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A-418-76
Canadian Javelin Limited, Newfoundland and Labrador Corporation Limited, and Dominion Jubilee Corporation Limited (Appellants) (Plain- tiffs)
v.
The Queen in the right of Newfoundland (Respondent) (Defendant)
and
Pickands Mather & Co. (Mis -en-cause)
Court of Appeal, Jackett C.J., Pratte and Urie JJ.—Ottawa, June 22, 1977.
Jurisdiction — Crown — Appeal of action dismissed for want of jurisdiction — Action by three appellants against the Queen in right of Newfoundland — Whether or not s. 23 of the Federal Court Act confers jurisdiction on the Trial Division — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 2, 17(1), 23 — Interpretation Act, R.S.C. 1970, c. 1-23, ss. 16, 28.
The appellants appeal the Trial Division's dismissal of their action for want of jurisdiction. They contend that, in their case against the Queen in right of Newfoundland, section 23 of the Federal Court Act confers jurisdiction on the Trial Division.
Held, the appeal is dismissed. The Crown cannot be implead- ed in a court in respect of a claim against the Crown except where statutory jurisdiction has been conferred on the court to entertain claims against the Crown of a class in which the particular claim falls. The Federal Court Act, read as a whole or section 23 read in particular, is not so framed as to confer jurisdiction in respect of a claim by an individual or a corpora tion against Her Majesty in right of Newfoundland. This flows from the rule of interpretation in section 16 of the Interpreta tion Act read with that Act's definition of "Her Majesty" in section 28. Where the Federal Court Act contemplates confer ring jurisdiction in claims against the Crown, it does so by express reference to claims against the Crown, defined by the Act as Her Majesty in right of Canada.
APPEAL. COUNSEL:
Simon Potter for appellants.
James J. Greene, Q.C., for respondent.
John J. O'Neill, Q.C., for mis -en-cause.
SOLICITORS:
Ogilvy, Montgomery, Renault, Clarke, Kirk- patrick, Hannon & Howard, Montreal, for appellants.
O'Dea, Greene, Puddester & Thompson, St. John's, for respondent.
O'Neill, Riche, O'Reilly & Noseworthy, St. John's, for mis -en-cause.
The following are the reasons for judgment delivered orally in English by
JACKETT C.J.: This is an appeal from a judg ment of the Trial Division dismissing an action for want of jurisdiction.
The action is by three corporations against "Her Majesty the Queen, in the right of Newfound- land," and the appellants support its contention that the Trial Division has jurisdiction on 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.'
In `my view, it is clear law that the Crown cannot be impleaded in a court in respect of a claim against the Crown except where statutory jurisdiction has been conferred on the court to entertain claims against the Crown of a class in which the particular claim falls. Compare Young v. SS. "Scotia". 2
Reading the Federal Court Act as a whole and section 23 in particular, I am satisfied that that statute is not so framed as to confer jurisdiction in respect of a claim by an individual or a corporation against Her Majesty in right of Newfoundland. This, in my view, flows from the rule of interpreta-
I As I understand them, other submissions made on behalf of the appellants relate to the substance of the appellants' claims against the respondent and not to the jurisdiction of the Trial Division to entertain them.
2 [ 1903] A.C. 501, at page 505.
tion in section 16 of the Interpretation Act 3 read with the definition of "Her Majesty" in section 28 thereof. Those provisions read:
16. No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty's rights or prerogatives in any manner, except only as therein mentioned or referred to.
28. In every enactment
"Her Majesty", "His Majesty", "the Queen", "the King" or "the Crown" means the Sovereign of the United Kingdom, Canada and Her other Realms and Territories, and Head of the Commonwealth;
It is worthy of note that, where the Federal Court Act contemplates conferring jurisdiction in claims against Her Majesty, it does so (e.g., sec tion 17(1)) by express reference to claims against the "Crown", which is defined, for purposes of the Federal Court Act, by section 2 thereof as "Her Majesty in right of Canada". It also provides for payment of judgments in such cases out of the Consolidated Revenue Fund of Canada (section 57(3)). 4
Having regard to my view as to the effect of the Federal Court Act, it is unnecessary, in my view, to consider the ambit of section 101 of The British North America Act, 1867 or the limitation on Parliament's powers arising out of sections 53 and 90 of The British North America Act. 5
In my view, the appeal should be dismissed with costs.
* * *
PRATTE J. concurred.
* * *
URIE J. concurred.
3 R.S.C. 1970, c. I-23.
4 There is also a provision (section 19) conferring jurisdiction (conditional on concurring provincial legislation) in disputes between Canada and a province or between provinces.
5 Compare Attorney General of Canada v. Attorney General of Nova Scotia [ 1930] S.C.R. 554.
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