T-3614-73
The Queen in right of the Province of Prince
Edward Island (Plaintiff)
v.
The Queen in right of Canada (Defendant)
Trial Division, Cattanach J.—Ottawa, December
4, 5, 10, 29, 1975 and January 28, 1976.
Crown—Contracts—Order in Council uniting Prince
Edward Island and Canada stipulating that Dominion shall
provide ferry service to Island—Previous claims for non-ful
filment settled—Ferry service interrupted during 1973 rail
strike—Whether breach of statutory duty by Dominion—
Whether breach gives rise to action for damages—Whether
statute contemplates damages complained of.
Practice—Parties—Whether Queen can be both plaintiff
and defendant in same action—Federal Court Act, ss. 17, 19—
Imperial Order in Council, S.C. 1873, p. IX—An Act to
provide for a further annual allowance to Prince Edward
Island, S.C. 1901, Cap. 3, s. 1—An Act to ratify and confirm a
certain agreement between the Governments of Canada and
Prince Edward Island, in respect of claims for non-fulfilment
of the terms of Union, S.P.E.I. 1900-01, Cap. 3, s. 1—Prince
Edward Island Subsidy Act, S.C. 1912, c. 42, ss. 1, 2—British
North America Act, 1867, ss. 9, 91(13), 146—Interpretation
Act, R.S.C. 1970, c. I-23, s. 10.
In the Order in Council under which Prince Edward Island
became part of Canada in 1873, it was provided that the
Dominion Government would assume and defray all charges for
ferry service between the Island and the mainland. By a
memorial presented to the Dominion in 1901, the Province
sought recompense for alleged breaches of the terms of the
Order in Council, and the Dominion authorized payment of an
annual allowance, which was increased in 1912 in response to
further claims. Since 1923, the Dominion has used the CNR to
operate a ferry service on its behalf. During the nation-wide rail
strike of 1973, this service was inoperative for ten days and
eight and one half hours during the peak of the tourist season,
stranding a great many people on the Island. The Province
alleges a statutory duty on the Dominion to assume and defray
the cost of efficient and continuous communication for the
conveyance of mails and passengers between the Island and
mainland, a breach of that duty culminating in a claim for
damages in an unspecified amount.
Held, there is no liability in damages. It must have been
contemplated in the Order in Council that the obligation ta
establish and maintain a ferry service is that of the Dominion.
Long acquiescence and practice on both sides can be seen as
sanction of such an interpretation. Use of the words "shall" and
"maintain" imports a continuing and imperative obligation on
the Dominion to assume and defray the cost, i.e. it is to accept
responsibility for and pay the costs of the services named in the
Order in Council. It is also the responsibility of the Dominion
to establish and maintain an effective and continuous service,
and to pay for such establishment and maintenance. As to
whether there was a breach of this obligation, the facts show
that mail service and scheduled air service continued, as did the
Northumberland ferry service, though wholly inadequate and
insufficient for the needs at the time. While the Order in
Council specifies only "conveyance of mails and passengers", it
would be unrealistic to exclude the conveyance of automobiles.
Once again, acquiescence and practice can be regarded as
sanction and approval of such an interpretation, and section 10
of the Interpretation Act dictates this same interpretation. It is
no answer to the mandatory language of the Order in Council
to say that the obligation has been discharged by taking all
reasonable steps to do so. If the service provided is not adequate
for the end to be achieved, it is not efficient, and if service is
interrupted, it is not continuous. Therefore, the Dominion was
in breach of its duty. However, breach of an obligation imposed
by a statute on the Dominion for the public good, as is the case
here, does not automatically lead to damages. The public duty
is not for the benefit of Island residents only, but a general
public duty for all residents of Canada. Such a breach does not
give rise to a civil action in damages against the Crown in right
of Canada. There is no right of action in a particular person
injured by such a breach, and, as the Queen cannot sue herself,
there must be a recourse to this principle where there is a
general public duty for the benefit of all residents whom the
Queen in right of the Province seeks to represent. The right, if
it had existed, would be in the individual, and not the Queen in
right of the Province.
In re International and Interprovincial Ferries (1905) 36
S.C.R. 206; Reference re Troops in Cape Breton [1930]
S.C.R. 554; Demers v. The Queen (1898) 7 Q.B. (Que.)
433; Welbridge Holdings Ltd. v. Greater Winnipeg [1971]
S.C.R. 957; Canadian Federation of Independent Business
v. The Queen [1974] 2 F.C. 443; Theodore v. Duncan
[1919] A.C. 696 and P. P. G. Industries Canada Ltd. v.
Attorney General of Canada (1976) 7 N.R. 209, applied.
ACTION.
COUNSEL:
J. M. Coyne, Q.C., and J. A. Ghiz for
plaintiff.
I. Whitehall and D. Friesen for defendant.
SOLICITORS:
Scales, MacMillan & Ghiz, Charlottetown,
for plaintiff.
Herridge, Tolmie, Gray, Coyne & Blair,
Ottawa, Agent for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: At the outset I entertained
reservations as to the propriety of the above style
of cause in that the Crown being one and indivis
ible Her Majesty cannot be both plaintiff and
defendant in the one action, and more particularly
so since that question was raised in paragraph 1(a)
and paragraph 2 of the statement of defence.
Jurisdiction in the cases of controversies be
tween Canada and a province of Canada is con
ferred upon the Trial Division of the Federal
Court of Canada by section 19 of the Federal
Court Act which reads:
19. Where the legislature of a province has passed an Act
agreeing that the Court, whether referred to in that Act by its
new name or by its former name, has jurisdiction in cases of
controversies,
(a) between Canada and such province, or
(b) between such province and any other province or prov
inces that have passed a like Act,
the Court has jurisdiction to determine such controversies and
the Trial Division shall deal with any such matter in the first
instance.
The Province of Prince Edward Island has
enacted such enabling legislation being section 40
of the Judicature Act, R.S.P.E.I. 1951, Cap. 79,
which section was amended by section 5, S.P.E.I.
1973, Cap. 13. The sole effect of the amendment
of section 40 is to refer to the Exchequer Court of
Canada by its new name, the Federal Court of
Canada.
I should think that section 19 contemplates that
the controversies therein mentioned are controver
sies as between the Government of Canada and the
government of a province or between the govern
ments of provinces and as such the style of cause
should so reflect the said governments being repre
sented by the responsible ministers.
However, at the trial, counsel for the defendant
indicated that he did not propose to move to
amend the style of cause. That being so, I did not
insist upon the style of cause being amended bear
ing in mind Rule 302 to the effect that no proceed-
ing shall be defeated by any formal technicality
and because the issues between the actual parties
are clearly defined in the pleadings regardless of
their designation in the style of cause, and because
the basic issues remain unchanged even if the
action was brought and defended in the names of
the appropriate ministers who advise Her Majesty
in Her respective capacities. For convenience, I
may hereinafter sometimes refer to the plaintiff as
the Government of the Province, or the Province,
and to the defendant as the Government of
Canada, or Canada, or Dominion Government, or
Dominion.
Prior to trial the ' parties had agreed upon a
statement of facts, dated November 3, 1975, which
reads as follows:
For the purpose of facilitating the disposition of this action,
the parties have agreed to the following statement of facts.
1. On July 1, 1873, the Colony of Prince Edward Island
became part of the Dominion of Canada under the terms of
Order-in-Council of the Crown dated June 26, 1873.
2. The Order-in-Council included, inter alia, the following
provision:
That the Dominion Government shall assume and defray all
the charges for the following services, viz: Efficient steam
service for the conveyance of mails and passengers, to be
established and maintained between the Island and the main
land of the Dominion, winter and summer, thus placing the
Island in continuous communication with the Intercolonial
Railway and the railway system of the Dominion.
3. Between the years 1876 and 1916, the Dominion provided
winter service between the mainland and Prince Edward Island
with vessels purchased by it and operated under the direction of
the Department of Marine and Fisheries. The functions of that
department were defined by c. 17, Statutes of Canada, 1892.
4. Between the years 1876 and 1899, service in the summer
time was supplied by various private contractors under arrange
ments made by them with the Dominion Government. The
vessels employed were supplied by such contractors or by the
Dominion as evidenced by minute P.C. No. 880 approved April
15, 1895, marked as Exhibit "B" hereto.
5. By a memorial presented by the province to the Dominion
Government dated April 9, 1901, a copy whereof is marked as
Exhibit "C" hereto, recompense was asked for breaches alleged
by the province to have occurred in fulfilment of the terms of
the Order-in-Council referred to in paragraph one hereof.
6. On the third day of May, 1901, the Privy Council made a
report which said report was approved by His Excellency, the
Governor General, on May 3, 1901. A copy of said report is
marked Exhibit "D" hereto.
7. By c. 3 of the Statutes of Canada for 1901, it was enacted
that:
1. From and after the first day of July, one thousand and
nine hundred and one, there shall be paid to the province of
Prince Edward Island, in addition to all sums now authorized
by law, an annual allowance of thirty thousand dollars, which
allowance shall become payable and be paid to the said
province half-yearly on the first day of July and the first day
of January in every year, beginning with the said first day of
July, one thousand nine hundred and one, such allowance to
be paid and accepted in full settlement of all claims of the
said province against the Dominion of Canada on account of
alleged non-fulfilment of the terms of Union between the
Dominion and the said province as respects the maintenance
of efficient steam communication between the island and the
mainland.
8. C. 3 of the Statutes of Prince Edward Island, assented to on
May 10, 1901, was in the following terms:
An Act to ratify and confirm a certain agreement between
the Government of Canada and Prince Edward Island, in
respect of claims for non-fulfillment of the terms of Union.
(Assented to 10th May, 1901)
Whereas, it has been agreed between the Government of the
Dominion and Prince Edward Island that the claims of the
Province of Prince Edward Island against the Dominion
Government, for non-fulfillment of the ternis of Union as
respects the maintenance of efficient steam communication
both summer and winter between the Island and the main
land, should be settled by the payment to this province of the
sum of Thirty Thousand dollars annually, in semi-annual
payments, beginning on the first day of July next, and it is
expedient that such agreement should be ratified and
confirmed.
Be it therefore enacted by the Lieutenant Governor and
Legislative Assembly of the Province of Prince Edward
Island, as follows:
1. That the said settlement is hereby ratified and confirmed,
and the said annual payment of Thirty thousand dollars is
and shall be accepted in full satisfaction of all claims which
the Province now has against the Dominion of Canada, by
reason of the non-fulfillment by the Dominion of Canada of
the said terms of Confederation relating to the maintenance
of such efficient steam communication.
9. On February 12, 1912, a further memorial was presented to
the Dominion by a delegation appointed by the province com
plaining of further breaches of the terms of the Order-in-Coun
cil, a copy whereof with the report of such delegation to the
Lieutenant Governor in Council and of correspondence between
the Minister of Finance for Canada and the Premier of the
Province which ensued is marked as Exhibit "E" hereto.
10. By c. 42 of the Statutes of Canada for 1912, it was enacted
that:
1. This Act may be cited as The Prince Edward Island
Subsidy Act, 1912.
2. There shall be paid to the province of Prince Edward
Island, in addition to the sums now authorized by law, an
annual grant of one hundred thousand dollars, one half of
which shall become payable on the first day of July and one
half on the first day of January in every year, beginning with
the first day of July, one thousand nine hundred and twelve.
11. The payments authorized by c. 3 of the Statutes of Canada
for 1901 and by c. 42 of the Statutes of Canada for 1912 have
been paid by the Dominion to the province in accordance with
their terms.
12. The Dominion has employed Northumberland Ferries Lim
ited to operate a ferry service on its behalf between Wood
Island, Prince Edward Island to Caribou, Nova Scotia and paid
a subsidy for such service.
13. The Dominion has since the year 1923, employed the
Canadian National Railway to operate a ferry service on its
behalf between Port Borden, Prince Edward Island and Port
Cape Tormentine, New Brunswick with vessels supplied by it.
From the year 1945 to the 2nd day of September, A.D. 1973,
there was a continuous service provided except for five stop
pages. For nine days in 1950, five days in 1966, and nine days
in 1973, there were stoppages due to strikes which occurred
after all of the steps that are required to be taken by the
Canada Labour Code had been taken. In the fall of 1969, for
eight hours, and again in April, 1973 for four hours, there were
stoppages which occurred when Deck Officers walked out for
study sessions. At the time of the strike which occurred during
the times mentioned in paragraph 7 of the Amended Statement
of Claim, which strike was a general railway strike, during
which no railway service was provided, the regular schedule, as
evidenced by Exhibit "F" attached hereto was not in effect.
The schedule which was in effect both before and after the
stoppage complained of in paragraph 7 of the Amended State
ment of Claim provided an efficient service.
14. The stoppage complained of in paragraph 7 of the Amend
ed Statement of Claim was terminated by an Act of the
Parliament of Canada, the parties to the strike having attempt
ed to go through the steps prescribed by the Canada Labour
Code to settle strikes and these attempts having proved futile.
15. The parties reserve the right to object at the trial to the
admission in evidence of any of the admissions of fact made
herein, whether on the ground of irrelevancy or otherwise.
Exhibit "B" referred to in paragraph 4 of the
agreed statement of facts is a recommendation of
the Minister of Trade and Commerce adopting a
report of a committee and refers to the Imperial
Order in Council referred to in paragraph 1 and
quoted in paragraph 2 of the agreed statement of
facts. It is recited that "in compliance with the
terms of this obligation the Dominion has provided
for winter communication by means of its own
steamer or steamers" and that summer service has
been maintained by means of two lines of subsi
dized steamers running between points in New
Brunswick and Prince Edward Island and points in
Nova Scotia and Prince Edward Island. This prior
contract having expired, tenders were called. The
recommended tender was that of The Charlotte-
town Steam Navigation Company, the prior con
tractor, for both routes, one route with their
steamer Northumberland, and the other route with
their steamer St. Lawrence for a daily service at
the rate of $10,000 per annum which I take to be
for the summer navigation season and that the
winter service would be continued by the Domin
ion with its own steamer. That recommendation
was approved on April 15, 1895, and the contract
entered into.
Exhibit "C" referred to in paragraph 5 of the
agreed statement of facts is a memorial presented
by the Government of Prince Edward Island alleg
ing a failure by the Government of Canada to
fulfill its obligation under the Imperial Order in
Council and contains a recital of the deficiencies in
providing a "continuous communication" between
the Island and the mainland and alleging that the
"solemn undertaking was systematically and con
tinuously broken from the year 1873 to 1888 when
for the first time in that latter year an adequate
vessel was constructed and placed in service during
the winter season".
The conclusion of the memorial was that the
Government of Prince Edward Island claimed
damages "for this breach of their solemn contract"
from the Dominion Government and recommend
ed that the claim of the Province be referred to a
board of arbitrators. This was done. The memorial
was referred to a sub-committee. The sub-commit
tee found that the first efforts of the Dominion in
the years 1873 to 1887 were not successful for the
winter season. A delegation from the Province had
laid their grievance before Her Majesty the
Queen. The Secretary of State expressed the view
that the Imperial Government could not take the
matter out of the hands of the Dominion Govern
ment or give direction to the Dominion Govern
ment but expressed the hope that the matter be
resolved by the construction of a tunnel.
The claim for damages presented by the Prov
ince was in the amount of $5,000,000.
The ultimate recommendation of the sub-com
mittee was that if an allowance of $30,000 annual
ly was accepted by the Province it would be a fair
settlement of the matter.
The report was submitted to the Governor Gen
eral for approval and the Earl of Minto approved
the report on May 3, 1901, and implementation
thereof followed as outlined in paragraphs 7 and 8
of the agreed statement of facts by legislation by
the respective jurisdictions. It is interesting to note
the use of the words that the arrangement was in
full settlement of all claims by the Province "on
account of alleged non-fulfilment" of the terms of
union in the Federal statute, whereas in the Pro
vincial statute of acceptance and ratification of the
settlement the words used are "by reason of the
non-fulfillment" of these terms. The word
"alleged" is omitted.
Exhibit "E" referred to in paragraph 9 of the
agreed statement of facts is a still further memori
al presented by a delegation from the Province to
the Government of Canada for an increased sub
sidy, one item put forward in justification of such
an increase was "the failure of Canada to (pro-
vide) continuous communications with the main
land" and a claim for damages for such
non-fulfilment.
In compliance with the request of the Provincial
delegates the memorial was referred to a sub-com
mittee of Council. After further discussion with
the delegates, the ultimate upshot was an increase
of $20,000 (amongst other increases) in the "annu-
al allowance in full settlement of all claims of
Prince Edward Island against the Dominion of
Canada on account of non-fulfilment of the terms
of union between the Dominion and the said Prov
ince respecting the maintenance of efficient steam
communication between the Island -and the
Mainland ...".
Exhibit "F" referred to in paragraph 13 of the
agreed statement of facts is a schedule of the
normal daily ferry service from the Island to the
mainland (which I count to be 38 sailings and I
think there are typographical errors in the times of
the second and fifth sailings) and from the main
land to the Island (which I also count to be 38
sailings). That schedule was in effect from June
29, 1973, to September 5, 1973, and this ferry
service was operated by the Canadian National
Railways (sometimes hereinafter referred to as the
CNR) on behalf of the Government of Canada.
During the nation-wide legal strike of the
employees of the Canadian National Railways this
ferry service did not operate from 6:00 a.m. on
August 21, 1973, until 6:00 a.m. on August 23,
1973, and from 6:30 a.m. on August 23, 1973, to
3:00 a.m. on September 2, 1973, as alleged in
paragraph 7 of the statement of claim, which is
admitted in paragraph 5 of the statement of
defence. The duration of the stoppage of service of
these two ferry routes I compute to be 10 days and
8 1 / 2 hours.
In a supplementary addition to the agreed state
ment of facts it was further agreed that:
(1) During the material times, there was a con
tinuous air service to and from Prince Edward
Island, on a scheduled basis, carrying
passengers;
(2) At all material times, there was mail service
to and from the Island;
(3) The scheduled ferry service between Wood
Island, Prince Edward Island, and Caribou,
Nova Scotia, was maintained during all material
times.
The ferry service mentioned in paragraph 3 was on
a subsidized basis in accordance with a contract
between Northumberland Ferries Limited and the
Government of Canada. I observe from a sailing
schedule attached thereto that there were sixteen
departures from the Island to the mainland and
sixteen departures from the mainland to the
Island, but from August 27 forward these depar
tures were reduced by two, as disclosed in the
schedule.
To assist in the determination of this matter,
there are two significant factors emerging from the
agreed statement to be borne in mind:
(1) that the two claims for damages for failure
of the Dominion Government to fulfill its obli
gations under the terms of union expressed in
the Imperial Order in Council particularly
"That the Dominion Government shall assume
and defray all charges for the following services,
viz: Efficient steam service for the conveyance
of mails and passengers, to be established and
maintained between the Island and the main
land of the Dominion, winter and summer, thus
placing the Island in continuous communication
with the Intercolonial Railway and the railway
system of the Dominion" were settled by politi
cal rather than judicial action, and
(2) that the manner in which the Dominion
Government undertook to supply ferry service
over the years by means of its own steamers
during the winter season and by means of subsi-
dized steamer lines during the summer season
and since 1923 forward by operating a ferry
service through the agency of the Canadian
National Railways over two routes and by con
tract with Northumberland Ferries Limited over
a third route is a clear indication of how the
Dominion Government construed and dis
charged its obligations under the terms of union.
Basically what the statement of claim alleges is
a statutory duty on the Dominion Government to
assume and defray the cost of efficient and contin
uous communication for the conveyance of mails
and passengers between the Island and the main
land, a breach of that duty culminating in a claim
for damages in an unspecified amount for that
breach.
In seeking a trial date counsel for the parties
agreed that the trial, in the first instance, should
be limited to the question of liability and that the
question of damages should be deferred to a subse
quent time depending upon the resolution of the
question of liability. Accordingly both parties
waived examination for discovery respecting the
quantum of damages to a time prior to the trial of
that issue, should it become necessary. Because
counsel for the Dominion Government submitted
that he proposed to argue with respect to damages
that assuming a duty and breach thereof that the
statute does not contemplate the type of damages
complained of, I asked, for the purpose of clarity,
that the parties agree upon a statement of the
issues, which they did in the following terms:
1. Was there a breach of statutory duty on the
part of the Dominion Government?
2. Does the breach give rise to an action for
damages?
3. Does the statute contemplate the type of
damages complained of?
4. Quantification.
The first two questions posed for determination
are with respect to liability and the third and
fourth questions are with respect to the amount of
damages. Only the first two questions were argued
before me, the latter two being reserved for subse
quent determination depending on the outcome of
the resolution of the first two. As I appreciate the
issues, the determination thereof falls upon the
answers to three successive questions:
1. What is the duty imposed upon the Govern
ment of Canada and the nature thereof?
2. Depending upon the answer to the first ques
tion, the next question is whether there was a
breach of that duty by the Government of
Canada, and
3. Assuming there was a breach of the duty or
failure to comply with constitutional obligations,
does that breach or failure give rise to an action
for damages, which is the relief sought, at the
instance of the Government of the Province.
Section 146 of The British North America Act,
1867 provides:
146. It shall be lawful for the Queen, by and with the Advice
of Her Majesty's Most Honourable Privy Council, on
Addresses from the Houses of the Parliament of Canada, and
from the Houses of the respective Legislatures of the Colonies
or Provinces of Newfoundland, Prince Edward Island, and
British Columbia, to admit those Colonies or Provinces, or any
of them, into the Union, and on Address from the Houses of the
Parliament of Canada to admit Rupert's Land and the North
western Territory, or either of them, into the Union, on such
Terms and Conditions in each Case as are in the Addresses
expressed and as the Queen thinks fit to approve, subject to the
Provisions of this Act; and the Provisions of any Order in
Council in that Behalf shall have effect as if they had been
enacted by the Parliament of the United Kingdom of Great
Britain and Ireland.
Pursuant to the terms thereof the Colony of
Prince Edward Island was admitted into the Union
upon the terms and conditions expressed in the
addresses of the House of Parliament of Canada
and the Legislature of the Colony of Prince
Edward Island, approved by Her Majesty which
terms and conditions are contained in the Order in
Council as contemplated in section 146 of The
British North America Act, 1867. For the pur
poses of convenience the pertinent provisions of the
Order in Council are reproduced in greater detail
than the extracts therefrom in the pleadings and
the agreed statement of facts:
That the Dominion Government shall assume and defray all
the charges for the following services, viz.:—
The salary of the Lieutenant Governor;
The salaries of the Judges of the Superior Court and of the
District or County Courts when established;
The charges in respect of the Department of Customs;
The Postal Department;
The protection of the Fisheries;
The provision for the Militia;
The Lighthouses, Shipwrecked Crews, Quarantine and
Marine Hospitals;
The Geological Survey;
The Penitentiary;
Efficient Steam Service for the Conveyance of mails and
passengers, to be established and maintained between the
Island and the mainland of the Dominion, Winter and Summer,
thus placing the Island in continuous communication with the
Intercolonial Railway and the railway system of the Dominion;
The maintenance of telegraphic communication between the
Island and the mainland of the Dominion;
And such other charges as may be incident to, and connected
with, the services which by the "British North America Act,
1867," appertain to the General Government, and as are or
may be allowed to the other Provinces;
That the railways under contract and in course of construc
tion of the Government of the Island, shall be the property of
Canada;
That the new building in which are held the Law Courts,
Registry Office, etc., shall be transferred to Canada, on the
payment of sixty-nine thousand dollars. The purchase to
include the land on which the building stands, and a suitable
space of ground in addition, for yard room, etc;
That the Steam Dredge Boat in course of construction, shall
be taken by the Dominion, at a cost not exceeding twenty-two
thousand dollars;
That the Steam Ferry Boat owned by the Government of the
Island, and used as such, shall remain the property of the
Island;
That the population of Prince Edward Island having been
increased by fifteen thousand or upwards since the year 1861,
the Island shall be represented in the House of Commons of
Canada by six Members; the representation to be readjusted,
from time to time, under the provisions of the "British North
America Act, 1867;"
An order in council made under a power given
in a statute is the same thing as if the statute
enacted what the order directs and for all purposes
of construction or obligation or otherwise the order
shall be treated exactly as if it were in the statute.
The pertinent portion of the Order in Council
quoted above places on the Dominion Government,
in its initial words, the obligation "to assume and
defray all the charges" for the services which are
then specifically set forth. Those services are ser
vices which fall within the exclusive legislative
powers assigned to the Parliament of Canada by
virtue of being matters coming within the classes
of subjects enumerated in section 91 of The Brit-
ish North America Act, with the exception of the
appointment of the Lieutenant Governors of the
Provinces and the appointment and payment of the
salaries of judges, which are the responsibilities of
the Dominion Government as specifically dealt
with in sections 58 to 62 and sections 96 to 100,
respectively. None of the services named in the
Order in Council fall within the exclusive powers
of Provincial Legislatures enumerated in section
92 of The British North America Act nor are they
elsewhere assigned to the Provinces. That being so,
it is logical that the Dominion Government shall
assume and defray the costs of those existing
services, but because those particular services are
within the exclusive purview of the Dominion Gov
ernment it follows that the Dominion Government
is responsible, after Union, for their operation.
Counsel for the plaintiff submitted that with
respect to the service of an "Efficient Steam Ser
vice for the conveyance of mails and passengers, to
be established and maintained between the Island
and the mainland of the Dominion, Winter and
Summer, thus placing the Island in continuous
communication with the Intercolonial Railway and
the railway system of the Dominion" is in a differ
ent category in that such a service did not previ
ously exist. I note that in the Order in Council it is
provided "That the Steam Ferry Boat owned by
the Government of the Island, and used as such,
shall remain the property of the Island". That
provision continues the ownership of the steam
ferry boat in the Island but the provision is also
susceptible of the interpretation that the steam
ferry boat, having been used as such, constituted a
ferry service being operated by the Island.
There is no evidence that if a ferry service was
operated by the Island prior to Union that it
operated between the Island and the mainland,
winter and summer, and was in continuous com
munication with the Intercolonial Railway and the
railway system of the Dominion. The evidence is
that the steam boat ferry did not undertake that
service but rather that that service was undertaken
by vessels owned and supplied by the Dominion.
Therefore what is contemplated is not an existing
service but rather a new service.
The difficulty is that the Order in Council is
silent as to with whom the responsibility rests for
the service "to be established and maintained".
In In re International and Interprovincial
Ferries', which was a reference to the Supreme
Court as to whether an Act respecting Ferries was
intra vires of the Parliament of Canada, the Chief
Justice said at page 208:
The policy of the British North America Act is to leave all
international or interprovincial undertakings within the federal
power. And that, it is evident, must necessarily be so as to
ferries.
He continued to say at page 209:
No provincial legislature could incorporate a company to run
a ferry between the two provinces, and no provincial govern
ment could itself be granted by its legislature the power to run
an exclusive ferry between two provinces. The Dominion Parlia
ment alone could do it, and fix the price of the license to the
company upon such additional terms and conditions as it saw
fit to enact.
After Union, therefore, Prince Edward Island
has not the right to effectively grant a licence to
operate or itself operate a ferry abutting on the
shores of Nova Scotia or New Brunswick over
which it has no jurisdiction and the converse is
equally so that there was no such jurisdiction in
the other provinces which were in Confederation at
that time, and there was no evidence that there
were proprietary rights at the time of Union in
such ferry service vested in P.E.I. Thus the Domin
ion Parliament alone has this jurisdiction. That
being so, it must have been contemplated in the
Order in Council that the obligation to establish
and maintain a ferry service between the Island
and the mainland must be that of the Dominion.
Added to this, it is obvious that there is a latent
ambiguity in the Order in Council in that it does
not expressly state in whom the obligation to
establish and maintain the ferry service lies. That
being so, the principle of contemporanea expositio
would be applicable. Both the Province and the
Dominion from the time of Union have accepted
and acted upon the obligation being that of the
Dominion to the present date and both have
acknowledged such to be the case. Therefore this
long acquiescence and practice can be regarded as
sanction and approval of the interpretation I have
given to the language of the Order in Council for
1 (1905) 36 S.C.R. 206.
the other reasons expressed, viz, that the obliga
tion to establish and maintain an efficient ferry
service between the Island and the mainland after
Union is that of the Dominion.
Having so found, it follows that the use of the
words "shall" and "maintain" in the language of
the Order in Council imports an obligation of a
continuing and imperative nature, although I think
that the imperative nature of the obligation must
be qualified in a limited sense. Obviously if a
violent storm were raging there would be no abso
lute duty for the ferry to ply between the ports at
the risk of the vessels and the lives of the passen
gers. Such an act of God would excuse the duty. A
statute can, by express terms, state that an act of
God does not excuse a duty but that is not appli
cable in this instance. However a legal strike is not
an act of God. A strike is the means to which one
party to a labour dispute resorts to force the other
party to its views. It is the working of human
elements in a labour dispute in which the parties
hold different views and voluntarily adhere to
those views for reasons best known to themselves.
There is an element of voluntary decision. The
ultimate weapons to bring pressure on the oppos
ing sides are the strike and lock-outs. The lan
guage of the Order in Council does not exempt
strikes and lock-outs as excusing an obligation as
has been the custom of late in many contracts.
Accordingly I conclude that the obligation is
upon the Dominion to assume and defray the cost
of the establishment and maintenance of an effi
cient ferry service between the Province and the
mainland. The words "assume and defray all the
charges" mean that the Dominion is to accept the
responsibility for the cost of the services named in
the Order in Council and to pay these costs. For
the reasons expressed it is also the responsibility of
the Dominion to establish and maintain an effi
cient and continuous (in the sense of being unin
terrupted and inoperative for a protracted period)
ferry service between the Province and the main
land and to pay the cost of so establishing and
maintaining that service.
Before turning to the second question which is
whether there was a breach of the obligation by
the Dominion it is expedient to review the relevant
facts. It is agreed that there was an interruption of
the ferry service by the Canadian National Rail
ways employed by the Dominion to conduct that
ferry service on its behalf from August 21, 1973,
until September 2, 1973, a period of 10 days, 8'
hours. That interruption of ferry service was
consequent upon a national strike by the
employees of the Canadian National Railways. It
was known that 1973 was a "contract year" and it
was also known generally, as early as May and
June of that year, that there was every likelihood
that a settlement would not be reached between
the bargaining parties and that the possibility of a
strike was imminent. The strike, when it occurred,
was a legal strike after all procedures by the
Canada Labour Code had been taken. In the
public interest and for the public economy Parlia
ment legislated the employees back to work and
the railway service, including the ferry service, was
resumed on September 2, 1973.
The CNR operated the ferry service over two
routes and engaged five vessels in doing so. These
five vessels had a daily capacity of 4,270 vehicles.
This is the service that was struck.
The Northumberland Ferries Limited operated
a third ferry service on behalf of the Dominion in
which it had engaged three vessels with a total
daily capacity of 960 vehicles. This service was in
continuous service during the period that the CNR
was struck.
It was agreed that there was no interruption in
mail service to the Island during the railway strike
and that there was a scheduled air service operat
ing daily carrying passengers.
The two principal industries of the Island are
agriculture and tourism, in that order. The tourist
season lasts for ten weeks, the peak being in July
and August. Almost all of the tourists reach the
Island by automobile carried on the ferries. In
addition, the residents of the Magdalen Islands in
the Gulf of St. Lawrence and tourists visiting those
islands, if they wish to reach the mainland, do so
by taking a ferry service from those Islands to
Prince Edward Island and continue their journey
by ferry service from Prince Edward Island to the
mainland. About 80 automobiles per day sought to
do this during the period of the strike.
The tourist season ends approximately in the
last week in August each year and in 1973 it ended
on August 23, the day after the strike began. It
takes no imagination to realize the consternation
which resulted. Families on vacation were anxious
to return home to get their children back to school
for the fall term. A great many people were
stranded on the Island and many of that number
had exhausted their holiday funds. The Govern
ment of the Province provided free food and lodg
ing for those who were destitute and set up an
emergency cheque cashing service for those with
reliable credit. The Province set up an emergency
reservation system for the sole operating ferry
service. It issued reservation tickets, numbered
sequentially, which were in effect reservations to
make reservations. Top priority was accorded to
truck traffic with lesser priorities following. To
make an actual reservation on the only ferry
involved a delay of seven to eight days. The Prov
ince assigned 144 of its employees to provide these
services.
During the period of the strike Northumberland
Ferries Limited was able to move 6,463 vehicles
and their passengers off the Island. In 1974, that is
the next year, the Canadian National Railways
over its two ferry lines moved 20,874 vehicles off
the Island over the same period of time for which
the strike had lasted in 1973. Assuming the traffic
conditions to be approximately the same in both
years, this comparison would afford a reasonable
indication of the breakdown of the ferry service in
the period in 1973.
The damage to the national economy caused by
the strike was such that Parliament deemed it wise
to order the employees back to work by appropri
ate legislation. The inconvenience caused to the
public resident on the mainland was great but
those persons could adjust to other means of trans
portation of passengers and freight, though not as
efficiently. The impact upon the residents of
Prince Edward Island was accentuated manifold
by reason of the fact that the Province is an island
separated from the mainland by the Strait of
Northumberland which at its narrowest point is
approximately 9 miles wide.
In view of such facts which, apart from the
agreed statement of facts, were given in evidence
by Mr. McAdams, the Deputy Minister of the
Department of Tourism and Parks of the Province,
I am of the opinion that the service given by the
sole remaining ferry service during the period of
the strike was wholly inadequate for the need at
that time. Being inadequate, it fell short of being
productive of the results required and was there
fore inefficient.
The language of the Order in Council is "that
the Dominion Government shall assume and
defray all the charges for the following services:
viz., Efficient steam service for the conveyance of
mails and passengers". No mention is made of the
conveyance of automobiles.
Section 10 of the Interpretation Act, R.S.C.
1970, c. I-23, reads:
10. The law shall be considered as always speaking, and
whenever a matter or thing is expressed in the present tense, it
shall be applied to the circumstances as they arise, so that
effect may be given to the enactment and every part thereof
according to its true spirit, intent and meaning.
In 1875 automobiles were non-existent and had
not become the common means of transportation
of persons as they have become today. The vast
majority of tourists visiting the Province in the
season, and other persons as well, do so by
automobile. The ferry boats which ply between the
Island and the mainland are specifically designed
to receive, carry and disembark automobiles. In
my view it would be unrealistic to conclude that
the obligation of the Dominion should be limited
to a ferry service for the conveyance of passengers
to the exclusion of the conveyance of the automo
biles owned by a passenger which carried him to
the point of embarkation and which he proposes
will carry him beyond the point of disembarkation.
An ancient definition of the word "ferry" was
the right of ferrying men, animals and goods
across a body of water and of levying a toll for so
doing. Obviously the animals include those ani
mals which carried the person either on its back or
in a vehicle which the animal draws. In this day
and age the horse and horse-drawn vehicle have
been replaced by the automobile and in my view
the language of the Order in Council must be
interpreted as meaning that a ferry service for the
conveyance of passengers is to include the automo
bile of the passenger, just as it would include the
passenger's baggage and like appendages. That, to
me, is the only sensible interpretation that can be
given to the Order in Council in the light of
present day conditions and because that is, in fact,
what was being done. Again this acquiescence and
practice can be regarded as sanction and approval
by the parties of such an interpretation.
It was not suggested, nor would it be tenable to
suggest, that the Dominion Government was in
breach of its obligation by providing ferries pow
ered by diesel fuel rather than steam or connecting
with the Canadian National Railways rather than
the Intercolonial Railway which has been absorbed
and no longer exists as such.
In my view section 10 of the Interpretation Act
dictates the interpretation I have given the lan
guage as at this time.
In view of the mandatory nature of the language
of the Order in Council it is not an answer to the
obligation imposed on the Dominion Government
thereby to say that the obligation has been dis
charged by taking all reasonable steps to do so.
The obligation is to establish and maintain an
efficient service between the Island and the main
land thereby placing the Island in continuous com
munication. As I have found, if the service pro
vided is not adequate for the end to be achieved it
is not efficient and if a service is interrupted it
lacks continuity, but in so saying I have not over
looked that the Northumberland Ferries Limited
continued to operate but that the service provided
by it was inadequate for the need.
For the foregoing reasons I have concluded that
the Dominion Government was in breach of its
duty imposed upon it by the Order in Council.
There remains for consideration the third ques
tion posed, that is, does the breach of the duty give
rise to an action for damages maintainable by the
plaintiff.
Where there is an obligation imposed by statute
on the Dominion Government for the benefit of the
public generally, as I conceive this obligation to be,
and there is a breach of that obligation, it does not
follow automatically that an action will lie for
damages. Whether such action for damages will lie
will depend on the intention of the legislature to be
derived from the language of the statute, in this
instance The British North America Act and the
Order in Council, and taking the matter a step
further, what party is entitled, within the ambit of
the statute, to bring the action, or put another
way, who is the intended beneficiary of the right.
Here the duty imposed by the Order in Council
is to provide a ferry service between the Island and
the mainland. I do not accept the proposition that
that public duty is for the benefit of the residents
of the Island only. It is, from its very nature, a
two-way street and accordingly is also for the
benefit of the residents of other provinces of
Canada who may wish to go to the Island. There
fore it is a general public duty for the residents of
all of Canada.
The British North America Act has provided
that certain public services shall be provided for
the people of all provinces by the Dominion Gov
ernment and several of these services are also
mentioned in the Order in Council, such as the
salary of the Lieutenant Governors and the sal
aries of the federally appointed judges. As I have
mentioned previously, the obligation to provide
these services and to pay those salaries is specifi
cally made the responsibility of the Parliament of
Canada by section 60 and section 100 of The
British North America Act.
In the Reference re Troops in Cape Breton 2 the
question referred to the Supreme Court was "Is
the Province of Nova Scotia, on the facts (herein-
after) set out, liable to pay to His Majesty in the
right of the Dominion all expenses and costs
incurred by reason of calling out of parts of the
Active Militia in aid of the civil power in Cape
Breton as aforesaid". As illustrative of the func
tions of the executive and legislative branches of
government, Mr. Justice Cannon, at pages 566-
567, quoted extensively from the remarks of Wur-
tele J., whom he described as a constitutional
authority, in Demers v. The Queen ((1898) 7 Q.B.
(Que.) 433 at 447), which I repeat:
The Legislature enacts laws and grants supplies, but does not
administer. The Crown under the advice of its constitutional
advisers, or in other words the Executive Government, adminis
ters the affairs of the country, and on it rests the responsibility
for all contracts which it may be necessary to enter into. The
Executive Government deals with all matters respecting the
administration of the public affairs of the country as it may
2 [1930] S.C.R. 554.
deem conducive to the public good when its action is not
restricted by a constitutional rule or by a prohibitory statute,
but it has no constitutional authority to make a contract which
will bind the Legislative Assembly to supply the necessary
funds for carrying it on. It may be laid down, therefore, as an
axiom that before entering into a contract which requires the
expenditure of public monies, it is, in general, proper and
expedient that the consent of the Legislature should be first
obtained. The Executive Government may however, by excep
tion, make a contract involving the expenditure of public
monies before a grant has been made by the Legislature for the
purpose contemplated by such contract; but such contract is in
the nature of a conditional obligation, is in fact a conditional
contract, and the condition is the granting by the Legislature of
the necessary funds. Until this event happens, the obligation is
suspended, and if the necessary supply should be refused, then
the contract is dissolved. The Legislative Assembly has the
right to approve or disapprove of all such contracts, and
therefore it is usual to insert a clause that they are made
subject to the ratification of the Legislature, or that the pay
ments to be made on behalf of the same will be made out of
monies to be voted by the Legislature. Should the Legislative
Assembly, by a resolution, expressly disapprove of a contract
which has been entered into without an appropriation for its
performance having been made before its execution, even when
it does not contain a clause making it subject to the ratification
of the Legislature or to the grant of the necessary supply, then
also the contract is dissolved. But should the necessary funds be
voted, then the contract acquires retroactively full legal force
and should be carried out by the Government, and can be
enforced by the other contracting party. Every contract entered
into by the Executive Government without there being a fund
out of which the payment of the price stipulated can be made,
or without there being an appropriation which is available for
the purpose, is made on the tacit condition that it is dependent
for its validity upon the necessary supply being voted; and as
every person entering into a contract with the Government is
presumed to know the law, he cannot complain, in the event of
a grant being refused, of having no right to claim damages for
its non-fulfilment.
Although such contracts are conditional, the Executive Gov
ernment has no right or power of its own motion to rescind
them, but, on the contrary, it should ask the Legislature to
grant the necessary appropriation and await the action of the
Legislative Assembly.
What that extract establishes is that the Execu
tive has no money to pay for obligations assumed.
Parliament must pay for it and to do so must
authorize the payment by an Appropriation Act. It
is conceivable that Parliament may decline to vote
the necessary funds. That is the discretion of Par
liament and if Parliament were to exercise its
discretion by refusing to vote the funds to pay for
the ferry service, I fail to follow how the Crown
can be held liable in a civil action for damages.
In Welbridge Holdings Ltd. v. Greater
Winnipeg' Laskin J. (as he then was) speaking for
the Supreme Court said at pages 968-969:
A municipality at what may be called the operating level is
different in kind from the same municipality at the legislative
or quasi-judicial level where it is exercising discretionary statu
tory authority. In exercising such authority, a municipality (no
less than a provincial Legislature or the Parliament of Canada)
may act beyond its powers in the ultimate view of the Court,
albeit it acted on the advice of counsel. It would be incredible
to say in such circumstances that it owed a duty of care giving
rise to liability in damages for its breach. "Invalidity is not the
test of fault and it should not be the test of liability" ....
In short, I construe the decision above quoted as
authority for the proposition that a breach of a
general public duty, in this case the duty to pro
vide and pay for a ferry service, does not give rise
to a civil action in damages against the Crown in
the right of Canada. There are other remedies, the
first of which would be an action for declaratory
relief under section 19 of the Federal Court Act,
or, secondly, by political action to which the Prov
ince has resorted on the two previous occasions
mentioned in the agreed statement of facts with
respect to this very ferry service and on each
occasion a measure of relief was obtained.
In Canadian Federation of Independent Busi
ness v. The Queen 4 the plaintiff filed a statement
of claim naming Her Majesty in the right of
Canada and the Postmaster General by name
claiming damages for contract and tort for losses
arising from the interruption of postal services as
the result of a strike. On a motion to strike out the
statement of claim on the ground that it disclosed
no cause of action, my brother Mahoney conclud
ed that detinue did not lie for failure to deliver
mail in the system during the strike, that the claim
for the tort of conspiracy could not be supported
and most important that the claim for non-perfor
mance of the statutory duty on the Government of
Canada to provide a postal service to the public
does not give rise to a cause of action in an
individual injuriously affected thereby. He pointed
out that the Post Office functions as a department
3 [1971] S.C.R. 957.
4 [1974] 2 F.C. 443.
of government providing a public service and its
revenues are public revenues and that the obliga
tion to collect and deliver mail to or for a particu
lar user or group or class of users is an obligation
imposed by Parliament speaking by statute.
In granting the application to strike out the
statement of claim Mahoney J. said at page 450:
The decisions taken by the defendants and the acts and
omissions complained of were, in the context of the statute,
clearly decisions of policy and acts and omissions in the carry
ing out of managerial or operating functions. The Postmaster
General and other officers of the Crown are answerable only to
Parliament for the consequences thereof and, in particular, the
defendants are not accountable to the plaintiffs in this Court in
respect thereof.
In the result where there is an obligation created
by the statute for the general public good and
where there is a breach of that obligation, there is
no right of action in a particular person injured by
the breach. That has been held to be the case in a
breach by the Dominion to provide uninterrupted
postal service. There is no fundamental difference
between a strike affecting the postal service and a
strike affecting a ferry service.
The question next arises as to whether Her
Majesty in the right of the Province of Prince
Edward Island can maintain a civil action for
damages caused by this breach of the statutory
duty any more so than an individual who may have
been affected thereby and that question must also
be determined from the intention of the legislature
to be derived from The British North America
Act.
The general scheme of The British North
America Act is that with regard to the distribution
of legislative powers when it has been determined
that the subject matter of the legislation falls
within the exclusive purview of the Provincial
Legislatures or the Parliament of Canada, then
each such legislature is supreme. Here there is no
question that the Parliament of Canada has exclu
sive and omnipotent jurisdiction, by virtue of sec
tion 91, Head 13, over "Ferries between a Prov-
ince and any British or Foreign Country or
between Two Provinces".
In Theodore v. Duncan' Viscount Haldane said
at page 706:
The Crown is one and indivisible throughout the Empire, and it
acts in self-governing States on the initiative and advice of its
own Ministers in these States.
Section 9 of The British North America Act,
1867 reads:
9. The Executive Government and Authority of and over
Canada is hereby declared to continue and be vested in the
Queen.
As such, Her Majesty the Queen in the right of
Canada has seen fit to assume the responsibility of
establishing and paying for a ferry service with the
Island for the general good of all residents of
Canada and not only for the residents of Prince
Edward Island. At best, the failure to fulfill that
duty might affect the residents of Prince Edward
Island to a greater degree than residents of a
distant province but that of itself does not confer a
right of action for damages.
The Queen in the right of Prince Edward Island
is the same Queen as the Queen in the right of
Canada. Here the liability is that of the Queen in
the right of Canada. The action to enforce that
liability by way of compensation in damages is by
the Queen in the right of the Province who is the
same Royal Person, although advised by different
ministers, but it is the Queen suing Herself which
is incongruous. Accordingly I do not think that
The British North America Act intended that the
duty can be enforceable in a court by way of
judgment for damages for a breach of that duty at
the behest of the Queen in the right of the Prov
ince against the Queen in the right of Canada.
If that were so, there would be no need for the
enactment of section 19 of the Federal Court Act
but rather relief by way of damages could be
obtained as it can by any person or legal entity
under section 17 against the Crown which is
defined in the Act as Her Majesty in the right of
Canada.
5 [1919] A.C. 696.
I do not overlook that section 19 vests jurisdic
tion in the Trial Division of this Court in the first
instance to determine controversies between
Canada and a province where the legislature of the
province has passed an Act agreeing that this
Court has jurisdiction in such controversies as
Prince Edward Island has done. However, it seems
to me that because Her Majesty in the right of the
Province and in the right of Canada being one and
the same person cannot be construed as separate
entities for the purpose of a civil action in dam
ages, but that they can only be considered as
separate entities for the limited purpose of deter
mining the obligation of the Dominion and if there
has been a breach thereof, that is to set forth the
rights and obligations vis-Ã -vis the Dominion and
the Province. That would be declaratory relief. But
to carry the matter a step forward and say that
there shall be judgment for monetary damages is
not contemplated because of the very nature of the
constitution as outlined in The British North
America Act.
For the reason that Her Majesty cannot sue
herself there must be a recourse to basic principles,
that is the principle applicable where there is a
general public duty for the benefit of all residents
of Canada, not only a segment of the whole popu
lation, whom Her Majesty in the right of the
Province seeks to represent. Being a general public
duty for the reasons previously expressed no cause
of action lies in an individual who is adversely
affected by a failure to perform that duty. The
right, if it had existed, would be in the individual
and not in Her Majesty in the right of the
Province.
I do not think that Her Majesty in the right of
the Province to sue Her Majesty in the right of
Canada in damages for a breach of the duty has
any right different from that of an individual
adversely affected thereby and I find a measure of
confirmation of that view from the remarks of the
Chief Justice of Canada speaking for the entire
Court in P. P. G. Industries Canada Ltd. v. The
Attorney General of Canada in the reasons for
judgment pronounced on November 27, 1975 6 .
The Chief Justice said [at pages 211-212]:
6 (1976) 7 N.R. 209.
The Attorney General of Canada applied to the Federal
Court on May 4, 1972, pursuant to s. 18 of the Federal Court
Act, 1970 (Can.) c. 1, to quash a finding or decision of the
Anti-dumping Tribunal made on March 13, 1970 in respect of
the importation of transparent sheet glass from certain Euro-
pean countries. The application was dismissed by Cattanach, J.
in a judgment on August 4, 1972, but this judgment was
reversed by the Federal Court of Appeal in a judgment on June
29, 1973. Leave to appeal here was at the same time refused by
the Federal Court of Appeal but was granted by this Court on
October 2, 1973.
I must underline the extraordinary nature of the proceedings
taken by the Attorney General of Canada. He was not a party
to the inquiry which resulted in the decision of the Anti-dump
ing Tribunal that he seeks to impeach, nor did he attempt in
any way to intervene in the inquiry while it was on foot. None
of the many interested parties who might be said to have been
adversely affected by the decision has sought to attack it. The
Attorney General does not question the decision on its merits
by reason of any error of jurisdiction or of law relating to it.
There is no special statutory provision that the Attorney Gener
al invokes in support of his right to bring a motion to quash the
decision of a federal adjudicative agency, an agency which has
been established by Parliament to carry out independent func
tions without subordination to the Department of the Attorney
General. What the Attorney General of Canada claims here is,
on the admission of his counsel, relief which he says he can
claim against a decision of any other federal administrative
agency and on any ground which is open in support of a motion
to quash. In short, the Attorney General asserts a general
competence, by virtue of his office (and he invokes s. 4 of the
Department of Justice Act, R.S.C. 1970, c. J-2 as imposing a
duty to "see that the administration of public affairs is in
accordance with law"), to require the Courts, at his behest, to
inquire into any allegation of legal frailty of any decision of
federal administrative boards, even though the parties to the
decisions are satisfied with them or have no desire to attack
them.
I do not see how the Attorney General of Canada can obtain
any assistance from s. 4 of the Department of Justice Act
where the key phrase is "public affairs". The real question is
whether he is in any better position than a stranger who seeks
to quash an adjudication of a board and, if so, how far the
Attorney General may go in claiming standing to seek a veto
over decisions of statutory tribunals: see de Smith, Judicial
Review of Administrative Action (1973 3rd ed.), at pp. 369-
372. The matter was considered briefly by Cattanach J. and not
at all by the Federal Court of Appeal, nor was it made an issue
by the appellants on the appeal to this Court. Cattanach J.
proceeded on the basis that the Attorney General of Canada
had an unfettered right to move to quash, the Court's concern
being only the merits. I am content, in these circumstances, to
proceed here on the assumption that the Attorney General of
Canada may freely apply to quash under s. 18 of the Federal
Court Act.
While the Chief Justice did not expressly decide
the question whether the Attorney General of
Canada is in any better position than any stranger
who seeks to quash an adjudication of a board, and
if so, how far the Attorney General may go in
claiming status to seek a veto over decisions of
statutory tribunals, he was content to proceed on
the assumption that the.Attorney General had the
status to do so. The remarks of the Chief Justice
are obiter dictum but I cannot escape the conclu
sion that the Chief Justice by raising the query
had distinct reservations that the Attorney General
had the status to launch the motion that he did.
Having found a statutory duty imposed on Her
Majesty in the right of Canada and a breach of
that duty, I have concluded for the reasons
expressed that the breach of the duty does not give
rise to an action for damages at the suit of Her
Majesty in the right of Prince Edward Island.
Accordingly, there is no liability in damages
against Her Majesty in the right of Canada. I
would have been prepared to have given a declara
tion to the effect that there is a statutory duty
imposed on Her Majesty in the right of Canada
and a breach thereof if such a declaration had
been sought expressly in the prayer for relief,
which it was not. In order to resolve the issue
whether an action in damages lay at the suit of
Her Majesty in the right of the Province, it was
necessary to resolve the two issues precedent to
that issue and that resolution would form the basis
for declaratory relief had it been sought. Accord
ingly, success between the parties has been divided
and for that reason I consider it appropriate that
each party should bear its own costs.
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.