Stoney Band v. Canada (Minister of Indian and Northern Affairs)

Stoney Band v. Canada (Minister of Indian and Northern Affairs)
Court (s) Database
Federal Court Decisions
Date
2006-05-03
Neutral citation
2006 FC 553
File numbers
T-307-96
Notes
Reported Decision
Decision Content
Date: 20060503
Docket: T-307-96
Citation: 2006 FC 553
Ottawa, Ontario, May 3, 2006
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
CHIEF HARVEY BAPTISTE, DAVE BEARSPAW, DARCY DIXON, REX DANIELS, JOHN LEFTHAND JR., CHIEF KEN SOLDIER, FRANK CRAWLER, BRUCE LABELLE, MARGERY TWOYOUNGMEN, CHIEF ERNEST WESLEY, IRBY CECIL, WATSON KAQUITTS, CHARLIE ABRAHAM suing on their own behalf and on behalf of all other members of the STONEY BAND, and CHIEF HARVEY BAPTISTE, DAVE BEARSPAW, DARCY DIXON, REX DANIELS, JOHN LEFTHAND JR. suing on their own behalf and on behalf of all other members of the BEARSPAW BAND, and CHIEF KEN SOLDIER, FRANK CRAWLER, BRUCE LABELLE, MARGERY TWOYOUNGMEN suing on their own behalf and on behalf of all other members of the CHINIKI BAND, and CHIEF ERNEST WESLEY, IRBY CECIL, WATSON KAQUITTS, CHARLIE ABRAHAM suing on their own behalf and on behalf of all other members of the WESLEY BAND and the said STONEY BAND
Respondents/Plaintiffs
and
HER MAJESTY THE QUEEN in Right of Canada as represented by the Minister of Indian and Northern Affairs and the Minister of the Environment
Applicant/Defendant
REASONS FOR ORDER AND ORDER
[1] In 1996, as Aboriginal People, the Plaintiffs (Baptiste) brought the present Action against the Defendant to enforce its sui generis fiduciary relationship with the Federal Crown. The cause of action relates to an allegation of illegal logging on Aboriginal land in South-Western Alberta, in relation to which Baptiste says the Defendant failed to take the necessary action to protect and preserve Baptiste's rights, interests, and property, and, thus, breached its special fiduciary duty. In turn, claiming contribution or indemnity, the Defendant brought third-party proceedings (the Proceedings) against 52 individuals and companies that participated in the removal and processing of the timber.
[2] The precursor event to the present motion is a decision of the Federal Court of Appeal in which it is found that this Court lacks jurisdiction over the Proceedings initiated by the Defendant. As a result, the Attorney General of Canada on behalf of the Defendant (Canada) brings the present motion for a stay of the Action pursuant to s.50.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7 (the Motion), and, if granted, Baptiste will have the option to recommence the Action in the Court of Queen's Bench of Alberta, and with respect to the recommencement, Canada will perfect its expressed desire to bring the third-party proceedings.
[3] Baptise's position throughout the history of the Action is that the complexities caused by the Proceedings have interfered with the advancement and resolution of its claim against Canada. With respect to the Motion, Baptiste objects to the result of the application of s.50.1 because this Court will be lost as the arbiter of the Action. To advance its objection, in response to the Motion, Baptiste argues that the Court should not grant the Motion because Canada lacks the legal basis to obtain a stay, and also that an order cannot be made because s.50.1 itself is unconstitutional.
[4] For the reasons which follow, I am unable to agree with either of Baptiste's arguments.
I. A Brief History of the Action and the Proceedings
[5] The decision of the Federal Court of Appeal provides a précis of the history and critical findings resulting in the determination that this Court does not have jurisdiction over Canada's claims against the third parties. The following passages from Chief Justice Richard's decision sets the stage for the Motion:
[...]
[3] On February 7, 1996, the plaintiffs (the Stoney Band) commenced an action against the defendant (Canada).
[4] The statement of claim alleged, inter alia, breaches of various fiduciary duties owed by Canada to the Stoney Band concerning the harvesting of timber on the Stoney Band Reserve in Alberta in 1994 and 1995.
[5] There is no dispute that this action comes within the jurisdiction of the Federal Court pursuant to subsection 17(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, which provides that the Federal Court has concurrent original jurisdiction with Superior Courts "in all cases in which relief is claimed against the Crown."
[6] On January 22, 1997, Canada brought a motion before the Federal Court seeking a stay of the action pursuant to section 50.1 of the Federal Courts Act on the grounds that it intended to issue third party notices against persons over whom the Federal Court had no jurisdiction.
[7] Canada filed several third party notices on April 4, 1997, prior to the hearing of its motion by Prothonotary Hargrave on April 23, 1997. The third parties did not receive notice of Canada's motion or participate in the hearing before the prothonotary.
[8] By Order issued on May 16, 1997, the prothonotary found that the Federal Court had jurisdiction over the proposed third party proceedings. Canada did not appeal the prothonotary's decision.
[9] An amended statement of claim, an amended statement of defence, and amended third party notices were served and filed in the period October 2002 to March 2003.
[10] The third party claims were for the most part identical, differing only in minor aspects depending on the identity of the third party. In every case, however, the relief sought by Canada was identical.
[11] The parties against whom Canada asserted these third party claims fall into three categories: certain members of the Stoney Band in their capacity as individuals, loggers, and saw mills operators.
[12] Canada framed the relief it sought from the third parties as follows:
(a) Indemnity or contribution in respect of any judgment which may be obtained by the plaintiffs against the defendant, including any judgment for costs;
(b) Indemnity or contribution in respect of the costs and expenses incurred by the defendant in defending the action brought by the plaintiffs;
(c) Aggravated, punitive and exemplary damages;
(d) Costs and expenses of the third party proceedings.
[13] Canada also pleaded the provisions of the Contributory Negligence Act, R.S.A. 2000, c. C-27, the Tort-Feasors Act, R.S.A. 2000, c. T-5, the Indian Act, R.S.C. 1985, c. I-5, and the Indian Timber Regulations, SOR/94-690, s.3(F).
[14] The third party appellants challenged the jurisdiction of the Federal Court on April 30, 2003 and these motions were heard together by a judge of the Federal Court on October 21, 2003.
[15] The motion before the Federal Court judge was not supported by any affidavit material and proceeded on the basis of the pleadings and the third party notices as framed by Canada.
[16] Canada did not oppose the third parties' motion but took the position that, having elected not to appeal, it was bound by the prothonotary's decision.
[17] On May 3, 2004, the motions judge dismissed the jurisdictional challenge of the third parties on the ground that the prothonotary's decision was a bar to the relief sought on the principle of res judicata.
[18] The appeals before us were consolidated and heard together. None of the parties supported the motions judge's finding that the matter was res judicata. It is clear to us that the motions judge erred in law by applying the principle of res judicata in these circumstances. The third parties were not parties to the motion before the prothonotary and did not have notice of the proceedings before the prothonotary in April 1997.
[19] We are all of the view that the motions judge erred in dismissing the motion made by the third parties on the ground of res judicata and for this reason alone, the appeal could be allowed.
[20] However, the parties were unanimous in requesting that this Court make the decision on the issue of jurisdiction that should have been made by the motions judge and accordingly, I will proceed to deal with the issue of jurisdiction raised by the parties.
[21] The sole issue in this appeal is the jurisdiction of the Federal Court to hear and determine the third party claims as framed by Canada. This is a question of law. Although the prothonotary was very articulate in his reasons in support of his finding that the Federal Court did have subject matter jurisdiction, we are not bound by that decision or those reasons.
[...]
[41] In the present proceedings and in the claims as framed by Canada, the provincial common laws of conversion, conspiracy and negligence cannot be characterized as "incidentally necessary to resolve the issues presented by the parties". They are, in fact, the very laws under which Canada asserts its entitlement to indemnity, contribution, or damages. Canada's claims are in "pith and substance" based on provincial common law. If anything, it is the federal law component that is incidental to Canada's claims against the third parties.
[42] The law upon which Canada relies in bringing the claims against the third parties is the common law of trespass, conversion, conspiracy and negligence.
[43] This is clear from an analysis of the third party claims where Canada alleges:
1. trespass to timber and land;
2. conspiracy to engage in activities contrary to federal
legislation;
3. conversion of Crown timber;
4. contributory negligence; and
5. negligent interference with the Crown's fiduciary duty
to the Stoney Band
[...]
[49] In the present proceedings, the claims of Canada against the third parties are not sufficiently supported by federal law. To the contrary, the claims are firmly rooted in provincial common law.
[50] Even though the action between the Stoney Band and Canada is rightly before the Federal Court, there is no relationship between the cause of action in the third party proceedings and any applicable federal law that would be sufficient to give the Federal Court jurisdiction.
[51] The Supreme Court of Canada held in Canada v. Thomas Fuller Construction Co. (1958) Ltd., [1980] 1 S.C.R. 695 that an action and a third party action are separate proceedings. Thus, an analysis of the claims of the plaintiff against the defendant in the main action will not be determinative of the nature of the claim against the third parties.
[52] Therefore, the fact that the Federal Court has jurisdiction over the main action between the Stoney Band and Canada cannot be considered when determining the Court's jurisdiction over the third party claims. I reach this conclusion based on the present state of the jurisprudence on this matter.
[...]
[57] In conclusion, I find that the federal statutory framework created by the interaction of the Indian Act and the Indian Timber Regulations is insufficiently broad to encompass Canada's third party claims in this case. The Act and the Regulations relied on by Canada are not the source or the foundation of its claim against the third parties. The claims against the third parties are in "pith and substance" based on provincial common law. I must conclude that the Federal Court does not have jurisdiction over Canada's claims against the third parties in these circumstances.
[...]
II. The Motion
[6] Section 50.1 became law in 1990 as an element of Bill C-38, the contents of which are described in detail in Section III (A)(1) and (2) below. Canada's motion for a stay of the Action pursuant to s.50.1 is based on the ground that "the Crown desires to institute third-party proceedings in the within action against three classes of parties in respect of which the Federal Court lacks jurisdiction". With the passage of s.50.1, the power of Judges of the Court to grant a stay of proceedings is found in two provisions of the Federal Courts Act, being s.50 and s.50.1:
Stay of proceedings authorized
50. (1) The Federal Court of Appeal or the Federal Court may, in its discretion, stay proceedings in any cause or matter
(a) on the ground that the claim is being proceeded with in another court or jurisdiction; or
(b) where for any other reason it is in the interest of justice that the proceedings be stayed.
Stay of proceedings required
(2) The Federal Court of Appeal or the Federal Court shall, on application of the Attorney General of Canada, stay proceedings in any cause or matter in respect of a claim against the Crown if it appears that the claimant has an action or a proceeding in respect of the same claim pending in another court against a person who, at the time when the cause of action alleged in the action or proceeding arose, was, in respect of that matter, acting so as to engage the liability of the Crown.
Lifting of stay
(3) A court that orders a stay under this section may subsequently, in its discretion, lift the stay.
Stay of proceedings
50.1 (1) The Federal Court shall, on application of the Attorney General of Canada, stay proceedings in any cause or matter in respect of a claim against the Crown where the Crown desires to institute a counter-claim or third-party proceedings in respect of which the Federal Court lacks jurisdiction.
Recommence in provincial court
(2) If the Federal Court stays proceedings under subsection (1), the party who instituted them may recommence the proceedings in a court constituted or established by or under a law of a province and otherwise having jurisdiction with respect to the subject-matter of the proceedings.
Prescription and limitation of actions
(3) If proceedings are recommenced under subsection (2) within 100 days after the proceedings are stayed in the Federal Court, the claim against the Crown in the recommenced proceedings is deemed, for the purposes of any laws relating to prescription and the limitation of actions, to have been instituted on the day the proceedings in the Federal Court were instituted.
Suspension d'instance
50. (1) La Cour d'appel fédérale et la Cour fédérale ont le pouvoir discrétionnaire de suspendre les procédures dans toute affaire :
a) au motif que la demande est en instance devant un autre tribunal;
b) lorsque, pour quelque autre raison, l'intérêt de la justice l'exige.
Idem
(2) Sur demande du procureur général du Canada, la Cour d'appel fédérale ou la Cour fédérale, selon le cas, suspend les procédures dans toute affaire relative à une demande contre la Couronne s'il apparaît que le demandeur a intenté, devant un autre tribunal, une procédure relative à la même demande contre une personne qui, à la survenance du fait générateur allégué dans la procédure, agissait en l'occurrence de telle façon qu'elle engageait la responsabilité de la Couronne.
Levée de la suspension
(3) Le tribunal qui a ordonné la suspension peut, à son appréciation, ultérieurement la lever.
Suspension des procédures
50.1 (1) Sur requête du procureur général du Canada, la Cour fédérale ordonne la suspension des procédures relatives à toute réclamation contre la Couronne à l'égard de laquelle cette dernière entend présenter une demande reconventionnelle ou procéder à une mise en cause pour lesquelles la Cour n'a pas compétence.
Reprise devant un tribunal provincial
(2) Le demandeur dans l'action principale peut, après le prononcé de la suspension des procédures, reprendre celles-ci devant le tribunal compétent institué par loi provinciale ou sous le régime de celle-ci.
Prescription
(3) Pour l'application des règles de droit en matière de prescription dans le cadre des procédures reprises conformément au paragraphe (2), est réputée être la date de l'introduction de l'action celle de son introduction devant la Cour fédérale si la reprise survient dans les cent jours qui suivent la suspension.
[7] The evidence supporting the Motion is found in the Affidavit of Ms. Doris Tetrault, Project Manager of the Litigation Management and Resolution Branch of the Department of Indian Affairs and Northern Development, Vancouver, British Columbia, sworn January 10, 2006 (Motion Record of the Applicant, pp.5-9). The Affidavit provides an outline of the steps taken in the Action and with respect to the Proceedings, and relevant pleadings are attached as Exhibits. At paragraph 20, Ms. Tetrault attests to the following:
Canada desires to institute third party proceedings against all of the original 52 named Third Parties, including those who chose not to challenge the jurisdiction of the Federal Court, and those who were struck from this action at the Federal Court of Appeal.
A. What is the present state of the law with respect to s.50.1?
[8] After the passage of Bill C-38, five decisions of the Court have interpreted s.50.1. In sequence of time of decision, they are: Bastien v. Canada, [1992] F.C.J. No. 221 (Bastien); Fairford Band v. Canada (Attorney General), [1995] 3 F.C. 165 (Fairford); Fédération Franco-ténoise v. Canada, [2001] 3 F.C. 641 (C.A.) (Fédération); Charalambous v. The Queen (29 April 2004), Federal Court T-1715-03 (F.C.) (Charalambous); and Aussant v. Canada(Minister of Health and Welfare), (25 November 2005), Federal Court T-2442-98 (F.C.) (Aussant).
[9] Bastien involved an application by the Attorney General of Canada to stay proceedings that had been pending against the Crown prior to the enactment of s.50.1. Justice Pinard made two findings in the course of refusing to grant the stay: since s.50.1 affected the jurisdiction of the Court, and, thus, the plaintiff's substantive rights under the action already commenced, the provision cannot be characterized as procedural in nature; and, since the application of s.50.1 was not made retroactive, applying it to the action which was commenced before the provision came into effect would unduly affect the vested rights of the plaintiff.
[10] For the reasons provided in Section IV(A)(1)(a) below, I find that Bastien is not relevant to the present Motion.
[11] In the decisions subsequent to Bastien, opinions are expressed with respect to the essential evidence required to support an order under s.50.1, and the ambit of discretion to be applied in deciding whether to issue a stay.
[12] In Charalambous, Justice Dawson at pp. 4-5 cites Fairford and Fédération in coming to a conclusion on the criteria to be applied in issuing a stay:
The leading case to consider this provision is Fairford Band v. Canada(Attorney General), [1995] 3 F.C. 165 (T.D.); aff'd (1996), 205 N.R. 380 (F.C.A.). In Fairford Mr. Justice Rouleau indicated that he was not prepared to grant the requested stay because he was not persuaded of the sincerity of the defendant's desire to commence third party proceedings, the defendant's application was vague and there was no evidence that the Attorney General was in fact going to commence third party proceedings. Such comments were, however, obiter in light of Mr. Justice Rouleau's further conclusion that the Court had jurisdiction over the intended third party proceedings. Justice Rouleau's decision was affirmed on this latter basis.
Subsequently, in Fédération Franco-ténoise v. Canada, [2001] 3 F.C. 641 (C.A.) at paragraph 87 (again in obiter) the Federal Court of Appeal suggested that a stay is, in substance, automatic where requested on motion by the Attorney General. This authority was not referred to in argument before the learned prothonotary.
I conclude on the basis of these authorities and the wording used in subsection 50.1(1) of the Federal Courts Act that a stay should issue where the Court is satisfied on the evidence of a bona fide desire on the part of the Crown to institute third party proceedings beyond the jurisdiction of the Court.
[13] In reaching the decision in Aussant, Justice Hugessen at pp. 2-3 does not refer to precedent in making the following statement:
[...] Since the language of [s.50.1] is mandatory, I will be obliged to make such an order if I find that the third party claims are outside the Court's jurisdiction. In those circumstances any opinion I may have as to the possible success or failure of the third party claims, besides being an obiter dictum, could only be a source of embarrassment and mischief to the Saskatchewan courts which would then in any event be called upon to deal anew with the same questions.
Upon deciding that the third-party claims concerned were beyond the jurisdiction of the Federal Court, Justice Hugessen granted a stay.
[14] Reading Charalambous and Aussant together, I find that the present state of the law is that, not only "should" a stay be issued, as expressed by Justice Dawson, but it is "mandatory" to issue a stay under s.50.1, as stated by Justice Hugessen, if third-party proceedings are found to be beyond the jurisdiction of the Court, and the Crown has proved a bona fide intention to institute the third-party proceedings in a Provincial court.
III. Does the Motion Lack a Legal Basis?
[15] Baptiste's concern in strongly objecting to the Motion is the ease with which a stay can be obtained merely upon two conditions precedent being proved: the Federal Court lacks jurisdiction over specified third-party proceedings, and the Crown has a bona fide desire to institute the third-party proceedings in a Provincial court. It is the total lack of discretion to decide whether it is just to issue the stay that Baptiste finds repugnant.
[16] Baptiste maintains that the criteria for granting an order under s.50.1 must be more encompassing, and in this respect argues that, before Canada can be found to have a "bona fide desire" to commence third-party proceedings, the "desire" maintained must be found to have a legal basis. That is, the correct interpretation of the term "desire" requires an evaluation of whether, given the nature of a particular action, it is permissible for Canada to bring third-party proceedings, and if it is impermissible, the motion is without a legal basis.
[17] With respect to the meaning of "third-party proceedings", Baptiste argues that the Proceedings in the present case are not third-party proceedings but are independent substantive proceedings that do not, and should not, depend on the outcome of the Action. Baptiste argues that, as the Proceedings constitute a completely distinct common law cause of action in tort, it is impermissible for Canada, which is being sued in equity for breach of a fiduciary duty, to use the Proceedings to claim common law relief of indemnity, contribution, or "relief over" against persons and entities with respect to their alleged tortuous appropriation of trust property.
[18] On this basis, Baptiste further argues that this Court has the equitable jurisdiction necessary to declare Canada's proposed course of action is an impermissible course of action for a party to a fiduciary relationship and that, if Canada chooses to bring proceedings against tort-feasors, it must not do so as part of the Action. According to Baptiste, the result of acceptance of this argument is a denial of a stay under s.50.1 because, if Canada's course of action is impermissible and unavailable, the Crown does not have a bona fide desire to bring third-party proceedings over which this Court has no jurisdiction.
[19] Canada's response is simple: it has met the evidentiary test for proving it has a bona fide desire, and since this Court has no jurisdiction over the Proceedings, as decided by the Federal Court of Appeal, this Court has no jurisdiction to render any decision with respect to the propriety of the Proceedings. On this basis, Canada argues that, following a stay, if Baptiste chooses to recommence the Action in Alberta, it is for the Alberta Court of Queen's Bench to decide upon the propriety of the third-party proceedings instituted by the Crown.
[20] I find Canada's argument compelling, and, therefore, find that I have no jurisdiction to decide upon the substance of the Proceedings in the present case. However, to fairly consider Baptiste's argument, I find it is still necessary to decide on the correct interpretation of the word "desire" as it is used in s.50.1(1).
A. What is the correct meaning of "Crown desires"?
[21] With respect to the meaning of "desire", the essential elements of Baptiste's argument are as follows:
23. The English text of s. 50.1 of the Federal Courts Act provides for a stay where "the Crown desires to institute a counter-claim or third party proceedings in respect of which the Court lacks jurisdiction."
Federal Courts Act, R.S.C. 1985, c.F-7, Tab A1
24. The term "desires" is not defined in the Federal Courts Act. It is commonly taken to mean "to wish for" or "to invite a course of action" though it might also be taken to mean "to long for, covet or crave."
Oxford English Dictionary, 2004, s.v. "desire". Tab B3
25. The French text of s.50.1 of the Federal Courts Act reads "à l'égard de laquelle cette dernière [la Couronne] entend présenter une demande reconventionnelle ou procéder à une mise en cause pour lesquelles la Cour n'a pas compétence".
26. The term "entendre" iscommonlytaken tomean"avoir l'intention de [faire quelquechose]" or "avoir le dessein de [faire quelquechose]" as well as "vouloir", "désirer", "préférer."
Le Nouveau Petit Robert, 1995, s.v. "entendre". Tab B4
27. The terms employed by Parliament in both English and French are general terms and are ambiguous. The ambiguity lies in the nature of the Crown's "desire." Desire is an element of volition, which refers to the making of a definite choice or decision with regard to a course of action on the basis of reasons. It is possible for a person to choose an impermissible course of action, either intentionally or inadvertently. That person would certainly "desire" to pursue the impermissible course of action, but may nonetheless be barred from doing so.
Oxford English Dictionary, 2004, s.v. "volition". Tab B5
28. There are thus two possible approaches to the interpretation of "Crown desires" as that term is used in s. 50.1. The first approach requires merely that the requisite desire be actually present. In other words, all that must be established is a bona fide intention or desire on the part of the Crown to bring third party proceedings. The desire is "bona fide" in the sense that the Crown demonstrably intends to pursue that course of action.
Fairford First Nation v. Canada(A.G.), 1995 CarswellNat 687 (F.C.T.D.)
at para. 11. Tab B6
Charalambous v. Canada, (April 29, 2004) T-1715-03 (F.C.) per Dawson J. Applicant's Motion Record, Tab 4
29. The second approach would require, in addition, that the object of the Crown's "desire" be a possible or permissible course of action. Pursuant to this approach, if there is a rule or principle of law that makes the Crown's recourse to third party proceedings impermissible, or if there is some other circumstance that makes the Crown's recourse unreasonable, then the Crown's "desire" to bring third party proceedings would not be sufficient for the Court to stay the proceedings. Thus, a bona fide desire would be an intention to pursue a permissible or reasonable course of action.
30. It is submitted that the second approach is the proper approach to the interpretation of the notion of Crown "desire" and accords with the general rule of statutory interpretation that "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament."
Re Rizzo & Rizzo Shoes Ltd., 1998 CarswellOnt 1 (S.C.C.). Tab B7
31. Moreover, the second approach excludes the possibility of an abuse of process, which the Crown cannot "desire" if it is to be consistent with the Crown's exercise of "public duty ... performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings."
Re Application Under s.83.28 of the Criminal Code, 2004 CarswellBC
1378 (S.C.C.) at para. 95. Tab B8.
32. It is submitted that this is also an application of the principle of statutory interpretation that an intention to produce an unreasonable or absurd result is not to be imputed to a statute if there is some other construction available
P. St. J. Langan, Maxwell on Interpretation of Statutes, 12th ed. (London: Sweet & Maxwell, 1969) at p. 199 et seq. Tab B9.
[22] To answer the question, the legislative context with respect to s.50.1 requires evaluation.
1. Bill C-38
[23] In 1990, by the passage of Bill C-38, An Act to amend the Federal Court Act, the Crown Liability Act, the Supreme Court Act and other Acts in consequence thereof, 2d Sess., 34th Parl., 1989 (1st reading 28 September 1989) put into place a comprehensive law reform package, which, by the following provisions, includes a focus on third-party proceedings initiated in litigation against the Crown: s.50.1 of the Federal Courts Act; s.17 of the Federal Courts Act; and s. 21 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50.
The Federal Courts Act
Relief against the Crown
17. (1) Except as otherwise provided in this Act or any other Act of Parliament, the Federal Court has concurrent original jurisdiction in all cases in which relief is claimed against the Crown.
Cases
(2) Without restricting the generality of subsection (1), the Federal Court has concurrent original jurisdiction, except as otherwise provided, in all cases in which
(a) the land, goods or money of any person is in the possession of the Crown;
(b) the claim arises out of a contract entered into by or on behalf of the Crown;
(c) there is a claim against the Crown for injurious affection; or
(d) the claim is for damages under the Crown Liability and Proceedings Act.
Crown and subject: consent to jurisdiction
(3) The Federal Court has exclusive original jurisdiction to hear and determine the following matters:
(a) the amount to be paid if the Crown and any person have agreed in writing that the Crown or that person shall pay an amount to be determined by the Federal Court, the Federal Court - Trial Division or the Exchequer Court of Canada; and
(b) any question of law, fact or mixed law and fact that the Crown and any person have agreed in writing shall be determined by the Federal Court, the Federal Court - Trial Division or the Exchequer Court of Canada.
Conflicting claims against Crown
(4) The Federal Court has concurrent original jurisdiction to hear and determine proceedings to determine disputes in which the Crown is or may be under an obligation and in respect of which there are or may be conflicting claims.
Relief in favour of Crown or against officer
(5) The Federal Court has concurrent original jurisdiction
(a) in proceedings of a civil nature in which the Crown or the Attorney General of Canada claims relief; and
(b) in proceedings in which relief is sought against any person for anything done or omitted to be done in the performance of the duties of that person as an officer, servant or agent of the Crown.
Federal Court has no jurisdiction
(6) If an Act of Parliament confers jurisdiction in respect of a matter on a court constituted or established by or under a law of a province, the Federal Court has no jurisdiction to entertain any proceeding in respect of the same matter unless the Act expressly confers that jurisdiction on that court.
Réparation contre la Couronne
17. (1) Sauf disposition contraire de la présente loi ou de toute autre loi fédérale, la Cour fédérale a compétence concurrente, en première instance, dans les cas de demande de réparation contre la Couronne.
Motifs
(2) Elle a notamment compétence concurrente en première instance, sauf disposition contraire, dans les cas de demande motivés par :
a) la possession par la Couronne de terres, biens ou sommes d'argent appartenant à autrui;
b) un contrat conclu par ou pour la Couronne;
c) un trouble de jouissance dont la Couronne se rend coupable;
d) une demande en dommages-intérêts formée au titre de la Loi sur la responsabilité civile de l'État et le contentieux administratif.
Conventions écrites attributives de compétence
(3) Elle a compétence exclusive, en première instance, pour les questions suivantes :
a) le paiement d'une somme dont le montant est à déterminer, aux termes d'une convention écrite à laquelle la Couronne est partie, par la Cour fédérale - ou l'ancienne Cour de l'Échiquier du Canada - ou par la Section de première instance de la Cour fédérale;
b) toute question de droit, de fait ou mixte à trancher, aux termes d'une convention écrite à laquelle la Couronne est partie, par la Cour fédérale - ou l'ancienne Cour de l'Échiquier du Canada - ou par la Section de première instance de la Cour fédérale.
Demandes contradictoires contre la Couronne
(4) Elle a compétence concurrente, en première instance, dans les procédures visant à régler les différends mettant en cause la Couronne à propos d'une obligation réelle ou éventuelle pouvant faire l'objet de demandes contradictoires.
Actions en réparation
(5) Elle a compétence concurrente, en première instance, dans les actions en réparation intentées :
a) au civil par la Couronne ou le procureur général du Canada;
b) contre un fonctionnaire, préposé ou mandataire de la Couronne pour des faits - actes ou omissions - survenus dans le cadre de ses fonctions.
Incompétence de la Cour fédérale
(6) Elle n'a pas compétence dans les cas où une loi fédérale donne compétence à un tribunal constitué ou maintenu sous le régime d'une loi provinciale sans prévoir expressément la compétence de la Cour fédérale.
The Crown Liability and Proceedings Act
Concurrent jurisdiction of provincial court
21. (1) In all cases where a claim is made against the Crown, except where the Federal Court has exclusive jurisdiction with respect to it, the superior court of the province in which the claim arises has concurrent jurisdiction with respect to the subject-matter of the claim.
Where proceedings pending in Federal Court
(2) No court in a province has jurisdiction to entertain any proceedings taken by a person if proceedings taken by that person in the Federal Court in respect of the same cause of action, whether taken before or after the proceedings are taken in the court, are pending.
Compétence concurrente des tribunaux provinciaux
21. (1) Dans les cas de réclamation visant l'État pour lesquels la Cour fédérale n'a pas compétence exclusive, a compétence concurrente en la matière la cour supérieure de la province où survient la cause d'action.
Affaires pendantes devant la Cour fédérale
(2) Aucun tribunal provincial n'est compétent pour connaître d'une poursuite si une autre, intentée pour le même fait générateur par la même personne - que ce soit avant ou après le début de la première -, est pendante devant la Cour fédérale.
2. Parliament's intention in enacting s.50.1
[24] It is agreed that evidence of Parliament's intention in presenting Bill C-38 is found in Hansard for November 1, 1989:
FEDERAL COURT ACT
MEASURE TO AMEND
Hon. Doug Lewis (Minister of Justice and Attorney General of Canada): moved that Bill C-38, an act to amend the Federal Court Act, the Crown Liability Act, the Supreme Court Act and other acts in consequence thereof, be read the second time and referred to a legislative committee.
He said: Mr. Speaker, I want to say at the outset how pleased I am to have the opportunity to bring forward this bill which contains amendments principally to the Federal Court Act and also to the Crown Liability Act. The over-all purpose of this legislation is to give the ordinary citizens who wish to sue the federal government easier access to the Canadian courts and to reduce or eliminate the legal barriers and the inequities that a citizen now faces in such litigation.
First, I want to deal with the Federal Court Act proposals. It has been almost 20 years since the Federal Court was established. It was established to replace the old Exchequer Courtand, although much of the jurisdiction that was conferred on this new court reflected the jurisdiction of the predecessor, there was also quite a bit that was new in this legislation. For example, the Exchequer Court at that time, as it was constituted, was only a trial level court and appeals from the decisions of the Exchequer Court were made directly to the Supreme Court of Canada. The act in 1971 established a new Federal Court of Appeal to hear the appeals from the decisions of the Court's trial division.
Second, the Federal Court was granted an entirely new jurisdiction to supervise or review the activities and decisions of federal boards and tribunals. Generally I think it is fair to say that the establishment of the Federal Court a generation ago can be characterized as a bold and far-sighted experiment in reforming the federal civil justice system on behalf of all Canadians. It has proven itself to be invaluable to the Canadian system of justice, and it serves a number of special purposes that provincial courts cannot adequately fulfil.
First, the Federal Court is a Canada-wide court which has national jurisdiction. As a result it is not impeded by any territorial limitations on jurisdiction and on process to which the provincial courts are necessarily subject. The nation-wide quality of the Federal Court has proven essential for example in cases of admiralty and intellectual property, patents, copyright, trademarks and industrial design.
Second, the Federal Court is a court with specialized knowledge in a few specific areas. These include the Income Tax Act and other federal revenue laws, intellectual property and admiralty law.
The importance of the Federal Court to the Canadian legal system is evidenced by the fact that although the court and the provincial courts both have jurisdiction with respect to matters such as intellectual property and admiralty matters, most matters of this type are brought in the federal court.
Third, the Federal Court helps to ensure that the federal tribunals operate effectively, efficiently, and fairly throughout Canada under federal legislation that applies uniformly across the entire country.
I think it is appropriate at this time to pay tribute to the present Leader of the Opposition who as the Minister of Justice of the day in 1970 introduced legislation that established the court. Since that time there has been an opportunity for assessing the results of that experiment. I think it is fair to say that the Federal Court has proven to be an over-all success. But our assessment - and I think it is fair to say the assessment of the bar and others - has revealed a number of areas where improvements could be usefully made to the Federal Court Act and the related legislation.
Mr. Speaker, the major objectives of the proposals contained in this Bill are to facilitate access by individual Canadians to the federal civil justice system, to make that justice system fairer, to improve its efficiency and effectiveness and to improve service to the public provided by that system.
The first objective is that the Federal Court in particular and the federal justice system in general should be accessible to the ordinary citizen.
For example, a person should be able to sue the Crown in a suitably convenient court for breach of contract to purchase goods or for negligent driving by a Crown employee that causes injuries to another motorist. At the moment, such actions can only be brought in the Federal Court. However, it is not as available as provincial courts.
The Federal Court, only has offices in the larger centres and judges of the Court, based as most of them are in the National Capital Region, are not as readily or as frequently available throughout Canada as are judges of provincial courts.
Moreover, for both citizen and lawyer alike, provincial courts, including their procedures and personnel, are much more familiar.
Therefore, the Federal Court is often not the most convenient one for the private litigant. With this in mind, the Government has proposed that both the provincial courts and the Federal Court share jurisdiction with respect to such actions, thereby generally giving the plaintiff a choice of forum.
[ ...]
A second objective in the amendments is fairness. Fairness, with the powerful voice o