Windsor (City) v. Canadian Transit Co.

Windsor (City) v. Canadian Transit Co.
Collection
Supreme Court Judgments
Date
2016-12-08
Neutral citation
2016 SCC 54
Report
[2016] 2 SCR 617
Case number
36465
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell
On appeal from
Federal Court of Appeal
Subjects
Courts
Notes
SCC Case Information: 36465
Decision Content
SUPREME COURT OF CANADA
Citation: Windsor (City) v. Canadian Transit Co., 2016 SCC 54, [2016] 2 S.C.R. 617
Appeal heard: April 21, 2016
Judgment rendered: December 8, 2016
Docket: 36465
Between:
Corporation of the City of Windsor
Appellant
and
Canadian Transit Company
Respondent
- and -
Attorney General of Canada and
Federation of Canadian Municipalities
Interveners
Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
Reasons for Judgment:
(paras. 1 to 72)
Joint Dissenting Reasons:
(paras. 73 to 121)
Dissenting Reasons:
(paras. 122 to 131)
Karakatsanis J. (McLachlin C.J. and Cromwell, Wagner and Gascon JJ. concurring)
Moldaver and Brown JJ. (Côté J. concurring)
Abella J.
Windsor (City) v. Canadian Transit Co., 2016 SCC 54, [2016] 2 S.C.R. 617
The Corporation of the City of Windsor Appellant
v.
The Canadian Transit Company Respondent
and
Attorney General of Canada and
Federation of Canadian Municipalities Interveners
Indexed as: Windsor (City) v. Canadian Transit Co.
2016 SCC 54
File No.: 36465.
2016: April 21; 2016: December 8.
Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
on appeal from the federal court of appeal
Courts — Jurisdiction — Federal Court — Relief sought under constitutional law — Company incorporated by federal legislation owning and operating Canadian half of bridge between Canada and United States — Company purchasing residential properties near bridge to facilitate maintenance and expansion — City issuing repair orders against properties pursuant to municipal by-law — Company applying to Federal Court for declarations that it has rights under its incorporating legislation which supersede municipal by-law — Whether Federal Court has jurisdiction to decide whether Company must comply with by-law and repair orders — Federal Courts Act, R.S.C. 1985, c. F-7, s. 23 — An Act to incorporate The Canadian Transit Company, S.C. 1921, c. 57.
The Canadian Transit Company owns and operates the Canadian half of the Ambassador Bridge connecting Windsor, Ontario, and Detroit, Michigan. The Company was incorporated in 1921 by An Act to incorporate The Canadian Transit Company (the “CTC Act”). The CTC Act empowered the Company to construct, maintain and operate a general traffic bridge across the Detroit River, to purchase, lease or otherwise acquire and hold lands for the bridge, and to construct, erect and maintain buildings and other structures required for the convenient working of traffic to, from and over the bridge. The CTC Act also declared the works and undertaking of the Company to be for the general advantage of Canada, triggering federal jurisdiction under the Constitution Act, 1867 .
The Company has purchased more than 100 residential properties in Windsor with the intention of eventually demolishing the homes and using the land to facilitate maintenance and expansion of the bridge and its facilities. Most of the homes are now vacant and in varying states of disrepair. The City of Windsor issued repair orders against the properties pursuant to a municipal by‑law. The Company has not complied with the repair orders. The parties have been engaged in proceedings relating to these repair orders in the Ontario Superior Court of Justice. In addition, the Company applied to the Federal Court for declarations to the effect that it has certain rights under the CTC Act which supersede the by‑law and the repair orders issued under it. The City moved to strike the Company’s notice of application on the ground that the Federal Court lacks jurisdiction to hear the application. The Federal Court struck the Company’s notice of application for want of jurisdiction. The Federal Court of Appeal set aside that decision. This appeal deals only with the preliminary issue of whether the Federal Court has jurisdiction to decide whether the Company must comply with the City’s by‑law and repair orders.
Held (Abella, Moldaver, Côté and Brown JJ. dissenting): The appeal should be allowed, the order of the Federal Court of Appeal set aside and the order of the Federal Court striking the Company’s notice of application reinstated.
Per McLachlin C.J. and Cromwell, Karakatsanis, Wagner and Gascon JJ.: The Federal Court does not have the jurisdiction to decide whether the City’s by‑law applies to the Company’s residential properties. The issue should be decided by the Ontario Superior Court of Justice.
To decide whether the Federal Court has jurisdiction over a claim, it is necessary to determine the essential nature or character of that claim. Determining the claim’s essential nature allows the court to assess whether it falls within the scope of s. 23 (c) of the Federal Courts Act , which grants jurisdiction to the Federal Court only when a claim for relief has been made, or a remedy has been sought, “under an Act of Parliament or otherwise”. In this case, it is clear that what the Company ultimately seeks is immunity from the requirements of the by‑law. The issue is therefore whether the Federal Court has the jurisdiction to decide a claim that a municipal by‑law is constitutionally inapplicable or inoperative in relation to a federal undertaking.
The Federal Court has only the jurisdiction it has been conferred by statute: it is a statutory court, without inherent jurisdiction. Accordingly, the language of the Federal Courts Act is completely determinative of the scope of the court’s jurisdiction. Parliament established the Federal Court pursuant to its competence, under s. 101 of the Constitution Act, 1867 , to establish “additional Courts for the better Administration of the Laws of Canada”. The role of the Federal Court is therefore constitutionally limited to administering federal law. The three‑part test for jurisdiction, set out by this Court in ITO—International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752, is designed to ensure the Federal Court does not overstep this limited role. The first part of the test requires that a federal statute grant jurisdiction to the Federal Court. Section 23 (c) grants jurisdiction to the Federal Court when “a claim for relief is made or a remedy is sought under an Act of Parliament or otherwise”, that is, when the claimant is seeking relief under federal law. The claimant’s cause of action, or the right to seek relief, must be created or recognized by a federal statute, a federal regulation or a rule of the common law dealing with a subject matter of federal legislative competence. The explicit language of s. 23 of the Federal Courts Act requires that the relief be sought under — and not merely in relation to — federal law. Requiring the right to seek relief to arise directly from federal law brings clarity to the scope of the Federal Court’s concurrent jurisdiction. Giving effect to the explicit wording of s. 23 minimizes jurisdictional disputes by ensuring that litigants know the scope of the Federal Court’s jurisdiction in advance. This will avoid unnecessary litigation, including disputes about whether the court should decline to exercise jurisdiction even if it has jurisdiction to hear the matter.
In this case, the Company is not seeking relief “under an Act of Parliament or otherwise”, as required by s. 23(c). The Company is seeking relief under s. 23(c) itself, or alternatively under the CTC Act. However, s. 23 is not itself a federal law under which the Company can seek relief. It confers on the Federal Court jurisdiction over certain claims, but does not confer on parties the right to make those claims in the first place. For that right, parties must look to other federal law. Further, although the CTC Act confers certain rights and powers (and imposes certain responsibilities) on the Company, it also does not give the Company any kind of right of action or right to seek the relief sought. The Company is in fact seeking relief under constitutional law, because constitutional law confers on parties the right to seek a declaration that a law is inapplicable or inoperative. A party seeking relief under constitutional law is not seeking relief “under an Act of Parliament or otherwise” within the meaning of s. 23; constitutional law cannot be said to be federal law for the purposes of s. 23. Therefore, s. 23(c) does not grant jurisdiction over the Company’s application to the Federal Court and the first part of the ITO test for jurisdiction is not met. There is therefore no need to consider whether the second and third parts of the ITO test are met. Because the test is not met, it is plain and obvious that the Federal Court lacks jurisdiction to hear the application. The motion to strike the Company’s notice of application in the Federal Court must succeed.
Per Moldaver, Côté and Brown JJ. (dissenting): The Federal Court has jurisdiction to hear the Company’s application and the appeal should accordingly be dismissed.
The Federal Court’s jurisdiction should be construed broadly. The Federal Court was designed to achieve two objectives: ensuring that members of the public would have resort to a national court exercising a national jurisdiction when enforcing a claim involving matters which frequently involve national elements, and making it possible for litigants who live in different parts of the country to have a common and convenient forum in which to enforce their legal rights. These purposes are better served by a broad construction of its jurisdiction.
There is no need to characterize the essential nature of the case as a preliminary step in the analysis of jurisdiction. The test established in ITO—International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752, provides a comprehensive framework of analysis for determining whether the Federal Court has jurisdiction. What matters is only whether there is a statutory grant of jurisdiction, whether federal law is essential to the disposition of the case, and whether the law is validly federal. The essential nature of the case is not relevant to whether the Federal Court has jurisdiction, but to whether it should exercise it. There may be cases in which — despite the ITO test being met — the Federal Court should consider declining jurisdiction.
The three branches of the ITO test are met in this case. First, s. 23(c) of the Federal Courts Act provides the necessary statutory grant of jurisdiction. The three crucial elements for s. 23 (c) to amount to the required statutory grant of jurisdiction under the first branch of the ITO test are present here: the Company has claimed relief, its claim is in relation to a work or undertaking extending beyond the limits of a province, and the claim was made “under an Act of Parliament or otherwise in relation to” this international work or undertaking.
Requiring a federal statute to expressly create a cause of action before jurisdiction may be founded “under an Act of Parliament” within the meaning of s. 23 is unduly narrow and inconsistent with Parliament’s intent in creating the Federal Court. Section 23 should be construed broadly to ensure that, if the claim for relief is related to a federal work or undertaking and the rights being enforced arise from an Act of Parliament, the claimants may approach the Federal Court. In this case, the rights the Company seeks to enforce are sourced in two separate Acts of Parliament, both of which are essential to the ultimate relief sought by the Company: the CTC Act and the International Bridges and Tunnels Act . As such, since the claim for relief is related to a federal work or undertaking and the rights that the claimant seeks to enforce arise from Acts of Parliament, s. 23(c) confers a statutory grant of jurisdiction on the Federal Court.
The CTC Act also satisfies the second branch of the ITO test: it is essential to the disposition of this case and it nourishes the statutory grant of the Federal Court’s jurisdiction, because it is central to the constitutional claim. The declarations sought by the Company in the Federal Court make it clear that the dispute is generally concerned with the CTC Act and federal jurisdiction over federal works and undertakings, pursuant to the Constitution Act, 1867 . Two interrelated questions are at the heart of this dispute, both of which are intimately tied to the CTC Act: whether the properties purchased by the Company form part of the “federal work or undertaking” of the Ambassador Bridge, and, if so, whether those properties are immune from the municipal by‑law based on the doctrine of interjurisdictional immunity. Resolving these constitutional questions primarily entails interpreting the CTC Act. The CTC Act thus plays an essential role in the outcome of this case. As for the third branch of the ITO test, it is also satisfied since there is no dispute in this case that the CTC Act is valid federal law.
As all three branches of the ITO test are met in this case, the Federal Court has jurisdiction to hear the Company’s application. It remains for the Federal Court to decide whether it should exercise its jurisdiction to hear the Company’s application, or decline to do so in favour of the Superior Court of Justice. In deciding whether to exercise its jurisdiction, the Federal Court should consider whether the Company has an adequate and effective recourse in a forum in which litigation is already taking place, expeditiousness, and the economical use of judicial resources. In the present circumstances, there may be good reason for the Federal Court to decline to hear the Company’s application.
Per Abella J. (dissenting): The appeal should be dismissed in part and a stay of the Federal Court proceedings should be entered. This Court’s test in ITO—International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752, has been met. However, notwithstanding that the Federal Court has concurrent jurisdiction with the Ontario Superior Court of Justice, it should not exercise it in this case. Both the Canadian Transit Company and the City appealed orders of the Property Standards Committee to the Ontario Superior Court. Rather than wait for the outcome of the appeals before the Superior Court, the Company sought to activate the Federal Court’s intervention.
It cannot be seriously contested that the issues raised by the Company in its Federal Court application can be resolved in the context of the parties’ ongoing litigation before the Superior Court. The result of the Company diverting the course of the proceedings into a jurisdictional side‑show is obvious — additional expense and delay in aid of nothing except avoiding a determination of the merits for as long as possible. To date, that jurisdictional diversion has cost the public a delay of three years. There is no basis for further delaying the Superior Court proceedings. In the words of the Federal Court’s rules, it is neither “just” nor “expeditious” for it to weigh in on these proceedings, needlessly complicating and extending them. Remitting the matter to the Federal Court to reach the irresistible conclusion that a stay is warranted adds needlessly to the expense and delay.
Cases Cited
By Karakatsanis J.
Applied: ITO—International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752; Quebec North Shore Paper Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054; distinguished: Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713; referred to: Hodgson v. Ermineskin Indian Band (2000), 180 F.T.R. 285; JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557; Sifto Canada Corp. v. Minister of National Revenue, 2014 FCA 140, 461 N.R. 184; Domtar Inc. v. Canada (Attorney General), 2009 FCA 218, 392 N.R. 200; Roitman v. Canada, 2006 FCA 266, 353 N.R. 75; Canadian Pacific Railway v. R., 2013 FC 161, [2014] 1 C.T.C. 223; Verdicchio v. R., 2010 FC 117, [2010] 3 C.T.C. 80; R. v. Thomas Fuller Construction Co. (1958) Ltd., [1980] 1 S.C.R. 695; Consolidated Distilleries, Ltd. v. The King, [1933] A.C. 508; Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307; Québec Téléphone v. Bell Telephone Co. of Canada, [1972] S.C.R. 182; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3; MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725; R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331; Commonwealth of Puerto Rico v. Hernandez, [1975] 1 S.C.R. 228; Roberts v. Canada, [1989] 1 S.C.R. 322; Norrail Transport Inc. v. Canadian Pacific Ltd. (1998), 154 F.T.R. 161; Prudential Assurance Co. v. Canada, [1993] 2 F.C. 293; Bensol Customs Brokers Ltd. v. Air Canada, [1979] 2 F.C. 575; Northern Telecom Canada Ltd. v. Communication Workers of Canada, [1983] 1 S.C.R. 733; R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609; The Queen v. Montreal Urban Community Transit Commission, [1980] 2 F.C. 151; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588.
By Moldaver and Brown JJ. (dissenting)
ITO—International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752; Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626; Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585; Bensol Customs Brokers Ltd. v. Air Canada, [1979] 2 F.C. 575; Canadian Pacific Ltd. v. United Transportation Union, [1979] 1 F.C. 609; Federal Liberal Agency of Canada v. CTV Television Network Ltd., [1989] 1 F.C. 319; Pacific Western Airlines Ltd. v. The Queen, [1979] 2 F.C. 476; Quebec North Shore Paper Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Commission de transport de la Communauté urbaine de Québec v. Canada (National Battlefields Commission), [1990] 2 S.C.R. 838; Rhine v. The Queen, [1980] 2 S.C.R. 442; Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713.
By Abella J. (dissenting)
ITO—International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752; Coote v. Lawyers’ Professional Indemnity Co., 2013 FCA 143; Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713.
Statutes and Regulations Cited
Act to incorporate The Canadian Transit Company, S.C. 1921, c. 57, ss. 2, 8.
Canada Act 1982 (U.K.), 1982, c. 11, s. 1.
Canada Transportation Act, S.C. 1996, c. 10, s. 116(5) .
Carriage by Air Act, R.S.C. 1985, c. C‑26 .
Constitution Act, 1867, ss. 91 , 92(10) (a), (c), (14) , 96 , 100 , 101 .
Constitution Act, 1982, ss. 38 to 49 , 52 .
Exchequer Court Act, R.S.C. 1970, c. E‑11, ss. 17 to 30 .
Federal Court Act , S.C. 1970‑71‑72, c. 1 [reproduced in R.S.C. 1970, c. 10 (2nd Supp.)].
Federal Courts Act, R.S.C. 1985, c. F‑7, ss. 2 “relief”, 3, 4, 18, 23, 50(1).
Federal Courts Rules, SOR/98‑106, rr. 3, 221(1)(a).
Highway Traffic Act, R.S.O. 1990, c. H.8.
International Bridges and Tunnels Act, S.C. 2007, c. 1, s. 5 .
Property Standards By‑law, City of Windsor By‑law No. 147‑2011, September 6, 2011.
Radiocommunication Act, R.S.C. 1985, c. R‑2, s. 18(1) .
Supreme and Exchequer Court Act, S.C. 1875, c. 11.
Authors Cited
Canada. House of Commons. House of Commons Debates, vol. V, 2nd Sess., 28th Parl., March 25, 1970, p. 5473.
Hogg, Peter W. Constitutional Law of Canada, 5th ed. Supp. Toronto: Carswell, 2007 (updated 2015, release 1).
Saunders, Brian J., Donald J. Rennie and Graham Garton. Federal Courts Practice 2014. Toronto: Carswell, 2013.
Scott, Stephen A. “Canadian Federal Courts and the Constitutional Limits of Their Jurisdiction” (1982), 27 McGill L.J. 137.
APPEAL from a judgment of the Federal Court of Appeal (Dawson, Stratas and Scott JJ.A.), 2015 FCA 88, [2016] 1 F.C.R. 265, 384 D.L.R. (4th) 547, 472 N.R. 361, 98 Admin. L.R. (5th) 181, [2015] F.C.J. No. 383 (QL), 2015 CarswellNat 816 (WL Can.), setting aside a decision of Shore J., 2014 FC 461, 455 F.T.R. 154, [2014] F.C.J. No. 495 (QL), 2014 CarswellNat 1598 (WL Can.). Appeal allowed, Abella, Moldaver, Côté and Brown JJ. dissenting.
Christopher J. Williams, Courtney V. Raphael and Jody E. Johnson, for the appellant.
John B. Laskin and James Gotowiec, for the respondent.
Sean Gaudet and Marc Ribeiro, for the intervener the Attorney General of Canada.
Stéphane Émard‑Chabot and Marie‑France Major, for the intervener the Federation of Canadian Municipalities.
The judgment of McLachlin C.J. and Cromwell, Karakatsanis, Wagner and Gascon JJ. was delivered by
Karakatsanis J. —
I. Introduction
[1] The Canadian Transit Company owns and operates the Canadian half of the Ambassador Bridge connecting Windsor, Ontario, and Detroit, Michigan. Over the past decade the Company has purchased more than 100 residential properties in Windsor with the intention of eventually demolishing the homes and using the land to facilitate maintenance and expansion of the bridge and its facilities. Most of the homes are now vacant and, according to the City of Windsor, in varying states of disrepair. The City regards them as a blight on the Olde Sandwich Towne neighbourhood and, pursuant to its by-laws, has issued more than 100 repair orders against the properties.
[2] The Company has not complied with the repair orders, claiming that the Ambassador Bridge is a federal undertaking and the City’s by-laws and repair orders cannot constitutionally apply to it. The parties have been engaged in proceedings relating to those repair orders in the Ontario Superior Court of Justice. The Company has also sought a number of declarations from the Federal Court.
[3] This appeal deals only with the preliminary issue of whether the Federal Court has jurisdiction to decide whether the Company must comply with the City’s by-laws and repair orders. The City says only the Ontario Superior Court of Justice has jurisdiction to settle the issue.
[4] I agree with the City: the Federal Court does not have jurisdiction to decide whether the City’s by-laws apply to the Company’s residential properties. Rather, the issue must be decided by the Ontario Superior Court of Justice. I would allow the appeal.
II. Facts
[5] The Canadian Transit Company was incorporated in 1921 by a special Act of Parliament, An Act to incorporate The Canadian Transit Company, S.C. 1921, c. 57 (CTC Act). Subject to certain other enactments, the CTC Act empowered the Company to “construct, maintain and operate a . . . general traffic bridge across the Detroit river . . . with all necessary approaches, terminal facilities, machinery and appurtenances” and to “purchase, lease or otherwise acquire and hold lands for the bridge . . . and construct and erect and maintain buildings and other structures required for the convenient working of traffic to, from and over the said bridge” (s. 8(a) and (e)). The CTC Act also declared the “works and undertaking” of the Company to be for the general advantage of Canada (s. 2), triggering federal jurisdiction under ss. 92(10) (c) and 91(29) of the Constitution Act, 1867 .
[6] The Ambassador Bridge opened in 1929. As of July 2010, approximately one quarter of all surface trade between Canada and the United States passed over it.
[7] Between 2004 and 2013, the Company purchased 114 residential properties in Windsor to the immediate west of the bridge, intending eventually to demolish the homes and use the land to facilitate maintenance and expansion of the bridge and its associated facilities.
[8] These purchases have been a source of considerable tension between the Company and the City of Windsor. The City believes the Company has abandoned and neglected the properties and they have become a blight on the Olde Sandwich Towne neighbourhood.
[9] In September 2013, the City issued repair orders against all 114 properties pursuant to its Property Standards By-law, City of Windsor By-law No. 147-2011. The Company appealed the repair orders to the Property Standards Committee, with mixed success: the Committee decided that the Company could demolish 83 homes but deferred decision on the remaining 31 properties pending further negotiation between the parties. On further appeal by the City, the Committee upheld the City’s original repair orders for the 31 properties.
[10] The Company and the City both appealed the Committee’s decisions to the Ontario Superior Court of Justice.
[11] The Company also applied to the Federal Court, with notice to the City, for declarations to the effect that the Company has certain rights under the CTC Act which supersede the By-law and any repair orders issued under it.
[12] Pursuant to r. 221(1)(a) of the Federal Courts Rules, SOR/98-106, the City moved to strike the Company’s notice of application on the ground that the Federal Court lacks jurisdiction to hear the application.
[13] By agreement between the parties, the Ontario Superior Court of Justice appeals have been held in abeyance pending determination of the Federal Court motion to strike.
III. Statutory Provisions
[14] The Federal Court was established by Parliament under s. 101 of the Constitution Act, 1867 , which provides as follows:
101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.
[15] Pursuant to this constitutional authority, Parliament created the Federal Court “for the better Administration of the Laws of Canada” in 1971 (Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.)). Federal court jurisdiction is now governed by the Federal Courts Act, R.S.C. 1985, c. F-7 .
[16] The provision at the heart of this appeal is s. 23 (c) of the Federal Courts Act , on which the Company relies to establish the jurisdiction of the Federal Court:
23 Except to the extent that jurisdiction has been otherwise specially assigned, 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 an Act of Parliament or otherwise in relation to any matter coming within any of the following classes of subjects:
. . .
(c) works and undertakings connecting a province with any other province or extending beyond the limits of a province.
[17] The Federal Courts Act defines “relief” to include “every species of relief, whether by way of damages, payment of money, injunction, declaration, restitution of an incorporeal right, return of land or chattels or otherwise” (s. 2 ).
IV. Decisions Below
A. Federal Court, 2014 FC 461, 455 F.T.R. 154 — Shore J.
[18] Shore J. observed that the Company is not challenging a specific decision of a federal body, as is normally the case in the Federal Court. He stated that the Company is effectively seeking a legal opinion — i.e., declarations about the applicability of the CTC Act — and concluded the Federal Court does not have the authority to grant such a remedy. Shore J. held that s. 23 (c) of the Federal Courts Act merely confers on the Federal Court jurisdiction over certain proceedings: it does not grant any right of appeal or judicial review to any person, nor does it give the Federal Court the authority to give a purely declaratory remedy. Accordingly, Shore J. struck the Company’s notice of application for want of jurisdiction.
B. Federal Court of Appeal, 2015 FCA 88, [2016] 1 F.C.R. 265 — Dawson, Stratas and Scott JJ.A.
[19] Stratas J.A., writing for the court, applied the three-pronged test for determining whether the Federal Court has jurisdiction set out by this Court in ITO—International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752, at p. 766. He noted that, under the ITO test, the Federal Court has jurisdiction when (1) a statute grants jurisdiction to the court, (2) federal law nourishes the grant of jurisdiction and is essential to the disposition of the case, and (3) that federal law is constitutionally valid.
[20] With respect to the statutory grant of jurisdiction, the Federal Court of Appeal concluded that s. 23 (c) grants jurisdiction to the Federal Court, empowering parties to seek a declaration “in relation to . . . works and undertakings connecting a province with any other province or extending beyond the limits of a province” (para. 27). Here, the Company is seeking declarations in relation to the Ambassador Bridge, which extends beyond the limits of Ontario.
[21] As to the second part of the ITO test, “sufficient” federal law is at issue because the Federal Court will have to determine whether the residential properties are part of the works and undertakings regulated by the CTC Act — a federal statute — and the extent to which the CTC Act itself regulates conflicts between the Company and the City.
[22] Finally, the CTC Act is constitutionally valid. Thus, the Federal Court of Appeal concluded that all three parts of the ITO test are met and the Federal Court has jurisdiction.
[23] During oral argument the Federal Court of Appeal raised an additional issue which had not been considered by Shore J. at first instance: whether the Federal Court has the remedial power, when the ITO test is met, to declare a law inapplicable by the constitutional doctrine of interjurisdictional immunity or inoperative by the doctrine of paramountcy. This issue is discussed at some length in the reasons; the court ultimately concluded that the Federal Court has the power to make constitutional declarations about the validity, applicability and operability of legislation.
V. Analysis
[24] The sole issue is whether the Federal Court has jurisdiction under the ITO test to hear the Company’s application. If it is plain and obvious that the Federal Court lacks jurisdiction to hear this application, the motion to strike must succeed (Hodgson v. Ermineskin Indian Band (2000), 180 F.T.R. 285). First, I identify the essential nature of the Company’s claim. I then review the role and jurisdiction of the Federal Court before applying the ITO test for jurisdiction. Given my conclusion that the Federal Court does not have jurisdiction to hear this matter, it is unnecessary to address the issue of whether the court should decline to exercise jurisdiction.
A. Essential Nature of the Company’s Claim
[25] In order to decide whether the Federal Court has jurisdiction over a claim, it is necessary to determine the essential nature or character of that claim (JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557, at para. 50; Sifto Canada Corp. v. Minister of National Revenue, 2014 FCA 140, 461 N.R. 184, at para. 25). As discussed in further detail below, s. 23 (c) of the Federal Courts Act only grants jurisdiction to the Federal Court when a claim for relief has been made, or a remedy has been sought, “under an Act of Parliament or otherwise”. The conferral of jurisdiction depends on the nature of the claim or remedy sought. Determining the claim’s essential nature allows the court to assess whether it falls within the scope of s. 23 (c). Jurisdiction is not assessed in a piecemeal or issue-by-issue fashion.
[26] The essential nature of the claim must be determined on “a realistic appreciation of the practical result sought by the claimant” (Domtar Inc. v. Canada (Attorney General), 2009 FCA 218, 392 N.R. 200, at para. 28, per Sharlow J.A.). The “statement of claim is not to be blindly read at its face meaning” (Roitman v. Canada, 2006 FCA 266, 353 N.R. 75, at para. 16, per Décary J.A.). Rather, the court must “look beyond the words used, the facts alleged and the remedy sought and ensure . . . that the statement of claim is not a disguised attempt to reach before the Federal Court a result otherwise unreachable in that Court” (ibid.; see also Canadian Pacific Railway v. R., 2013 FC 161, [2014] 1 C.T.C. 223, at para. 36; Verdicchio v. R., 2010 FC 117, [2010] 3 C.T.C. 80, at para. 24).
[27] On the other hand, genuine strategic choices should not be maligned as artful pleading. The question is whether the court has jurisdiction over the particular claim the claimant has chosen to bring, not a similar claim the respondent says the claimant really ought, for one reason or another, to have brought.
[28] In its pleadings at the Federal Court, the Company seeks the following relief:
1. A declaration that the Ambassador Bridge, including its approaches, terminal facilities, machinery and appurtenances, is a federal undertaking;
2. A declaration that the applicant The Canadian Transit Company (“CTC”) has, pursuant to its enabling legislation, An Act to incorporate The Canadian Transit Company, 11-12 George V., 1921, c. 57, as amended (the “CTC Act”):
(a) the right to purchase, lease or otherwise acquire and hold lands for the Ambassador Bridge and its terminal yards, including its accommodation works and facilities, as CTC thinks necessary in its discretion;
(b) the right to expropriate and take an easement in, over, under or through any lands without the necessity of acquiring a title in fee simple thereto; and
(c) an obligation, as set out in By-Law Number 1606 of The Town of Sandwich (“Sandwich By-Law”), to keep and maintain the Ambassador Bridge and all works connected therewith in good order and condition and of sufficient strength and capacity at all times to sustain and protect such machinery and structures and also the vehicles and traffic that may be carried or allowed thereon;
3. A declaration that, pursuant to paragraphs 1 and 2 above, the Corporation of the City of Windsor By-Law Number 147-2011, titled a By-Law to Establish Standards for the Maintenance and Occupancy of All Property in the City of Windsor and to Repeal By-Law 156-2005 (the “By- Law”), does not apply to properties purchased, leased or otherwise acquired and held by CTC pursuant to its enabling legislation;
4. A declaration that certain properties purchased by CTC which are immediately west of and/or adjacent to the Ambassador Bridge (the “Properties”) are necessary for the continued operation and maintenance of the Ambassador Bridge;
(A.R., vol. I, at pp. 47-48)
[29] Although the Company has tied each of these declarations to the CTC Act, the main federal legislation involved, it is clear that what the Company ultimately seeks is immunity from the requirements of the By-law. The third declaration — that the By-law does not apply to the properties — is the essence of the Company’s claim. There has been no suggestion by the Company that the other declarations — that the Ambassador Bridge is a federal undertaking, that the Company enjoys certain rights under the CTC Act, and that the properties are necessary for the continued operation of the bridge — would be worthwhile pursuing in the absence of the third declaration. Adopting “a realistic appreciation of the practical result sought by the claimant” (Domtar, at para. 28), the real issue is whether the Company’s rights under the CTC Act are subject to the By-law. The first, second and fourth declarations sought by the Company are valuable to the Company only to the extent they help it establish, by the doctrines of interjurisdictional immunity or paramountcy, that the By-law is inapplicable or inoperative against the Company. In essence, the Company’s claim is simply that it is not required to comply with the By-law and repair the properties as the City has ordered.
[30] Stated generally, the issue is whether the Federal Court has jurisdiction to decide a claim that a municipal by-law is constitutionally inapplicable or inoperative in relation to a federal undertaking.
B. Overview of the Role and Jurisdiction of the Federal Court
[31] The role and jurisdiction of the Federal Court appear most clearly when seen through the lens of the judicature provisions of the Constitution Act, 1867 . Section 96 recognized the superior courts of general jurisdiction which already existed in each province at the time of Confederation. Section 101 empowered Parliament to establish “additional Courts for the better Administration of the Laws of Canada” — i.e., to establish new courts to administer federal law (R. v. Thomas Fuller Construction Co. (1958) Ltd., [1980] 1 S.C.R. 695, at p. 707; Quebec North Shore Paper Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054, at pp. 1065-66; Consolidated Distilleries, Ltd. v. The King, [1933] A.C. 508 (P.C.), at pp. 520-22). Parliament exercised this power in 1875 when it enacted legislation creating the Exchequer Court of Canada, which ultimately became the Federal Court of Canada (see The Supreme and Exchequer Court Act, S.C. 1875, c. 11). The Federal Court plays an important role in the interpretation and development of federal law in matters over which it has been granted jurisdiction.
[32] The provincial superior courts recognized by s. 96 “have always occupied a position of prime importance in the constitutional pattern of this country” (Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307, at p. 327, per Estey J.). Provincially administered (s. 92(14) ) and federally appointed (ss. 96 and 100 ), they weave together provincial and federal concerns and act as a strong unifying force within our federation. As courts of general jurisdiction, the superior courts have jurisdiction in all cases except where jurisdiction has been removed by statute (Québec Téléphone v. Bell Telephone Co. of Canada, [1972] S.C.R. 182, at p. 190). The inherent jurisdiction of the superior courts can be constrained by legislation, but s. 96 of the Constitution Act, 1867 protects the essential nature and powers of the provincial superior courts from legislative incursion (Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 18; MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, at para. 15).
[33] The Federal Court, by contrast, has only the jurisdiction it has been conferred by statute.[1] It is a statutory court, created under the constitutional authority of s. 101 , without inherent jurisdiction. While the Federal Court plays a critical role in our judicial system, its jurisdiction is not constitutionally protected in the same way as that of a s. 96 court. It can act only within the constitutional boundaries of s. 101 and the confines of its statutory powers.[2] As this Court noted in Roberts v. Canada, [1989] 1 S.C.R. 322, at p. 331, “[b]ecause the Federal Court is without any inherent jurisdiction such as that existing in provincial superior courts, the language of the [Federal Court Act ] is completely determinative of the scope of the Court’s jurisdiction.”
C. The ITO Test for Jurisdiction
[34] This Court held in ITO that a statutory grant of jurisdiction is necessary, but not alone sufficient, for the Federal Court to have jurisdiction in a given case. Because Parliament established the Federal Court pursuant to its competence, under s. 101 of the Constitution Act, 1867 , to establish “additional Courts for the better Administration of the Laws of Canada”, the role of the Federal Court is constitutionally limited to administering “the Laws of Canada”, which in this context means federal law (Thomas Fuller, at p. 707; Quebec North Shore, at pp. 1065-66; Consolidated Distilleries, at pp.