A-132-89
Brent Bradasch (Respondent) (Plaintiff)
v.
James Warren, John Berry, Gordon Geiger and
Her Majesty the Queen (Appellants) (Defend-
ants)
A-133-89
James Workman (Respondent) (Plaintiff)
v.
James Warren, John Berry, Gordon Geiger and
Her Majesty the Queen (Appellants) (Defend-
ants)
A-134-89
Glen Kane (Respondent) (Plaintiff)
v.
James Warren, John Berry, Gordon Geiger and
Her Majesty the Queen (Appellants) (Defend-
ants)
INDEXED AS: BRADASCH V. WARREN (C.A.)
Court of Appeal, Pratte, Heald and Hugessen
JJ.A.—Whitehorse, Yukon, April 26, 1990.
Federal Court jurisdiction — Trial Division — Crown
Torts — Action for assault and battery and wrongful impris
onment against members of RCMP — Appeal from Trial
Division decision dismissing motion for leave to file condition
al appearance and to strike out statement of claim for want of
jurisdiction — Appeal dismissed — Motions Judge's conclu
sion correct but reasons wrong — Application of SCC decision
in ITO v. Miida Electronics as to different requirements for
jurisdiction — Statutory grant of jurisdiction in Federal Court
Act, s. 17(5)(b) — However, Motions Judge erred in finding
action founded on federal law on basis of Federal Court Act,
Crown Liability Act and Royal Canadian Mounted Police Act
— By virtue of Constitution Act, 1871 and Yukon Territory
Act, all law in Yukon federal law — Therefore, Yukon tort
law federal law made applicable here by operation of Yukon
Act, law of Canada.
Constitutional law — Distribution of powers — In dichoto
my of federal system, all state authority federal or provincial
— Only Parliament of Canada may make laws for any territo
ry not included in a province — Parliament having exercised
its legislative power in creating Yukon Territory from part of
Northwest Territories — All law in Yukon is federal law
Powers conferred on Territorial Legislature only delegated by
Parliament which has retained paramountcy.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Constitution Act, 1871, 34-35 Vict., c. 28 (U.K.) (as am.
by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to
the Constitution Act, 1982, Item 5) [R.S.C., 1985,
Appendix II, No. 11], s. 4.
Crown Liability Act, R.S.C., 1985, c. C-50, ss. 3(a), 10.
Federal Court Act, R.S.C., 1985, c. F-7, s. 17(5)(b).
Federal Court Rules, C.R.C., c. 663, R. 324.
Royal Canadian Mounted Police Act, R.S.C., 1985, c.
R-10.
The Yukon Territory Act, 1898, 61 Vict., c. 6 (Can.)
[R.S.C., 1985, Appendix II, No. 19], s. 9.
Yukon Act, R.S.C., 1985, c. Y-2, s. 23(1).
CASES JUDICIALLY CONSIDERED
APPLIED:
ITO—International Terminal Operators Ltd. v. Miida
Electronics et al., [1986] 1 S.C.R. 752; (1986), 28
D.L.R. (4th) 641; 34 B.L.R. 251; 68 N.R. 241.
REFERRED TO:
Oag v. Canada, [1987] 2 F.C. 511; (1987), 33 C.C.C.
(3d) 340; 73 N.R. 149 (C.A.).
COUNSEL:
Stan F. Benda for appellants (defendants).
Buffy B. Blakley for respondent (plaintiff).
SOLICITORS:
Deputy Attorney General of Canada for
appellants (defendants).
Cable, Veale, Morris & Kilpatrick, White-
horse, Yukon, for respondent (plaintiff).
These are the reasons for judgment of the
Court delivered orally in English by
HUGESSEN J.A.: This is an appeal from a deci
sion of the Trial Division [(1989), 27 F.T.R. 70
(F.C.T.D.)] dismissing defendants' motion made
under Rule 324 [Federal Court Rules, C.R.C., c.
663] for leave to file a conditional appearance and
to strike out the statement of claim on the grounds
of want of jurisdiction.
The individual defendants were at the relevant
time members of the Royal Canadian Mounted
Police. The plaintiffs have sued them and the
Crown for the alleged torts of "assault and bat
tery" and "wrongful imprisonment".
We are all of the view that the reasons given by
the Motions Judge cannot be supported. He con
fused the different requirements for this Court's
jurisdiction as set out in ITO—International Ter
minal Operators Ltd. v. Miida Electronics et al.:'
1. There must be a statutory grant of jurisdiction by the
federal Parliament.
2. There must be an existing body of federal law which is
essential to the disposition of the case and which nourishes the
statutory grant of jurisdiction.
3. The law on which the case is based must be "a law of
Canada" as the phrase is used in s. 101 of the Constitution Act,
1867.
There can be little dispute here as to the exist
ence of the first condition and the statutory grant
of jurisdiction in paragraph 17(5)(b) of the Feder
al Court Act 2 is unambiguous. The Motions Judge,
however, seems to rely on it, as quoted in a passage
from this Court's judgment in Oag v. Canada,' as
well as on paragraph 3(a) and section 10 of the
Crown Liability Act," as support for the proposi
tion that the plaintiff's action is founded in federal
law. This is clearly error and it is enough to read
the cited texts to see that they cannot be the
substantive foundation of any right of action
against a Crown servant.
[1986] 1 S.C.R. 752, at p. 766.
2 R.S.C., 1985, c. F-7:
17. ...
(5) The Trial Division has concurrent original jurisdiction
. . .
(b) in proceedings in which relief is sought against any
person for anything done or omitted to be done in the
performance of his duties as an officer or servant of the
Crown.
3 [ 1 987 ] 2 F.C. 511.
4 R.S.C., 1985, c. C-50.
(Continued on next page)
Somewhat closer to the mark, but still wrong,
was the Motions Judge's reliance on the Royal
Canadian Mounted Police Act.' He said [at
page 72]:
It seems that the individual defendants could hardly have
committed the specified alleged torts if they had not been
invested with the authority, duties and powers conferred upon
them each as "a member of the Force" pursuant to the Royal
Canadian Mounted Police Act, an authentic law of Canada.
The "authority, duties and powers" conferred on
the individual defendants by federal law may con
ceivably form the basis of a defence by one or
more of them to the action against them, but the
cause of action itself does not in any way depend
upon the Royal Canadian Mounted Police Act.
That said, however, we are also of the view that
the conclusion reached by the Motions Judge was
correct, but for very different reasons.
The plaintiffs' action sounds in tort. The alleged
tort was committed in the Yukon. In the dichoto
my of a federal system, in which all state authority
must ultimately be either federal or provincial, all
law in the Yukon is federal law. In constitutional
terms, only the Parliament of Canada may make
laws for
4. ... the administration, peace, order and good government
of any territory not for the time being included in any Province.
(See section 4 of the Constitution Act, 1871 [34
35 Vict., c. 28 (U.K.) (as am. by Canada Act,
1982, 1982, c. 11 (U.K.), Schedule to the Consti-
(Continued from previous page)
3. The Crown is liable in tort for the damages for which, if
it were a private person or full age and capacity, it would be
liable
(a) in respect of a tort committed by a servant of the
Crown.
. . .
10. No proceedings lie against the Crown by virtue of
paragraph 3(a) in respect of any act or omission of a servant
of the Crown unless the act or omission would apart from the
provisions of this Act have given rise to a cause of action in
tort against that servant or the servant's personal
representative.
5 R.S.C., 1985, c. R-10.
tution Act 1982, Item 5) [R.S.C., 1985, Appendix
II, No. 11]]).
Parliament has exercised its legislative power.
When the Yukon Territory was created from a
part of the Northwest Territories, it was done by
The Yukon Territory Act, 1898, 6 a federal statute.
That Act provided for legislative and executive
power in the territory and created a superior court
for the administration of justice therein. Section 9
of the Act provided:
9. Subject to the provisions of this Act, the laws relating to
civil and criminal matters and the ordinances as the same exist
in the Northwest Territories at the time of the passing of this
Act, shall be and remain in force in the said Yukon Territory in
so far as the same are applicable thereto until amended or
repealed by the Parliament of Canada or by any ordinance of
the Governor in council or the Commissioner in Council made
under the provisions of this Act.
Similar provisions have been carried over into
successive statute revisions and subsection 23(1) of
the Yukon Act' today provides:
23.(1) Subject to this Act, the laws relating to civil and
criminal matters and the ordinances in force in the Northwest
Territories on June 13, 1898 are and remain in force in the
Territory, in so far as they are applicable thereto, and in so far
as they have not been or are not hereafter repealed, abolished
or altered by Parliament or by any ordinance.
Thus the law of tort in the Yukon is, in constitu
tional terms, federal law and that law is made
applicable here by the operation of the Yukon Act,
a law of Canada.' The second and third conditions
laid down in ITO—International Terminal Opera
tors, supra, have been met.
The appeals will be dismissed with costs.
6 61 Vict., c. 6 (Can.) [R.S.C., 1985, Appendix II, No. 19].
7 R.S.C., 1985, c. Y-2.
8 We are, of course, aware that the de facto status of the
Yukon is rapidly evolving and that institutions of democratic
government are now in place here which make the Territory
very closely resemble a province. The fact remains, though,
that, however extensive may be the powers conferred on the
Territorial Legislature, they are, in law, powers which have to
date only been delegated by Parliament; Parliament has not
finally divested itself of them and has specifically retained its
paramountcy over them.
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.