A-245-87
College of Physicians and Surgeons of British
Columbia (Appellant) (Defendant)
v.
Dr. Kenneth D. Varnam (Respondent) (Plaintiff)
and
Minister of National Health and Welfare, Direc
tor of the Bureau of Dangerous Drugs of the
Department of National Health and Welfare
(Respondents) (Defendants)
INDEXED AS: VARNAM v. CANADA (MINISTER OF NATIONAL
HEALTH AND WELFARE)
Court of Appeal, Mahoney, Hugessen and Desjar-
dins IL—Vancouver, February 8; Ottawa, Febru-
ary 22, 1988.
Federal Court jurisdiction — Trial Division — Appeal from
trial judgment refusing to strike statement of claim as against
College of Physicians and Surgeons — Appeal allowed —
Interpretation of Federal Court Act, s. 17(1) in Marshall v.
The Queen overruled — "Intertwining" of cause of action too
vague a standard upon which to found exclusive Federal Court
jurisdiction — No "intertwining" giving jurisdiction in absence
of statutory grant Every sort of relief within Court's
jurisdiction under s. 17(1), but only against Federal Crown.
Criminal justice Narcotics — Appeal from trial judg
ment holding Narcotic Control Regulations, s. 58, requiring
Minister to act only "after consultation with" College of
Physicians and Surgeons sufficient to give Court jurisdiction
over College — Consultation requirement in adequate basis
for jurisdiction — Whether provincial licensing authorities
playing decisive role in Minister's action — Appeal allowed.
This was an appeal from the Trial Judge's finding that the
Federal Court had jurisdiction over the action against the
College of Physicians and Surgeons because the claim against
the College was "intertwined" with that against the Crown.
The plaintiff, a physician, was seeking a declaration that the
Minister of National Health and Welfare had acted illegally in
revoking his authorization to prescribe methadone and/or a
prerogative writ to set aside such revocation. He alleged that
the Minister acted upon negligent and false representations
made by the College and that the College conspired with the
Minister to intentionally interfere with his ability to carry on
his profession. The Trial Judge held that the requirement in
section 58 of the Narcotic Control Regulations that the Minis
ter could only act "after consultation with" the College was
enough to give the plaintiff's claim against the College the
necessary foundation in federal law.
Held, the appeal should be allowed.
The Court lacked jurisdiction over the plaintiffs claim
against the College. A mere consultation, as is required by
section 58, was far too thin a thread on which to hang the
jurisdiction of the Court. However, the Trial Judge did not err
in refusing to dismiss the action on this basis at such a
preliminary stage because, in light of sections 61 and 62 of the
Regulations, which appear to give provincial licensing authori
ties a conclusive say as to when a section 58 notice should be
revoked, it was possible that the College played a decisive role
in the Minister's action.
The Trial Judge relied upon her own interpretation of sub
section 17(1) of the Federal Court Act in Marshall v. The
Queen, wherein she held that subsection 17(1) gave the Court
jurisdiction over the whole case when a claim was made against
the Crown and a subject if the cause of action was intertwined.
That interpretation was wrong. The concept of "intertwining"
was too vague and elastic a standard upon which to found
exclusive jurisdiction in the Federal Court. The public interest
requires that exclusive Federal Court jurisdiction not be a
matter for guesswork. No degree of intertwining could be great
enough to create jurisdiction where it is not granted by the
statute, just as none could be small enough to remove jurisdic
tion where the statute gives it.
The Marshall interpretation focused on the use of "cases" in
subsection 17(1), which was interpreted as "actions" or
"causes". The use of "cas" in the French text does not support
that interpretation. The focus of subsection 17(1) is "relief',
which is defined to include every species of relief. Thus, relief
of every sort against the Federal Crown falls within the exclu
sive jurisdiction of the Federal Court, but relief against persons
other than the Federal Crown is not within the contemplation
of the text. This interpretation is in consonance with the rest of
the Act, where the Court's jurisdiction over persons other than
the Crown is specifically set out. Finally, the Marshall inter
pretation of subsection 17(1) was contrary to the consistent
approach taken by the judges of the Federal Court since its
creation. Although it was regrettable that a litigant might be
required to sue in two courts, the Court must not extend its
jurisdiction beyond its statutory limits simply for the sake of
convenience.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Criminal Code, R.S.C. 1970, c. C-34.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 2,
17(1), 20, 22, 23, 25.
Narcotic Control Regulations, C.R.C., c. 1041, ss. 53,
58, 59, 61, 62.
Parole Act, R.S.C. 1970, c. P-2.
Penitentiary Act, R.S.C. 1970, c. P-6.
CASES JUDICIALLY CONSIDERED
APPLIED:
Roberts v. Canada, [1987] 2 F.C. 535 (C.A.); Rasmuss-
en v. Breau, [1986] 2 F.C. 500 (C.A.).
DISTINGUISHED:
Oagv. Canada, [1987] 2 F.C. 511 (C.A.).
REVERSED:
Varnam v. Canada (Minister of National Health and
Welfare), [1987] 3 F.C. 185 (T.D.).
OVERRULED:
Marshall v. The Queen, [1986] 1 F.C. 437 (T.D.).
REFERRED TO:
ITO—International Terminal Operators Ltd. v. Miida
Electronics et al., [1986] 1 S.C.R. 752; Pacific Western
Airlines Ltd. v. R., [1979] 2 F.C. 476 (T.D.); affd.
[1980] 1 F.C. 86 (C.A.); Lubicon Lake Band (The) v. R.,
[1981] 2 F.C. 317 (T.D.); affd. (1981), 13 D.L.R. (4th)
159 (F.C.A.); Anglophoto Ltd. v. The "Ikaros", [1973]
F.C. 483; 39 D.L.R. (3d) 446 (T.D.); Desbiens v. The
Queen, [ 1974] 2 F.C. 20 (T.D.); Sunday v. St. Lawrence
Seaway Authority, [1977] 2 F.C. 3; (1976), 72 D.L.R.
(3d) 104 (T.D.).
COUNSEL:
David Martin and Douglas H. Clarke for
appellant (defendant) College of Physicians
and Surgeons of British Columbia.
Daniel J. Barker for respondent (plaintiff)
Dr. Kenneth D. Varnam.
SOLICITORS:
Douglas, Symes & Brissenden, Vancouver,
for appellant (defendant) College of Physi
cians and Surgeons of British Columbia.
Kopelow & Barker, Vancouver, for respon
dent (plaintiff) Dr. Kenneth D. Varnam.
Deputy Attorney General of Canada for
respondents (defendants) Minister of Nation
al Health and Welfare, Director of the
Bureau of Dangerous Drugs of the Depart
ment of National Health and Welfare.
The following are the reasons for judgment
rendered in English by
HuGESSEN J.: The plaintiff is a qualified physi
cian and a member of the defendant College. He
practices in Vancouver. He alleges that in Septem-
ber 1986 the defendant Minister purported to issue
a notice pursuant to sections 53, 58 and 59 of the
Narcotic Control Regulations.' He says that as a
result of such notice the Minister has further
revoked his authorization to prescribe the drug
methadone.
In the action which he has launched against the
Minister and the College, the plaintiff alleges that
the Minister acted illegally and that the relevant
sections of the Narcotic Control Regulations are
ultra vires; alternatively, he claims that the Minis
ter acted contrary to the principles of natural
justice, breached the duty of fairness, was biased
and acted unreasonably. He further alleges that
the Minister acted upon negligent and false
representations made by the College and that the
latter acted in bad faith and with intent to injure
him. He alleges a conspiracy between the College
and the Minister to intentionally interfere with his
right and ability to carry on his profession.
Based on these allegations, the plaintiff claims
relief by way of declaration and/or prerogative
writ to set aside the notice issued by the Minister.
As against the College, he seeks orders that it
"disclose" and provide a "written explanation" as
to the reasons for its actions. Finally, he asks
general and special damages against all the
defendants.
The College moved in the Trial Division to have
the action against it dismissed for want of jurisdic
tion. The motion was heard by Reed J. [[1987] 3
F.C. 185], who, relying on her own prior decision
in Marshall v. The Queen, [ 1986] 1 F.C. 437
(T.D.), found that the action as framed was within
the Court's jurisdiction. In her view, the claim
against the College was "intertwined" with the
claim against the Crown so as to bring it within
the rule that she had enunciated in Marshall. By
the terms of section 58 of the Narcotic Control
' C.R.C., c. 1041.
Regulations, the Minister could only act "after
consultation with" the College. In the opinion of
Reed J., this was enough to give the plaintiff's
claim against the College the necessary foundation
in federal law; she said [at pages 196-197]:
The requirement in the Narcotic Control Regulations (number
58) that the Minister consult with the licensing authority in the
province before refusing to license a practitioner to prescribe
narcotics, or methadone, is the underpinning of the claim
against the British Columbia College of Physicians and Sur
geons. The claim against the defendant College is not made
merely because the Crown is already a party to a contract or
tort claim based solely on provincial law. The advice given by
the College to the Minister pursuant to section 58 is the very
essence of the plaintiff's claim. The Minister must consult with
the provincial licensing body before issuing a section 58 notice.
The advice given is obviously crucial perhaps determinative of
any decision the Minister ultimately makes. Thus, the statutory
shelter, or the integral relationship, or the close practical
relationship of the claim against the College with the National
Control Act exists.
I have considerable doubt as to whether this
passage properly states the law. I question whether
the mere fact that a federal law requires consulta
tion is enough to support the Federal Court's
jurisdiction against the person consulted on the
basis of his having acted negligently or fraudulent
ly. Many federal statutes require some particular
individual action as a condition precedent to State
action. An obvious example is the Criminal Code
[R.S.C. 1970, c. C-34] requirement of a sworn
information before the issuance of a warrant, a
summons or a search warrant. It is not however, in
my view, accurate to say that a subsequent civil
action against the individual for having acted
improperly (e.g. for false arrest) is founded to any
significant extent in federal law. The case of Oag
v. Canada, [1987] 2 F.C. 511 (C.A.), relied on by
the Trial Judge, is clearly distinguishable: Oag's
claim was that the defendant Crown officers had
acted illegally and contrary to a federal statute
(the Parole Act [R.S.C. 1970, c. P-2]) in such a
way as to deprive him of a freedom to which he
was entitled solely by the operation of another
federal statute (the Penitentiary Act [R.S.C. 1970,
c. P-6]). Thus not only did the damage which he
suffered consist solely in the deprivation of a right
whose only source was a federal statute, but the
deprivation itself was caused solely by the alleged
abuse by federal officers of their powers under
another federal statute. A mere consultation such
as is required by section 58 of the Narcotic Con
trol Regulations seems to me to be far too thin a
thread on which to hang the jurisdiction of this
Court.
It is conceivable, however, that the role played
by the defendant College in the Minister's action is
more decisive than would at first blush appear
from the simple requirement of a consultation in
section 58 of the Regulations. In argument counsel
pointed in particular to sections 61 and 62 of the
same Regulations, which appear to give to the
provincial licensing authorities a conclusive say as
to when a notice given pursuant to section 58
should be revoked. That being so, it is possible that
the evidence at trial would establish that the reali
ties of the application of section 58 equally give
the College a decisive role in the Minister's action.
In those circumstances, I cannot say that the Trial
Judge here was wrong in refusing to dismiss the
claim against the College as not being founded in
federal law. She was dealing with a preliminary
motion and it is conceivable, though unlikely, that
the facts necessary to support this aspect of juris
diction would manifest themselves at the trial.
This brings me to the other condition which any
claim to jurisdiction in the Federal Court must
meet, namely, a statutory grant of jurisdiction. 2
2 This is the first of the "essential requirements" listed by
McIntyre J. in ITO—International Terminal Operators Ltd. v.
Miida Electronics et al., [1986] 1 S.C.R. 752, at p. 766.
The Trial Judge, as I have said, relied upon her
own previous decision in Marshall. In Roberts v.
Canada, [1987] 2 F.C. 535 (C.A.), I voiced some
doubts about Marshall but it was not necessary
for us to express any concluded opinion on the
matter.
In Marshall as in the present case, the only
possible source of statutory jurisdiction is subsec
tion 17(1) of the Federal Court Act: 3
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.
This is how the Trial Judge dealt with that text
in her judgment in Marshall [at pages 447-448]:
This subsection is a general or umbrella grant of jurisdiction.
The following subsections of section 17 either describe qualifi
cations or special aspects of the general grant given in subsec
tion 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 inter
pretation 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 federal 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 plain
tiff, 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
different courts, and to place jurisdictional and cost impedi
ments 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. 1-23 requires that all federal
statutes be interpreted 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
3 R.S.C. 1970 (2nd Supp.), c. 10.
the Federal Court jurisdiction over the whole case, in a situa
tion 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 subsec
tion 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, exclusive or concurrent, pursuant to subsec
tion 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.
With great respect and indeed not without
regret, I do not think that this reading of subsec
tion 17 (1) is correct.
In the first place and as I indicated in Roberts,
supra, it is my view that the concept of "intertwin-
ing", which does not take its source from any
words in the statute, is altogether too vague and
elastic a standard upon which to found exclusive
jurisdiction in the Federal Court. While the degree
to which claims would have to be intertwined in
order to give this Court jurisdiction is a matter
which could no doubt be settled over time by case
law, the development of the necessary rules would
be a lengthy process during which litigants would
be subject to continuing uncertainty as to which
court they should sue in. It is not in the public
interest that exclusive Federal Court jurisdiction
should be a matter for guesswork. What is more, it
seems to me that no degree of intertwining could
be great enough to create jurisdiction where it is
not granted by the statute, just as none could be
small enough to remove jurisdiction where the
statute gives it. An example of the former is
Rasmussen v. Breau, [1986] 2 F.C. 500 (C.A.)
(the Saltfish case). There the Court declined juris
diction in an action against a corporate Crown
agent even though the claim against the Crown
itself was based in part upon the actions of that
agent for which the Crown was vicariously liable:
it is difficult to imagine two more intertwined
claims than those against the master and the ser
vant for whose acts he is responsible.
In the second place, I do not think that the
wording of subsection 17(1), when properly con
strued, supports the interpretation put on it in
Marshall. That interpretation, as is indicated by
the passage quoted above, turns on the use of the
word "cases" in the text. The Trial Judge in
Marshall gives to that word the sense of "actions"
or "causes". I note that the French text uses the
word "cas", which does not readily support that
reading. Indeed it seems to me that the focus of
subsection 17(1) is not on the "cases" ("cas") but
much more importantly on the "relief" (or
"redressement"). This is a defined term in
section 2:
2....
"relief" includes every species of relief whether by way of
damages, payment of money, injunction, declaration, restitu
tion of an incorporeal right, return of land or chattels or
otherwise;
The extreme breadth and sweep of that defini
tion points, in my view, to the proper interpreta
tion of subsection 17(1): relief of every sort and
nature against the Federal Crown falls within the
exclusive jurisdiction of the Federal Court in all
cases. Relief against persons other than the Feder
al Crown is simply not in the contemplation of the
text.
This reading is also, as it seems to me, in
consonance with the remainder of the Federal
Court Act and in particular with the provisions of
sections 17 to 26, dealing with the jurisdiction of
the Trial Division. The draftsman of the statute
was very conscious of the need to make plain every
grant of jurisdiction over persons other than the
Crown. It is enough to look at the wording of
sections 20, 22, 23 and 25, to see how meticulously
the Act has specified the Court's jurisdiction as
between subject and subject. I would particularly
refer to the wording of section 23, which grants
jurisdiction between subject and subject in cases
where the claim for relief is sought under an Act
in relation to bills of exchange "where the Crown
is a party to the proceedings". Where jurisdiction
over the subject is conditional upon the Crown
being impleaded, the Act says so in very clear
words. The comparison with subsection 17 (1) is
telling.
Finally, and Reed J. in Marshall very properly
recognizes this, her interpretation is contrary to
that which had previously been given to the stat
ute. Reference is particularly made to Pacific
Western Airlines Ltd. v. R., [1979] 2 F.C. 476
(T.D.); affirmed by [1980] 1 F.C. 86 (C.A.);
Lubicon Lake Band (The) v. R., [1981] 2 F.C. 317
(T.D.); affirmed by (1981), 13 D.L.R. (4th) 159
(F.C.A.); Anglophoto Ltd. v. The `7karos",
[1973] F.C. 483; 39 D.L.R. (3d) 446 (T.D.);
Desbiens v. The Queen, [ 1974] 2 F.C. 20 (T.D.);
Sunday v. St. Lawrence Seaway Authority, [1977]
2 F.C. 3; (1976), 72 D.L.R. (3d) 104 (T.D.).
There are others. While some of those decisions
may not technically have been binding upon her
and may have been distinguishable, they represent
a consistent approach taken by the judges of this
Court since its foundation. They also, in my opin
ion, represent sound judicial policy: as a statutory
court, we must not hesitate to exercise the jurisdic
tion which has been granted to us but we should
not seek to extend it beyond what has been clearly
intended by the words of the statute.
I indicated earlier that it was with regret that I
had concluded that Marshall was wrongly decid
ed. That regret does not flow from any desire to
expand this Court's jurisdiction. Rather it has its
source in a concern for the unenviable situation of
the litigant who may, in some circumstances, find
himself obliged to sue in two courts. That concern
was well expressed by Reed J. in Marshall. It was
most eloquently stated by Collier J. in Pacific
Western Airlines, supra, where he described the
situation [at page 490] as "lamentable". For my
part however, while sharing those views, I can only
echo the words of the Chief Justice in Saltfish,
supra [at page 513]:
... the convenience or advantage, if any, to be obtained is not a
reason for extending the jurisdiction of the Court beyond its
statutory limits.
I conclude that the Court is without jurisdiction
to entertain the claim of the plaintiff against the
College. I would allow the appeal, set aside the
judgment appealed from and dismiss the plaintiff's
action as against the defendant College. The
defendant should have its costs both here and
below.
MAHONEY J.: I agree.
DESJARDINS J.: I agree.
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.