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A-132-89
Brent Bradasch (Respondent) (Plaintiff) v.
James Warren, John Berry, Gordon Geiger and Her Majesty the Queen (Appellants) (Defend- ants)
A-133-89
James Workman (Respondent) (Plaintiff) v.
James Warren, John Berry, Gordon Geiger and Her Majesty the Queen (Appellants) (Defend- ants)
A-134-89
Glen Kane (Respondent) (Plaintiff) v.
James Warren, John Berry, Gordon Geiger and Her Majesty the Queen (Appellants) (Defend- ants)
INDEXED AS: BRADASCH V. WARREN (C.A.)
Court of Appeal, Pratte, Heald and Hugessen JJ.A.—Whitehorse, Yukon, April 26, 1990.
Federal Court jurisdiction — Trial Division — Crown Torts — Action for assault and battery and wrongful impris onment against members of RCMP — Appeal from Trial Division decision dismissing motion for leave to file condition al appearance and to strike out statement of claim for want of jurisdiction — Appeal dismissed — Motions Judge's conclu sion correct but reasons wrong — Application of SCC decision in ITO v. Miida Electronics as to different requirements for jurisdiction — Statutory grant of jurisdiction in Federal Court Act, s. 17(5)(b) — However, Motions Judge erred in finding action founded on federal law on basis of Federal Court Act, Crown Liability Act and Royal Canadian Mounted Police Act — By virtue of Constitution Act, 1871 and Yukon Territory Act, all law in Yukon federal law — Therefore, Yukon tort law federal law made applicable here by operation of Yukon Act, law of Canada.
Constitutional law — Distribution of powers — In dichoto my of federal system, all state authority federal or provincial — Only Parliament of Canada may make laws for any territo ry not included in a province — Parliament having exercised its legislative power in creating Yukon Territory from part of
Northwest Territories — All law in Yukon is federal law Powers conferred on Territorial Legislature only delegated by Parliament which has retained paramountcy.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Constitution Act, 1871, 34-35 Vict., c. 28 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 5) [R.S.C., 1985, Appendix II, No. 11], s. 4.
Crown Liability Act, R.S.C., 1985, c. C-50, ss. 3(a), 10.
Federal Court Act, R.S.C., 1985, c. F-7, s. 17(5)(b). Federal Court Rules, C.R.C., c. 663, R. 324.
Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10.
The Yukon Territory Act, 1898, 61 Vict., c. 6 (Can.) [R.S.C., 1985, Appendix II, No. 19], s. 9.
Yukon Act, R.S.C., 1985, c. Y-2, s. 23(1).
CASES JUDICIALLY CONSIDERED
APPLIED:
ITO—International Terminal Operators Ltd. v. Miida Electronics et al., [1986] 1 S.C.R. 752; (1986), 28 D.L.R. (4th) 641; 34 B.L.R. 251; 68 N.R. 241.
REFERRED TO:
Oag v. Canada, [1987] 2 F.C. 511; (1987), 33 C.C.C. (3d) 340; 73 N.R. 149 (C.A.).
COUNSEL:
Stan F. Benda for appellants (defendants). Buffy B. Blakley for respondent (plaintiff).
SOLICITORS:
Deputy Attorney General of Canada for appellants (defendants).
Cable, Veale, Morris & Kilpatrick, White-
horse, Yukon, for respondent (plaintiff).
These are the reasons for judgment of the Court delivered orally in English by
HUGESSEN J.A.: This is an appeal from a deci sion of the Trial Division [(1989), 27 F.T.R. 70 (F.C.T.D.)] dismissing defendants' motion made under Rule 324 [Federal Court Rules, C.R.C., c. 663] for leave to file a conditional appearance and
to strike out the statement of claim on the grounds of want of jurisdiction.
The individual defendants were at the relevant time members of the Royal Canadian Mounted Police. The plaintiffs have sued them and the Crown for the alleged torts of "assault and bat tery" and "wrongful imprisonment".
We are all of the view that the reasons given by the Motions Judge cannot be supported. He con fused the different requirements for this Court's jurisdiction as set out in ITO—International Ter minal Operators Ltd. v. Miida Electronics et al.:'
1. There must be a statutory grant of jurisdiction by the federal Parliament.
2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction.
3. The law on which the case is based must be "a law of Canada" as the phrase is used in s. 101 of the Constitution Act, 1867.
There can be little dispute here as to the exist ence of the first condition and the statutory grant of jurisdiction in paragraph 17(5)(b) of the Feder al Court Act 2 is unambiguous. The Motions Judge, however, seems to rely on it, as quoted in a passage from this Court's judgment in Oag v. Canada,' as well as on paragraph 3(a) and section 10 of the Crown Liability Act," as support for the proposi tion that the plaintiff's action is founded in federal law. This is clearly error and it is enough to read the cited texts to see that they cannot be the substantive foundation of any right of action against a Crown servant.
[1986] 1 S.C.R. 752, at p. 766.
2 R.S.C., 1985, c. F-7:
17. ...
(5) The Trial Division has concurrent original jurisdiction
. . .
(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.
3 [ 1 987 ] 2 F.C. 511.
4 R.S.C., 1985, c. C-50.
(Continued on next page)
Somewhat closer to the mark, but still wrong, was the Motions Judge's reliance on the Royal Canadian Mounted Police Act.' He said [at page 72]:
It seems that the individual defendants could hardly have committed the specified alleged torts if they had not been invested with the authority, duties and powers conferred upon them each as "a member of the Force" pursuant to the Royal Canadian Mounted Police Act, an authentic law of Canada.
The "authority, duties and powers" conferred on the individual defendants by federal law may con ceivably form the basis of a defence by one or more of them to the action against them, but the cause of action itself does not in any way depend upon the Royal Canadian Mounted Police Act.
That said, however, we are also of the view that the conclusion reached by the Motions Judge was correct, but for very different reasons.
The plaintiffs' action sounds in tort. The alleged tort was committed in the Yukon. In the dichoto my of a federal system, in which all state authority must ultimately be either federal or provincial, all law in the Yukon is federal law. In constitutional terms, only the Parliament of Canada may make laws for
4. ... the administration, peace, order and good government of any territory not for the time being included in any Province.
(See section 4 of the Constitution Act, 1871 [34 35 Vict., c. 28 (U.K.) (as am. by Canada Act, 1982, 1982, c. 11 (U.K.), Schedule to the Consti-
(Continued from previous page)
3. The Crown is liable in tort for the damages for which, if it were a private person or full age and capacity, it would be liable
(a) in respect of a tort committed by a servant of the Crown.
. . .
10. No proceedings lie against the Crown by virtue of paragraph 3(a) in respect of any act or omission of a servant of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or the servant's personal representative.
5 R.S.C., 1985, c. R-10.
tution Act 1982, Item 5) [R.S.C., 1985, Appendix II, No. 11]]).
Parliament has exercised its legislative power. When the Yukon Territory was created from a part of the Northwest Territories, it was done by The Yukon Territory Act, 1898, 6 a federal statute. That Act provided for legislative and executive power in the territory and created a superior court for the administration of justice therein. Section 9 of the Act provided:
9. Subject to the provisions of this Act, the laws relating to civil and criminal matters and the ordinances as the same exist in the Northwest Territories at the time of the passing of this Act, shall be and remain in force in the said Yukon Territory in so far as the same are applicable thereto until amended or repealed by the Parliament of Canada or by any ordinance of the Governor in council or the Commissioner in Council made under the provisions of this Act.
Similar provisions have been carried over into successive statute revisions and subsection 23(1) of the Yukon Act' today provides:
23.(1) Subject to this Act, the laws relating to civil and criminal matters and the ordinances in force in the Northwest Territories on June 13, 1898 are and remain in force in the Territory, in so far as they are applicable thereto, and in so far as they have not been or are not hereafter repealed, abolished or altered by Parliament or by any ordinance.
Thus the law of tort in the Yukon is, in constitu tional terms, federal law and that law is made applicable here by the operation of the Yukon Act, a law of Canada.' The second and third conditions laid down in ITO—International Terminal Opera tors, supra, have been met.
The appeals will be dismissed with costs.
6 61 Vict., c. 6 (Can.) [R.S.C., 1985, Appendix II, No. 19].
7 R.S.C., 1985, c. Y-2.
8 We are, of course, aware that the de facto status of the Yukon is rapidly evolving and that institutions of democratic government are now in place here which make the Territory very closely resemble a province. The fact remains, though, that, however extensive may be the powers conferred on the Territorial Legislature, they are, in law, powers which have to date only been delegated by Parliament; Parliament has not finally divested itself of them and has specifically retained its paramountcy over them.
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