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T-4481-75
Robert W. Blanchette, Richard C. Bond and John H. McArthur all in their capacity as Trustees of the Property of Penn Central Transportation Company; Norfolk and Western Railway Com pany; Thomas F. Patton and Ralph S. Tyler, Jr. both in their capacity as Trustees of the Property of Erie Lackawanna Railway Company; Illinois Central Gulf Railroad Company and Missouri Pacific Railroad Company (Plaintiffs)
v.
Canadian National Railway Company; Grand Trunk Western Railroad Company; Central Ver- mont Railway Inc. and Canadian Pacific Limited (Defendants)
Trial Division, Marceau J.—Montreal, November 8; Ottawa, December 10, 1976.
Jurisdiction — Contract — Motion to strike statement of claim for want of jurisdiction — Application of s. 23 of Federal Court Act — Whether Quebec North Shore Paper case distinguishable — Effect of binding provisions of Railway Act — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 23 — Railway Act, R.S.C. 1970, c. R-2, ss. 94(1) and 265.
Plaintiffs are suing for money owed under a contract with the defendants involving works and undertakings extending beyond the limits of a province, which relief, they claim, flows from the provisions of the Railway Act.
Held, the application to strike is granted. Although the contract concerns works and undertakings extending beyond the limits of a province, the provisions of the Railway Act cited do not create a cause of action. Although sections 94(1) and 265 of the Railway Act prescribe the legal relationships be tween the parties to this action, it cannot be inferred from the judgment in the Quebec North Shore Paper case that the case at bar can be excluded from the principle stated therein.
Canadian Pacific Ltd. v. Quebec North Shore Paper Co. (1976) 9 N.R. 471, applied.
MOTION to strike statement of claim. COUNSEL:
D. H. Tingley for plaintiffs.
P. Sevigny-McConomy for Canadian Nation
al Railway Company.
M. S. Bistrisky for Canadian Pacific Limited.
SOLICITORS:
Lafleur & Brown, Montreal, for plaintiffs.
Canadian National Railway Company, Law Department, Montreal, for Canadian Nation al Railway Company.
Canadian Pacific Limited, Law Department,
Montreal, for Canadian Pacific Limited.
The following are the reasons for order ren dered in English by
MARCEAU J.: This is a motion on behalf of one of the defendants, Canadian Pacific Limited, for an order that the statement of claim be struck by reason of the absence of jurisdiction of this Court, ratione materiae to entertain the claim made therein against it.
The plaintiffs are acting in their capacity as trustees of the property of Penn Central Transpor tation Company. Their claims arise out of the interchange of traffic between them and the defendants while they were all engaged as common carriers in the railway traffic required by the Canada-United States Auto Trade and in the rail way traffic known as Trailer on flatcar—Contain- er on flatcar (TOFC-COFT).
The statement of claim clearly describes the nature of the relief sought. Subparagraphs (b) to (e) of the prayer for relief indicate the sums claimed and all this is predicated in subparagraph (a):
(a) It be declared that the Defendants are indebted to the Plaintiffs for the difference between the Trailer Train Rates in force prior to January 1, 1971 and the Trailer Train Rates from time to time in force since January 1, 1971.
The statement of claim, however, does not state so clearly the basis for such relief.
By paragraphs 23 and 26, it is explained that the railway equipment (bi -level and tri -level rack cars and flatbed cars) the plaintiffs, for their part, contributed and employed in the Auto Trade and TOFC-COFT traffic was owned and furnished by Trailer Train Company, an American company having its principal place of business in Chicago, which is described with proper indication as to how its rates come into being.
Then paragraphs 27 and 28 read as follows:
27. Plaintiffs, as participating members in the use of railroad equipment furnished by Trailer Train Company, are obligated by contract to the Trailer Train Company for car hire charges according to published rates (the "Trailer Train Rates") and, further, Plaintiffs are primarily liable for all charges accruing on Trailer Train Company equipment while it is on Plaintiffs' lines and while it remains on the lines of non-participating carriers, such as Defendants, with whom such equipment has been interchanged.
28. Defendants paid Trailer Train in behalf of Plaintiffs the Trailer Train Rates for the use of equipment furnished by Plaintiffs from the inception of the Auto Trade in 1966 through December, 1970.
In paragraphs 29 to 33, it is stated in substance that in January 1971, and from time to time thereafter, the Trailer Train Company advised the plaintiffs and the defendants of changes of the rates; that the latter, however, always persisted in refusing to pay the new rates and have continued to make settlement with Trailer Train on behalf of the plaintiffs on the basis of those in effect prior to the first increase.
Then comes paragraph 34 which reads as follows:
34. Plaintiffs, as members of Trailer Train as alleged in para graph 27 above, have been and continue to be obliged to compensate Trailer Train Company for the difference between the Trailer Train Rates in effect prior to January, 1971 and the various rates subsequently from time to time in effect.
Of the remaining paragraphs, two ought to be reproduced:
42. Notwithstanding the foregoing, Defendants continued to receive and to use or re-use equipment contributed by Plaintiffs and Defendants even continued to request Plaintiffs to contrib ute equipment for use in the Auto Trade.
43. Defendants have used and derived an unjust benefit from the use of such equipment so provided by Plaintiffs to the prejudice of Plaintiffs since January 1, 1971.
Counsel for the defendant-applicant takes for granted that it is upon the contract referred to in paragraph 27 between the plaintiffs and Trailer Train Company, by virtue of which the former are obliged to pay certain rates for the use of the latter company's equipment, that the plaintiffs seek redress. I do not think that the reading of the statement of claim gives such a clear and simple view of the real basis of the action. But I do not
think either that, at this stage, to deal with the question of jurisdiction, in the light of the principle laid down by the recent judgment of the Supreme Court of Canada in the case of Canadian Pacific Ltd. v. Quebec North Shore Paper Company', it is necessary to give a precise and positive definition of the legal grounds on which the action, as it has been formally launched, can be considered as being founded.
The jurisdiction of this Court to entertain the present action must, of course, be found in section 23 of the Federal Court Act, which reads as follows:
23. The Trial Division has concurrent original jurisdiction as well between subject and subject as otherwise, in all cases in which a claim for relief is made or a remedy is sought under an Act of the Parliament of Canada or otherwise in relation to any matter coming within any following class of subjects, namely bills of exchange and promissory notes where the Crown is a party to the proceedings, aeronautics, and works and undertak ings connecting a province with any other province or extending beyond the limits of a province, except to the extent that jurisdiction has been otherwise specially assigned.
It is clear that the plaintiffs' claims for relief in this action are in relation to "works and undertak ings connecting a province with any other province or extending beyond the limits of a province". But the question is whether the "remedy is sought under an Act of the Parliament of Canada or otherwise".
Until the judgment of the Supreme Court in the Quebec North Shore case, section 23 was generally read in the alternative, that is, jurisdiction was found if the plaintiff could show either that his claim for relief was made under an Act of the Parliament of Canada, "or otherwise in relation to any matter coming within any following class of subjects ...". But we now know that jurisdiction under section 23 will only lie if a claim for relief satisfies the two conditions conjointly; and more over the interpretation to be given to the words "under an Act of the Parliament of Canada or otherwise" is to be very strict: the action has to be based on a specific federal legislation granting the relief sought.
The following quotations of the Chief Justice speaking for the Court in that judgment show very
' (1976) 9 N.R. 471.
clearly that the previous generally accepted inter pretation was therein specifically rejected and that the sense to be given to the words "under an Act of the Parliament of Canada or otherwise" is as strict as I have just stated:
At page 475:
In the present case there is no Act of the Parliament of Canada under which the relief sought in the action is claimed. The question of jurisdiction of the Federal Court hinges there fore on the words in s. 23 "or otherwise", and this apart from the additional and sequential question whether the claim is in relation to any matter coming within any of the classes of subjects specified in the latter part of s. 23. The contention on the part of the respondents, which was in effect upheld in the Federal Courts, was that judicial jurisdiction under s. 101 is co-extensive with legislative jurisdiction under s. 91 and, there fore, s. 23 must be construed as giving the Federal Court jurisdiction in respect of the matters specified in the latter part of the section, even in the absence of existing legislation, if Parliament has authority to legislate in relation to them.
At page 480:
Both Anglin C.J.C. in the first Consolidated Distilleries case and Duff J. in the second case spoke of "laws of Canada" in s. 101 as referring respectively to "laws enacted by Parliament" and to "enforcement of an obligation contracted pursuant to a statute of ... Parliament". So too, the Privy Council in the second Consolidated Distilleries case spoke of the power given by s. 101 to confer jurisdiction on the Exchequer Court in actions on bonds executed in favour of the Crown "in pursu ance of a revenue law enacted by the Parliament of Canada". Again, the Judicial Committee in dealing with the case before it indicated that it might be difficult to bring it within s. 30(a) of the Exchequer Court Act because although the actions were "cases related to the revenue" it might perhaps be said that no law of Canada is sought to be enforced in them. This is consistent with the observations of both Anglin C.J.C. and of Duff J., already quoted.
Stress is laid, however, on what the Privy Council said in discussing the application of s. 30(d) of the Exchequer Court Act, the provision giving jurisdiction to the Exchequer Court in civil actions where the Crown is plaintiff or petitioner. I do not take its statement that "sub-s. (d) must be confined to actions ... in relation to some subject matter legislation in regard to which is within the legislative competence of the Dominion" as doing anything more than expressing a limitation on the range of matters in respect of which the Crown in right of Canada may, as plaintiff, bring persons into the Exchequer Court as defendants. It would still be necessary for the Crown to found its action on some law that would be federal law under the limitation. It should be recalled that the law respecting the Crown came into Canada as part of the public or constitutional law of Great Britain, and there can be no pretence that that law is provincial law. In so far as there is a common law associated with the Crown's position as a litigant it is federal law in relation to the Crown in right of Canada, just as it is provincial law in relation to the Crown in right of a Province, and is
subject to modification in each case by the competent Parlia ment or Legislature. Crown law does not enter into the present case.
Addy J. did not deal with the effect of s. 101 of the British North America Act upon s. 23 of the Federal Court Act, and appeared to assume that he had jurisdiction if the enterprise contemplated by the agreement as a whole fell within federal legislative power. As I have already indicated, the question upon which he proceeded is not reached unless the claim for relief is found to be one made "under an Act of the Parliament of Canada or otherwise". In the Federal Court of Appeal, the majority judgment of Le Damn J., which he delivered for himself and Ryan J. and which was concurred in with addition al reasons by Thurlow J. (as he then was), poses the issue in terms which also overlook the words just quoted.
At page 483:
Jurisdiction under s. 23 follows if the claim for relief is under existing federal law, it does not precede the determination of that question.
It is also well to note that s. 101 does not speak of the establishment of Courts in respect of matters within federal legislative competence but of Courts "for the better administra tion of the laws of Canada". The word "administration" is as telling as the plural words "laws", and they carry, in my opinion, the requirement that there be applicable and existing federal law, whether under statute or regulation or common law, as in the case of the Crown, upon which the jurisdiction of the Federal Court can be exercised. Section 23 requires that the claim for relief be one sought under such law. This requirement has not been met in the present case....
Applied to the present case, the test is conclu sive. Be it in contract or otherwise, it is clear to me that the claim for relief in this action is not one sought under specific federal legislation. The provisions of the Railway Act (R.S.C. 1970, c. R-2 as amended) cited by counsel for the plaintiffs in an attempt to demonstrate that the claim for relief could be considered as flowing from this Act, do not in my view create the specific cause of action required.
I thought for a while that a distinction could be made between the Quebec North Shore case and the one at bar. Indeed, in the Quebec North Shore case, the contract on which the action was based had nothing to do with federal legislation whereas here the legal relationships between the parties were not only foreseen but, in a way, imposed on them by the provisions of the Railway Act. See, among others, sections 94(1) and 265 of that Act:
94. (1) The directors of the company may, at any time, make and enter into any agreement or arrangement, not incon sistent with this or the Special Act, with any other transporta-
tion company operating as a common carrier either in Canada or elsewhere, for the interchange of traffic and for the division and apportionment of tolls in respect of such traffic.
265. (1) All railway companies shall, according to their respective powers, afford to all persons and companies all reasonable and proper facilities for the receiving, forwarding and delivering of traffic upon and from their several railways, for the interchange of traffic between their respective railways, and for the return of rolling stock.
(2) The facilities so to be afforded shall include the due and reasonable receiving, forwarding and delivering by the com pany, at the request of any other company, of through traffic, and in the case of goods shipped by carload, of the car with the goods shipped therein, to and from the railway of such other company, at a through rate; and also the due and reasonable receiving, forwarding and delivering by the company, at the request of any person interested in through traffic, of such traffic at through rates.
(3) Every railway company that has or works a railway forming part of a continuous line of railway with or that intersects any other railway, or that has any terminus, station or wharf near to any terminus, station or wharf of any other railway, shall afford all due and reasonable facilities for deliv ering to such other railway, or for receiving from and forward ing by its railway, all the traffic arriving by such other railway without any unreasonable delay, and so that no obstruction is offered to the public desirous of using such railways as a continuous line of communication, and so that all reasonable accommodation, by means of the railways of the several compa nies, is, at all times, afforded to the public in that behalf.
I finally came to the conclusion, however, that the distinction between the two cases, although real, could not be brought in, in the absence of any passage in the Chief Justice's notes or any logical inference that can be drawn from his reasoning, to which such a distinction could be linked.
Since I cannot give but a negative reply to the question as to whether the claim for relief in the present action is one sought under specific federal legislation, I must conclude that this Court has no jurisdiction, under section 23 of the Federal Court Act, to adjudicate it.
The application will therefore be granted. As to the costs, the defendant, Canadian Pacific Lim ited, is entitled to its costs but only as if its motion to be struck had been made and dealt with as the first proceeding after service of the statement of claim.
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