T-1085-85
Josephine E. Marshall (Plaintiff)
v.
The Queen and Public Service Alliance of
Canada, Union of Public Service Commission
Employees, Component (Defendants)
Trial Division, Reed J.—Halifax, August 7;
Ottawa, November 19, 1985.
Federal Court jurisdiction — Trial Division — Former
public servant suing employer for illegal lay-off and union for
collusion with employer — Union moving to strike pleadings
as against it for want of jurisdiction — Arguing tort claim one
for provincial superior courts — Causes of action against
employer and union intertwined — "Laws of Canada" in
Constitution Act, 1867, s. 101 meaning federal statutory,
regulatory or common law — Sufficient for jurisdiction that
case determined to some material extent by federal law —
Contract and tort not solely provincial law matters — Inten
tion of Parliament in enacting Federal Court Act, s. 17(1) —
Cases holding no jurisdiction distinguished as ones where no
underlying y g federal law — Motion denied —Constitution Act,
1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No.
5] (as am. by Canada Act 1982, 1982, c. 11 (UK.), Schedule to
the Constitution Act, 1982, Item 1), s. 101 — Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 2, 17(1), 22(1),(2)(a).
Public service — Former public servant suing employer for
illegal lay-off and union for collusion — Union moving to
strike pleadings as against it for want of jurisdiction —
Arguing tort claim one for provincial superior courts —
Causes of action against employer and union intertwined —
Under Act, union having implied obligation to represent
employees for whom certified — Federal law to underpin
jurisdiction of Federal Court — Public Service Staff Relations
Act, R.S.C. 1970, c. P-35, ss. 40(1)(a)(ii), 90(1),(2), 91(1),(2) —
Public Service Employment Act, R.S.C. 1970, c. P-32.
The plaintiff's claim is against the Queen, her former
employer, and the Public Service union. The plaintiff says that
she was illegally declared surplus and laid off. The union is said
to have colluded with the employer's wrongful actions.
This is an application by the union to strike the pleadings as
against it for want of jurisdiction. It is submitted that, since the
cause of action lies in tort, jurisdiction is in the provincial
superior courts. The union's argument is that the cause of
action does not fall within "the Laws of Canada" in section 101
of the Constitution Act, 1867. The plaintiff submits that her
cause of action against the union is intimately bound up with
her claim against the Public Service Commission and that if
two trials were held there would be a duplication of costs and
findings.
Held, the motion should be dismissed.
Section 101 of the Constitution Act, 1867 provides that
Parliament may provide for the establishment of additional
courts for the better administration of the laws of Canada.
That wording has been held as encompassing only federal law,
whether under statute, regulation or common law. It includes
as well any body of law, such as admiralty law, which has been
recognized by Parliament. Bensol Customs Brokers Ltd. v. Air
Canada, [1979] 2 F.C. 575 (C.A.) is authority for the proposi
tion that, for the Federal Court to have jurisdiction, the claim
need not be based solely on federal law. In that case, Le Dain J.
recognized the inevitability that sometimes the rights and
obligations of parties will depend partly upon federal and partly
on provincial law. It was sufficient that the result would be
"determined to some material extent by federal law". It has
been held by the Supreme Court that contract and tort are not
to be deemed to be solely matters of provincial law.
For the purposes of this motion it is reasonable to hold that,
under the Public Service Staff Relations Act, there is an
implied obligation on the bargaining agent to properly and
fairly represent the employees for whom it is certified. There
was, accordingly, existing and applicable federal law to under
pin the jurisdiction of the Federal Court.
It was to be noted that, by subsection 17(1) of the Federal
Court Act, the Trial Division is given jurisdiction in all "cases"
where relief is claimed against the Crown. Had Parliament
intended to narrow the jurisdictional scope, the word "claims"
would have been used. Furthermore, it was unlikely that Parlia
ment would have intended to disadvantage persons in plaintiff's
position by requiring them to split a unified cause of action and
to bring part in Federal Court and part in a provincial superior
court. Federal Court decisions which appear to have gone the
other way are to be distinguished on their facts. If not distin
guishable, the conclusion reached therein could not be agreed
with. In none of those cases was subsection 17(1) subjected to a
detailed consideration. For those reasons, this Court was not
bound by the decision of the Court of Appeal in Lubicon. The
reasoning of the Supreme Court in the Sparrows Point case,
although related to the admiralty jurisdiction of the Exchequer
Court, was applicable to the interpretation of subsection 17(1).
The cases relied upon in argument by the union were to be
distinguished as ones where there was no underlying federal
law.
CASES JUDICIALLY CONSIDERED
APPLIED:
The King v. Hume and Consolidated Distilleries Ltd.
(Consolidated Exporters Corp., Ltd., Third Party),
[1930] S.C.R. 531; Quebec North Shore Paper Co. et al.
v. Canadian Pacific Ltd. et al., [1977] 2 S.C.R. 1054;
Rhine v. The Queen; Prytula v. The Queen, [1980] 2
S.C.R. 442; Bensol Customs Brokers Ltd. v. Air Canada,
[1979] 2 F.C. 575 (C.A.); Canadian Merchant Service
Guild v. Gagnon et al., [1984] 1 S.C.R. 509; Sparrows
Point v. Greater Vancouver Water District, [1951]
S.C.R. 396.
DISTINGUISHED:
Pacific Western Airlines Ltd. v. R., [1980] 1 F.C. 86
(C.A.); R. v. Thomas Fuller Construction Co. (1958)
Ltd. et al., [1980] 1 S.C.R. 695; Anglophoto Ltd. v. The
"Ikaros", [1973] F.C. 483 (T.D.); Desbiens v, The
Queen, [1974] 2 F.C. 20 (T.D.); Sunday v. St. Lawrence
Seaway Authority, [1977] 2 F.C. 3 (T.D.); Lubicon Lake
Band (The) v. R. (1981), 13 D.L.R. (4th) 159 (F.C.A.);
affg. [1981] 2 F.C. 317; (1980), 117 D.L.R. (3d) 247
(T.D.); Davie Shipbuilding Ltd. v. R., [1979] 2 F.C. 235;
(1978), 90 D.L.R. (3d) 661 (T.D.); Nichols v. R., [1980]
1 F.C. 646 (T.D.); Union Oil Co. of Canada Ltd. v. The
Queen, [1974] 2 F.C. 452 (T.D.).
CONSIDERED:
Tropwood A.G. et al. v. Sivaco Wire & Nail Co. et al.,
[1979] 2 S.C.R. 157; Antares Shipping Corporation v.
The Ship "Capricorn" et al., [1980] 1 S.C.R. 553.
REFERRED TO:
McNamara Construction (Western) Ltd. et al. v. The
Queen, [1977] 2 S.C.R. 654.
COUNSEL:
L. Labelle for plaintiff.
M. Wright, Q.C. for defendants.
SOLICITORS:
Anderson, Huestis & Jones, Dartmouth,
Nova Scotia, for plaintiff.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for defendants.
The following are the reasons for order ren
dered in English by
REED J.: This is an application brought by one
of the defendants, the Public Service Alliance of
Canada, to have the pleadings struck out as
against it on the ground that this Court has no
jurisdiction.
The action brought by the plaintiff is against the
defendants, Her Majesty the Queen (the employ
er) and the Public Service Alliance (the Union). It
complains of a series of decisions, actions and
errors which led to the plaintiff losing her position
at the Department of National Defence in 1978
and to her being declared surplus and laid off from
the Language Training Branch in 1979. Specifical
ly, she complains that her surplus notice and lay
off were illegal and void; that she was wrongfully
denied administrative priority status in May 1979
and was thus prevented from continuing on a term
basis at the Department of National Defence; that
she was not referred to positions which became
availabe and not allowed to appeal an appoint
ment. It is alleged that the Union, the Public
Service Alliance, colluded with the employer, Her
Majesty the Queen as represented by the Public
Service Commission, in committing these alleged
wrongful actions.
The defendant, the Public Service Alliance,
argues that as against it the plaintiff must proceed
in the provincial superior courts because the plain
tiff's action arises under provincial law (tort law).
It is argued that the cause of action is not encom
passed by the phrase "the Laws of Canada" in
section 101 of the Constitution Act, 1867 [30
& 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II,
No. 5] (as am. by Canada Act 1982, 1982, c. 11
(U.K.), Schedule to the Constitution Act, 1982,
Item 1)], as that phrase has been defined in the
jurisprudence.
The plaintiff argues that her cause of action
against the Public Service Alliance is intimately
bound up with her claim against the Public Service
Commission; that it is not a different cause of
action; that two trials would create duplication and
costs; they would necessitate not merely a duplica
tion of proceedings but also a duplication of find
ings; they wtiuld entail a complete rehearing of the
issues; that her claim against the defendant, the
Public Service Alliance, is founded on, and inti
mately connected with the claim against the
defendant, the Public Service Commission.
It is common ground that the Public Service
Alliance is neither the Crown, nor an agent, officer
or servant of the Crown.
In order for this Court to have jurisdiction two
requirements must be satisfied. The dispute must
be within the constitutional parameters of section
101 of the Constitution Act, 1867,' and it must be
one over which this Court has statutory jurisdic
tion pursuant to a statute of the Parliament of
Canada.
Constitutional Jurisdiction
Section 101 of the Constitution Act, 1867
provides:
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.
While there may at one time have been some
debate as to whether "the Laws of Canada" in this
section encompassed both federal and provincial
' Our courts have not, at least as yet, adopted concepts
comparable to those of ancillary and pendent jurisdiction which
were developed in the United States by the courts of that
country to protect litigants from the inefficiencies and costs
involved in having to split actions between a federal statutory
court and state courts of general jurisdiction. See Hogg, Con
stitutional Law of Canada (2nd ed., 1985) pp. 146-148. Dif
ficulties arising in cases of mixed federal and provincial juris
diction are thus likely to remain until Parliament either
withdraws jurisdiction from the Federal Court as suggested by
Mr. Justice Pigeon in the Fuller case (infra, at p. 713), or
enacts legislation providing for incorporation of provincial law
into federal law, as suggested by Professor J. M. Evans in
Comments on Legislation and Judicial Decisions: Federal
Jurisdiction—A Lamentable Situation (1981), 59 Can. Bar
Rev. 124, at p. 151, and Professor Scott in Canadian Federal
Courts and the Constitutional Limits of their Jurisdiction
(1982), 27 McGill L.J. 137.
laws (i.e.: the wording being interpreted as
describing "Laws in force in Canada"), it has been
clear since at least The King v. Hume and Con
solidated Distilleries Ltd. (Consolidated Export
ers Corp., Ltd., Third Party), [1930] S.C.R. 531,
that the wording encompasses only federal law. In
1977, the Supreme Court further elaborated the
requirements initially set out in the Consolidated
Distilleries case. In Quebec North Shore Paper
Co. et al. v. Canadian Pacific Ltd. et al., [1977] 2
S.C.R. 1054, at pages 1065-1066, the Supreme
Court held that section 101 required:
... that there be applicable and existing 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. ... 2 [Underlining added.]
To a similar effect was the decision of the same
year in McNamara Construction (Western) Ltd. et
al. v. The Queen, [1977] 2 S.C.R. 654, followed by
Pacific Western Airlines Ltd. v. R., [1980] 1 F.C.
86 (C.A.) and R. v. Thomas Fuller Construction
Co. (1958) Ltd. et al., [1980] 1 S.C.R. 695. (These
last two are discussed further at pages 450 and
following, infra.)
I note that the requirement of applicable and
existing federal law, as articulated by Chief Jus
tice Laskin on behalf of the Court did not equate
"laws of Canada" with federal statutory law. Such
an interpretation was not made in the Quebec
North Shore decision or in any of the several
subsequent decisions in which the Chief Justice
spoke for the Court on this matter. 3 Indeed he
may have had in mind the argument that had it
been intended to limit the jurisdiction of any court
that might be established under section 101 in that
way the section would have used a more restrictive
wording such as the "statutes of the Parliament of
2 It has been noted that "the standard of `applicable and
existing federal law' has proved far easier to state than to
apply" see: Professors John B. Laskin and Robert J. Sharpe,
Constricting Federal Court jurisdiction: A comment on Fuller
Construction (1980), 30 U. of T.L.J. 283, at pp. 284-285.
3 McNamara Construction (Western) Ltd. et al. v. The
Queen, [1977] 2 S.C.R. 654; Tropwood A.G. et al. v. Sivaco
Wire & Nail Co. et al., [1979] 2 S.C.R. 157; Rhine v. The
Queen, [1980] 2 S.C.R. 442.
Canada", or "legislation of ' or "pursuant to an
Act of the Parliament of Canada".
In the Quebec North Shore case the plaintiff, (a
subject and not an emanation of the Crown) sued
the defendant (a subject and not an emanation of
the Crown) for a breach of contract. The only
connection with federal jurisdiction was the fact
that the contract was for the construction of a
marine terminal. The subject-matters "Navigation
and Shipping" and "Works and Undertakings con
necting the Province with any other..." are sub
jects with respect to which Parliament is entitled
to legislate, pursuant to subsection 91(10) and
paragraph 92(10)(a) of the Constitution Act,
1867, respectively. Extraprovincial undertakings
(of which the marine terminal would be one) are,
however, in the absence of governing federal legis
lation subject to provincial laws of general applica
tion. And, such provincial laws apply, not because
they have been incorporated by reference into
federal law, nor because they are tolerated as part
thereof, but because they apply in their own right,
as provincial law, to the extraprovincial work or
undertaking. 4 Thus Chief Justice Laskin wrote, at
page 1065:
It must be remembered that when provincial law is applied to
disputes involving persons or corporations engaged in enter
prises which are within federal competence it applies on the
basis of its independent validity ... [Underlining added.]
The issue was next raised in Tropwood A.G. et
al. v. Sivaco Wire & Nail Co. et al., [1979] 2
S.C.R. 157 where the issue was whether there was
operative federal law to enable the Federal Court
to entertain an action framed in both contract and
tort arising out of damage which occurred to cargo
during a voyage to Montreal. The Chief Justice
characterized the inquiry, at page 161 as:
... whether ... there was a body of federal law, be it statute,
common law or other, competently enacted or recognized by
° This is not true with respect to provincial laws which might
purport to regulate the vital or essential part of the
undertaking.
Parliament, upon which the jurisdiction [of the Federal Court]
could be exercised .... [Underlining added.]
Subsection 22(1) of the Federal Court Act
[R.S.C. 1970 (2nd Supp.), c. 10] provides:
22. (1) The Trial Divison has concurrent original jurisdiction
as well between subject and subject 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.
The Chief Justice concluded that section 2 of the
Federal Court Act, which defines "Canadian
maritime law" by reference to the Admiralty Act
and the previous jurisdiction of the Exchequer
Court, introduced a body of maritime law into
Canada on which the Court's jurisdiction could
operate.
Similarly in Antares Shipping Corporation v.
The Ship "Capricorn" et al., [1980] 1 S.C.R. 553,
it was held that paragraph 22(2)(a) of the Federal
Court Act which provides that the Trial Division
has jurisdiction with respect to "any claim as to
title, possession or ownership of a ship" when read
in the light of the Tropwood decision constituted
existing federal statutory law coming within the
class of subject of navigation and shipping and
expressly designed to confer jurisdiction on the
Federal Court for claims of the kind advanced by
the appellant (see pages 559-560). The appellant's
claim was for the enforcement of a contract for
sale of the respondent ship.
In Bensol Customs Brokers Ltd. v. Air Canada,
[1979] 2 F.C. 575 (C.A.), Mr. Justice Le Dain, at
pages 581 and following, made certain observa
tions with regard to "the relationship that must
exist between the applicable federal law and the
cause of action in order for the Court to have
jurisdiction":
There is nothing in this language [ie: in the Quebec North
Shore decision] to suggest that the claim must be based solely
on federal law in order to meet the jurisdictional requirement of
section 101 of the B.N.A. Act, and I do not think we should
apply a stricter requirement to the words "made under" or
"sought under" in section 23 of the Federal Court Act. There
will inevitably be claims in which the rights and obligations of
the parties will be determined partly by federal law and partly
by provincial law. It should be sufficient in my opinion if the
rights and obligations of the parties are to be determined to
some material extent by federal law. It should not be necessary
that the cause of action be one that is created by federal law so
long as it is one affected by it.
Lastly, the issue was again addressed by the
Supreme Court in Rhine v. The Queen; Prytula v.
The Queen, [1980] 2 S.C.R. 442. In the first-men
tioned case the Crown sought to recover from the
appellant monies advanced under the Prairie
Grain Advance Payments Act [R.S.C. 1970, c.
P-18]. In the second the Crown sought to recover
an amount owed on a loan made pursuant to the
Canada Student Loans Act [R.S.C. 1970, c. S - 17].
Chief Justice Laskin, at pages 446-447, stated:
... it is contended that there is simply the enforcement of an
ordinary contractual obligation which owes nothing to federal
law other than its origin in the statutory authorization to make
the advance.
True, there is an undertaking or a contractual consequence of
the application of the Act [Prairie Grain Advancement Act]
but that does not mean that the Act is left behind once the
undertaking or contract is made. At every turn, the Act has its
impact on the undertaking so as to make it proper to say that
there is here existing and valid federal law to govern the
transaction which became the subject of litigation in the Feder
al Court. It should hardly be necessary to add that "contract"
or other legal institutions, such as "tort" cannot be invariably
attributed to sole provincial legislative regulation or be deemed
to be, as common law, solely matters of provincial law.
In the McNamara case, there was no such statutory shelter
within which the transactions there were contained as there is
in the present case.
These remarks, like those of Mr. Justice Le
Dain in the Bensol case, indicate that where there
is both an element of federal statutory regulation
and matters of common law in a case, the whole
does not necessarily become a matter for the
courts of the province.
In the present case, the Public Service Alliance
argues that the plaintiffs claim as against it is
founded in tort and therefore it is a matter of
provincial law. The action as against the Public
Service Alliance is based on its alleged recommen
dation to the employer that she be declared surplus
and laid off (see paragraph 21 of the amended
statement of claim); its failure to facilitate the
plaintiffs reassignment despite knowledge of
vacant term positions (paragraph 29); its refusal to
grieve her surplus and lay-off notices (allegedly
preferring to protect other individuals engaged on
a term basis) (paragraph 30) and its general
breach of the obligation of fair representation. The
illegalities of which she complains and thus her
whole cause of action cannot be said to be other
wise than intimately connected to the Public Ser
vice Employment Act [R.S.C. 1970, c. P-32] and
Regulations and the Public Service Staff Rela
tions Act ("P.S.S.R.A.") [R.S.C. 1970, c. P-35].
Under subparagraph 40(1)(a)(ii) of the
P.S.S.R.A. the bargaining agent (in this case
P.S.A.C.) has the exclusive right to represent an
employee in respect of a grievance relating to the
interpretation and application of the collective
agreement. It is true that under subsections 90(1)
and 91(1) the employee has the right to present
her own grievance and eventually refer it to
adjudication, but under subsections 90(2) and
91(2) as soon as there is any question of the
interpretation and application of the collective
agreement no action can be taken without the
cooperation of tlfe bargaining agent. For the pur
poses of the present motion to strike it is reason
able to hold that there is under the Public Service
Staff Relations Act ("P.S.S.R.A.") an implied
obligation on the certified bargaining agent to
properly and fairly represent the interests of the
employees it is certified to represent. 5 Even if it is
accurate to characterize the duty of fair represen
tation as one arising at common law, in my view it
must be treated as being both provincial and feder
al common law applicable to the respective fields
of provincial and federal labour relations jurisdic
tion.
5 I Canadian Merchant Service Guild v. Gagnon et al.,
[1984] 1 S.C.R. 509, Mr. Justice Chouinard, speaking for the
Court, found the following principle as emerging from case law
and academic opinion, at p. 527:
1. The exclusive power conferred on a union to act as
spokesman for the employees in a bargaining unit entails a
(Continued on next page)
Thus, in the present case, to use a phrase found
at page 449 of the Rhine/Prytula decision, "there
is here existing and applicable federal law to
underpin the jurisdiction of the Federal Court."
Statutory Jurisdiction
Subsection 17 (1) of the Federal Court Act
provides:
17. (1) The Trial Division has original jurisdiction in all
cases where relief is claimed against the Crown and, except
where otherwise provided, the Trial Division has exclusive
original jurisdiction in all such cases. [Underlining added.]
This subsection is a general or umbrella grant of
jurisdiction. The following subsections of section
17 either describe qualifications or special aspects
of the general grant given in subsection 17(1).
The question, then, is whether subsection 17(1)
confers jurisdiction on the Federal Court so as to
allow a plaintiff to sue both the Crown and a
subject in that Court when the cause of action
against both of them is one that is as intertwined
as is the case here (eg: with respect to the alleged
collusion). On a plain reading of the section, such
jurisdiction would appear to have been intended
since the grant given is over "cases where relief is
claimed against the Crown". The jurisdiction is
not merely over "claims against the Crown", as a
narrower interpretation would seem to require.
That Parliament intended the broader scope not
only would seem to follow from the literal wording
of the section but it is also a reasonable inference
from the fact that certain claims against the feder
al Crown are to be brought exclusively in the
Federal Court. It seems unlikely that Parliament
would have intended to disadvantage persons, in
the position of the plaintiff, by requiring them to
split a unified cause of action and bring part of it
in the Federal Court and part in the superior
courts of the provinces. The effect of such an
intention would be to subject a plaintiff, in a
position similar to the plaintiff in this case, to
different and possibly contradictory findings in
(Continued from previous page)
corresponding obligation on the union to fairly represent all
employees comprised in the unit.
different courts, and to place jurisdictional and
cost impediments in the path of such persons if
they sue the federal Crown. I do not think that
such was the intention of Parliament. While there
is no doubt that the jurisdiction of statutory courts
are strictly interpreted in that they are not courts
of inherent jurisdiction, it is well to remember that
section 11 of the Interpretation Act, R.S.C. 1970,
c. I-23 requires that all federal statutes be inter
preted with such a construction as best to ensure
the attainment of their purpose. This would seem
to require that subsection 17(1) be interpreted as
conferring on the Federal Court jurisdiction over
the whole case, in a situation such as the present,
where the plaintiff's claim is against both the
employer (the Crown), and the Union (the
P.S.A.).
Also, I would note that the scope which in my
view subsection 17(1) bears would not accord the
Federal Court any jurisdiction over cases between
subject and subject, solely on the ground that a
federal claim might potentially be present but is
not being pursued. Without a claim being made
directly against the Crown there would be no
foundation for Federal Court jurisdiction, exclu
sive or concurrent, pursuant to subsection 17(1).
But when such a claim against the federal Crown
is made, in my view, subsection 17 (1) is broadly
enough drafted to allow a co-defendant, in a case
such as the present, to be sued along with the
Crown.
I am aware that there are other decisions of this
Court which seem to have taken a contrary view:
Anglophoto Ltd. v. The "Ikaros", [1973] F.C. 483
(T.D.), at page 498 (reversed on another point
[1974] 1 F.C. 327 (C.A.)); Desbiens v. The Queen,
[1974] 2 F.C. 20 (T.D.), at page 22; Sunday v. St.
Lawrence Seaway Authority, [1977] 2 F.C. 3
(T.D.), at page 9; Lubicon Lake Band (The) v. R.,
[1981] 2 F.C. 317; (1980), 117 D.L.R. (3d) 247
(T.D.) (although a contrary view is found in Davie
Shipbuilding Ltd. v. R., [1979] 2 F.C. 235;
(1978), 90 D.L.R. (3d) 661 (T.D.)). If the first-
mentioned decisions are applicable to the case at
bar then, with respect, I differ with the conclusion
reached therein. My reason for thinking they may
not be applicable is the nature of the cases to
which they relate. In the present case the claim
against the Crown (employer) and the Public Ser
vice Alliance (Union) are so intertwined that find
ings of fact with respect to one defendant are
intimately bound up with those that would have to
be made with respect to the other.
In my view this would seem to distinguish them
from the present case. In addition, however, I do
find in any of the cases noted above a detailed
consideration of the wording of subsection 17(1),
although there are some general references thereto
in the Lubicon case. In general the decisions seem
to have focussed on the more specific subsections
following subsection 17(1), rather than as the gen
eral grant of jurisdiction found in subsection
17(1).
A decision by the Court of Appeal would of
course be binding. An appeal from the Lubicon
decision noted above was dismissed by the Court
of Appeal, without reasons being given: (1981), 13
D.L.R. (4th) 159. I have not considered this a
binding precedent for the purposes of the present
case because as noted above, I am not convinced
that the nature of the cases as between the
co-defendants in that case and in this are suf
ficiently similar to warrant such a conclusion.
Secondly, and less significantly perhaps there is no
indication that a detailed argument on the basis of
the wording of subsection 17(1) was put to the
Court.
I note that the Supreme Court dealt with a
somewhat similar issue in Sparrows Point v.
Greater Vancouver Water District, [1951] S.C.R.
396. The issue was whether the Exchequer Court's
jurisdiction over maritime law extended to allow
resolution of a claim against a Harbour Commis
sion for the negligent operation of a bridge. Mr.
Justice Rand at page 411 wrote:
Every consideration of convenience and justice would seem 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.
And Mr. Justice Kellock, at page 402:
If the claim against the Harbours Board cannot be entertained
in the Admiralty Court, the result is that the Water District
ought to have brought two actions, the one on the Admiralty
side of the Exchequer Court against the ship, and the other
elsewhere.
In my opinion, the statute, which prima facie confers juris
diction upon the Admiralty Court in a case of this kind, should
be construed so as to affirm the jurisdiction, at least in a case
where the ship is a party. There is no authority to the contrary
to which we have been referred or which I have been able to
find, and every consideration of convenience requires a con
struction in favour of the existence of such a jurisdiction.
While this case involved the admiralty jurisdic
tion of the Court, and different statutory provi
sions from those that are relevant here, I find the
approach adopted by the Supreme Court in that
case instructive and pertinent to the approach to
be taken in interpreting subsection 17(1).
Defendant's Argument
Last of all I must deal with the cases (besides
Quebec North Shore and McNamara referred to
above) cited to me by counsel for the Public
Service Alliance: Nichols v. R., [1980] 1 F.C. 646
(T.D.); Pacific Western Airlines Ltd. v. R., [ 1980]
1 F.C. 86 (C.A.); Union Oil Co. of Canada Ltd. v.
The Queen, [1974] 2 F.C. 452 (T.D.); R. v.
Thomas Fuller Construction Co. (1958) Ltd. et
al., [1980] 1 S.C.R. 695.
The Nichols case dealt with a penitentiary
inmate suing a dentist in tort for negligence in the
performance of dental surgery. Mr. Justice
Mahoney found that there was no existing and
applicable federal law upon which a claim against
the defendant could be founded. The Pacific
Western Airlines case dealt with a claim against
the federal Crown and forty-two other defendants
arising out of an airplane accident at Cranbrook
B.C. The Federal Court of Appeal held that the
action was founded in tort and contract and there
did "not exist any federal law governing the liabili
ty of the respondents" [page 89]. The Union Oil
case dealt with a claim by the plaintiff in contract
for reimbursement for excise taxes owed to the
federal Crown which the plaintiff had not initially
included in the selling price to the defendant pur
chaser. The plaintiff's claim was also against the
federal Crown, as defendant, for improper assess
ment of the excise taxes. Mr. Justice Collier held
(at page 457) that the claim against the first
defendant was essentially based in contract and
concluded that the Federal Court Act did not
confer jurisdiction over such a claim. In the Fuller
case the action was one by the Crown as defendant
seeking to add as a third party a construction
company from whom it sought indemnity as a
result of the main claim in negligence against it.
Mr. Justice Pigeon in speaking for the Court found
(at page 711):
... the objection to the jurisdiction is not founded on the
construction of the statute, but arises out of the constitutional
restriction of Parliament's power which, as concerns the canadi-
an judicature, restricts it to the establishmnet of "Courts for
the better Administration of the Laws of Canada". In the
present case the laws on which the third party notice is founded
are not those of Canada but those of the Province of Ontario.
All the cases cited by the Public Service
Alliance deal with situations where there was no
underlying federal law as required by section 101
of the Constitution Act, 1867. Since this is not the
situation in the present case those decisions do not
apply.
Conclusion
There being sufficient constitutional jurisdiction
as required by section 101 of the Constitution Act,
1867 to found an action against the defendant the
Public Service Alliance and there being statutory
jurisdiction pursuant to subsection 17(1) of the
Federal Court Act the motion of the Public Ser
vice Alliance seeking to be struck out as a defend
ant in this action is dismissed.
ORDER
THIS COURT ORDERS that the motion brought
by the defendant, the Public Service Alliance of
Canada, seeking to be struck out as a defendant in
this action is dismissed.
AND IT IS FURTHER ORDERED that the costs of
this application shall be the costs in the cause.
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.