Canada: Federal Court Of Appeal Affirms That The Federal Court Has Limited Jurisdiction Over The Province Of Alberta

Last Updated: October 4 2013
Article by Atrisha S. Lewis

Most Read Contributor in Canada, September 2018

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.

Background

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.

The claims fall within the subject of maritime law which are within the express terms of the Federal Courts Act, RSC 1985, c F-7 (the "Act").

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.

Decision

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.

Dissent

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",[1] 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.

Potential Significance

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.

Case Information

Canada v. Toney, 2013 FCA 217

Federal Court of Appeal Docket: A-541-12

Date of Decision: September 18, 2013

Footnote

[1] See Section 3 of the MLA.

To view original article, please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions