T-1549-74
Paul Desbiens and Marie Desbiens (Plaintiffs)
v.
Her Majesty the Queen as represented by Mau-
rice J. Nadon, Commissioner of The Royal
Canadian Mounted Police; Raymond John
Kruger; Wilbert Douglas Ford; Thomas Bruce
Burns; Sherman Robert Allen; and Gary Mat-
thews (Defendants)
Trial Division, Heald J.—Ottawa, June 18,
1974.
Jurisdiction—Search and seizure—Action against provin
cial justice of the peace for illegal issue of search warrant
and against R.C.M.P. for execution of warrant—Motion to
dismiss as against justice of the peace for lack of jurisdic-
tion—No jurisdiction over justice of peace—Federal Court
Act, ss. 2, 17(4), 37—Justices of the Peace Act, R.S.O. 1970,
c. 231.
The plaintiffs claimed damages against the defendant
members of the R.C.M.P. for illegal conduct in the execu
tion of a search warrant and against the defendant Mat-
thews, a justice of the peace in Ontario, for issuing the
search warrant without reasonable or probable cause and
"negligently or recklessly or maliciously in the circum
stances". The defendant Matthews moved to dismiss the
action, as against him, for lack of jurisdiction.
Held, dismissing the action as against the defendant Mat-
thews there was jurisdiction over the defendant members of
the R.C.M.P., servants of the Crown in right of Canada,
under the Federal Court Act, section 17(4)(b), but there was
no jurisdiction over the defendant Matthews, a servant of
the Crown in right of the Province of Ontario. The appli
cable test was whether the Court would have had jurisdic
tion over Matthews if he had been sued alone.
Anglophoto Limited v. The Ikaros [1973] F.C. 483
(reversed on other grounds [1974] F.C. 327), applied.
MOTION.
COUNSEL:
M. J. O'Grady for plaintiffs.
T. H. Wickett for defendant Matthews.
P. J. Evraire for other defendants.
SOLICITORS:
Soloway, Wright, Houston et al., Ottawa,
for plaintiffs.
Deputy Attorney General of Ontario for
defendant Matthews.
Deputy Attorney General of Canada for
other defendants.
The following are the reasons for judgment
delivered in English by
HEALD J.: This is an application by notice of
motion for an order dismissing the plaintiffs'
action against one of the defendants, Gary Mat-
thews. Said defendant is a justice of the peace
in and for the Judicial District of Ottawa-Carle-
ton, appointed under the provisions of the Jus
tices of the Peace Act of Ontario and is a ser
vant of the Queen in right of Ontario. The
defendant, Nadon, is the Commissioner of the
Royal Canadian Mounted Police. All of the
other defendants are members of the Royal
Canadian Mounted Police.
The cause of action alleged in the Statement
of Claim arises out of an incident which
occurred on October 26, 1973 when the said
Royal Canadian Mounted Police officers attend
ed at an apartment building in Ottawa, having in
their possession a search warrant signed by the
defendant Matthews. The statement of claim
contains a detailed recitation of alleged improp
er and illegal conduct on the part of said
R.C.M.P. officers on that occasion. It also
alleges against the defendant Matthews that the
search warrant in question was issued without
reasonable or probable cause or justification,
that it was issued "negligently or recklessly or
maliciously in the circumstances, and that in
such case the said defendant Gary Matthews is
liable for the consequences of the conduct of
the defendants Kruger, Ford, Burns and Allen
as aforesaid". The statement of claim concludes
by asking for damages against all defendants.
The basis of this motion is that this Court has
no jurisdiction to entertain the action against the
defendant Matthews. In my view, this objection
to the Court's jurisdiction in the case of Mat-
thews is well taken. It was conceded by counsel
that this Court does have concurrent original
jurisdiction against the other defendants by
virtue of the provisions of sections 2, 17(4) and
37 of the Federal Court Act' .
However, in the case of Matthews, plaintiffs'
counsel conceded that he is a servant of the
Crown in right of Ontario. There is no provision
either in section 17 or in any other section of
the Federal Court Act to clothe the Court with
jurisdiction over Matthews. In this connection, I
agree with the comments of Collier J. in the
case of Anglophoto Limited v. The Ikaros 2
where he said:
I suggest a proper test to apply in approaching the ques
tion of jurisdiction is to see whether this Court would have
jurisdiction if the claim advanced against one particular
defendant stood alone and were not joined in an action
against other defendants over whom there properly was
jurisdiction. 3
Applying that test, I cannot find anywhere in
the Federal Court Act provisions giving the
Court jurisdiction over the defendant Matthews
were he sued alone. Therefore the fact that he
has been joined as a defendant in an action with
other defendants over whom the Court does
have jurisdiction, does not operate so as to give
the Court jurisdiction over him.
The motion accordingly succeeds. The action
is dismissed as against the defendant Gary Mat-
thews with costs.
' 2. In this Act
"Crown" means Her Majesty in right of Canada;
17. (4) The Trial Division 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 his duties as an officer or servant of the
Crown.
37. For the purpose of determining liability in any action
or other proceeding by or against the Crown, a person who
was at any time a member of the Canadian Forces or of the
Royal Canadian Mounted Police shall be deemed to have
been at that time a servant of the Crown.
z [1973] F.C. 483 at p. 498.
I am aware that the above judgment of Collier J. was
reversed on appeal ([1974] F.C. 327). However, the appeal
judgment does not, in my view, affect in any way that
portion of the judgment of Collier J. quoted above.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.