T-3972-78
Pacific Western Airlines Ltd. and Canadian
Acceptance Corporation Limited (Plaintiffs)
v.
The Queen in right of Canada, The Honourable
Otto E. Lang, Walter M. McLeish, P. E. Arpin, J.
P. Cadieux, J. P. Vaillancourt, R. L. Bolduc, H.
R. Merritt, J. M. Belcher, P. P. Bowes, T. C.
Calow, R. A. Harley, M. D. Jelenick, K. D. J.
Owen, D. F. Heakes, Donald J. Dewar, Frederick
G. Lowe, Douglas Ellis, Allan Bach, Ernest
Hanover, Harry Allan Fooks, the Corporation of
the City of Cranbrook, C. W. Purdy, George
Stanley Swirski, Terry George, The Boeing Com
pany, E. H. Bouillioun, Benjamin Wheat, C. E.
Dillon, James L. Copenhaver, Frederick D. Frajo-
la, Gary Soffe, Max Witters, John Doe I, John
Doe II, John Doe III, Rohr Industries Inc.,
Kenneth W. Goebel, Garrette Arthur Brummett
Jr., Herman O. Light Jr., John Doe IV, John Doe
V and John Doe VI (Defendants)
Trial Division, Collier J.—Vancouver, November
20, 1978; Ottawa, April 2, 1979.
Practice — Motion to strike out pursuant to Rule 419(1)(a)
— Jurisdiction — In action as result of an aircrash at
Cranbrook, B.C., allegation of tort (negligence and breach of
statutory duty) and breach of contract made — Defendants
making application including the Crown and named
employees, the City of Cranbrook and named employees, and
The Boeing Company and named employees — Crown Liabili
ty Act, R.S.C. 1970, c. C-38, ss. 3(1)(a), 7(1), 8(2)— Aeronau
tics Act, R.S.C. 1970, c. A-3, ss. 3, 6 — Air Regulations,
SOR/61-10, ss. 104, 305, 313, 314 — Federal Court Rule
419(1)(a).
In an action brought as a result of an aircrash in Cranbrook,
British Columbia, and based in tort both in negligence and in
breach of statutory duty, and in breach of contract, three
groups of defendants challenge the Court's jurisdiction in
respect of claims asserted against them and move to strike the
statement of claim as against them pursuant to Rule 419(1)(a).
Those groups of defendants are: the Crown and its named
servants, the City of Cranbrook and three of its employees and,
The Boeing Company (manufacturers of the aircraft), four of
its senior personnel, and three unnamed persons. A fourth
group, Rohr Industries (the manufacturer of the aircraft's
braking system), four of its named employees and three
unnamed persons did not bring motions.
Held, this Court has exclusive jurisdiction in respect of
claims advanced against the Crown, but it does not have
jurisdiction in respect of the claims advanced against the other
defendants. There is no existing federal law, whether statute or
regulation or common law, dealing with negligence, permitting
these defendants, other than the Crown, to be impleaded in this
Court. Although paragraph 17(4)(b) of the Federal Court Act
permits a servant of the Crown to be sued in the Federal Court,
that paragraph cannot be said to be existing federal law on
which a claim in negligence, or otherwise, can be founded and
entertained by this Court. The Aeronautics Act and the Regu
lations do not point to a litigable duty conferring a right of
action on an individual citizen. Even if plaintiffs' allegation
that the defendant groupings Boeing and Rohr were in breach
of statutory duties specified by U.S. Federal Aviation Regula-
tions—argued by plaintiffs to be adopted into Canadian law by
treaty—the statement of claim does not set out any material
facts said to constitute breach of those Regulations. The allega
tions made are of negligence in which the U.S. Federal Avia
tion Regulations are put forward as indicating the standards of
care required in respect of the tort of negligence. One cannot,
merely by baldly asserting in a pleading, breach of certain
Regulations said to be Canadian federal law, with nothing
more, automatically invoke or attract the jurisdiction of the
Court. Even if a contract, and a breach of it, is assumed, the
contract is not based on existing federal law. Further, the
details of the breach do not implicate Cranbrook as principal in
any way. The concept of pendent jurisdiction cannot be adopted
by the Court. The Quebec North Shore and McNamara cases
make it clear that the claims sued upon, in the main action and
against each party, must all be based on federal law, and not on
a combination of federal and non-federal law, or an admixture.
Quebec North Shore Paper Co. v. Canadian Pacific Ltd.
[1977] 2 S.C.R. 1054, applied. McNamara Construction
(Western) Ltd. v. The Queen [1977] 2 S.C.R. 654, applied.
Tomossy v. Hammond [1979] 2 F.C. 232, applied. Green
v. The Queen (unreported, T-5984-78), applied. Davie
Shipbuilding Ltd. v. The Queen [1979] 2 F.C. 235, con
sidered. Aida Enterprises Ltd. v. The Queen [1978] 2 F.C.
106, considered.
APPLICATION.
COUNSEL:
E. M. Lane and R. Allen for plaintiffs.
G. Donegan and G. Heinmiller for defendants
the Queen et al.
D. I. Brenner for defendants The Boeing
Company et al.
H. J. Grey, Q.C. for defendants City of Cran -
brook et al.
SOLICITORS:
Lane, Breck & Associates, Toronto, for
plaintiffs.
Deputy Attorney General of Canada for
defendants the Queen et al.
Brenner & Co., Vancouver, for defendants
The Boeing Company et al.
Harper, Grey, Easton & Co., Vancouver, for
defendants City of Cranbrook et al.
The following are the reasons for judgment
rendered in English by
COLLIER J.: There are here three motions by
certain groups of defendants challenging, in
respect of the claims asserted against them, the
jurisdiction of this Court. Rule 419(1)(a) is
invoked.
For the purpose of these motions, all the facts in
the statement of claim are admitted and assumed
to be true. The statement of claim is a lengthy
document. It has 69 pages, containing 94 para
graphs. It does not, as required by Rule 408,
confine itself to material facts only. There are
allegations of law. In a number of paragraphs, the
plaintiffs have alleged, as well, breach of certain
sections of the Aeronautics Act,' of the Air
Regulations 2 and of the Federal Aviation Regula
tions (U.S.). The material facts alleged to consti
tute breach have not been set out. For the purpose
of these reasons, I have accepted only the pleaded
material facts.
The plaintiff Canadian Acceptance Corporation
Limited (hereinafter "Canadian Acceptance") was
the owner and lessor of a Boeing model 737/275
aircraft (hereinafter "the 737"). The 737 was
leased and operated by the plaintiff Pacific West
ern Airlines Ltd. (hereinafter "P.W.A."). The 737
had been designed, manufactured and sold by The
Boeing Company (hereinafter "Boeing"), an
American corporation carrying on business in
Seattle, Washington. The aircraft had, as part of
its braking system, a component assembly known
as the Rohr target-type thrust reverser system.
The reverser system had been designed and manu
factured by the predecessor of Rohr Industries Inc.
(hereinafter "Rohr"). Rohr carries on business in
California.
P.W.A. carries on business in Canada as a
scheduled air carrier. On February 11, 1978, the
737 was on a regularly scheduled flight from
' R.S.C. 1970, c. A-3.
2 SOR/61-10, as amended.
Calgary, Alberta to Cranbrook, B.C. (Flight 314).
A portion of paragraph 26 of the statement of
claim sets out the plaintiffs' version of what
occurred:
The plaintiffs further say that immediately after landing and
extending or deploying the thrust reversers at the Cranbrook
Airport, where visibility was reduced in conditions of snow and
blowing snow, the pilot was forced to initiate an emergency
overshoot when he became aware that snow-removal equipment
had remained or was permitted to remain on the runway
obstructing the landing roll. The emergency overshoot was
initially successful and C-FPWC avoided the obstruction but
during the overshoot take-off, the thrust reversers were not
completely retracted or closed. The plaintiffs say that the
hydraulic pressure used to retract, close and stow the reversers
was interrupted and began to dissipate after C-FPWC left the
runway. During the climb, aerodynamic influences and forces
caused the port thrust reverser to spring back into the fully
open position. The pilot and co-pilot of C-FPWC had no
control over the movement of the port thrust reverser. The
sudden movement of the port thrust reverser forced the port
thrust or throttle lever to the closed position, thereby interrupt
ing fuel flow to the port engine. The plaintiffs also say that the
resultant asymetric power condition, with the starboard engine
in forward thrust and the port engine thrust reverser creating
aerodynamic drag, caused the aircraft to become uncontrol
lable, and it crashed in a steep nose down attitude on the
south-east corner of the airport. The crash and ensuing fire
killed 43 persons. The six survivors suffered varying degrees of
injuries. The aircraft was totally destroyed.
On August 31, 1978, the plaintiffs commenced
this action in this Court. There are 43 defendants.
Six are designated as John Doe I, John Doe II,
John Doe III, John Doe IV, John Doe V, and John
Doe VI.
The defendants can be divided into four groups.
There is first Her Majesty the Queen in right of
Canada. I will sometimes refer to that defendant
as the federal Crown, or the Crown. The next
twenty defendants are servants of the Crown. They
include the Minister of Transport. The other indi
viduals are senior or responsible employees of the
Department of Transport.
The next group of defendants is the Corporation
of the City of Cranbrook (hereinafter "Cran -
brook") and three of its employees.
Then comes the Boeing group. The company
itself is sued, along with seven of its senior
employees or officers. John Doe I, II and III,
following the practice of some United States
courts, have also been named as defendants (see
paragraphs 43-48). Of the Boeing group, only the
company and three of the individual defendants
have at this stage, objected to jurisdiction. I
assume that is because service has not been effect
ed on other individuals in that group.
Finally, there is the Rohr group. The company
itself and four of its senior personnel have been
named. In addition, John Doe IV, V, and VI are
designated as part of this group. Neither Rohr nor
the four named employees have brought motions in
respect of jurisdiction. It may be they had not, at
the time of this hearing, been served with notice of
the statement of claim.
I turn first to the claims asserted against the
Crown, and to the position taken, on these
motions, by that defendant.
The main claim is founded in tort, both in
negligence and in breach of statutory duties. The
specific allegations of negligence and of breach of
statutory duties are levelled against the twenty
Crown servants. The Crown is said to be vicarious
ly liable.
There is also an allegation of breach of contract
(see paragraph 86).
The federal law imposing liability in tort against
the Crown is found in the Crown Liability Act.'
Paragraph 3(1)(a) of that statute provides the
Crown "is liable in tort" in respect of a tort
committed by a servant of the Crown. If breach of
statutory duty is considered a separate tort from
that of negligence, and that seems to be the
English' and Canadian view, then it is embraced
by paragraph 3(1)(a).
Canadian Acceptance claims damages for the
value of the aircraft and for loss of profits in
respect of its rental. P.W.A. claims damages for
the cost of rescue, evacuation and clean-up, for the
3 R.S.C. 1970, c. C-38. The requirement of existing federal
law, to clothe this Court with jurisdiction, comes from the
Quebec North Shore and McNamara cases, to be referred to
later in these reasons.
See London Passenger Transport Board v. Upson (per Lord
Wright at pp. 168-169).
cost of a substitute aircraft, for loss of revenue and
for an increase in replacement cost. The total
damages claimed by the plaintiffs are $12,100,000.
In those circumstances this Court has exclusive
jurisdiction in respect of the claim against the
Crown. The jurisdiction of the county, district, or
superior courts of the provinces is excluded (see
subsection 7(1) and subsection 8(2) of the statute).
I turn next to the remaining defendants, as a
group.
The claims advanced against them are twofold:
negligence and breach of statutory duty. A claim
of breach of contract, as well, is asserted against
Cranbrook (paragraph 86).
I shall deal first with the negligence aspect.
The starting point, as to the applicable law, is
the two well-known Supreme Court of Canada
decisions: Quebec North Shore Paper Co. v.
Canadian Pacific Ltd. and McNamara Construc
tion (Western) Ltd. v. The Queen. 5
In the Quebec North Shore case, the claim was
between citizens and citizens for breach of con
tract. The plaintiffs sought to uphold jurisdiction
of this Court by virtue of section 23 of the Federal
Court Act 6 . The Supreme Court of Canada held
section 23 must be assessed initially under the
terms of section 101 of The British North America
Act, 1867. Laskin C.J. stated, at pages 1065-1066,
the requisites for finding jurisdiction in this Court:
It is also well to note that s. 101 does not speak of the
establishment of Courts in respect of matters within federal
legislative competence but of Courts "for the better administra
tion of the laws of Canada". The word "administration" is as
telling as the plural words "laws", and they carry, in my
opinion, the requirement that there be applicable and existing
5 I shall set out in an appendix to these reasons the citations
of the cases to which I shall refer. In the appendix I shall
include not only those cases, but all the decisions cited by
counsel to me. Since the date of the argument on these motions,
some of the cases relied on by counsel have been reversed in the
Federal Court of Appeal. Further, there have been recent
decisions, both by the Federal Court of Appeal and the
Supreme Court of Canada, which touch on some of the matters
here. Hence, the reasons for the appendix.
6 R.S.C. 1970 (2nd Supp.), c. 10.
federal law, whether under statute or regulation or common
law, as in the case of the Crown, upon which the jurisdiction of
the Federal Court can be exercised. Section 23 requires that the
claim for relief be one sought under such law.
In the McNamara case the federal Crown sued
several companies for damages in respect of
breach of a construction contract. Some of the
defendants issued third party claims against a
co-defendant and certain other companies. It was
held the Federal Court did not have jurisdiction in
respect of any of the matters sued upon. Laskin
C.J., at page 658, said:
Shortly put, the main issue in these appeals is whether the
Federal Court of Canada may be invested with jurisdiction over
a subject at the suit of the Crown in right of Canada which
seeks to enforce in that Court a claim for damages for breach
of contract. The basis for the conferring of any such jurisdic
tion must be found in s. 101 of the British North America Act
which, inter alia, confers upon Parliament legislative power to
establish courts "for the better administration of the laws of
Canada". In Quebec North Shore Paper Company v. Canadian
Pacific Limited ([1977] 2 S.C.R. infra), (a decision which
came after the judgments of the Federal Court of Appeal in the
present appeals), this Court held that the quoted provisions of s.
101, make it a prerequisite to the exercise of jurisdiction by the
Federal Court that there be existing and applicable federal law
which can be invoked to support any proceedings before it. It is
not enough that the Parliament of Canada have legislative
jurisdiction in respect of some matter which is the subject of
litigation in the Federal Court. As this Court indicated in the
Quebec North Shore Paper Company case, judicial jurisdiction
contemplated by s. 101 is not co-extensive with federal legisla
tive jurisdiction.
and at pages 659-660:
In the Quebec North Shore Paper Company case, this Court
observed, referring to this provision, that the Crown in right of
Canada in seeking to bring persons into the Exchequer Court as
defendants must have founded its action on some existing
federal law, whether statute or regulation or common law.
What must be decided in the present appeals, therefore, is
not whether the Crown's action is in respect of matters that are
within federal legislative jurisdiction but whether it is founded
on existing federal law. I do not think that s. 17(4), read
literally, is valid federal legislation under s. 101 of the British
North America Act in purporting to give jurisdiction to the
Federal Court to entertain any type of civil action simply
because the Crown in right of Canada asserts a claim as
plaintiff. The common law rule that the Crown may sue in any
Court having jurisdiction in the particular matter, developed in
unitary England, has no unlimited application to federal
Canada where legislative and executive powers are distributed
between the central and provincial levels of legislature and
government and where, moreover, there is a constitutional
limitation on the power of Parliament to establish Courts.
and again at pages 663-664:
I conclude, therefore, that the appellants' challenge to the
jurisdiction of the Federal Court must succeed and that their
appeals must, accordingly, be allowed with costs throughout.
The judgments of the Courts below should be set aside and the
statements of claim served on the appellants should be struck
out. In view of this conclusion, the consequential proceedings
between the co-defendants and the third party proceedings
must likewise fall, and it is unnecessary to deal with the issues
raised as to their validity or propriety. I would, however,
observe that if there had been jurisdiction in the Federal Court
there could be some likelihood of proceedings for contribution
or indemnity being similarly competent, at least between the
parties, in so far as the supporting federal law embraced the
issues arising therein.
There are a number of cases, in the Trial and
Appeal Divisions of this Court, in which the prin
ciples laid down by the Supreme Court of Canada
have been applied.'
A review of all those decisions leads me to the
conclusion there is no existing federal law, whether
statute or regulation or common law, dealing with
negligence, permitting these defendants, other
than the Crown, to be impleaded in this Court.
Counsel for the plaintiffs contended jurisdiction,
in respect of the twenty servants of the Crown, can
be found in paragraph 17(4)(b) of the Federal
Court Act.
17... .
(4) The Trial Division has concurrent original jurisdiction
(a) in proceedings of a civil nature in which the Crown or
the Attorney General of Canada claims relief; and
(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.
Associated Metals & Minerals Corp. v. The "Evie W"; The
"Capricorn" v. Antares Shipping Corp.; Hawker Industries
Ltd. v. Santa Maria Shipowning and Trading Co., S.A.;
Benson Bros. Shipbuilding Co. (1960) Ltd. v. Mark Fishing
Co. Ltd.; Western Caissons (Quebec) Ltd. v. McNamara Corp.
of Newfoundland Co. Ltd.; The Foundation Co. of Canada
Ltd. v. The Queen; United Nations v. Atlantic Seaways Corp.;
The Queen v. Rhine; The Queen v. Prytula; McGregor v. The
Queen; Haida Helicopters Ltd. v. Field Aviation Co. Ltd.;
Alda Enterprises Ltd. v. The Queen.
I have not attempted to record all the decisions in both
Divisions. I have omitted, as well, a number which deal particu
larly with "admiralty" jurisdiction.
I agree paragraph 17(4)(b) permits a servant of
the Crown to be sued in the Federal Court. But I
do not agree the paragraph can be said to be
existing federal law on which a claim in negli
gence, or otherwise, can be founded and enter
tained by this Court.
The former Exchequer Court Act 8 had no provi
sion similar to paragraph 17(4)(b). A plaintiff
could not, as I understand it, bring action against a
Crown servant in the Exchequer Court. Plaintiffs
sometimes felt constrained to bring two actions,
one in the Exchequer Court against the Crown,
and another against the servant in a provincial
court. The purpose of paragraph 17(4)(b) was, as I
see it, to do away with that anomaly.
I conclude that paragraph 17(4)(b) merely per
mits the impleading of a Crown servant. For juris
diction, existing federal law must be found
elsewhere.
Mahoney J. considered this point in two recent
cases: Tomossy v. Hammond and Green v. The
Queen. I quote from page 233 of the reasons in the
Tomossy case:
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 circum
stances. 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 canvassed by the
Federal Court of Appeal in Associated Metals & Minerals
Corporation v. The "Evie W" and it would be an exercise of
some leisure on my part either to recite or summarize that
analysis.
Mahoney J. refers to other decisions which came
to the same result. They are included in the appen
dix to these reasons. I have included as well two
inconsistent decisions: Desbiens v. The Queen
(before the McNamara case), and Attridge v. The
Queen (after the McNamara case).
I agree with the result reached by Mahoney J.
8 R.S.C. 1970, c. E-11.
I turn now to the claim, based on breach of
statutory duties, advanced against the twenty
Department of Transport Crown servants, and the
Cranbrook group of defendants.
The plaintiffs rely in their statement of claim,
for this head of federal law, on the Aeronautics
Act, and the Air Regulations. The defendants are
alleged, in particular, to have committed breach of
duties set out in sections 3 and 6 of the statute,
and sections 104, 305, 313 and 314 of the Regula
tions. Those provisions, it is said, create duties
owing, not just to the public, but to the plaintiffs
and others; breach of those duties entitles an
individual citizen, injured or aggrieved by the
default, to bring action; the Aeronautics Act and
the Air Regulations contain, therefore, the exist
ing federal law, required by the Quebec North
Shore and McNamara cases, to confer jurisdic
tion.
The question as to whether the Aeronautics Act
and the Regulations create duties enforceable by
individual persons, or public duties only, has been
canvassed in several cases. 9 All those decisions are
to the same effect. The Aeronautics Act and the
Regulations do not point to a litigable duty confer
ring a right of action on an individual citizen.
The particular portions of sections 3 and 6 of
the statute, and the particular portions of sections
104, 305, 313 and 314 of the Regulations, relied
on by the plaintiffs in their pleading, do not, in my
opinion, invest in the plaintiffs a cause of action
founded on existing federal law.
The plaintiffs assert, in the statement of claim,
breaches of statutory duties by the Boeing group
and the Rohr group. The cause of action is con
structed in this fashion. The members of those two
groups are said to have failed to comply with "the
spirit, letter, and intent" of a large number of
United States Federal Aviation Regulations
(FAR's). Paragraphs 28(g) and 30 to 48 have
reference to the Boeing group. Paragraphs 49 to
62 cover the Rohr group. Paragraph 87 asserts the
provisions of the FAR's became, by treaty, part of
9 Canadian Pacific Air Lines, Ltd. v. The Queen; McGregor
v. The Queen; Haida Helicopters Ltd. v. Field Aviation Co.
Ltd.; Millardair Ltd. v. The Queen.
the law of Canada. The last sentence of that
paragraph is as follows:
The plaintiffs say that the servants, employees and agents of
the defendants Boeing and Rohr were in breach of the statutory
duties contained in FAR's Parts 21, 25 and 33 and specifically
say that the servants, employees and agents of the defendants
Boeing and Rohr breached FAR 25.143, FAR 25.149, FAR
25.671, FAR 25.672, FAR 25.697, FAR 25.933, FAR 25.934,
FAR 25.1141, FAR 25.1309, FAR 25.1529, FAR 25.1581,
FAR 25.1585, and FAR 33.97.
The allegation that the FAR's are part of the
law of Canada is probably a mixed question of fact
and law. For the purposes of this motion I am
prepared to accept the statement as admitted and
true. But paragraph 87 does not set out any ma
terial facts said to constitute breach of the speci
fied FAR's. One cannot, in my view, resort to the
earlier paragraphs in the pleading, where the
FAR's are referred to. Those paragraphs, previ
ously noted by me (paragraphs 28(g), 30-62), are
not allegations of breach, by the individual Boeing
and Rohr defendants, of statutory duties. They are
allegations of negligence, in which the FAR's are
put forward as indicating the standards of- care
required in respect of the tort of negligence.
One cannot, merely by baldly asserting, in a
pleading, breach of certain Regulations said to be
Canadian federal law» 0 with nothing more,
automatically invoke or attract the jurisdiction of
the Court. Put another way, the deemed truth of
paragraph 87 cannot support jurisdiction. The plea
is deficient. I cannot see how jurisdiction can be
bestowed by such a plea—one barren of any facts
from which the question of jurisdiction or no can
be determined.
I go now to the claim of breach of contract
against Cranbrook. It is pleaded in paragraph 86.
Actually two contracts are alleged: One with the
Crown and another with Cranbrook. The terms of
the contracts are, in my view, very imprecisely
stated. They appear to be based, in some manner,
on the Aeronautics Act, the Air Regulations, and
certain fees charged to P.W.A. The details of
breach do not, as I read them, implicate Cran -
10 But I assume, of course, for the purposes of the motion, the
truth of the assertion.
brook, as a principal, in any way. But subpara-
graph 28(c) does refer to Cranbrook as an agent of
the Department of Transport.
I shall assume, nevertheless, a contract, and
breach of it. The contract is not, in my opinion,
founded on existing federal law. The Quebec
North Shore and McNamara principles apply.
There remains the final contention made on
behalf of the plaintiffs. It is as follows. The claims
against the Crown in negligence, in breach of
statutory duty, and in contract are properly in this
Court; indeed it is the only court in Canada with
jurisdiction to hear and determine those issues; the
negligence and breach of statutory duties by the
Crown servants, deemed true, impose vicarious
liability on the Crown; the claims against the
Cranbrook group, the Boeing group and the Rohr
group arise essentially out of the same occurrence;
there is here an admixture of federal law (the case
against the Crown) and provincial common law
(the case, at least, against the Canadian citizens);
the plaintiffs' claims "derive from a common
nucleus of operative fact" and are such that it
would "be expected to try them all in one judicial
proceeding";" this concept of pendent jurisdiction
should be adopted by this Court. Counsel for the
plaintiffs relied on Davie Shipbuilding Ltd. v. The
Queen, where Gibson J. broached a concept of
ancillary jurisdiction.
I shall first comment on the Davie Shipbuilding
case. There, a shipbuilder brought action for, in
effect, monies owing or withheld by the Crown, the
ship owner, in respect of a contract to build a
vessel. After delivery of the vessel the main engine
failed. The Crown counterclaimed for the amount
required to repair or replace the engine. In the
counterclaim proceedings, the plaintiff took third
party proceedings against the supplier of the
engine. The jurisdiction of this Court in respect of
'I United Mine Workers of America v. Gibbs, at 725. I am
indebted, for this reference and for his comments on the
concept of pendent jurisdiction, to an, as yet, unpublished paper
by Professor J. M. Evans, of Osgoode Hall Law School of York
University.
the plaintiff's claim was not disputed. Jurisdiction
in respect of the counterclaim and third party
proceeding was challenged. Gibson J. rejected the
challenge. 12 His conclusion was based primarily on
the grounds the counterclaim and third party
claim were within Canadian maritime law, a body
of federal law, and not within provincial law.
In respect of "ancillary jurisdiction", Gibson J.
said this, at page 240:
The subject matters of the counterclaim and third party issue
also may be matters within the jurisdiction of this Court on
another basis: The main action in these proceedings is within
the jurisdiction of this Court. As a consequence, because the
counterclaim and the third party issue are really ancillary to
the subject matter of the main action, this Court has jurisdic
tion. As was said by Chief Justice Laskin in McNamara
Construction (Western) Limited v. The Queen ([1977] 2 S.C.R.
654) at page 664:
I would, however, observe that if there had been jurisdiction
in the Federal Court there could be some likelihood of
proceedings for contribution or indemnity being similarly
competent, at least between the parties, in so far as the
supporting federal law embraced the issues arising therein.
He went on to rely on certain passages in The
'Sparrows Point".
I note that Gibson J. as a basis for sustaining
the impugned claims, used the word "may", when
he suggested ancillary jurisdiction. The "ancillary"
approach may indeed be a proper one, and permis
sible within the Quebec North Shore and
McNamara boundaries, where counterclaims and
third party proceedings are involved. A later deci
sion of the Appeal Division of this Court, The
Foundation Company of Canada Limited v. The
Queen, would suggest, however, the concept is
beyond the perimeter of the Supreme Court of
Canada decisions.
I now direct my comments to the invitation to
launch the concept of pendent jurisdiction. That
course is, in my view, not open. The Quebec North
Shore and McNamara cases make it clear the
claims sued upon, in the main action and against
12 See, for an opposite conclusion, in respect of a claim
similar to the counterclaim in the Davie case: The Queen v.
Canadian Vickers Ltd.
each party, must all be based on federal law, and
not on a combination of federal and non-federal
law, or an admixture. On the facts before me, the
test I have sometimes used (and it has been used
by others), ought to be employed here: 13
A sometimes useful test to apply in approaching the question
of jurisdiction is to see whether this Court would have jurisdic
tion if the claim advanced against one particular defendant
stood alone and was not joined in an action against other
defendants over whom there properly is jurisdiction. (See
McGregor v. The Queen [1977] 2 F.C. 520 at 522.)
When I pose that question here, the answer is
against the plaintiffs.
I do not say that test is necessarily always
applicable. Each case must depend on its own
facts.
Finally, in respect of pendent jurisdiction, I do
not think The `Sparrows Point" assists the plain
tiffs. I shall merely repeat what I said in the Aida
case:
I have considered The "Sparrows Point" ([1951] S.C.R.
396). Kellock J., in the course of upholding the admiralty
jurisdiction of the Exchequer Court over one particular defend
ant, observed that all claims in that particular case should be
disposed of in one action in one court "to avoid the scandal of
possible different results ..." (page 404). Rand J. concluded
the navigation of the vessel sued was the product of the joint
negligence of those on board her and of the other defendant. He
held them to be joint tortfeasors. At page 411 he said this:
Every consideration of convenience and justice would s76m to
require that such a single cause of action be dealt with under
a single field of law and in a single proceeding in which the
claimant may prosecute all remedies to which he is entitled;
any other course would defeat, so far, the purpose of the
statute. The claim is for damage done "by a ship"; the
remedies in personam are against persons responsible for the
act of the ship; and I interpret the language of the statute to
permit a joinder in an action properly brought against one
party of other participants in the joint wrong.
In my opinion, The `Sparrows Point" is distinguishable on
its particular facts, (See Anglophoto Limited v. The "Ikaros"
[1973] F.C. 483, where I attempted to distinguish it) and must
now be read in the light of the Quebec North Shore and
McNamara decisions.
13 Aida Enterprises Ltd. v. The Queen at p. 110. See also,
Anglophoto Ltd. v. The "Ikaros".
In summary: I conclude this Court has exclusive
jurisdiction in respect of the claims advanced
against the Crown; but it does not have jurisdic
tion in respect of the claims advanced against the
other defendants.
That conclusion creates an undesirable situa
tion. The plaintiffs, if they wish to continue
against all defendants, must pursue their remedy
in more than one court. Multiplication of proceed
ings raises the spectre of different results in differ
ent courts. The plaintiffs then face the question, in
respect of the defendants, other than the Crown:
the court of which province, or perhaps more than
one province? Some of the Crown servants reside
in Ontario and performed their duties there; others
reside in Edmonton, Vancouver, Calgary and
Cranbrook, and performed their duties in those
cities. The Cranbrook group resided, and commit
ted their alleged defaults, in British Columbia.
Can the American groups be impleaded, or a
remedy obtained, in the courts of any particular
province? There may well be other jurisdictional
questions. I do not know the solutions to any of
them. Nor do I venture any opinions or
suggestions.
The situation is lamentable. There are probably
many other persons who have claims arising out of
this air disaster. The jurisdictional perils must be,
to all those potential litigants, mystifying and
frightening.
But all these undesirable consequences may be a
fact of life in a federal system, such as we have in
Canada, with the division of legislative powers as
set out in The British North America Act, 1867.
Certain procedural matters remain. These issues
were argued on November 20, 1978. The Crown
servants brought on their motion to strike out, on
jurisdictional grounds and as against them, this
action. The Cranbrook group and certain defend
ants in the Boeing group applied, on the same day
and in order to bring proceedings to contest juris
diction, for leave to enter a conditional appear
ance. An order to that effect went by consent. At
the same time, and again with the consent of all
parties, I directed that the Cranbrook group, and
those in the Boeing group who were applying, had
leave to file, nunc pro tunc, motions attacking
jurisdiction. All parties wished to argue the whole
issue at the one hearing.
The two groups, named above, shall, therefore,
on or before April 16, 1979, file conditional
appearances and appropriate motions, re jurisdic
tion. The jurisdictional motions shall be dated, and
deemed to be filed, as of November 20, 1978. The
various documents can be sent to the other parties,
represented by counsel, by mail.
The action, as against the successful defendants,
will be dismissed. Those defendants are entitled to
costs from the plaintiffs.
The Crown will have until April 30, 1979 to file
a defence.
I shall not issue the formal pronouncement until
after April 16, 1979.
APPENDIX
Alda Enterprises Ltd. v. The Queen [1978] 2 F.C. 106 (T.D.—
Collier J.).
Anglophoto Ltd. v. The `Ferncliff' [1972] F.C. 1337 (T.D.—
Collier J.).
Anglophoto Ltd. v. The `Ikaros" [1973] F.C. 483 (T.D.—
Collier J.); Reversed [1974] F.C. 327 (F.C.A.).
Associated Metals & Minerals Corp. v. The "Evie W" [1978]
2 F.C. 710 (F.C.A.).
Attridge v. The Queen (1978) 86 D.L.R. (3d) 543 (T.D.—
Primrose D.J.).
Bensol Customs Brokers Ltd. v. Air Canada, A-264-78
(unreported—March 19, 1979) (F.C.A.) reversing [1979]
1 F.C. 167 (T.D.—Walsh J.).
Benson Bros. Shipbuilding Co. (1960) Ltd. v. Mark Fishing
Co. Ltd. (1979) 89 D.L.R. (3d) 527 (F.C.A.).
Canadian Pacific Air Lines, Ltd. v. The Queen [1979] 1 F.C.
39 (F.C.A.) affirming [1977] 1 F.C. 715.
The "Capricorn" v. Antares Shipping Corp. [1978] 2 F.C. 834
(F.C.A.).
Davie Shipbuilding Ltd. v. The Queen [1979] 2 F.C. 235
(T.D.—Gibson J.).
Desbiens v. The Queen [1974] 2 F.C. 20 (T.D.—Heald J.).
The Foundation Co. of Canada Ltd. v. The Queen [1979] 1
F.C. 877 (F.C.A.).
Green v. The Queen, T-5984-78 (unreported—March 1, 1979)
(T.D.—Mahoney J.).
Haida Helicopters Ltd. v. Field Aviation Co. Ltd. [1979] 1
F.C. 143 (T.D.—Mahoney J.).
Hawker Industries Ltd. v. Santa Maria Shipowning and Trad
ing Co., S.A. [1979] 1 F.C. 183 (F.C.A.).
Lewis Insulations Ltd. v. Goodram Bros. Ltd. (1979) 21 O.R.
(2d) 236 (Ont. H.C.—Hughes J.).
London Passenger Transport Board v. Upson [1949] A.C. 155
(H.L.).
McGregor v. The Queen [ 1977] 2 F.C. 520 (T.D.—Addy J.).
McNamara Construction (Western) Ltd. v. The Queen [1977]
2 S.C.R. 654 (S.C.C.).
Millardair Ltd. v. The Queen, T-3337-78 (unreported—March
6, 1979) (T.D.—Smith D.J.).
Parsons v. The Queen, T-463-77 (unreported—May 3, 1978)
(T.D.—Thurlow A.C.J.).
Quebec North Shore Paper Co. v. Canadian Pacific Ltd.
[1977] 2 S.C.R. 1054 (S.C.C.).
The Queen v. Canadian Vickers Ltd. [1978] 2 F.C. 675
(T.D.—Thurlow A.C.J.).
The Queen v. Prytula infra page 516 reversing [1978] 1 F.C.
198.
The Queen v. Rhine, A-405-77 (unreported—March 8, 1979)
(F.C.A.) reversing [1978] 1 F.C. 356.
The Queen v. Saskatchewan Wheat Pool [1978] 2 F.C. 470
(T.D.—Smith D.J.).
Sivaco Wire & Nail Co. v. Atlantic Lines & Navigation Co.,
Inc. [1978] 2 F.C. 720 (T.D.—Walsh J.) aff d S.C.C.
Sivaco Wire and Nail Co. v. Tropwood, A.G. (1979) 26
N.R. 313.
Sunday v. St. Lawrence Seaway Authority [1977] 2 F.C. 3
(T.D.—Marceau J.).
Tomossy v. Hammond [1979] 2 F.C. 232 (T.D.—Mahoney J.).
United Mine Workers of America v. Gibbs 383 U.S. 715
(1966) U.S.S.C.
United Nations v. Atlantic Seaways Corp., infra page 541
(F.C.A.).
Western Caissons (Quebec) Ltd. v. McNamara Corp. of New-
foundland Co. Ltd. [1979] 1 F.C. 509 (F.C.A.).
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.