T-2427-89
Trainor Surveys (1974) Limited (Plaintiff)
v.
Province of New Brunswick, Province of Prince
Edward Island, Province of Nova Scotia, Council
of Maritime Premiers and Land Registration and
Information Service (Defendants)
INDEXED AS: TRAINOR SURVEYS (1974) LIMITED V. NEW
BRUNSWICK (T.D.)
Trial Division, McNair J.—Halifax, February 13;
Ottawa, March 1, 1990.
Federal Court jurisdiction — Trial Division — Copyright
infringement action against provincial Crowns — Motion to
dismiss for lack of jurisdiction — Concurrent jurisdiction with
provincial courts to determine civil actions for copyright
infringement insufficient to vest Federal Court with jurisdic
tion — Specific provision, whether in federal legislation or
provincial Crown proceedings statutes, required in light of
traditional immunity of provincial Crowns and agencies from
suits in Federal Court and as Federal Court statutory court.
Constitutional law — Charter of Rights — Equality rights
— Action against provincial Crowns for copyright infringe
ment dismissed for lack of jurisdiction ratione personae —
Whether preferential position of Crown with respect to litiga
tion, based on doctrine of Crown privilege, contrary to Charter,
s. 15(1) — Neither plaintiff corporation nor defendant Crowns
"individuals" for purposes of Charter, s. 15(1).
Constitutional law — Charter of Rights — Life, liberty and
security — Action for copyright infringement against provin
cial Crowns — Charter, s. 7 not applicable as copyright
infringement relating to purely proprietary or economic rights.
Copyright — Infringement — Federal Court action against
provincial Crowns and agencies dismissed for lack of jurisdic
tion ratione personae.
Crown — Prerogatives — Action for copyright infringement
against provincial Crowns and agencies dismissed for lack of
jurisdiction ratione personae — No specific federal or provin
cial statutory provision abrogating traditional provincial
Crown immunity from actions in Federal Court.
Practice — Dismissal of proceedings — Lack of jurisdiction
— Motion for dismissal not analogous to motion to strike —
Jurisdictional issue pure question of law standing on own
uninfluenced by considerations applicable to motion to strike.
This was a determination of a question of law as to whether
the Court had jurisdiction to entertain the plaintiffs copyright
infringement action against three provincial Crowns and two
agencies thereof, and a motion to dismiss for want of jurisdic
tion. The defendants submitted that the Court lacked jurisdic
tion ration personae, although it had concurrent jurisdiction to
determine civil actions for copyright infringement under Copy
right Act, section 37 and Federal Court Act, subsection 20(2).
The provinces relied on their respective provincial Crown pro
ceedings statutes. They argued that the Federal Court has
jurisdiction over the provinces only to the extent that such
jurisdiction has been expressly allocated by provincial legisla
tion, having regard to the traditional immunity of provincial
Crowns from suits in the Federal Court; and, that Crown
agents are subject to the same jurisdictional limitations as the
respective provincial Crowns. The plaintiff submitted that the
Court must be satisfied that it is "plain and obvious that the
action cannot succeed", analogizing a motion for dismissal to a
motion to strike. Finally, the plaintiff argued that the preferen
tial position of the Crown with respect to litigation, based on
the doctrine of Crown privilege was contrary to Charter, sub
section 15(1). It submitted that the Crown is a physical person
with the same general capacity to contract as anyone else and
that corporations are individuals and entitled to the protection
against discrimination guaranteed by Charter, subsection
15(1).
Held, the Court lacked jurisdiction to entertain the plaintiff's
copyright infringement action. The motion for dismissal should
be granted.
The jurisdictional issue, a pure question of law, must stand or
fall on its own merits, uninfluenced by considerations which
might be applicable in the case of motions to strike.
The Federal Court is a statutory court whose jurisdiction is
defined and limited by the Federal Court Act. The mere fact
that the Federal Court has concurrent jurisdiction with provin
cial courts over the subject-matter is insufficient to vest the
Court with jurisdiction in this case in the absence of some
specific provision to that effect, whether in federal legislation or
in the Crown proceedings statutes.
Charter, section 7 does not apply because the subject-matter
of the claim relates purely to proprietary or economic rights.
The crux of the case is whether the plaintiff and the Crown are
"individuals" within the contemplation of subsection 15(1) of
the Charter. It has been held that both corporations and the
Crown are not "individuals" for the purposes of subsection
15(1).
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 7, 15.
Copyright Act, R.S.C., 1985, c. C-42, s. 37.
Crown Proceedings Act, R.S.P.E.I. 1974, c. C-31, s. 7.
Federal Court Act, R.S.C., 1985, c. F-7, s. 20.
Federal Court Rules, C.R.C., c. 663, RR. 401, 419,
474(1) (a).
Federal Courts Jurisdiction Act, R.S.N.B. 1973, c. F-8,
s. 1 (as am. by S.N.B. 1979, c. 41, s. 51; 1982, c. 3, s.
28).
Proceedings Against the Crown Act, R.S.N.B. 1973, c.
P-18, ss. 6 (as am. by S.N.B. 1979, c. 41,s. 98), 21.
Proceedings against the Crown Act, R.S.N.S. 1967, c.
239, ss. 9, 24(1), 25.
CASES JUDICIALLY CONSIDERED
APPLIED:
New Brunswick Electric Power Commission v. Maritime
Electric Company Limited, [1985] 2 F.C. 13; (1985), 60
N.R. 203 (C.A.); Canadian Javelin Ltd. v. The Queen in
right of Newfoundland, [1978] 1 F.C. 408; (1977), 77
D.L.R. (3d) 317 (C.A.); Avant Inc. v. R., [1986] 2 F.C.
91; 25 D.L.R. (4th) 156; 8 C.P.R. (3d) 418; 1 F.T.R. 270
(T.D.); Union Oil Co. of Canada Ltd. v. The Queen,
[1976] 1 F.C. 74; (1975), 72 D.L.R. (3d) 81 (C.A.);
appeal to the Supreme Court of Canada dismissed [1976]
2 S.C.R. y; R. v. Stoddart (1987), 37 C.C.C. (3d) 351; 20
O.A.C. 365 (Ont. C.A.); Rudolph Wolff & Co. v.
Canada (1987), 26 C.P.C. (2d) 166 (Ont. H.C.); affd
March 7, 1988, Ont. C.A.
DISTINGUISHED:
Dywidag Systems International Canada Limited v. Zut-
phen Brothers Construction Limited (1987), 76 N.S.R.
(2d) 398; 35 D.L.R. (4th) 433; 189 A.P.R. 398; 17
C.P.C. (2d) 149; 29 C.R.R. 6 (C.A.).
CONSIDERED:
Verreault (J.E.) & Fils Ltée v. Attorney General
(Quebec), [1977] 1 S.C.R. 41; (1975), 57 D.L.R. (3d)
403; 5 N.R. 271; Attorney General of Quebec v.
Labrecque et al., [1980] 2 S.C.R. 1057; (1980), 81
C.L.L.C. 14,119; Milk Bd. v. Clearview Dairy Farm Inc.,
[1987] 4 W.W.R. 279; (1987), 12 B.C.L.R. (2d) 116
(B.C. C.A.); leave to appeal to S.C.C. refused [1987] 1
S.C.R. vii; (1987), 81 N.R. 240.
REFERRED TO:
Page v. Churchill Falls (Labrador) Corp. Ltd., [1972]
F.C. 1141; (1972), 29 D.L.R. (3d) 236 (C.A.); R. v.
Wilfrid Nadeau Inc., [1973] F.C. 1045 (CA.); Andrews
v. Law Society of British Columbia, [1989] 1 S.C.R. 143;
(1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34
B.C.L.R. (2d) 273; 36 C.R.R. 193; 91 N.R. 255.
COUNSEL:
W. Wylie Spicer for plaintiff.
John D. Murphy for defendants.
SOLICITORS:
Eddy & McElman, Fredericton, for plaintiff.
Stewart MacKeen & Covert, Halifax, for
defendants.
The following are the reasons for decision ren
dered in English by
MCNAIR J.: The issue in this case is whether
the Court lacks jurisdiction to entertain the plain
tiff's action against the respective provincial
Crowns and two agencies thereof for alleged copy
right infringement by reason of the character of
their persons or, as the maxim puts it, ratione
personae. The defendants' motion is made pursu
ant to Rule 401(c) and Rule 474(1)(a) of the
Federal Court Rules [C.R.C., c. 663], which read
as follows:
Rule 401. A defendant may, by leave of the Court, file a
conditional appearance for the purpose of objecting to
(c) the jurisdiction of the Court, and an order granting such
leave shall make provision for any stay of proceedings neces
sary to allow such objection to be raised and disposed of.
Rule 474. (I) The Court may, upon application, if it deems it
expedient so to do,
(a) determine any question of law that may be relevant to
the decision of a matter ...
On December 12, 1989 the Court made an order
granting leave to the defendants to file a condition
al appearance and staying proceedings pending
disposition of the objection to jurisdiction. The
present proceeding calls for the determination of
the question of law as to jurisdiction. Essentially,
the defendants' contention is that this court lacks
jurisdiction ratione personae with respect to all or
any of the defendants named in the plaintiff's
action. By the same token, it appears to be undis
puted that the Court has concurrent jurisdiction
over the subject-matter of the plaintiffs action,
namely, copyright infringement. Section 37 of the
Copyright Act, R.S.C., 1985, c. C-42, provides as
follows:
37. The Federal Court shall have concurrent jurisdiction
with provincial courts to hear and determine all civil actions,
suits or proceedings that may be instituted for contravention of
any of the provisions of this Act or to enforce the civil remedies
provided by this Act.
Subsection 20(2) of the Federal Court Act,
R.S.C., 1985, c. F-7, reads as follows:
20....
(2) The Trial Division has concurrent jurisdiction in all
cases, other than those mentioned in subsection (I), in which a
remedy is sought under the authority of any Act of Parliament
or at law or in equity respecting any patent of invention,
copyright, trade-mark or industrial design.
Subsection 20(1) of the Act gives the Trial Divi
sion exclusive jurisdiction over cases involving,
among other things, the registration of any copy
right or the making, expunging, varying or rectify
ing of any registration entry with respect thereto.
Clearly, the plaintiff's claims do not fall within the
exclusivity terminology of subsection 20(1) of the
Act.
I consider that the facts pleaded in the plaintiffs
statement of claim should be taken as proven for
purposes of the jurisdictional objection raised by
the defendants. Paragraphs 2, 3 and 4 of the
statement of claim assert claims against the three
named provinces, pursuant to their respective stat
utes having to do with proceedings against the
Crown. Paragraph 5 pleads that the Council of
Maritime Premiers was at all material times the
agent of the defendant provinces and paragraph 6
alleges that the Land Registration and Informa
tion Service was an agent both of the defendant
provinces and the Council of Maritime Premiers.
Paragraphs 7 to 12 inclusive plead copyright
infringement of the plaintiff's maps and plans on
the part of the defendants and the conversion of
the same to their use and benefit, whereby the
plaintiff is alleged to have suffered loss and
damage. Paragraph 13 sets out the usual claims
for relief in cases of copyright infringement includ
ing, among others, injunctive relief, a declaration
of copyright ownership, damages for copyright
infringement and conversion and an accounting of
profits.
The first defendant, province of Nova Scotia,
bases its ratione personae objection to jurisdiction
on the Proceedings against the Crown Act,
R.S.N.S. 1967, c. 239, and more particularly sec
tions 9, 24(1) and 25, which read as follows:
9 Nothing in this Act authorizes proceedings against the
Crown except in the Supreme or a county court.
24 (1) Except as provided in this Act, proceedings against
the Crown are abolished.
25 Except as otherwise provided herein, where this Act
conflicts with any other Act this Act shall prevail.
The second defendant, Province of New Bruns-
wick, adopts a similar position with respect to the
question of ratione personae jurisdiction. Sections
6 [as am. by S.N.B. 1979, c. 41, s. 98] and 21 of
the New Brunswick Proceedings Against the
Crown Act, R.S.N.B. 1973, c. P-18, provide as
follows:
6 subject to this Act, proceedings against the Crown may be
instituted in The Court of Queen's Bench of New Brunswick
and proceeded with in accordance with the Judicature Act.
21 No proceedings may be brought against the Crown except
as provided by this Act.
By subsection 2(1), the Act is made subject, inter
alia, to the Federal Courts Jurisdiction Act,
R.S.N.B. 1973, c. F-8. Section 1 [as am. by S.N.B.
1979, c. 41, s. 51; 1982, c. 3, s. 28] of that Act says
it all, and reads:
1 The Supreme Court of Canada, and the Federal Court of
Canada, or the Supreme Court of Canada alone, according to
the provisions of the Acts of the Parliament of Canada, known
as the Supreme Court Act and the Federal Court Act, have
jurisdiction in the following cases:
(a) controversies between Canada and the Province;
(b) controversies between the Province and any other Prov
ince of Canada that may have passed, or may hereafter pass,
an Act similar to this;
(c) suits, actions, or proceedings, in which the parties thereto
by their pleadings raise the question of the validity of an Act
of the Parliament of Canada, or of an Act of the Legislature
of the Province, and when in the opinion of The Court of
Queen's Bench of New Brunswick such question is material,
in which case the said Court of Queen's Bench of New
Brunswick shall at the request of the parties, and may
without such request, order the case to be removed to the
Supreme Court of Canada in order that the question may be
decided.
The third defendant, Province of Prince Edward
Island, relies on the Crown Proceedings Act,
R.S.P.E.I. 1974, c. C-31, as amended. Section 7 of
that Act, exclusive of citation references, reads as
follows:
7. Subject to this Act, all proceedings against the Crown in the
Supreme Court of Prince Edward Island shall be instituted and
proceeded with in accordance with the Judicature Act ... .
The three provincial statutes relating to pro
ceedings against the Crown define the word
"Crown" as meaning "the Crown in right of the
Province". The Proceedings Against the Crown
Act of New Brunswick includes a Crown corpora
tion within the definition of the word "Crown".
The definition sections of all three statutes are
explicit in stating that the word "person" does not
include the Crown.
The Jurisdictional Issue Per Se
The defendants' submissions on this point may
be summarized as follows:
1. The Federal Court can only have jurisdiction
over the three provinces to the extent that such
jurisdiction has been expressly allocated by pro
vincial legislation, having regard as well to the
traditional immunity of the provincial Crown
from suits in the Federal Court and the fact
that this was not intended to be abrogated by
the general descriptions of subject-matter of
jurisdiction in the Federal Court Act: Avant
Inc. v. R., [1986] 2 F.C. 91 (T.D.); and Union
Oil Co. of Canada Ltd. v. The Queen, [1976] 1
F.C. 74 (C.A.) [appeal to the Supreme Court
of Canada dismissed [1976] 2 S.C.R. v].
2. The fact that the Prince Edward Island statute
only goes so far as to require that actions
against the provincial Crown be instituted and
proceeded with in accordance with the provi
sions of the Judicature Act does not alter the
common law position of Crown immunity from
suits in courts other than that of the province.
The Federal Courts Jurisdiction Act of New
Brunswick has no application to the present
case as there is no question of any controversies
between Canada and New Brunswick or be
tween that province and any other province that
may have enacted similar legislation, nor is the
validity of an Act of the Parliament of Canada
or of the Legislature of the province put in
question by the present action.
3. The allegations of the existing agency relation
ship between Council of Maritime Premiers and
the Land Registration and Information Service,
as pleaded in paragraphs 5 and 6 of the state
ment of claim, must be taken as proven. Pro
ceedings against the Crown in all three prov
inces include proceedings against Crown
agents. Hence, it follows that these Crown
agents, Council of Maritime Premiers and
Land Registration and Information Service, are
subject to the same jurisdictional limitations as
the respective provincial Crowns.
On the jurisdictional issue, the plaintiff takes
the position that a motion for dismissal on the
ground of lack of jurisdiction is analogous to a
motion to strike under Rule 419 of the Federal
Court Rules inasmuch as the Court must be satis
fied that it is "plain and obvious that the action
cannot succeed". In the plaintiff's submission, con
sideration must be given to the question of whether
the plaintiff's case has been shown to be hopeless
because of lack of jurisdiction.
With respect, I am unable to agree that any
such analogy should be drawn between cases rais
ing the pure and simple issue of lack of jurisdiction
in the Court and those having to do with motions
to strike under Rule 419. In my view, the jurisdic
tional issue, which is a pure question of law, must
stand or fall on its own merits, uninfluenced by
considerations which might be applicable in the
case of motions to strike: Page v. Churchill Falls
(Labrador) Corp. Ltd., [1972] F.C. 1141 (C.A.);
and R. v. Wilfrid Nadeau Inc., [1973] F.C. 1045
(C.A.).
It should be observed at the outset that the
Federal Court of Canada is a statutory court
whose jurisdiction is defined and limited by the
instrument of its creation. In New Brunswick
Electric Power Commission v. Maritime Electric
Company Limited, [1985] 2 F.C. 13 (C.A.), Stone
J., delivering the judgment of the Court on an
application for a stay of execution of an order
pending disposition of an appeal, said at page 25:
The contention that the Court has inherent power to stay the
Board's order can be dealt with shortly. The Federal Court,
unlike a superior court of a province, is a statutory court. Its
jurisdiction to hear and determine disputes must therefore be
found in the language used by Parliament in conferring
jurisdiction.
In Canadian Javelin Ltd. v. The Queen in right
of Newfoundland, [1978] 1 F.C. 408 (C.A.), an
appeal from the Trial Judge's dismissal of an
action by three corporations against the Province
of Newfoundland for want of jurisdiction was dis
missed. Jackett C.J. made the following statement,
at page 409:
In my view, it is clear law that the Crown cannot be
impleaded in a court in respect of a claim against the Crown
except where statutory jurisdiction has been conferred on the
court to entertain claims against the Crown of a class in which
the particular claim falls.
In my opinion, the mere fact that the Federal
Court has concurrent jurisdiction with provincial
courts to hear and determine civil actions for
copyright infringement is insufficient to vest the
Court with jurisdiction to entertain the present suit
impleading the provincial Crowns and the Crown
agencies named as defendants in the absence of
some specific provision to that effect, whether
contained in federal legislation or in the respective
Crown proceedings statutes of the three provinces.
I concur with the reasoning of Collier J. in Avant
Inc. v. R., supra, and, paraphrasing his words,
conclude that "for the provincial Crown[s] to be
sued in this court, there must, ... be some legisla
tive provision permitting suits", and here there is
none. I am also of the opinion that the traditional
immunity of the provincial Crowns and their agen
cies from suits in the Federal Court is not abrogat
ed in the present case by the general descriptions
of subject matter of concurrent jurisdiction with
respect to copyright contained in the Federal
Court Act, on the principle of Union Oil Company
v. The Queen, supra.
Subsection 15(1) of the Charter
The defendants assert that the plaintiff cannot
rely upon either section 7 or subsection 15(1) of
the Canadian Charter of Rights and Freedoms
[being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)]
in support of the claim of entitlement to litigate its
action for copyright infringement in the Federal
Court. In actual fact, it seems to be common
ground that section 7 of the Charter does not
apply in any event because the subject-matter of
the claim relates purely to proprietary or economic
rights. As for subsection 15 (1) of the Charter, the
defendants submit that the specific terminological
reference therein to "every individual" precludes
corporations from availing themselves of the guar
anteed equality rights afforded thereby, citing
Milk Bd. v. Clearview Dairy Farm Inc., [1987] 4
W.W.R. 279 (B.C. C.A.), [leave to appeal to
Supreme Court of Canada refused [1987] 1
S.C.R. vii]. Anticipating the plaintiff's reliance on
the case of Dywidag Systems International
Canada Limited v. Zutphen Brothers Construction
Limited (1987), 76 N.S.R. (2d) 398 (C.A.), the
defendants contend that the present case is distin
guishable from Zutphen in that the subject-matter
does not involve a claim for negligent misrepre
sentation in respect of a contract between the
parties wherein the defendants sought to join the
federal Crown in third party proceeding, and suc
ceeded in doing so by virtue of subsection 15(1) of
the Charter. The defendants point out that the
underlying rationale of Zutphen was the proce
dural discrimination between the subject and the
Crown with respect to litigation perceived as the
result of conferring exclusive jurisdiction on the
Federal Court under section 17 of the Federal
Court Act. In the defendants' submission, the
present case is not analogous to the situation
where one party may implead another party in a
court in which the other party has no such recipro
cal right of suit. Furthermore, it is urged that the
applicable federal legislation in this case, namely,
subsection 20(2) of the Federal Court Act and
section 37 of the Copyright Act, only goes so far as
to confer concurrent jurisdiction on the Federal
Court with the result that any argument based on
discrimination must surely fail. Finally, the
defendants press the argument that it is not the
mandated role of section 15 of the Charter to
require that provincial legislatures confer jurisdic
tion on courts outside their territorial and jurisdic
tional boundaries, in this instance the Federal
Court of Canada.
The plaintiff relies strongly on Dywidag Sys
tems International Canada Limited v. Zutphen
Brothers Construction Limited, supra, in pressing
the argument that subsection 15(1) of the Charter
has raised the question of whether the preferential
position of the Crown with respect to litigation,
based on the doctrine of Crown privilege, is not an
anachronism in the modern era of the Charter.
The plaintiff submits that the Crown is a physical
person with the same general capacity to contract
as anyone else, citing Verreault (J.E.) & Fils Ltée
v. Attorney General (Quebec), [1977] 1 S.C.R. 41;
and Attorney General of Quebec v. Labrecque et
al., [1980] 2 S.C.R. 1057. The plaintiff further
submits that corporations are individuals within
the contemplation of subsection 15(1) of the
Charter and as such are entitled to the guaranteed
right of protection against discrimination. The
plaintiff cites in support of this proposition the
case of Andrews v. Law Society of British
Columbia, [1989] 1 S.C.R. 143.
I agree with the submission of defendants' coun
sel that the Zutphen case is distinguishable on its
facts from the case at bar, primarily because the
exclusive jurisdiction of the Federal Court to
entertain suits against the federal Crown was held
to offend the equality provisions of section 15 of
the Charter. The rationale on this point is thus
stated by Jones J.A., at page 447:
The effect of s. 17 of the Federal Court Act in conferring
exclusive jurisdiction on the Federal Court is to place the
subject in a different position from the Crown as litigant. While
the Crown can sue the subject in the Supreme Court the
subject does not have the same right to sue the Crown. It
follows that the subject is not equal before and under the law
and does not have the equal protection and benefit of the law
without discrimination.
In the present case, there is no question of any
exclusive jurisdiction vested in the Federal Court
which could be seen as subjecting the plaintiff to
procedural discrimination. The applicable federal
legislative provisions, to which I have alluded,
simply confer concurrent jurisdiction with respect
to suits or proceedings for copyright infringement.
In any event, the crux of the whole case, as it
seems to me, is whether the plaintiff and indeed
the Crown are "individuals" within the contempla
tion of subsection 15(1) of the Charter.
In Milk Bd. v. Clearview Dairy Farm Inc., the
British Columbia Court of Appeal held that a
corporation was not within subsection 15(1) of the
Charter because it was not an individual. The
same theme was further elaborated in R. v. Stod-
dart (1987), 37 C.C.C. (3d) 351 (Ont. C.A.), by
Tarnopolsky J.A., at page 360:
The rights set out in s. 15(1) are those of "every individual".
This is the only provision in the Charter which grants rights to
"every individual". That term was specifically substituted by
the Special Joint Committee of the Senate and House of
Commons, for the term "everyone", used in the original Chart
er proposal of October, 1980: see "Minutes of Proceedings and
Evidence", 1980-81, January 29, 1981.
The term "individual" is defined in the Oxford English
Dictionary as "a single human being; as opposed to society, the
family, etc." Similarly, Black's Law Dictionary defines the
term as follows:
As a noun, this term denotes a single person as distin
guished from a group or class, and also, very commonly, a
private or natural person as distinguished from a partnership,
corporation, or association; but it is said that this restrictive
signification is not necessarily inherent in the word, and that
it may, in proper cases, include artificial persons.
In fact the jurisprudence has been fairly consistent that the
term relates only to human beings and does not include corpo
rations ....
The learned Judge then proceeded to consider the
issue of whether the term "individual" in subsec
tion 15 (1) of the Charter includes the Crown and,
after reviewing the Zutphen case and other
authorities, concluded at page 362 as follows:
The Crown is not an "individual" with whom a comparison can
be made to determine a s. 15(1) violation.
In Rudolph Wolff & Co. v. Canada (1987), 26
C.P.C. (2d) 166 (Ont. H.C.) [affd March 7, 1988,
Ont. C.A.], the plaintiff sued the federal Crown in
the Supreme Court of Ontario for damages for
breach of contract, breaches of fiduciary duties
and misrepresentation. The defendant brought a
motion to strike on the ground that jurisdiction to
entertain the suit lay in the Federal Court of
Canada by virtue of subsection 17(1) of the Fed
eral Court Act. The plaintiff argued that the
conferring of exclusive jurisdiction on the Federal
Court breached the plaintiff's equality rights
under section 15 of the Charter, citing in support
the case of Zutphen, supra. Henry J., after care
fully reviewing the cases of Zutphen and Stoddart
and other authorities, stated the following conclu
sion, at page 173:
In my opinion the decision of the Court of Appeal in
Stoddart stands for the proposition that in the application of
statutes governing the relationship between the Crown and the
subject in both civil and criminal proceedings, s. 15(1) of the
Charter has no application, for the reason that the Crown is not
an individual who can be compared with the subject for the
purposes of that provision.
Suffice it to say, I fully concur with the opinions
expressed by Mr. Justice Tarnopolsky and Mr.
Justice Henry in Stoddart and Rudolph Wolff &
Co. respectively. In my view, the case of Andrews
v. Law Society of British Columbia, supra, does
not stand for the proposition propounded by the
plaintiff. Moreover, I fail to see how the cases of
Verreault (J.E.) & Fils Ltée v. Attorney General
(Quebec), supra, and Attorney General of Quebec
v. Labrecque et al., supra, lend any measure of
support to the plaintiff's position.
For the foregoing reasons, I am bound to con
clude that the Trial Division of the Federal Court
of Canada is lacking in jurisdiction to entertain the
plaintiff's action for copyright infringement. The
defendants' motion for dismissal is therefore grant
ed with costs, and an order will issue accordingly.
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.