Alberta (Attorney General) v. British Columbia (Attorney General)

Alberta (Attorney General) v. British Columbia (Attorney General)
Court (s) Database
Federal Court of Appeal Decisions
Date
2021-04-26
Neutral citation
2021 FCA 84
File numbers
A-386-19
Notes
A correction was made on April 20, 2022
Reported Decision
Decision Content
Date: 20210426
Docket: A-386-19
Citation: 2021 FCA 84
CORAM:
NADON J.A.
RIVOALEN J.A.
LEBLANC J.A.
BETWEEN:
ATTORNEY GENERAL OF ALBERTA
Appellant
and
ATTORNEY GENERAL OF BRITISH COLUMBIA
Respondent
Heard by online video conference hosted by the registry
on October 15, 2020.
Judgment delivered at Ottawa, Ontario, on April 26, 2021.
REASONS FOR JUDGMENT BY:
LEBLANC J.A.
CONCURRED IN BY:
RIVOALEN J.A.
CONCURRING REASONS BY:
NADON J.A.
Date: 20210426
Docket: A-386-19
Citation: 2021 FCA 84
CORAM:
NADON J.A.
RIVOALEN J.A.
LEBLANC J.A.
BETWEEN:
ATTORNEY GENERAL OF ALBERTA
Appellant
and
ATTORNEY GENERAL OF BRITISH COLUMBIA
Respondent
REASONS FOR JUDGMENT
NADON J.A. (Concurring Reasons)
[1] I have read the reasons which my colleague LeBlanc J.A. gives in support of his conclusion that the appeal should be allowed with costs in favour of the appellant, the Attorney General of Alberta (Alberta). Although I agree entirely with his proposed disposal of the appeal, I come to that conclusion for different reasons.
I. Introduction
[2] On May 18, 2018, the Lieutenant Governor of Alberta gave royal assent to the Preserving Canada’s Economic Prosperity Act, S.A. 2018, c. P-21.5 (the Act) which was proclaimed into force on April 30, 2019. The Act authorises the Minister of Energy (the Minister) to establish a licensing regime for the export of natural gas, crude oil, and refined fuels. The Act leaves the parameters of the licensing regime to the Minister’s discretion, having regard to the province’s public interest. Before enacting a licensing regime, the Minister must have regard to whether an adequate pipeline capacity exists to maximise the return on crude oil and diluted bitumen produced in Alberta and whether adequate supplies and reserves of natural gas, crude oil, and refined fuels will be available for Alberta’s present and future needs. The Minister may also have regard to any other matter that she considers relevant. The Act also authorises the Lieutenant Governor in Council to make regulations, including regulations necessary to enable the Minister to perform her duties under the Act.
[3] In the legislative debates leading to the passage of the Act, members of the Alberta legislature made statements suggesting that the Act’s true purpose was political retaliation. That is, the Act would allow Alberta to restrict the flow of natural resources to British Columbia as a response to the latter’s opposition to the Trans Mountain pipeline expansion. At all times material to these proceedings, the Minister had not yet established a licensing regime nor had the Lieutenant Governor in Council made any regulations under the Act.
[4] On May 1, 2019, the Attorney General of British Columbia (BC) commenced an action before the Alberta Court of Queen’s Bench (the Alberta Court) seeking a declaration of invalidity in respect of the Act. Alberta responded to BC’s action by filing a motion to dismiss it on the grounds that the Alberta Court had no jurisdiction to entertain the proceedings and that BC lacked standing to bring its action.
[5] Pending the resolution of the above issue, BC commenced an action, pursuant to section 19 of the Federal Courts Act, R.S.C. 1985, c. F-7 (the FCA) in the Federal Court on June 14, 2019, in which it sought a declaration that the Act was unconstitutional. More particularly, at paragraph 4 of its Statement of Claim, BC sets out the grounds upon which it relies for its assertion of unconstitutionality:
4. The Plaintiff says the Act is unconstitutional for the following reasons:
a. The Act is a law in relation to interprovincial and international exports, and would therefore [be] beyond provincial competence under s. 91(2) of the Constitution Act, 1867, unless it can be saved by section 92A.
b. Section 92A(2) of the Constitution Act, 1867 authorizes provincial legislatures to make laws that would otherwise be outside provincial competence as a result of s. 91(2), but only if
i. those laws are in relation to exports to another part of Canada of the “primary production” of non-renewable natural resources; and
ii. such laws do not “authorize or provide for discrimination in prices or in supplies exported to another part of Canada.”
c. The Act purports to be in relation to the export of “refined fuels,” including gasoline, diesel, aviation fuel, and locomotive fuel, which are not the primary production of petroleum resources, as defined in s. 92A and the Sixth Schedule to the Constitution Act, 1867.
d. The Act authorizes discrimination in supplies of natural gas and crude oil exported to British Columbia.
e. Section 121 of the Constitution Act, 1867 guarantees that the articles of growth, produce, and manufacture of each province “shall...be admitted free into the other provinces.” The Act's essence and purpose is to increase the cost of trade in natural gas, crude oil, and refined fuels across the Albert[a]-British Columbia border for a tariff-like purpose, namely to punish British Columbia. The Act is therefore contrary to s. 121 of the Constitution Act, 1867.
[6] BC further says that its action constitutes a controversy between it and Alberta and that both provinces have enacted legislation signifying their assent to the Federal Court having jurisdiction in regard to controversies between their province and another province.
[7] Also of importance is BC’s statement, found at paragraph 1 of its Statement of Claim, that it has commenced its action acting as parens patriae “on behalf of the public interest of the residents of British-Columbia”.
[8] On July 19, 2019, Hall J. of the Alberta Court stayed BC’s action until such time as the Federal Court made a determination as to whether it had jurisdiction in respect of the action commenced in that Court by BC on June 14, 2019.
[9] Two motions were heard by the Federal Court on September 12 and 13, 2019. First, Alberta brought a motion under Rule 221 of the Federal Courts Rules, S.O.R./98-106 (the Rules) asking the Court to strike BC’s action because it disclosed no reasonable cause of action. More particularly, Alberta argued that the Federal Court had no jurisdiction to hear BC’s action under section 19 of the FCA, and that the action was premature. Second, BC brought a motion for an interlocutory injunction seeking an order prohibiting the Minister from exercising her powers under the Act until such time as the matter raised in the proceedings had been finally disposed of.
[10] On September 24, 2019, Grammond J. (the Judge) dismissed Alberta’s motion to strike and granted BC’s motion for an interlocutory injunction (2019 FC 1195).
[11] On October 4, 2019, Alberta filed an appeal of the Judge’s decision asking this Court to set aside the Judge’s decision and to dismiss BC’s action. Alberta also seeks its costs.
[12] For the reasons that follow, I would allow Alberta’s appeal.
II. Legislation
[13] The relevant legislation at the heart of this appeal is reproduced immediately as follows:
Federal Courts Act, R.S.C. 1985, c. F-7
Loi sur les Cours fédérales, L.R.C. 1985, ch. F-7
Intergovernmental disputes
Différends entre gouvernements
19 If the legislature of a province has passed an Act agreeing that the Federal Court, the Federal Court of Canada or the Exchequer Court of Canada has jurisdiction in cases of controversies between Canada and that province, or between that province and any other province or provinces that have passed a like Act, the Federal Court has jurisdiction to determine the controversies. [My emphasis.]
19 Lorsqu’une loi d’une province reconnaît sa compétence en l’espèce, — qu’elle y soit désignée sous le nom de Cour fédérale, Cour fédérale du Canada ou Cour de l’Échiquier du Canada — la Cour fédérale est compétente pour juger les cas de litige entre le Canada et cette province ou entre cette province et une ou plusieurs autres provinces ayant adopté une loi semblable. [Je souligne.]
Judicature Act, R.S.A. 2000, c. J-2 (Alberta)
Action by Attorney General or Minister of Justice and Solicitor General
25(1) The Court has jurisdiction to entertain an action at the instance of either
(a) the Attorney General of Canada, or
(b) the Minister of Justice and Solicitor General of Alberta,
for a declaration as to the validity of an enactment of the Legislature though no further relief is prayed or sought. [My emphasis.]
(2) An action under this section for a declaration as to the validity of an enactment is deemed sufficiently constituted if the Attorney General of Canada and the Minister of Justice and Solicitor General of Alberta are parties to it.
(3) A judgment in an action under this section may be appealed against as other judgments of the Court.
…
Jurisdiction of federal courts
27 The Supreme Court of Canada and the Federal Court of Canada, or the Supreme Court of Canada alone, according to the Supreme Court Act (Canada) and the Federal Court Act (Canada) have jurisdiction
(a) in controversies between Canada and Alberta;
(b) in controversies between Alberta and any other province or territory of Canada in which an Act similar to this Act is in force;
(c) in proceedings in which the parties by their pleadings have raised the question of the validity of an Act of the Parliament of Canada or of an Act of the Legislature of Alberta, when in the opinion of a judge of the court in which they are pending the question is material, and in that case the judge shall, at the request of the parties, and may without request if the judge thinks fit, order the case to be removed to the Supreme Court of Canada in order that the question may be decided.
Supreme and Exchequer Courts Act, S.C. 1875, c. 11
Acte de la Cour Suprême et de l’Échiquier, S.C. 1875, ch. 11
54. When the Legislature of any Province forming part of Canada shall have passed an Act agreeing and providing that the Supreme Court, and the Exchequer Court, or the Supreme Court alone, as the case may be, shall have jurisdiction in any of the following cases, viz.: - (1st) Of controversies between the Dominion of Canada and such Province; (2nd) Of controversies between such Province and any other Province or Provinces, which may have passed a like Act; (3rd) Of suits, actions, or proceedings in which the parties thereto by their pleadings shall have raised the question of the validity of an Act of the Parliament of Canada, when in the opinion of a Judge of the Court in which the same are pending such question is material; (4th) Of suits, actions, or proceedings in which the parties thereto by their pleadings shall have raised the question of the validity of an Act of the Legislature of such Province, when in the opinion of a Judge of the Court in which the same are pending such question is material; then this section and the three following sections of this Act shall be in force in the class or classes of cases in respect of which such Act so agreeing and providing, may have been passed. [My emphasis.]
54. Lorsque la législature d’une province formant partie du Canada aura passé un acte convenant et décrétant que la Cour Suprême et la Cour de l’Echiquier, ou la Cour Suprême seulement, selon le cas, auront juridiction dans aucun des cas suivants, savoir : (1.) Les contestations entre la Puissance du Canada et cette Province; (2.) Les contestations entre cette province et quelque autre province ou quelques autres provinces qui auront passé un acte semblable; (3.) Les poursuites, actions ou procédures dans lesquelles les parties auront, par leur plaidoyer, soulevé la question de la validité d’un acte du parlement du Canada, lorsque dans l’opinion d’un juge de la cour devant laquelle elle est pendante, cette question est essentielle; (4.) Les poursuites, actions ou procédures dans lesquelles les parties auront, par leur plaidoyer, soulevé la question de la validité d’un acte de la législature de cette province, lorsque, dans l’opinion d’un juge de la cour devant laquelle elle est pendante, cette question est essentielle; alors la présente section et les trois sections immédiatement suivantes du présent acte seront en vigueur dans la catégorie ou les catégories de cas à l’égard desquels tel acte convenant et décrétant comme susdit, pourra avoir été passé. [Je souligne].
55. The procedure in the cases firstly and secondly mentioned in the next preceding section shall be in the Exchequer Court, and an appeal shall lie in any such case to the Supreme Court. [My emphasis.]
55. La procédure dans les cas en premier et en second lieux mentionnés dans la section immédiatement précédente, aura lieu dans la Cour de l’Echiquier, et appel pourra être interjeté, dans tous les cas, à la Cour Suprême. [Je souligne.]
56. In the cases thirdly and fourthly mentioned in the next preceding section but one, the Judge who has decided that such question is material, shall order the case to be removed to the Supreme Court in order to the decision of such question, and it shall be removed accordingly, and after the decision of the Supreme Court, the said case shall be sent back, with a copy of the judgment on the question raised, to the Court or Judge whence it came, to be then and there dealt with as to justice may appertain.
56. Dans les cas en troisième et en quatrième lieux mentionnés dans l’avant-dernière section immédiatement précédente, le juge qui aura décidé que cette question est essentielle ordonnera que la cause soit portée devant la Cour Suprême afin que cette question soit décidée, et elle y sera portée en conséquence; et après la décision de la Cour Suprême, la cause sera renvoyée, avec copie du jugement sur la question soulevée, à la cour ou au juge dont elle provient, pour y être alors décidée suivant la justice.
57. The next two preceding sections apply only to cases of a civil nature and shall take effect in the cases therein provided for respectively, whatever may be the value of the matter in dispute, and there shall be no further appeal to the Supreme Court on any point decided by it in any such case, nor on any other point unless the value of the matter in dispute exceeds five hundred dollars.
57. Les deux sections immédiatement précédentes ne s’appliqueront qu’aux causes d’une nature civile et s’appliqueront dans les cas qui y sont prescrits respectivement, quelle que soit la valeur de la matière en litige, et il n’y aura pas d’autre appel à la Cour Suprême sur aucun point qu’elle aura décidé dans aucun cas, ni sur aucun autre point, à moins que la valeur de la matière en litige ne dépasse cinq cent piastres.
An Act respecting the Exchequer Court of Canada, R.S. 1906, c. 140
Loi concernant la Cour de l’Échiquier du Canada, S.R. 1906, ch. 140
32. When the legislature of any province of Canada has passed an Act agreeing that the Exchequer Court shall have jurisdiction in case of controversies, - [My emphasis.]
32. Quand la législature d’une province a adopté une loi qui convient que la Cour de l’Echiquier doit avoir juridiction en cas de différend, - [Je souligne.]
(a) between the Dominion of Canada and such province;
(a) entre le Dominion du Canada et cette province;
(b) between such province and any other province or provinces which have passed a like Act;
(b) entre cette province et toute autre province ou toutes provinces qui ont adopté un loi semblable
the Exchequer Court shall have jurisdiction to determine such controversies.
la Cour de l’Echiquier a juridiction pour juger ces différends.
2. An appeal shall lie in such cases from the Exchequer Court to the Supreme Court.
2. Dans tous les cas, il y a appel de la Cour de l’Echiquier à la Cour Suprême.
Supreme Court Act, R.S.C. 1985, c. S-26
Loi sur la Cour suprême, L.R.C. 1985, ch. S-26
Inter-Governmental Disputes
Différends entre gouvernements
35.1 An appeal lies to the Court from a decision of the Federal Court of Appeal in the case of a controversy between Canada and a province or between two or more provinces.
35.1 Les décisions rendues par la Cour d’appel fédérale en matière de litige entre le Canada et une province, ou entre deux ou plusieurs provinces, sont susceptibles d’appel devant la Cour.
III. Decision of the Alberta Court
[14] Before setting out the Judge’s reasons for concluding as he did, it will be useful, for a proper understanding of his decision and of the issues before us, to set out the reasons for which Hall J. of the Alberta Court concluded that a stay of BC’s action should be granted pending a determination by the Federal Court as to whether it had jurisdiction under section 19 of the FCA. Hall J. concluded as he did for the following reasons.
[15] First, at paragraph 8 of his reasons, Hall J. indicated that the principal issue which he had to determine was whether the attorney general of a province had standing to seek declaratory relief with respect to the constitutionality of another province’s legislation. In his view, that question required him to examine the law pertaining to direct standing and public interest standing in the context of proceedings instituted against the Crown.
[16] He indicated that one of the purposes of the law of standing is to ensure that persons harmed by unconstitutional legislation should have access to an independent and impartial tribunal that can force a legislature to comply with the law and the Constitution. Hall J. also indicated that declaratory relief is one of the main reliefs sought in constitutional challenges and that a declaration that a statute is unconstitutional, whether a federal or a provincial statute, falls within the inherent powers of provincial superior courts.
[17] Hall J. then addressed the question of whether BC had standing to bring the action now before him. He indicated that BC took the position that it had standing to bring the action as the representative of the provincial public interest, adding that Alberta was of the view that BC could not establish direct or private standing because its rights were not and would not be directly affected by the Act.
[18] After a careful review of section 25 of the Alberta Judicature Act, R.S.A. 2000, c. J-2, (the Judicature Act) which provides that, in cases where no other relief is sought, only the Attorney General of Canada or the Minister of Justice and Solicitor General of Alberta may commence an action for a declaration as to the validity of legislation enacted by the Alberta legislature, and after considering the parties’ respective arguments in regard thereto, Hall J. concluded that no provincial attorney general, other than the Minister of Justice and Solicitor General of Alberta, could commence proceedings in Alberta with respect to the validity of an enactment of the Alberta legislature.
[19] In making these remarks, Hall J. made it clear that any person, affected by a provincial law, could challenge the constitutional validity of an Alberta legislative enactment either in the context of litigation brought under subsection 24(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter), or in the context of, for example, a legitimate claim for damages or other relief. In the words of Hall J., at paragraph 22 of his reasons, “actions that go beyond seeking a bare declaration are not caught by section 25. Presumably, this is because the ability to claim damages and other relief requires that the plaintiff has been directly affected by the law, meaning that the plaintiff has direct standing to challenge it.”
[20] Hall J. then made the point that because of the existence of section 19 of the FCA, BC was not without a remedy. He then referred to section 27 of the Judicature Act, pursuant to which, in his view, Alberta had agreed to grant the Federal Court jurisdiction with regard to interprovincial disputes. He stated that Parliament had enacted a matching provision to that of section 27 of the Judicature Act, i.e. section 19 of the FCA, adding that a similar provision had existed in federal legislation since 1875 when Parliament enacted section 54 of the Supreme and Exchequer Courts Act, S.C. 1875, c. 11.
[21] After a close examination of these provisions and some of the case law pertaining thereto, Hall J. concluded, at paragraph 39 of his reasons, that “[i]n my view, the current dispute between the AGBC and the AGAB falls within the scope of these definitions”, i.e. the definitions of the word “controversy” as explained in Fairford First Nation v. Canada (Attorney General), [1995] 3 F.C. 165 (F.C.T.D.), 1995 CanLII 3597 (FC), aff’d (1996), 205 N.R. 380 (F.C.A.), 1996 CarswellNat 1717 (WL Can); Southwind v. Canada, 2011 FC 351, 2011 CarswellNat 892 (WL Can) and Alberta v. Canada, 2018 FCA 83, 425 D.L.R. (4th) 366 [Alberta v. Canada].
[22] As a result, Hall J. explained that although he agreed with Alberta that, absent a claim for further relief, only the Attorney General of Canada and the Minister of Justice and Solicitor General of Alberta could seek a declaration regarding the validity of the laws of Alberta in the Alberta Court, that view did not leave BC without a recourse and it did not immunize Alberta from a constitutional challenge to the Act.
[23] At paragraph 44 of his reasons, Hall J. made the following remarks:
The above discussion suggests that Parliament and the provincial legislatures have enacted the requisite legislation to give the Federal Court jurisdiction in interprovincial disputes of this nature, which further suggests the AGBC has standing to bring its action before that court. The Federal Court of Appeal’s comments quoted above support this view, since it said that “without section 19 of the FC Act…” one province would have to sue in the other province’s court, which implies that with section 19 of the Federal Courts Act, it is the Federal Court that is the proper forum.
[Emphasis in the original.]
[24] Lastly, Hall J. turned to the question of whether he should exercise his discretion and grant BC public interest standing which, in his view, “is not necessarily ruled out by section 25 of the Judicature Act” (Hall J.’s reasons at para. 45).
[25] Although Hall J. appeared to be receptive to BC’s request for public interest standing, he declined to come to a definite conclusion because of his view that BC’s standing as of right in the Federal Court under section 19 of the FCA weighed against the granting of public interest standing. As such, “the combined effect of section 27 of the Judicature Act and section 19 of the Federal Courts Act ensures that the Act will not be so immunized” (Hall J.’s reasons at para. 52). In other words, the existence of a recourse in the Federal Court ensures that the Act will not escape scrutiny.
[26] In the end, Hall J. stayed BC’s action, leaving it to the Federal Court to determine whether or not it was prepared to accept jurisdiction in regard to the matters raised in BC’s action.
[27] I now turn to the Federal Court’s decision.
IV. The Federal Court’s Decision
[28] As I have already indicated, the Judge disposed of two motions. With respect to BC’s motion for an interlocutory injunction, he concluded that the test set out by the Supreme Court in Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, 38 D.L.R. (4th) 321; RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, 164 N.R. 1; and in Harper v. Canada (Attorney General), 2000 SCC 57, [2000] 2 S.C.R. 764, had been met, i.e. that an applicant must satisfy the Court that his or her case raises a serious issue to be tried, that he or she will suffer irreparable harm if the application is refused and that the balance of convenience is in his or her favour.
[29] Not only did the Judge find that BC’s claim raised a serious issue, he found that BC had established a strong case that the Act was invalid. He further found that BC would suffer irreparable harm if the injunction were to be denied and that the balance of convenience was in favour of granting the injunction.
[30] With respect to Alberta’s motion to strike, the Judge found that BC’s constitutional challenge was within the jurisdiction of the Federal Court. He arrived at that conclusion by examining the words, context, and purpose of section 19 of the FCA. In his view, the word “controversies” was broad enough to include disputes concerning the constitutional validity of provincial legislation. More particularly, the Judge was of the opinion that there could be no doubt that there was a controversy between BC and Alberta with regard to the constitutionality of the Act.
[31] The Judge held that the circumstances surrounding the enactment in 1875 of section 54 of the Supreme and Exchequer Courts Act, which eventually became section 19 of the FCA, supported the broad ordinary meaning of the word controversy. The Judge also indicated that his review of these circumstances had led him to reject Alberta’s argument that Parliament had expressly considered the issue of challenges to the validity of provincial legislation and that it had chosen to grant jurisdiction in regard thereto to the Supreme Court only.
[32] More particularly, the Judge dismissed, for its lack of merit, Alberta’s argument that the second two paragraphs of section 54 of the Supreme and Exchequer Courts Act, which gave lower court judges the discretion to refer constitutional questions to the Supreme Court of Canada, was an indication that Parliament intended to limit the Exchequer Court’s jurisdiction in respect of intergovernmental disputes to non-constitutional questions. In the Judge’s view, the two mechanisms set out in section 54, i.e. the adjudication of intergovernmental disputes and referrals of constitutional questions to the Supreme Court, were “simply unrelated and they are not mutually exclusive” (Judge’s reasons at para. 46).
[33] In addition to this brief summary of the Judge’s reasons, I also wish to highlight some of the other remarks made by the Judge. At paragraph 30 of his reasons, concerning Alberta’s Rule 221 motion, the Judge indicated that Alberta’s challenge to BC’s action was not based on constitutional grounds. In particular, Alberta’s position was not that section 101 of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3 (the Constitution Act, 1867) constituted a bar to BC’s action commenced under section 19 of the FCA but rather that, on a proper interpretation of the section, BC’s challenge was not a controversy which fell within the ambit of section 19.
[34] At paragraph 48 of his reasons, the Judge held that the context of the enactment of section 19 of the FCA supported the view that “controversies” necessarily included controversies pertaining to the constitutionality of legislation.
[35] The Judge also addressed Alberta’s argument that for an action to come within the ambit of section 19, there had to be issues pertaining to legal rights, obligations, or liabilities, which was clearly not the case herein. In order to answer that submission, the Judge considered some of the decisions (and there are very few) which dealt with section 19 of the FCA or its predecessor provisions. More particularly, the Judge considered the Supreme Court’s decision in Province of Ontario v. Dominion of Canada (1909), 42 S.C.R. 1, 1909 CarswellNat 23 (WL Can), aff’d [1910] UKPC 40, [1910] A.C. 637 (P.C.) [Ontario v. Canada 1909 cited to S.C.R.] and this Court’s decisions in The Queen in right of Canada v. The Queen in right of Prince Edward Island (1977), 83 D.L.R. (3d) 492, [1978] 1 F.C. 533 (F.C.A.) [Canada v. PEI cited to D.L.R.] and Alberta v. Canada. Although in none of these cases did any party seek a declaration of unconstitutionality of either provincial or federal legislation, the Judge was of the view that this consideration was of no relevance because he was satisfied that to the extent that a controversy could be decided on legal grounds, as opposed to moral or policy grounds, the controversy was one that fell within the purview of section 19. In support of that view, the Judge referred to my colleague Gauthier J.A.’s remarks in Alberta v. Canada, where she expresses herself as follows at paragraph 26 of her reasons:
With respect to the subject matters covered by these provisions and more particularly by section 19 of the FC Act, it appears that there is no limit as to the type of controversy to which they would apply. At this stage and without the benefit of full arguments, the legislative evolution of section 19, as well as the manner in which both provisions have been applied, appears to support the broad scope suggested by the ordinary meaning of the words any “controversy” or “litige” in French.
[My emphasis.]
[36] At paragraph 80 of his reasons, the Judge indicated that merely because BC’s action was the first attempt ever by a provincial attorney general in Canadian legal history to obtain a declaration of invalidity of another province’s legislation by way of section 19, this did not mean that the Federal Court was without jurisdiction. The Judge opined as follows:
I would simply add that the fact that this is the first attempt to initiate such a challenge in this Court does not prove that we lack jurisdiction. We do not know whether this possibility was contemplated in the above-mentioned cases or in a case mentioned by Alberta, Attorney-General for Manitoba v Manitoba Egg and Poultry Association, [1971] SCR 689. The lack of positive precedent may have deterred lawyers. But there is no negative precedent either.
[37] Further, the Judge dealt with Alberta’s argument that BC’s action was premature. In the course of his discussion of that issue, he made the point that there existed a “live controversy” within the meaning of what was said by the Supreme Court in Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R. 99. Of particular relevance, in the Judge’s view, is the fact that members of the Alberta legislature had made statements to the effect that the purpose of the Act was to cause economic hardship to the province of British Columbia. Given these statements, the mere passage of the Act without any further action by the Minister was sufficient to conclude that there was a live controversy.
[38] As I am concluding that we should set aside the Judge’s decision, I therefore need not address that part of his reasons which deal with BC’s motion for an interlocutory injunction.
Alberta’s Arguments
[39] In challenging the Judge’s decision, Alberta makes a number of arguments. However, for present purposes, I will restrict myself to the following.
[40] First, it says that the Federal Court does not have jurisdiction under section 19 with respect to the making of a bare declaration of invalidity in regard to provincial legislation. It argues that such an issue is dealt with by its Judicature Act which does not allow any provincial attorney general, other than the Minister of Justice and Solicitor General of Alberta, to seek a declaration, absent a claim for further relief, with regard to the validity of Alberta legislative enactments.
[41] Alberta further says that the review of the constitutionality of provincial legislation falls clearly within the jurisdiction of provincial superior courts and that anyone affected by the Act may challenge its constitutionality before the Alberta Court. Hence, there is no jurisdictional void to fill in respect of the constitutionality of its laws or those of any other province.
[42] Turning to the meaning of the word “controversy”, Alberta argues that there must be an actual or real dispute over rights and obligations so that the Federal Court may exercise its jurisdiction under section 19 of the FCA. In making this argument, Alberta relies on this Court’s decision in Canada v. PEI (reasons of Le Dain J. at 532-533) and on the Supreme Court’s decision in Ontario v. Canada 1909 (reasons of Duff J. at 119).
[43] Alberta also says that the words of the heading to section 19 “Intergovernmental disputes” connote the existence of a concrete disagreement between two provinces or between a province and Canada, not an action for a bare declaration of invalidity of either provincial or federal legislation.
[44] Thus, as I understand Alberta’s submissions, it says that there is no controversy before the Federal Court since BC has not identified any right, obligation, or liability that exists between it and Alberta. Needless to say, BC does not agree with any of these submissions and it supports the Judge’s reasons in their entirety.
VI. Issue
[45] The parties frame the issue to be determined in a slightly different manner. In its memorandum of fact and law, at paragraph 16, Alberta sets out the issue to be disposed of as follows:
Did the motions judge err in finding that the Federal Court has jurisdiction over AGBC’s application for a bare declaration of unconstitutionality of Alberta legislation? AGAB submits that the Motions Judge did so err.
[46] As for BC, it says, at paragraph 26 of its memorandum of fact and law, that the question to be determined is the following:
Is it plain and obvious that an action by one province for a declaration of unconstitutionality of the legislation of another is not a “controversy” within the meaning of section 19 of the Federal Courts Act?
[47] Thus, the question which we must answer is whether BC’s action falls within the ambit of section 19 of the FCA. More particularly, is there a “controversy” between the provinces of British Columbia and Alberta?
VII. Analysis
[48] Before proceeding, a few words on the applicable standard of review are in order.
[49] This is an appeal of the Judge’s decision in respect of a motion to dismiss brought by Alberta pursuant to Rule 221 of our Rules. Both parties agree that the applicable standard is correctness as the question for determination is whether it is “plain and obvious” that the Federal Court does not have jurisdiction to hear BC’s action under section 19.
[50] I agree with BC that the appeal should be dismissed if we agree with the Judge’s view that the Federal Court has jurisdiction under section 19 or if we conclude that there is an arguable case to that effect. For the reasons which I will now explain, it is my view that there is no arguable case that the Federal Court has jurisdiction in the present matter.
[51] I begin by stating the obvious. Section 19 confers jurisdiction on the Federal Court to adjudicate controversies between two provinces or between a province and Canada. The Federal Court’s jurisdiction under section 19 is premised on the parties before the Court, i.e., in this case the provinces of Alberta and British Columbia, having given their consent to the Court’s jurisdiction over the controversy. I would further say that the Federal Court’s jurisdiction under section 19 is a jurisdiction over matters in respect of which it would not normally have jurisdiction.
[52] The Judge’s reasoning, as I understand it, is that there exists a controversy between the provinces of British Columbia and Alberta because the Attorney General of BC is challenging the constitutionality of the Act and that the controversy is “live” because the purpose of the Act is to punish the province of British Columbia for its lack of support in regard to the Trans Mountain pipeline expansion project.
[53] There is no dispute between the parties that statutory provisions, like section 19 herein, are to be interpreted according to the “modern principle” of statutory interpretation which requires us to read the words of the provision in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and the object of the statute and the intention of the legislating body (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193 at para. 21). Thus, looking at the text, context and purpose of section 19, what do the words “of controversies between … that province and any other province” mean?
[54] My contention is that there is no controversy between BC and Alberta within the meaning of section 19 of the FCA. Because neither the legislative history of the provision nor the context of its enactment provide, in my respectful opinion, any guidance to us with respect to the meaning of section 19, it is imperative that I closely review the very few cases which have dealt with section 19 or its predecessor provisions. It is important to note that, other than the cases which I will be examining, nothing has been written about section 19. In effect, the parties were unable to provide us with any article or case comment dealing with section 19. Nor has my own research revealed anything in that regard (other than an article by Brendan Downey et al., “Federalism in the Patch: Canada’s Energy Industry and the Constitutional Division of Powers” (2020) 58:2 Alta. L. Rev. 273, where the authors discuss at pages 306 to 311 the case now before us). Without speculating, I believe that the reason for the absence of any authority on the subject is that the cases heard so far by the Federal Courts and the Supreme Court of Canada were all cases which undoubtedly fell under section 19. Hence no debate has arisen concerning the Court’s jurisdiction under section 19.
[55] The cases will show that section 19 was enacted to allow the Federal Court to deal with controversies of a different nature than the one which is now before us. The cases will also show that in every proceeding commenced under section 19 a province or Canada had direct standing to commence the proceedings (all of the cases pertain to either suits commenced by Canada against a province or by a province against Canada; there are no cases where a province has commenced a suit against another province). Put differently, it is my view that an action commenced under section 19 is one which pits the Crown against the Crown wherein Crown interests or rights must be asserted, which is clearly not the case in this appeal.
[56] In examining the meaning of the provision, it is also important to keep in mind that the meaning ascribed to the provision by the Judge leads to results which, in my view, are untenable. More particularly, the Judge’s reasoning would allow the Federal Court to assume jurisdiction over matters which, I say, neither the provinces nor Canada ever intended to submit to the Federal Court under section 19.
[57] I begin with the Supreme Court’s decision in Attorney-General of Ontario v. Attorney-General of Canada, (1907), 39 S.C.R. 14, 1907 CanLII 70 [Ontario v. Canada 1907 cited to S.C.R.]. The question then before the Supreme Court can be explained as follows.
[58] At the time of Confederation in 1867, the then Province of Canada (Upper and Lower Canada) held assets in the nature of special funds in regard to which it was a debtor and liable for interest therein. By section 111 of the British North America Act, 1867, (U.K.), 30 & 31 Vict., c. 3 (the British North America Act), the Dominion of Canada succeeded to the above liability. In an arbitration award made in 1870, pursuant to section 142 of the British North America Act (now the Constitution Act, 1867), to adjust the debts and assets of Upper and Lower Canada, the funds were adjudged to be the property of Ontario. Hence, Canada paid Ontario interest at the rate of 5% until 1904. In that year, Canada claimed to be entitled to reduce the rate of interest to 4%, or if unacceptable to Ontario, to pay to the province the principal amount.
[59] Affirming the decision of the Exchequer Court, the Supreme Court of Canada, Idington J. dissenting, held that following the arbitration award, Canada had the right to pay the principal to the province with any accrued interest thereon and thus to be free from any liability in respect o