T-2316-78
Thomas W. Wilcox (Plaintiff)
v.
Canadian Broadcasting Corporation (Defendant)
Trial Division, Thurlow A.C.J.—Halifax, April
27; Ottawa, May 17, 1979.
Jurisdiction — Prerogative writs — Declaration — Public
Service — Pensions — Contract of employment — Plaintiff
claims that arrangements be made for transfer of accumulated
pensionable service to CBC pension plan as term or condition
of contract and seeking declaration that he is entitled to
transfer that pensionable service — Claim for damages also
included — Whether or not claim for damages enforceable in
this Court — Whether or not the Court has jurisdiction under
s. 18 to issue declaration — Whether or not defendant a
'federal board, commission or other tribunal" — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 2, 18 —
Broadcasting Act, R.S.C. 1970, c. B-11, ss. 38(3), 40(1).
Canada Metal Co. Ltd. v. Canadian Broadcasting Corp.
(No. 2) (1975) 65 D.L.R. (3d) 231, agreed with.
APPLICATION.
COUNSEL:
A. L. Caldwell, Q.C. and M. H. Robertson for
plaintiff.
A. R. Pringle for defendant.
SOLICITORS:
Walker, Dunlop, Halifax, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
THURLOW A.C.J.: In this action the plaintiff, an
employee of the defendant for the past fifteen
years, seeks a declaration that, for the purpose of
calculating his pensionable service with the
defendant, he is entitled to count some seventeen
years of pensionable service which he had
accumulated before leaving the Royal Canadian
Mounted Police to take up his employment with
the defendant.
The claim is based on the contract of employ
ment. The plaintiff's case is that it was a term or
condition of the contract that arrangements were
to be made by the defendant for the transfer of his
accumulated pensionable service to the CBC pen
sion plan.
As pleaded, the claim included a claim for
damages for alleged breach of contract by failing
to arrange the transfer but this aspect of the claim
was disclaimed by counsel at the trial.
The defence, which was pleaded by the Deputy
Attorney General as if the action were an action
against the Crown, did not raise the question of
the jurisdiction of the Court to entertain the
action. However, at the request of the Court, the
matter was discussed by counsel in the course of
argument. The plaintiff's position was that the
defendant is a "federal board, commission or other
tribunal" within the meaning of that expression, as
defined in section 2 of the Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, and that the Court
has exclusive jurisdiction under section 18 to grant
the declaratory relief which the plaintiff seeks. No
reliance was placed on any other section of the
Act.
The position of counsel for the defendant was
that he had presumed that the action was one for
damages and that, on that basis, he had no serious
objection to the jurisdiction but that he was not
prepared to concede that there was jurisdiction
under section 18 or that the defendant was a
"federal board, commission or other tribunal"
within the meaning of section 2.
In view of the position taken by counsel for the
plaintiff as to the nature of the action, it is un
necessary to deal with what the situation would be
if the claim were one for damages. But even if
damages, were claimed, the claim for them would
not, as I see it, be enforceable in this Court. The
Crown may be sued in this Court for breach of its
contract whether made on its behalf by its Minis
ters or officers or by an agent, but this action is
not brought against the Crown and there is not so
much as an allegation that the plaintiffs contract
of employment was a contract with the Crown.
Under subsection 40(1) of the Broadcasting Act,
R.S.C. 1970, c. B-11, the defendant is, except as
provided in subsection 38(3), an agent of the
Crown for all purposes of the Act and exercises its
powers only as an agent of the Crown. But it
appears to me that the effect of the exception of
subsection 38(3) which provides that employees
employed under subsection 38(2) are not
employees of the Crown, that the plaintiff's con
tract of employment is a contract with the defend
ant on its own behalf and not on behalf of the
Crown.
In support of his submission that the Court has
jurisdiction under section 18 of the Federal Court
Act, counsel for the plaintiff relied principally on
the judgment of the Ontario Court of Appeal in
the City of Hamilton v. Hamilton Harbour
Commissioners'. He conceded that the judgment
of the same Court, though differently constituted,
in Canada Metal Co. Ltd. v. Canadian Broadcast
ing Corp. (No. 2) 2 is against his position but
submitted that the comments of the Court on the
point in that case were obiter dicta.
In the latter case, the Hamilton case was
referred to and distinguished in the following pas
sage from the judgment of MacKinnon J.A. (as he
then was) at pages 234-235:
Mr. Laskin argued that s. 18 of the Federal Court Act,
1970-71-72 (Can.), c. I [see now R.S.C. 1970, c. 10, (2nd
Supp.)], clearly grants to the Trial Division of the Federal
Court the exclusive jurisdiction "to issue an injunction ...
against any federal board, commission or tribunal". He then
turned to the definition of federal board, commission or other
tribunal under s. 2 of the Federal Court Act, which section
defines "federal board, commission or other tribunal" as
meaning:
... any body or any person or persons having, exercising or
purporting to exercise jurisdiction or powers conferred by or
under an Act of the Parliament of Canada, other than any
such body constituted or established by or under a law of a
province or any such person or persons appointed under or in
accordance with a law of a province or under section 96 of
The British North America Act, 1867;
He argued that the Canadian Broadcasting Corporation is a
body which exercises powers conferred by an Act of Parliament
and, therefore, by virtue of s. 18, only the Federal Court has
power to grant an injunction. He relied on the recent decision
of this Court in City of Hamilton v. Hamilton Harbour
Com'rs, [1972] 3 O.R. 61, 27 D.L.R. (3d) 385. In that case the
' [1972] 3 O.R. 61, (1972) 27 D.L.R. (3d) 385.
' (1975) 65 D.L.R. (3d) 231.
Court, after quoting the above-noted interpretation section,
held that the Hamilton Harbour Commissioners were a federal
tribunal and accordingly the Supreme Court of Ontario did not
have jurisdiction to make the declaratory order requested
against the commissioners. The legislation governing the
Hamilton Harbour Commissioners makes it clear that they
have extensive powers to make administrative orders, such as
licensing and regulating other people in the use of the harbour,
as well as power to impose penalties upon persons infringing on
their governing statute or their by-laws. This, in my view, is
completely different from the C.B.C., a corporate entity carry
ing on the business of broadcasting in this country with none of
the attributes of a federal board, commission or tribunal.
Indeed the C.B.C. is itself licensed and regulated by the
Canadian Radio-Television Commission, and the argument
would have more cogency if it were being made against an
attempted assumption of jurisdiction by a provincial superior
Court over the C.R.T.C. with relation to an injunction matter.
It should be noted further that s. 40(4) of the Broadcasting
Act, R.S.C. 1970, c. B- I 1, allows for any legal proceedings to
be brought against the C.B.C. in any Court that would have
jurisdiction if the corporation were not an agent of Her
Majesty.
Notwithstanding the submission of counsel, 1 do
not think this reasoning can be regarded as obiter
dicta. It appears to me to have been part of the
reasoning leading to the Court's conclusion that
the injunction granted by the High Court should
be upheld. But in any event the reasoning is in
point and is persuasive authority for the conclusion
that the defendant is, at least in respect of its
broadcasting activities, not a federal board, com
mission or other tribunal within the meaning of
section 2 or to which section 18 applies.
While I see no reason to doubt that the powers
referred to in the definition of "federal board,
commission or other tribunal" in section 2 are not
confined to powers that are required by law to be
exercised on a judicial or quasi-judicial basis, it
appears to me that the expression "jurisdiction or
powers" refers to jurisdiction or powers of a public
character in respect of the exercise of which proce
dures by prerogative writs or by injunction or
declaratory relief would formerly have been appro
priate ways of invoking the supervisory authority
of the superior courts. 1 do not think it includes the
private powers exercisable by an ordinary corpora
tion created under a federal statute which are
merely incidents of its legal personality or of the
business it is authorized to operate. Absurd and
very inconvenient results would flow from an inter
pretation that it does include such powers and it
does not appear to me that that was intended or
that it is necessary to so interpret the expression in
the context in which it is used.
It appears to me, as well, that if the powers of
the defendant under the Broadcasting Act in
respect of the defendant's broadcasting activities
are not powers of the kind embraced by the defini
tion, there is even less reason to conclude that the
power of the defendant to engage employees falls
within the meaning of the definition.
I am accordingly of the opinion that the Court
does not have jurisdiction under section 18 to
entertain the plaintiff's claim and, as the Court
has no general common law or equity jurisdiction
but has only such jurisdiction to administer federal
law as has been conferred on it by statute, there is,
as well, no jurisdiction to entertain an ordinary
proceeding between subject and subject for the
declaratory relief which the plaintiff seeks.
In view of this conclusion, I do not think I
should express any view on the merits of the case.
Rather, I think the merits should be left to be
dealt with by a court that has jurisdiction, unaf
fected by any comments by me on the material in
evidence.
The action will be dismissed without costs.
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.