) the
defendant is a person who has a residence or place of business in Canada;
(b) the
cause of action arose in Canadian waters; or
(c) the
parties have agreed that the Federal Court is to have jurisdiction.
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a) soit que le défendeur ait une résidence ou un établissement
commercial au Canada;
b)
soit que le fait
générateur soit survenu dans les eaux canadiennes;
c)
soit que les
parties aient convenu de la compétence de la Cour fédérale.
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[64]
The phrase “in all cases” in subsection 43(1) of the Federal Courts
Act is broad enough to include an in personam claim for damages
caused by a ship or its operation where the ship is owned by a province. In my
view, given the statutory context, that is what this provision is intended to
mean. I reach that conclusion because maritime claims against a province are
specifically mentioned elsewhere in section 43, in paragraph 43(7)(b).
[65]
Paragraph 43(7)(b) precludes an action in
rem in the Federal Court against any ship owned or operated by Canada or a
province where the ship is engaged on government service. Generally, in the
absence of a maritime lien there is no statutory right in rem
in the absence of personal liability of the ship owner (Mount Royal/Walsh
Inc. v. The Jensen Star, [1990] 1 F.C. 199 (F.C.A.) at page 216).
Therefore, the paragraph 43(7)(b) bar to an action in rem against
any ship owned or operated by a province makes no sense if the Federal Court
has no jurisdiction to consider a claim in personam against a ship owner
that is a province.
[66]
I conclude, based on sections 22 and 43 of the Federal
Courts Act read in their entirety and in context, that Parliament intended
to give the Federal Court complete and comprehensive jurisdiction in all claims
under the Marine Liability Act, including the claims of the Toney family
in this case against Alberta. The test in section 17 of the federal Interpretation
Act is met (that is, the second branch of that test as explained in Oldman River), and therefore the provinces are bound by sections 22 and 43 of the Federal Courts Act.
[67]
In my view, this conclusion is not inconsistent with any of the cases
cited by Alberta in argument. None of those cases involve a claim for damages
under the Marine Liability Act, or a claim falling within the scope of
sections 22 and 43 of the Federal Courts Act or a similar statutory
scheme. I note as well that none of those cases refers to the purposive and
contextual interpretation of section 17 of the federal Interpretation Act
mandated by Oldman River and the cases upon which it relied.
[68]
One of the main cases cited by Alberta is Union Oil (cited in the
majority reasons). Union Oil involved a claim by a corporation against
both Canada and British Columbia for reimbursement of federal taxes it had paid
to the federal government in respect of diesel oil sold to the province. The
position of the corporation was that it should have been entitled to the
benefit of a tax exemption. The corporation also argued that its claim against British Columbia was based on maritime law, but that argument was rejected. Therefore, the
Federal Court could have jurisdiction only under section 17 of the Federal
Courts Act. That provision gives the Federal Court general jurisdiction in
“all cases in which relief is claimed against the Crown”. However, section 17
can apply only to claims against Canada because of the restrictive definition
of “Crown” in the Federal Courts Act. Therefore, there was no statutory
foundation for the argument that the Federal Court had jurisdiction against British Columbia in respect of the corporation’s claim for reimbursement.
[69]
In Javelin (cited in the
majority reasons), this Court held that the Federal Court does not have
the jurisdiction to entertain a claim against a province involving one of the
matters mentioned in section 23 of the Federal Courts Act – bills of exchange and promissory notes where the federal Crown is a party
to the proceedings, aeronautics, and interprovincial or extraprovincial works
and undertakings. Section 23 gives the Federal Court jurisdiction in such
claims “between subject and subject as well as otherwise”. I note that the
meaning of that phrase apparently was not in issue in Javelin, as it was
two years later in N.A.B.E. (cited in the majority reasons). It
is an open question whether Javelin would have been decided the same way
after that case.
[70]
The Federal Court has also determined that it has no jurisdiction to
consider a claim against a province for infringement of a patent or copyright (Avant
Inc. v. Ontario, [1986] 2 F.C. 91 (F.C.T.D.), Trainor Surveys (cited
in the majority reasons), and Dableh v. Ontario Hydro (1990), 33 C.P.R.
(3d) 544 (F.C.T.D)). The jurisdiction of the Federal Court in such matters is
governed by subsection 20(2) of the Federal Courts Act, which does not
include the phrase “between subject and subject as well as otherwise” or any
analogous words.
[71]
There is one case involving maritime claims where the action in personam
against a province was struck for want of jurisdiction: Greeley v.
The “Tami Joan” (cited in the majority reasons). That decision, which was
not appealed, removed the province of New Brunswick, the mortgagee of a ship,
as an in personam defendant in a maritime law claim by a lessee under a
charterparty for wrongful seizure of a vessel, but the province remained as an in
rem defendant by virtue of the mortgage. For reasons that are not entirely
clear, the jurisdiction of the Federal Court in respect of the in personam
claim against the province was determined on the basis of section 17 of the Federal
Courts Act rather than sections 22 and 43, and neither subsection 43(1) nor
paragraph 43(7)(b) was mentioned.
[72]
For these reasons, I conclude that the Federal Court has the
jurisdiction to determine the claims of the Toney family against Alberta.
[73]
I add that I would have been inclined to reach the same conclusion on
the basis of section 19 of the Federal Courts Act, which
reads as follows:
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19. If the legislature of a province has passed an Act agreeing
that the Federal Court, the Federal Court of Canada or the Exchequer Court of
Canada has jurisdiction in cases of controversies between Canada and that
province, or between that province and any other province or provinces that
have passed a like Act, the Federal Court has jurisdiction to determine the
controversies.
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19. Lorsqu’une loi d’une province reconnaît sa compétence en
l’espèce, — qu’elle y soit désignée sous le nom de Cour fédérale, Cour
fédérale du Canada ou Cour de l’Échiquier du Canada — la Cour fédérale est
compétente pour juger les cas de litige entre le Canada et cette province ou
entre cette province et une ou plusieurs autres provinces ayant adopté une
loi semblable.
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[74]
Section 27 of the Alberta Judicature Act meets the
conditions in section 19 of the Federal Courts Act. It reads in relevant
part as follows:
27. The Supreme Court of Canada and the Federal Court of Canada, or the
Supreme Court of Canada alone, according to the Supreme Court Act (Canada) and the Federal Court Act (Canada) have jurisdiction
(a)
in controversies between Canada and Alberta …
[75]
Section 19 of the Federal Courts Act is applicable in an action
for damages against the federal Crown and a province in relation to the same
facts, if either of them were to make a cross-claim or a third party claim
against the other. For example, if the Toney family had
asserted their claim initially against Canada only, and Canada had made a third party claim against Alberta, the entire matter would have been within
section 19 of the Federal Courts Act (see Fairford Band, cited
in the majority reasons).
[76]
In this case, the Toney family asserted their claims in the Federal
Court against Canada and Alberta simultaneously. Later, Canada and Alberta each asserted a claim against the other, in the Federal Court, for
contribution and indemnity. The claim of Canada against Alberta for
contribution and indemnity raises a controversy between Canada and Alberta to which section 19 of the Federal Courts Act should apply, and the same
could be said of the claim of Alberta against Canada for contribution and
indemnity. In the face of section 19, the existence of either claim for
contribution and indemnity precludes Alberta from disputing the jurisdiction of
the Federal Court in this matter.
"K. Sharlow"
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