Generally speaking, the Federal Court does not have jurisdiction over the provincial Crown. Confusion arises when the subject matter of a claim is within the realm of the Federal Court and the claim is an in personam. The recent Federal Court of Appeal decision of Canada v. Toney, 2013 FCA 217 affirms that there remain limited instances where the Federal Court has jurisdiction over a province, even if other factors suggest that a claim would be properly put before the Federal Court.
The Toney family experienced a boating malfunction when sailing in Alberta. The rescue vehicle, which was owned and operated by the province of Alberta, capsized during the rescue mission resulting in the death of a young member of the Toney family. The family brought a claim against the province of Alberta in Federal Court.
Alberta objected to the jurisdiction of the federal court and lost at first instance. Alberta appealed arguing that the Federal Court does not have in personam jurisdiction over the province in this case.
The majority of the Federal Court of Appeal held that the Federal Court does not have in personam jurisdiction over Alberta.
In contrast to provincial superior courts, the Federal Court does not have inherent jurisdiction and derives its jurisdiction from statute. The Crown, in this case the province of Alberta, is prima facie immune from legislation. Given that the Federal Court is a creature of statute, the Court does not have jurisdiction over the provincial Crown unless jurisdiction is conferred (1) by statute, (2) by necessary implication or (3) by virtue of the Crown waiving immunity.
Is Alberta explicitly bound by statute?
The majority decision, written by Near J. A., canvassed various federal and provincial statutes in order to determine whether any of the statues conferred the Federal Court with jurisdiction over Alberta.
First, the majority examined three potentially applicable provisions of the Act –Sections 17, 19, and 22 —and found that none of the provisions conferred jurisdiction to the Federal Court.
Section 17 did not confer jurisdiction despite language of "the Federal Court has concurrent original jurisdiction in all cases in which relief is claimed against the Crown" because Section 2 defines the Crown as "Her Majesty in right of Canada" which omits specific reference to "provinces" which is found in other statutes.
Section 19 was found to be limited to situations where the Federal government commences a third party proceeding against the provincial Crown.
Section 22, which the dissent relied upon as conferring jurisdiction, was also found to be inapplicable. The provision reads as follows:
22. (1) The Federal Court has concurrent original jurisdiction, between subject and subject as well 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 [emphasis added].
The majority held that the provision dealt with subject matter jurisdiction and that the language of "between subject and subject as well as otherwise" of Section 22 was not specific enough to apply to the provincial Crown.
The majority then went on to see if any provincial statutes conferred the Federal Court with jurisdiction. First, the majority examined Alberta's Proceedings Against the Crown Act, RSA 2000, c P-25 (the "APACA"). Ultimately, the majority endorsed a Saskatchewan Court of Appeal decision that affirmed that the APACA does not allow an action to proceed against Alberta outside a court in Alberta. Moreover, Alberta's Judicature Act, RSA 2000, c J-2 only provides the Federal Court with jurisdiction in three narrow circumstances that were not applicable in this case.
Must the Federal Court have jurisdiction by necessary implication?
The majority held that necessary implication meant that absurdity would result if the Court did not have jurisdiction over Alberta. The majority held that since the plaintiffs in the underlying action could bring their claim in Alberta, absurdity would not result.
Did Alberta waive immunity?
The majority held that the province had done nothing that would waive their immunity.
Sharlow J. A dissented, holding that the jurisdiction of the Federal Court is grounded only in federal legislation. Since the Plaintiffs' claim derives from the federal Marine Liability Act, SC 2001, c 6 ("MLA"), which is "binding on her Majesty in right of Canada or a province", Alberta can be held liable if claims are proved in a court of competent jurisdiction. Parliament gave the Federal Court jurisdiction over claims under the MLA and thus the federal court has jurisdiction.
The Dissent came to this conclusion on the basis that Section 22(1) of the Act gives the Federal Court concurrent original jurisdiction....except to the extent that jurisdiction has been otherwise specifically assigned." Sharlow J. A canvassed the Act and held that no provision applied to limit the scope of Section 22(1) in this case.
The significance of this case is that the Crowns benefits from immunity regardless of the capacity in which they are acting. Even if a Crown is acting as a common person, they are treated differently by virtue of their prerogative writ.
The biggest take-away from this case is that if you have a claim against a provincial Crown, you must carefully consider the proper forum. You may be bogged down in procedural motions if you choose to bring a claim in Federal Court.
What is interesting about this case in particular is that Alberta previously applied to strike the Plaintiffs' claim for want of jurisdiction. The Federal Court rejected Alberta's argument, holding that that the Plaintiff could bring an action in personam against the provincial crown. What is even more interesting is that the Federal Court of Appeal upheld that decision in Canada v. Toney, 2012 FCA 167. Stranger still, the Plaintiffs in in this case did not argue res judicata even though the Federal Court of Appeal decided this very issue a year earlier.
Leave is required for this decision to be appealed to the Supreme Court of Canada. Given the strongly worded dissent, the Plaintiffs may seek leave to appeal the decision of the Federal Court of Appeal.
Canada v. Toney, 2013 FCA 217
Federal Court of Appeal Docket: A-541-12
Date of Decision: September 18, 2013
 See Section 3 of the MLA.
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