T-340-79
Leslie Tomossy (Plaintiff)
v.
James Hammond, the Queen and Selim Shakra
(Defendants)
Trial Division, Mahoney J.—Toronto, February
26; Ottawa, March 1, 1979.
Jurisdiction — Crown — Torts — Negligence — Motor
vehicle collision involving vehicle owned by the Crown and
operated by defendant Hammond — Whether or not action
against defendant Hammond should be dismissed for want of
jurisdiction — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, s. 17(4)(6) — The British North America Act, 1867, 30 &
31 Via., c. 3, s. 101. [R.S.C. 1970, Appendix III.
APPLICATION.
COUNSEL:
John Davis for plaintiff.
Paul Evraire for defendants.
SOLICITORS:
Lawson, McGrenere, Wesley, Jarvis & Rose,
Toronto, for plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for order ren
dered in English by
MAHONEY J.: This is an action for negligence
arising out of a motor vehicle collision involving
vehicles owned and operated by the plaintiff and
the defendant Shakra and a vehicle owned by Her
Majesty the Queen and operated by her servant,
the defendant Hammond. Counsel for Her Majes
ty and Hammond moves to dismiss the action as
against Hammond on the ground that this Court
has no jurisdiction to entertain it.
The Federal Court Act' provides:
17....
(4) The Trial Division has concurrent original jurisdiction
' R.S.C. 1970 (2nd Supp.), c. 10.
(b) in proceedings in which relief is sought against any
person for anything done or omitted to be done in the
performance of his duties as an officer or servant of the
Crown.
At first blush that would appear to invest this
Court with the necessary jurisdiction. However,
the authority of Parliament to vest jurisdiction
upon this Court is prescribed by section 101 of The
British North America Act, 1867. 2
101. The Parliament of Canada may, notwithstanding any
thing in this Act, from Time to Time provide for the Constitu
tion, Maintenance, and Organization of a General Court of
Appeal for Canada, and for the Establishment of any addition
al Courts for the better Administration of the Laws of Canada.
In Quebec North Shore Paper Company v.
Canadian Pacific Limited, 3 and its earlier report
ed but subsequently delivered decision in
McNamara Construction (Western) Limited v.
The Queen,' the Supreme Court of Canada has
defined the expression "the Laws of Canada" and
has excluded from that definition both provincial
statute law and the common law except "common
law associated with the Crown's position as a
litigant". 5 The Crown referred to is, of course, the
Crown in right of Canada.
The personal liability of an individual for a tort
committed by him arises under the common law. It
arises whether he commits it in the course of his
employment or in other circumstances. The fact
that the individual is a servant of the Crown and
commits a tort in the course of that employment in
no way alters the basis in law for his liability. It
does not arise under "the Laws of Canada" or
"federal law" as the term has been defined by the
McNamara and Quebec North Shore decisions.
The import of those decisions was extensively can
vassed by the Federal Court of Appeal in
Associated Metals & Minerals Corporation v. The
"Evie W' 6 and it would be an exercise of some
leisure on my part either to recite or summarize
that analysis.
2 30 & 31 Vict., c. 3 (U.K.).
3 [1977] 2 S.C.R. 1054.
° [1977] 2 S.C.R. 654.
5 [1977] 2 S.C.R. 1054 at 1063.
6 [1978] 2 F.C. 710 at 711 to 716, per Jackett C.J.
Since McNamara, there have been some appar
ently inconsistent determinations in this Division.
Attridge v. The Queen,' appears to indicate that
the Court felt it had jurisdiction to entertain an
action against two R.C.M.P. officers in a similar
situation to that in which the defendant Hammond
finds himself here. It is, however, apparent that
the motion to dismiss that action as against certain
defendants did not deal with the R.C.M.P. officers
but only with defendants who were not Crown
servants. Where a motion came before the same
Judge which raised the precise issue, an action in
tort against a Minister of the Crown personally
was dismissed. 8 The same result in a negligence
action arising out of a motor vehicle collision was
reached by the Associate Chief Justice in Parsons
v. The Queen. 9
While it is clearly dicta, the Federal Court of
Appeal in one of the several actions entitled
Murray v. The Queen, 10 had this to say:
There is another aspect of the matter that was not raised by
the parties but, in my view, should be raised by the Court.
Having regard to recent decisions [e.g., the McNamara case],
it would seem to me that there is an obvious question as to
whether the Trial Division has any jurisdiction in respect of the
claims in the Statement of Claim other than those against Her
Majesty.
There, the action was founded on (1) breach of
contract, (2) damages from a civil conspiracy, and
(3) defamation, and named as defendants, in addi
tion to Her Majesty, a number of individual feder
al public servants.
ORDER
The action is dismissed as against the defendant
Hammond for want of jurisdiction in this Court to
entertain it. The time for Her Majesty to file and
serve a statement of defence is extended to the
30th day of March, 1979. The defendant Ham-
mond is entitled to his costs of this application if
he requests them.
7 (1978) 86 D.L.R. (3d) 543.
8 Matichuk v. The Queen. Unreported decision rendered
November 16, 1978. Court No. T-2549-78.
Unreported decision rendered May 3, 1978. Court No.
T-463-77.
10 Unreported decision rendered May 11, 1978. Court No.
A-639-77.
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