T-726-89
Percy Minnabarriet, Chief of the Cook's Ferry
Band, on his own behalf and on behalf of all other
members of the Cook's Ferry Band (except Reg
Draney and Jim Billy) and Cook's Ferry Band
(Applicants)
v.
Council of the Cook's Ferry Band (Respondent)
INDEXED AS: COOK'S FERRY BAND Y. COOK'S FERRY BAND
(COUNCIL) (T.D.)
Trial Division, Reed J.—Vancouver, May 15;
Ottawa, May 26, 1989.
Native peoples — Appointment of receiver-manager over
Band assets sought as part of opposition to Band Council
activities — Jurisdiction in Federal Court to appoint receiver-
manager — Nature and obligations of Band Council — Con
trol and management of assets not reserved exclusively to
Band Council and Crown.
Federal Court jurisdiction — Trial Division — Jurisdiction
in Federal Court under Federal Court Act s. 44 to appoint
receiver-manager over Indian Band assets where Band Council
control opposed — Control and management of assets not
reserved exclusively to Band Council and Crown.
Appointment of a receiver-manager for all property, assets
and undertakings of the Cook's Ferry Band was sought as part
of an attempt to restrain the Band Council from engaging in
certain activities including the appointing of elected councillors
of the Band to paid staff positions. Because of jurisdictional
constraints, a similar suit has been filed against other persons
in the Supreme Court of British Columbia. The only issue
herein is whether the Federal Court has jurisdiction to appoint
a receiver-manager.
Held, such a remedy is not outside the jurisdiction of this
Court.
The appointment of a receiver-manager is authorized by
section 44 of the Federal Court Act. The word "receiver" used
therein can encompass a receiver-manager. Section 44 clearly
intended that the receiver appointed to preserve property
should be given authority not only to receive assets but also to
manage or administer them, when required. Sections 18 and 44
are to be read together and are not to be treated as completely
separate and mutually exclusive remedies.
The argument that, given the absence of express statutory
authority to that effect, there is no jurisdiction in any Court to
remove jurisdiction over the assets of the Band from the Band
Council, is not well taken. Railway cases, on which counsel for
the respondent relies in support of that argument, are not
applicable in view of the peculiar nature of railway legislation.
Nor could the respondent's argument, that the monies in
question were under the dual control of the Band Council and
the Crown and that since the Crown had failed to intervene or
take a position with respect to the litigation, the Court lacked
jurisdiction, be accepted. Since the Crown was notified, its
silence could be treated as implied consent. In any event, this
had no effect on jurisdiction.
There is no reason in principle why a receiver-manager could
not be appointed by this Court, if a section 18 remedy were
granted, pending the outcome of the litigation which has been
commenced in the British Columbia Supreme Court.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Cree-Naskapi (of Quebec) Act, S.C. 1984, c. 18, s.
45(1)(d)(iv).
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18, 44.
Indian Act, R.S.C., 1985, c. I-5, ss. 2(1), 61, 64(1) (as
am. by S.C. 1985, c. 27, s. 10), 66(1), 69, 81-87, 89 (as
am. by S.C. 1988, c. 23, s. 12).
Indian Bands Revenue Moneys Regulation, C.R.C., c.
953.
Railway Act, R.S.C., 1985, c. R-3, ss. 94, 95, 110.
The Railway Companies Act, 1867, 30 & 31 Vict., c. 127
(U.K.), s. 4 (made perpetual by 38 & 39 Vict., c. 31
(U.K.)).
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Allan v. Manitoba & N.W. Ry. Co., Re Gray, No. 1
(1894), 10 Man. R. 106 (Q.B.); Gardner v. London,
Chatham, and Dover Railway Company (No. l) (1866-
67), L.R. 2 Ch. App. 201; Bande d'Eastmain c. Gilpin,
[1987] R.J.Q. 1637 (S.P.).
CONSIDERED:
R. v. Les Ustensiles de Cuisine Inoxydables Cook-o-
Matic Inc./Cook-o-Matic Kitchenware Stainless Steel
Inc. (1984), 53 C.B.R. (N.S.) 276 (F.C.T.D.); Whitebear
Band Council v. Carpenters Prov. Council of Sask.,
[1982] 3 W.W.R. 554 (Sask. C.A.); Bear v. John Smith
Indian Band Chief, [1983] 5 W.W.R. 21 (Sask. Q.B.).
REFERRED TO:
In re Manchester and Milford Railway Company (1880),
14 Ch. D. 645 (C.A.); Marshall v. South Staffordshire
Tramways Company, [1895] 2 Ch. 36 (C.A.); Parker v.
Camden London Borough Council, [1986] Ch. 162
(C.A.); In re Salisbury Railway and Market House Co.
Ltd., [1969] 1 Ch. 349 (Ch. D.); Sage v. The Shore Line
Railway Co. (1901), 2 N.B. Eq. 321; Ritchie v. Central
Ontario R.W. Co. (1904), 7 O.L.R. 727 (C.P.D.); Ladore
v. Bennett, [1939] A.C. 468 (P.C.); Blackett v. Blackett
(1871), 19 W.R. 559 (Ch.); Brenan v. Preston (1852), 2
De G. M. & G. 813; 42 E.R. 1090 (Ch.).
AUTHORS CITED
Coyne H. E. B. The Railway Law of Canada, Toronto:
Canada Law Books Co. Ltd., 1947.
Kerr, W. W. Kerr on the law and practice as to receivers,
16th ed. by R. Walton, London: Sweet & Maxwell
Limited, 1983.
The Compact Edition of the Oxford English Dictionary,
Vol. II, Oxford: Oxford University Press, 1971,
"receiver".
COUNSEL:
E. Jack Woodward and P. Hutchings for
applicants.
G. Anderson for respondent.
SOLICITORS:
Jack Woodward, Victoria, for applicants.
Harper, Grey, Easton and Company, Vancou-
ver, for respondent.
The following are the reasons for order ren
dered in English by
REED J.: The applicants filed an originating
notice of motion, pursuant to section 18 of the
Federal Court Act [R.S.C., 1985, c. F-7], seeking
a writ of certiorari to quash certain decisions of
the respondent Band Council and for an injunction
restraining the Band Council and some of the
members thereof from engaging in certain activi
ties including the appointing of elected councillors
of the Band to paid staff positions. Part of the
relief sought, by the applicants, is the appointment
of a receiver-manager of all property, assets and
undertakings of the Band (except reserve or desig
nated land within the meaning of the Indian Act
[R.S.C., 1985, c. I-5].) The text of the motion is
not clear but it is my understanding that the
appointment of a receiver-manager is sought pend
ing final determination of the section 18 applica
tion in this Court and pending final determination
of litigation which the applicants have commenced
against certain members of the Council, as
individuals, and against others who are not mem-
bers of the Band in the Supreme Court of British
Columbia. These last were originally named as
respondents to this action. Counsel for the appli
cants was advised, however, that because of con
straints on this Court's jurisdiction those individu
als could not be sued in this Court and thus a suit
has been filed against them in the British
Columbia Supreme Court.
The motion as presently filed is open-ended and
seeks the appointment of a receiver-manager with
no time limitation. There is in the motion no
reference to the appointment of a receiver-manag
er being sought as an interim measure pending the
final determination of litigation. No reference is
made to the appointment being sought pending
determination of either the section 18 application
in this Court or the claim which has been com
menced against the respondent and others in the
Supreme Court of British Columbia. It is clear
that the motion will have to be amended in this
regard. It would be unusual to appoint a receiver-
manager without some time limits or constraint. I
should note that the issue of the duration of the
appointment was not one which was put at issue by
the parties nor did it form part of the argument
before me.
The applicants' motion for a section 18 remedy
came before Mr. Justice McNair on Thursday,
April 27, 1989. He ordered that the issue as to
whether or not this Court had jurisdiction to
appoint a receiver-manager over the assets of a
Band Council should be argued on May 15, 1989.
Counsel for the respondent submitted a draft
notice of motion, dated May 9, 1989, for this
purpose. That notice of motion seeks an order
"that the Federal Court of Canada has no jurisdic
tion to appoint a receiver-manager over the opera
tions of a Band Council elected pursuant to the
Indian Act, R.S.C., 1985, c. I-5". Counsel for the
applicants argues that the notice of motion is too
broadly framed since what is sought is the appoint
ment of a receiver-manager with respect to the
assets of the respondent Band Council, not its
entire operation. In my view the notice of motion is
unnecessary and does not govern the hearing. The
hearing before this Court on May 15th, has its
foundation in the order of Mr. Justice McNair
issued April 27, 1989. That order requires the
arguing of the preliminary issue of jurisdiction in
relation to the applicants' originating notice of
motion dated April 10, 1989. I do not think it is
necessary for the respondent to file any notice of
motion at all.
The respondent argues that this Court has no
jurisdiction to appoint a receiver-manager in the
circumstances of this case because: (1) section 44
of the Federal Court Act does not authorize the
appointment of a receiver-manager; (2) an Indian
Band council is a legislative body exercising dele
gated federal authority and as such is not suscept
ible to replacement by a receiver-manager; (3) the
monies and assets in question are "of Her Majesty
the Queen, in right of Canada and are not subject
to control or management by any person other
than the Band Council or Her Majesty".
Section 44 of the Federal Court Act provides:
44. In addition to any other relief that the Court may grant
or award, a mandamus, injunction or order for specific
performance may be granted or a receiver appointed by the
Court in all cases in which it appears to the Court to be just or
convenient to do so, and any such order may be made either
unconditionally or upon such terms and conditions as the Court
deems just. [Underlining added.]
Counsel for the respondent argues that section
44 authorizes the appointment of a receiver and
not a receiver-manager. He referred to the distinc
tion made between a receiver and a manager in
Allan v. Manitoba & N.W. Ry. Co., Re Gray, No.
1 (1894), 10 Man. R. 106 (Q.B.). That case, of
course, did not deal with the interpretation of the
Federal Court Act.
Counsel for the applicants, in response, referred
to the text Kerr on Receivers, (16th ed. 1983) at
pages 5, 6, 13, 14 and 212. The situations in which
a Court will appoint a receiver or a receiver-
manager are discussed in that text. Counsel for the
applicants also referred to a decision given by my
colleague Mr. Justice Joyal in R. v. Les Ustensiles
de Cuisine Inoxydables Cook-o-Matic Inc./Cook-
o-Matic Kitchenware Stainless Steel Inc. (1984),
53 C.B.R. (N.S.) 276 (F.C.T.D.). In that case a
receiver pursuant to section 44 was appointed and
that receiver was empowered to administer and to
manage the business which was committed to the
charge of the receiver.
I have no doubt that section 44 should not be as
narrowly construed as counsel for the respondent
contends. In the first place the word "receiver" as
a matter of literal interpretation can encompass a
receiver-manager. The two terms are not mutually
exclusive. The definition of receiver found in The
Compact Edition of the Oxford English Diction
ary, 1971 [at page 2437], is "A person appointed
by a court to administer the property of a bank
rupt, or property which is the subject of litigation,
pending the suit". The capacity to administer
clearly encompasses the capacity to manage.
Secondly, to the extent that section 44 was enacted
to encompass the granting of orders to preserve
property, either pending the outcome of litigation
or pending an event subsequent to litigation, it
must have been intended that a receiver appointed
for that purpose could be given authority not only
to receive assets but also to manage or administer
them, when such is required by the circumstances
of the case.
Counsel for the respondent argues that section
44 cannot be read together with section 18, so as to
allow a receiver to be appointed pending a section
18 application, because this would make the refer
ences to "mandamus" and "injunction" set out
therein redundant. As I understand this argument,
it is that if section 18 is to be read together with
section 44, section 44 would become: "In addition
to any mandamus or injunction pursuant to section
18 that the Court may grant or award, a man-
damus, injunction or order .. . may be granted ...
in all cases in which it appears to the Court to be
just or convenient to do so". As a matter of
statutory interpretation I do not find this argu
ment convincing. Section 44 is clearly intended to
be read together with the other sections of the Act,
to the extent that the context of each of the other
sections may require. It would be reading far too
much into the wording of that section to find
therein the requirement that section 18 and section
44 are to be treated as completely separate and
mutually exclusive remedies, as counsel argues.
With respect to the respondent's second argu
ment, there is no dispute that a Band Council is a
multi-functional body. In Whitebear Band Council
v. Carpenters Prov. Council of Sask., [1982] 3
W.W.R. 554 (Sask. C.A.), Mr. Justice Cameron
stated [at pages 560-561]:
In summary, an Indian band council is an elected public
authority, dependent on Parliament for its existence, powers
and responsibilities, whose essential function it is to exercise
municipal and government power—delegated to it by Parlia-
ment—in relation to the Indian reserve whose inhabitants have
elected it; as such, it is to act from time to time as the agent of
the minister and the representative of the band with respect to
the administration and delivery of certain federal programs for
the benefit of Indians on Indian reserves, and to perform an
advisory, and in some cases a decisive, role in relation to the
exercise by the minister of certain of his statutory authority
relative to the reserve.
See also Bear v. John Smith Indian Band Chief,
[1983] 5 W.W.R. 21 (Sask. Q.B.), especially at
page 25:
In my opinion, the gist of what Cameron J.A. is saying in his
analysis of the Indian Act is that with respect to certain aspects
of its activities the band council acts as a servant or agent of
the minister (Crown); on the other hand, the council also
functions as the elected representative body of the members of
the band and acts as the administrative body for the reserve
and concerns itself with the day-to-day organization and main
tenance of life on a reserve.
That being so counsel for the respondent argues
that there is no jurisdiction in any Court to remove
jurisdiction over the assets of the Band from the
Band Council. He argues that this follows from
the fact that there is no express statutory authority
given to a Court to exercise such jurisdiction. The
decision in Allan v. Manitoba & N.W. Ry. Co.
(supra) is relied upon.
I do not think counsel for the respondent can
gain support from the Allan case. That case dealt
with a railway and it is well known that railway
legislation, in general, contains specific statutory
provision requiring a railway company to fulfil
certain mandatory obligation. In addition railway
legislation often requires that a railway company
may not be wound up or may not dispose of its
undertaking without governmental approval.' A
parallel can be found in contemporary legislation
which prevents the closing of branch lines without
specific government approval. In this context the
Court of Chancery in Gardner v. London, Cha-
tham, and Dover Railway Company (No. 1)
(1866-67), L.R. 2 Ch. App. 201 held that a receiv
er but not a receiver-manager could be appointed
with respect to part of railway line. In coming to
this decision Lord Cairns said, at pages 212 and
217:
Now, I apprehend that nothing is better settled than that this
Court does not assume the management of a business or
undertaking except with a view to the winding up and sale of
the business or undertaking. The management is an interim
management; its necessity and its justification spring out of the
jurisdiction to liquidate and to sell; the business or undertaking
is managed and continued in order that it may be sold as a
going concern, and with the sale the management ends.
But in addition to the general principle that the Court of
Chancery will not in any case assume the permanent manage
ment of a business or undertaking, there is that peculiarity in
the undertaking of a railway which would, in my opinion, make
it improper for the Court of Chancery to assume the manage
ment of it at all. When Parliament, acting for the public
interest, authorizes the construction and maintenance of a
railway, both as a highway for the public, and as a road on
which the company may themselves become carriers of passen
gers and goods, it confers powers and imposes duties and
responsibilities of the largest and most important kind, and it
confers and imposes them upon the company which Parliament
has before it, and upon no other body of persons.
The living and going concern thus created by the Legislature
must not, under a contract pledging it as security, be destroyed,
broken upon, or annihilated. The tolls and sums of money
ejusdem generis—that is to say, the earnings of the undertak-
ing—must be made available to satisfy the mortgage; but, in
my opinion, the mortgagees cannot, under their mortgages, or
as mortgagees—by seizing, or calling on this Court to seize, the
capital, or the lands, or the proceeds of sales of land, or the
stock of the undertaking—either prevent its completion, or
reduce it into its original elements when it has been completed.
There is no doubt this decision was based on two
facts: (1) the Court assumed that the purpose for
which a receiver-manager was being appointed and
the only purpose for which one could be appointed
was to dismantle the company as a going concern,
to wind it up; (2) the railway legislation imposed
' See, for example, contemporary legislation such as sections
94, 95 and 110 of the Railway Act, R.S.C., 1985, c. R-3.
mandatory duties and obligations on the directors
of the railway and these could not be delegated.
For further explanation of the Gardner case, see In
re Manchester and Milford Railway Company
(1880), 14 Ch. D. 645 (C.A.); and Marshall v.
South Staffordshire Tramways Company, [1895]
2 Ch. 36 (C.A.), at pages 51-55; Parker v.
Camden London Borough Council, [1986] Ch. 162
(C.A.); In re Salisbury Railway and Market
House Co. Ltd., [1969] 1 Ch. 349 (Ch. D.).
Reference can also be made to legislation enacted
in the United Kingdom, the year subsequent to the
Gardner case, which specifically allowed for the
appointment of receiver-managers for railway
companies but excepted the rolling stock and plant
of the company from being seized by execution
judgment: The Railway Companies Act, 1867, 30
& 31 Vict., c. 127 (U.K.), s. 4 made perpetual by
38 & 39 Vict., c. 31 (U.K.).
It is the Gardner case which was relied on in
Allan v. Manitoba and N.W. Ry. Co. In the Allan
case the mortgagees of a portion of the railway
petitioned for the appointment of a receiver-
manager and for the foreclosure of the mortgage.
The appointment of a receiver was granted but the
appointment of a receiver-manager was refused.
Whether this decision accurately reflected the
state of the law in Canada at the time is unclear:
see, H. E. B. Coyne, The Railway Law of Canada
(1947), at page 146; Sage v. The Shore Line
Railway Co. (1901), 2 N.B. Eq. 321; Ritchie v.
Central Ontario R.W. Co. (1904), 7 O.L.R. 727
(C.P.D.).
In any event the reasons which underlie the
decision in the Gardner case do not apply in this
case. The applicants are not seeking the appoint
ment of a receiver-manager in order to dissolve or
wind up the Band Council. They are seeking the
appointment of a receiver-manager because, in
their view, the appointment is necessary in order to
preserve the Band's assets. Secondly, there are no
mandatory obligation imposed on a Band, similar
to those imposed on railways or other kinds of
public utilities. There are no obligations on the
Band requiring it, for example to provide certain
kinds of public services such as a transportation
service from place A to place B. The provisions
relating to Band Councils (sections 81-87 of the
Indian Act) are empowering and permissive, they
do not oblige the Bands to undertake specific
mandatory obligations. Thirdly, there are no provi
sions in the Indian Act comparable to those in
railway legislation which require that the assets be
maintained. There is nothing which prohibits the
dismantling, charging or sale of Band assets,
except section 89 [as am. by S.C. 1988, c. 23, s.
12]:
89. (1) Subject to this Act, the real and personal property of
an Indian or a band situation on a reserve is not subject to
charge, pledge, mortgage, attachment, levy, seizure, distress or
execution in favour or at the instance of any person other than
an Indian or a Band.
The applicants in this case, being Indian, do not
fall within the prohibition prescribed by the terms
of section 89.
Lastly, a cursory review of the authorities relat
ing to municipalities, bodies which are analogous
to Band Councils, has not revealed any rule which
states that receiver-managers cannot be appointed
with respect to the assets of a municipality because
of the nature of those entities. Municipalities, like
Band counsel have a multifunctional nature i.e.,
exercise both administrative powers and delegated
legislative powers. It may be that there are express
legislative provisions to this effect but I could not
find any general common law principle that
municipal assets cannot be placed under a receiv-
er-manager. What indeed usually happens as a
matter of practice, when a municipality finds itself
in financial difficulties, is that the provincial gov
ernment moves in and takes control: see, for exam
ple Ladore v. Bennett, [1939] A.C. 468 (P.C.).
Thus the Allan decision was decided on the
assumption that its constitutive legislation intend
ed that there be no dismantling of the undertaking
of the railway company. It was decided in the
context of legislation which required the railway
company to fulfil certain positive mandatory obli
gations. And, it was decided on the assumption
that the receiver-manager who it was sought to
appoint was being appointed to sell or wind up the
particular assets of the company which were in
question. I do not think that case speaks to the
respondent's situation.
Counsel for the respondent also referred to
Bande d'Eastmain c. Gilpin, [1987] R.J.Q. 1637
(S.P.). In that case a band council regulation
establishing a curfew for children under 16 years
of age was held to have been validly enacted
pursuant to the Cree-Naskapi (of Quebec) Act,
S.C. 1984, c. 18, subparagraph 45(1)(d)(iv). That
case is not relevant to the present issue.
Counsel for the respondent's third argument is
that the monies held by the Band Council are held
under dual control: control by the Council and
control by the Crown. Reference was made to
subsection 64(1) [as am. by S.C. 1985, c. 27, s. 10]
and section 61 of . the Indian Act. Subsections
64(1) provides:
64. (1) With the consent of the council of a band, the
Minister may authorize and direct the expenditure of capital
moneys of the band
(a) to distribute per capita to the members of the band an
amount not exceeding fifty per cent of the capital moneys of
the band derived from the sale of surrendered lands;
(b) to construct and maintain roads, bridges, ditches and
water courses on the reserves or on surrendered lands;
(k) for any other purpose that in the opinion of the Minister
is for the benefit of the band. [Underlining added.]
Section 61 provides:
611. (1) Indian moneys shall be expended only for the benefit
of the Indians or bands for whose use and benefit in common
the moneys are received or held, and subject to this Act and to
the terms of any treaty or surrender, the Governor in Council
may determine whether any purposes for which Indian moneys
are used or are to be used is for the use and benefit of the band.
(2) Interest upon Indian moneys held in the Consolidated
Revenue Fund shall be allowed at a rate to be fixed from time
to time by the Governor in Council. [Underlining added.]
As counsel for the applicants argues, subsection
64(1) cannot apply because there are no capital
moneys involved. In so far as section 61 is con
cerned, the definition of "Indian moneys" as set
out in section 2(1) of the Indian Act is defined as
"all moneys ... held by Her Majesty for the use
and benefit of Indians or bands". Clearly the funds
in question here are not held by Her Majesty.
They are held by the Band. Thus section 61 is not
relevant.
That leaves for consideration subsection 66(1)
and section 69 of the Indian Act. Subsection 66(1)
provides:
66. (1) With the consent of the council of a band, the
Minister may authorize and direct the expenditure of revenue
moneys for any purpose that in his opinion will promote the
general progress and welfare of the band or any member of the
band. [Underlining added.]
And section 69:
69. (1) The Governor in Council may by order permit a
band to control, manage and expend in whole or in part its
revenue moneys and may amend or revoke any such order.
(2) The Governor in Council may take regulations to give
effect to subsection (1) and may declare therein the extent to
which this Act and the Financial Administration Act shall not
apply to a band to which an order made under subsection (1)
applies. [Underlining added.]
There is no statutory provision granting the
Band Council control over its revenue moneys as
contemplated in section 69, see Indian Bands
Revenue Moneys Regulation, C.R.C., c. 953.
Counsel for the respondent's argument is that
since the moneys in question are under dual con
trol, the Court cannot appoint a receiver without
the Crown's consent. It is argued that it is the
Crown which has the responsibility to settle the
dispute between the parties.
In the first place, counsel for the applicants does
not concede that the moneys in question are under
dual control. More importantly, however, it is
clear that officials of the Crown have been notified
of this litigation and no action has been taken by
the Crown to involve itself in these proceedings. It
is my understanding, from counsel's explanation,
that the Crown was invited by counsel for the
applicants to intervene. It is clear that the Crown,
through its officials, has declined to do so; a letter
to this effect was filed with the Court.
I do not think the respondent can rely on the
failure of the Crown to intervene or to take a
position with respect to this litigation as a reason
for denying this Court jurisdiction. Indeed, it may
very well be that the Crown's position of non-
involvement, given the fact that notice of the
litigation was given to it, should be treated as
implied consent (if its consent is in any event
necessary). In addition, while the alleged joint
control may be reason for adding the Crown as a
party or as an intervenor, either on application by
either party or by the Crown itself, I do not think
that fact goes to the jurisdiction of this Court. It
would be quite unjust to allow the respondent to
rely on a lack of consent or involvement by the
Crown, as a means of removing this litigation from
the Court's jurisdiction. The applicants would
thereby be left without a remedy.
For the reasons given it is my view that the
Court has jurisdiction to appoint a receiver-
manager either pending final determination of a
section 18 application or consequent thereon, if
such is necessary and appropriate in the circum
stances. I make no determination as to whether
such an order could be conditional upon determi
nation of the litigation in the British Columbia
Supreme Court. That issue was not directly before
me. The notice of motion as presently drafted does
not raise it. Mr. Justice McNair's order did not
contemplate arguments on that point. Counsel for
the applicants raised the issue in argument. He
cited several cases which were decided before the
unification of the Court of Equity and the Courts
of Common Law in England in 1873: Blackett v.
Blackett (1871), 19 W.R. 559 (Ch.); Brenan v.
Preston (1852), 2 De G. M. & G. 813; 42 E.R.
1090 (Ch.). He argued that similarly today, where
an applicant is faced with a split jurisdiction, as he
is in this case, our Courts should co-operate to
alleviate the difficulties the split jurisdiction visits
upon the applicants.
The pre-1873 cases are not directly relevant, of
course, because the Courts of Equity were acting
in aid of the Courts of Common Law. These last
could not grant equitable orders. In the present
case, the British Columbia Supreme Court and the
Federal Court are equally courts of equity. There
fore there is no necessity for one to act in aid of
the other. Each has its own equitable jurisidiction.
At the same time, I see no reason why the policy of
judicial co-operation which was behind the reason
ing in the pre-1873 case should not apply here. I
see no reason in principle why a receiver-manager
could not be appointed by this Court, if a section
18 remedy were granted, pending outcome of the
litigation which as been filed in the British
Columbia Supreme Court. Presumably an appoint
ment of a receiver-manager might be conditional
on that event, in the same way it could be made
conditional on any other relevant event, providing
such was, in the words of section 44 of the Federal
Court Act, just and convenient.
For the reasons given the applicants' motion will
not be struck out or amended to require deletion of
the request for the appointment of a receiver-
manager. Such a remedy is not outside the juris
diction of this Court.
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.