[2001] 3 F.C. 641
2001 FCA 220
A-555-00
Commissioner of the Northwest Territories, Speaker of the Legislative Assembly of the Northwest Territories and Languages Commissioner of the Northwest Territories (Appellants)
v.
Her Majesty the Queen, Fédération Franco-ténoise, Éditions Franco-Ténoises/L’Aquilon, Fernand Denault, Suzanne Houde, Nadia Laquerre, André Légaré and Pierre Ranger (Respondents)
and
Commissioner of Official Languages of Canada (Intervener)
A-558-00
Her Majesty the Queen (Appellant)
v.
Fédération Franco-ténoise, Éditions Franco-Ténoises/L’Aquilon, Fernand Denault, Suzanne Houde, Nadia Laquerre, André Légaré, Pierre Ranger, Commissioner of the Northwest Territories, Speaker of the Legislative Assembly of the Northwest Territories and Languages Commissioner of the Northwest Territories (Respondents)
and
Commissioner of Official Languages of Canada (Intervener)
Indexed as: Fédération Franco-ténoise v. Canada (C.A.)
Court of Appeal, Richard C.J., Décary and Létourneau JJ.A.—Yellowknife, Northwest Territories, May 2 and 3; Ottawa, July 4, 2001.
Federal Court Jurisdiction — Trial Division — Action seeking declarations concerning minority language rights in Northwest Territories (N.W.T.) — Appeal from F.C.T.D.’s dismissal of motion to strike action against Commissioner of N.W.T., Legislative Assembly, Government of N.W.T. for want of jurisdiction over defendants — Federal Court Act, s. 17 giving F.C.T.D. concurrent original jurisdiction in all cases where relief claimed against Crown — “Crown” contemplating federal Crown, meaning executive, not legislative or judicial, power — Speaker of Legislative Assembly of N.W.T. cannot be “Crown” within s. 17(1) — Legislative Assembly of N.W.T. legislative creature, not constitutional institution like Parliament of Canada — Languages Commissioner also not Crown — Appointed by Commissioner of N.W.T. — Not exercising executive power — Commissioner of N.W.T. not Crown — S. 17(2)(b) giving Court concurrent original jurisdiction over claim arising out of contract entered into by or on behalf of Crown, addressed to cases in which Crown defendant under s. 17(1) — Although Court having jurisdiction over part of action based on agreement whereunder federal Government agreed to fund costs of provision of French-language services by Government of N.W.T., Court not having jurisdiction over other defendants — Motions to dismiss for want of jurisdiction should have been allowed.
Practice — Stay of proceedings — Action for declaration regarding minority language rights in Northwest Territories — Appeal from F.C.T.D.’s dismissal of motion to stay proceedings against Queen on ground more appropriate for Court having jurisdiction to decide entire case to hear matter — Federal Court Act, s. 50 permitting Court to stay proceedings on ground claim being proceeded with in another jurisdiction or where for any other reason in interest of justice to do so — Although no action yet brought in Supreme Court of Territories, that Court having jurisdiction in relation to all defendants, remedies — Since Federal Court not having jurisdiction over defendants Speaker of Legislative Assembly, Languages Commissioner, Commissioner of Northwest Territories, application for stay should have been allowed — S. 50.1(1) ground for stay if statement of claim amended to claim relief only against Crown.
Constitutional Law — Distribution of Powers — Status of Northwest Territories — (1) Constitutionally, Territories not having same status as provinces — Creature of federal government subject in principle to good will of Government of Canada — (2) Legislatively, have plenary executive, legislative, judicial powers just short of those associated with sovereign responsible government — Parliament reserved to Governor in Council ultimate control over exercise by Government of Territories of legislative power — Noted in legislation federal laws applied to institutions of Territories failing provision to contrary — (3) Politically, Government of Canada dealing with Territories as if province, but not changing reality that no “territorial” Crown in law.
These were appeals from the Trial Division decision dismissing a motion to strike the statement of claim, and a motion for a stay of proceedings.
Representatives of the Francophone community of the Northwest Territories (the Franco-ténois) applied to the Federal Court for declarations concerning language rights, including alleged breaches by the Canadian government of Charter, sections 16 and 20 and the underlying fundamental principle of the Constitution of protection and respect for minority rights, by delegating much of its law-making authority to the government of the Northwest Territories (N.W.T.) without requiring that such delegate comply with the language rights of Canadian citizens residing in the N.W.T. They also sought declarations that the Commissioner of the N.W.T., the Legislative Assembly and the government of the N.W.T. (the territorial defendants) were subject to Charter, sections 16 and 20 and must comply with the Official Languages Act of the N.W.T. The territorial defendants moved to dismiss the statement of claim for want of jurisdiction of the Federal Court in regard to each of them. Her Majesty subsequently applied for a stay of the proceeding on the ground that the Federal Court did not have jurisdiction over all of the defendants, and that it would be more appropriate for the court having jurisdiction to decide the entire case, the Supreme Court of the Northwest Territories, to hear the matter. Both motions were dismissed by Rouleau J., a decision reported at [2001] 1 F.C. 241.
The Franco-ténois relied on Federal Court Act, subsection 17(1), which provides that the Trial Division has concurrent original jurisdiction in all cases where relief is claimed against the Crown. Subsection 17(2) lists specific situations in which the Trial Division has concurrent original jurisdiction i.e. where the claim arises out of a contract entered into by or on behalf of the Crown, and subsection 17(5), which provides that the Trial Division has concurrent original jurisdiction in proceedings of a civil nature in which the Crown or the Attorney General claims relief.
The issues were: (1) in A-555-00, whether the Federal Court has jurisdiction in relation to the territorial defendants, and (2) in A-558-00, whether the action against Her Majesty the Queen should be stayed to allow the action to be moved to the Supreme Court of the Northwest Territories.
Held, the appeals should be allowed.
Constitutionally, the Territories do not have the same status as provinces. They are a creature of the federal government, subject in principle to the good will of the Government of Canada. Although some legislative and political arrangements may have the appearance of agreements between the Government of Canada and the Government of the Territories, these arrangements cannot convert the Territories into a province. The Territories cannot gain provincial status without an amendment to the Canadian Constitution.
Legislatively, the Parliament of Canada has vested the Territories with the attributes of a genuine responsible government and given this government the plenary executive, legislative and judicial powers that the country’s Constitution allowed Parliament to delegate, stopping just short of the plenary powers associated with a sovereign responsible government, those powers being limited by the Constitution to the Government of Canada and the provincial governments. Parliament, has, however, reserved to the Governor in Council the ultimate control over the exercise by the Government of the Territories of its legislative power, and noted in its legislation that federal laws applied to the institutions of the Territories failing provision to the contrary. The Territories do not have the status of a servant or agent of the federal government. The Legislative Assembly of the Territories exercise legislative authority for and on behalf of itself.
Politically, the Government of Canada deals with the Territories as if it were dealing with provinces, inasmuch as this is allowed by the Constitution. But whatever the political appearances may be, there is not, in law, a “territorial” Crown, or a “territorial” province, or Her Majesty the Queen “in right of the Territories”.
(1) In 1984, the Canadian government signed an agreement with the Government of the N.W.T. which provided that, in return for the territorial government’s undertaking to have the Commissioner in Council adopt an ordinance on official languages guaranteeing the provision of French-language services by the Government of the Territories, the federal government would undertake to fund the costs associated therewith. The Commissioner of the Territories, with the consent of the Legislative Assembly, then enacted the Territories’ Official Languages Ordinance. In 1988, Parliament adopted the Official Languages Act which amended the Northwest Territories Act so that the Territories’ ordinance regarding official languages could be amended only if the amendment was concurred in by Parliament. The federal Official Languages Act did not apply to institutions in the Northwest Territories. The Territories’ Official Languages Ordinance was amended to provide for the establishment of the office of Languages Commissioner, who is appointed by the Commissioner of the Territories.
The first requirement in establishing the jurisdiction of the Federal Court is the grant of jurisdiction by an Act of Parliament. As stated above, the Franco-ténois relied on Federal Court Act, section 17. The Crown contemplated by subsection 17(1) is the federal Crown, meaning the executive power, which in practice is exercised by the prime minister and his cabinet. The expression covers neither the legislative power nor the judicial power. Thus, neither the Speaker of the Legislative Assembly of the Territories nor the Languages Commissioner in the Territories could be the “Crown” for the purposes of subsection 17(1). At best, the Languages Commissioner is a “board, commission or other tribunal”, but the action was not and could not be based on Federal Court Act, section 18 since the definition of “federal board, commission or other tribunal” in section 2 excludes a board, commission or tribunal constituted under an ordinance of the Territories. If the Territories’ Languages Commissioner was a “federal board, commission or other tribunal”, she could not be both a “federal board, commission or other tribunal” and “the Crown” and could not therefore be a defendant in an action brought under Federal Court Act, section 17. Furthermore, a declaratory judgment under subsection 18(3) cannot be obtained against a federal board, commission or other tribunal except by an application for judicial review, but the proceeding herein was an action. The Trial Division Judge therefore erred when he concluded that subsection 17(1) granted jurisdiction to the Federal Court in relation to the claim against the Speaker of the Legislative Assembly and the Languages Commissioner.
If the Commissioner of the N.W.T. were a “federal board, commission or other tribunal” since he exercises “jurisdiction or powers conferred by or under an Act of Parliament” (the Northwest Territories Act), he is not the Crown. The Federal Court might have jurisdiction if it were an application for judicial review under section 18, but not when it is a claim for relief against the Crown under section 17. If he is comparable to a head of government, the comparison would be with a lieutenant governor, and the Federal Court does not have jurisdiction in regard to a lieutenant governor. He is not an employee of the federal Crown according to the Northwest Territories Act, and cases that have held that, in exercising delegated powers of responsible government, the Commissioner of the Territories enjoys full autonomy. To argue that he is the Crown would place him in the strange situation of being liable in an action in damages in the Federal Court for the torts he committed personally, but not for the torts committed by a servant, as provided by Crown Liability and Proceedings Act, paragraph 3(a) since section 2 excludes from the definition of “servant” any person appointed or employed by or under the authority of an ordinance of the Northwest Territories. Since the claim herein against the Crown contemplated by Federal Court Act, subsection 17(1) is the action in damages based on the Crown Liability and Proceedings Act, and since the liability of the master is generally associated with that of his servants, the Federal Court would have jurisdiction over a tort committed by the Commissioner provided that none of his servants was implicated. That is an impracticable result that Parliament cannot have intended. The same reasoning applies in regard to Federal Court Act, paragraph 17(5)(b), which assigns jurisdiction to the Court “in proceedings in which relief is sought against any person for anything done or omitted to be done in the performance of the duties of that person as an officer, servant or agent of the Crown”. This paragraph, by its very language, refers to the Crown Liability and Proceedings Act which does not apply to employees of the Territories. From whatever angle the status of the Commissioner of the Territories is envisaged, section 17 is meaningless if the Commissioner is the Crown.
There is a definite symmetry in an interpretation that leads to the conclusion that the Government of the Territories is no more the target of section 17 than are its institutions in Federal Court Act, section 18. For the purposes of applying section 18, it has been held that the Ministers and institutions of the Territories are not “federal boards, commissions or other tribunals” in regard to which the Federal Court may exercise a power of review. This interpretation also reconciles the Federal Court’s mandate to oversee the lawfulness of the actions taken by the central administration and the status of responsible government charged with the local administration of the Territories that the Government of the Territories is acknowledged to have. It would be contrary to political and legislative history to make the Federal Court, in the Territories, a sort of instrument of federal judicial trusteeship over activities of a local nature when the federal executive and legislative trusteeships have for all practical purposes disappeared.
Furthermore, there exists in the Territories a superior court capable of ensuring the lawfulness of the actions taken by the government of the Territories. In language rights matters, the Territories’ Official Languages Act, an ordinance that has not been disallowed by the Governor in Council, has established the office of the Languages Commissioner and empowered this official to apply to the Supreme Court of the Territories to enforce language rights. Thus there exists, for the Territories, the equivalent of what exists federally. There is a symmetry in the administration of justice that appears to have been the intention of both Parliament and the Legislative Assembly of the Territories.
The Franco-ténois rely on the language rights agreement signed between the Government of the Territories and the Government of Canada. Federal Court Act, paragraph 17(2)(b) is addressed to cases in which, under subsection 17(1), the Crown is a defendant. While subsection 17(2) grants jurisdiction to the Federal Court over that part of the action that is based on the agreement and that designates her Majesty in right of Canada as a defendant, the Court does not have jurisdiction in regard to the other defendants which are not the Crown for the purposes of subsection 17(1).
The Federal Court lacked jurisdiction as well in regard to the action against the Commissioner of the Territories. The motion to dismiss the proceedings for want of jurisdiction presented by the Commissioner of the Territories, the Speaker of the Legislative Assembly of the Territories and the Languages Commissioner of the Territories should have been allowed.
(2) Federal Court Act, section 50 permits the Court to stay proceedings on the ground that the claim is being proceeded with in another jurisdiction or where, for any other reason, it is in the interest of justice that the proceedings be stayed. The Court may stay a proceeding even though no other proceeding is pending before another court. Although no action has yet been brought in the Supreme Court of the Territories, there is in the Territories a superior court that would have jurisdiction in relation to all of the defendants and in relation to all of the remedies that are sought. Since the Federal Court does not have jurisdiction over the action brought against the three territorial defendants, the application for a stay of proceedings should be allowed.
Federal Court Act, subsection 50.1(1) requires the Court to stay proceedings on application of the Attorney General of Canada where the Crown desires to institute a counterclaim or third party proceedings in respect of which the Court lacks jurisdiction. If the statement of claim were amended to claim relief only against Her Majesty, and the Attorney General of Canada so requested, the Court would have to order a stay of proceedings.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Access to Information Act, R.S.C., 1985, c. A-1, s. 3.
Canada Labour Code, R.S.C., 1985, c. L-2, ss. 123(1) (as am. by S.C. 1993, c. 28, s. 78, Sch. III, item 89), 167(1) (as am. idem, item 90).
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 16, 20, 30, 31, 32.
Canadian Environmental Assessment Act, S.C. 1992, c. 37, s. 2.
Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 63 (as am. by S.C. 1993, c. 28, s. 78, Sch. III, item 69), 66(1) (as am. idem, item 70).
Canadian Multiculturalism Act, R.S.C., 1985 (4th Supp.), c. 24, s. 2 “federal institution” (as am. by S.C. 1993, c. 28, s. 78, Sch. III, item 16).
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 101.
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.
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 42(1), 44, 55.
Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50 (as am. by S.C. 1990, c. 8, s. 21), ss. 2 “servant” (as am. by S.C. 1998, c. 15, s. 21), 3(a).
Department of Justice Act, R.S.N.W.T. 1988, c. 97 (4th Supp.), s. 5(c).
Emergency Preparedness Act, R.S.C., 1985 (4th Supp.), c. 6, s. 2.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2(1) “Crown”, “federal board, commission or other tribunal” (as am. by S.C. 1990, c. 8, s. 1), 17 (as am. idem, s. 3), 18 (as am. idem, s. 4), 50, 50.1 (as enacted idem, s. 16).
Federal Court Rules, 1998, SOR/98-106, r. 182.
Financial Administration Act, R.S.C., 1985, c. F-11, s. 2.
Interpretation Act, R.S.C., 1985, c. I-21, s. 35 “Act” (as am. by S.C. 1998, c. 15, s. 28), “lieutenant governor” (as am. by S.C. 1993, c. 28, s. 78, Sch. III, item 82), “lieutenant governor in council” (as am. idem), “province” (as am. idem).
National Archives of Canada Act, R.S.C., 1985 (3rd Supp.), c. 1, s. 2.
Nunavut Act, S.C. 1993, c. 28.
Northwest Territories Act, R.S.C., 1985, c. N-27, ss. 43.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 31, s. 98), 43.2 (as enacted idem).
Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, ss. 3(1) “federal institution” (as am. by S.C. 1993, c. 28, s. 78, Sch. III, item 116), 7(3) (as am. idem, item 117), 98.
Official Languages Act, R.S.N.W.T. 1988, c. O-1, ss. 12 (as am. by R.S.N.W.T. 1988, c. 56 (Supp.), s. 10), 13 (as am. idem, ss. 11, 21), 18 (as am. idem, s. 15), 19 (as am. idem), 26 (as am. idem, ss. 17, 18).
Official Languages Ordinance, S.N.W.T. 1984(2), c. 2.
Privacy Act, R.S.C., 1985, c. P-21, s. 3.
Public Service Staff Relations Act, R.S.C., 1985, c. P-35, s. 2.
Status of the Artist Act, S.C. 1992, c. 33, s. 6.
CASES JUDICIALLY CONSIDERED
APPLIED:
Northwest Territories v. P.S.A.C. (1999), 183 D.L.R. (4th) 175; 180 F.T.R. 20 (F.C.T.D.); Morin v. Northwest Territories (1999), 14 Admin. L.R. (3d) 284; 29 C.P.C. (4th) 362 (N.W.T. S.C.); ITO—International Terminal Operators Ltd. v. Miida Electronics Inc. et al., [1986] 1 S.C.R. 752; (1986), 28 D.L.R. (4th) 641; 34 B.L.R. 251; 68 N.R. 241; McArthur, Matthew v. The King, [1943] Ex. C.R. 77; [1943] 3 D.L.R. 225; Fortier Arctic Ltd. and Liquor Control Board of the Northwest Territories, (Re) (1971), 21 D.L.R. (3d) 619; [1971] 5 W.W.R. 63 (N.W.T. Terr. Ct.); Johnston v. Attorney General of Canada, [1977] 2 F.C. 301 (1977), 72 D.L.R. (3d) 615; 32 C.C.C. (2d) 463 (C.A.); Pfeiffer and Commissioner of the Northwest Territories (Re) (1977), 75 D.L.R. (3d) 407 (N.W.T.S.C.).
DISTINGUISHED:
Northwest Territories v. Public Service Alliance of Canada, 2001 FCA 162; [2001] F.C.J. No. 791 (C.A.) (QL).
REFERRED TO:
Royal Bank of Canada v. Scott (1971), 20 D.L.R. (3d) 728; [1971] 4 W.W.R. 491 (N.W.T. Terr. Ct.); R. v. Lynn Holdings Ltd. (1969), 68 W.W.R. 64 (Y. Mag. Ct.); Canada Labour Relations Board et al. v. Yellowknife, [1977] 2 S.C.R. 729; (1977), 76 D.L.R. (3d) 85; 77 CLLC 14,073; 14 N.R. 72; Northwest Territories v. Public Service Alliance of Canada, [1996] 3 F.C. 182 (1996), 112 F.T.R. 167 (T.D.); affd. (1997), 208 N.R. 385 (F.C.A.); leave to appeal dismissed, S.C.C. 25924, Aug. 28, 1997; Minister of National Revenue & Queen (The) v. Creative Shoes Ltd., [1972] F.C. 993; (1972), 29 D.L.R. (3d) 89; 73 DTC 5127 (C.A.); leave to appeal to S.C.C. refused, [1972] F.C. 1425.
AUTHORS CITED
Beaudoin, Gérald-A. Le fédéralisme au Canada: les institutions, le partage des pouvoirs. Montréal: Wilson & Lafleur, 2000.
Hogg, Peter W. Constitutional Law of Canada, 3rd ed. Scarborough, Ont.: Carswell, 1992.
Hogg, Peter W. and Patrick J. Monahan. Liability of the Crown, 3rd ed. Scarborough, Ont.: Carswell, 2000.
Immarigeon, Henriette. La responsabilité extra-contractuelle de la Couronne au Canada. Montréal: Wilson et Lafleur, 1965.
Morin, Jacques-Yvan and José Woehrling. Les constitutions du Canada et du Québec: du régime français à nos jours. Vol. 1, Montréal: Éditions Thémis, 1994.
APPEALS from the Trial Division order dismissing a motion to strike the statement of claim, and a motion for a stay of proceedings (Fédération Franco-Ténoise v. Canada, [2001] 1 F.C. 241(T.D.)). Appeals allowed.
APPEARANCES:
Roger Tassé, Q.C. and Maxime Faille for appellants in A-555-00 and respondents in A-558-00, Commissioner of the Northwest Territories, Speaker of the Legislative Assembly of the Northwest Territories and Languages Commissioner of the Northwest Territories.
Alain Préfontaine and Cynthia C. Myslicki for respondent in A-555-00 and appellant in A-558-00, Her Majesty the Queen.
Peter B. Bergbusch and Roger J. F. Lepage for respondents in both A-555-00 and A-558-00 Fédération Franco-ténoise, Éditions Franco-Ténoises/L’Aquilon, Fernand Denault, Suzanne Houde, Nadia Laquerre, André Légaré and Pierre Ranger.
Johane Tremblay for intervener in both A-555-00 and A-558-00.
SOLICITORS OF RECORD:
Gowling Lafleur Henderson LLP, Ottawa, for appellants in A-555-00 and respondents in A-558-00, Commissioner of the Northwest Territories, Speaker of the Legislative Assembly of the Northwest Territories and Languages Commissioner of the Northwest Territories.
Deputy Attorney General of Canada for respondent in A-555-00 and appellant in A-558-00, Her Majesty the Queen.
Balfour Moss, Regina, for respondents in both A-555-00 and A-558-00 Fédération Franco-ténoise, Éditions Franco-Ténoises/L’Aquilon, Fernand Denault, Suzanne Houde, Nadia Laquerre, André Légaré and Pierre Ranger.
Office of the Commissioner of Official Languages for intervener in both A-555-00 and A-558-00.
The following is the English version of the reasons for judgment rendered by
[1] Décary J.A.: These two appeals result from a language rights declaratory action accompanied by a claim in damages that was brought in the Federal Court of Canada by the Fédération Franco-ténoise and some representatives of the Francophone community of the Northwest Territories (the Franco-ténois) against Her Majesty the Queen, the Commissioner of the Northwest Territories (the Commissioner of the Territories), the Speaker of the Legislative Assembly of the Northwest Territories (the Speaker of the Legislative Assembly) and the Languages Commissioner of the Northwest Territories (the Languages Commissioner). It will help the reader if I use the word Territories to refer to the Northwest Territories and I will sometimes combine the Commissioner of the Territories, the Speaker of the Legislative Assembly and the Languages Commissioner under the expression “the territorial defendants”.
[2] The two appeals were combined for the purposes of hearing and reasons for judgment. In docket A-555-00, the substantial issue is whether the Federal Court has jurisdiction in relation to the territorial defendants. In docket A-558-00, the issue is whether the action validly brought in the Federal Court against Her Majesty the Queen should not be stayed to allow the action to be moved to the Supreme Court of the Northwest Territories (the Supreme Court of the Territories).
A. Proceedings
[3] On January 25, 2000, the Franco-ténois applied to the Federal Court of Canada by way of an action under section 17 of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 3)] to obtain the following relief:
[translation]
The Government of Canada:
(a) a declaration that the Canadian government is not fulfilling its responsibilities under sections 16 and 20 of the Canadian Charter of Rights and Freedoms (hereinafter the “Charter”) and the underlying fundamental principle of the Constitution of protection and respect for minority rights in delegating a major share of its authority to make laws to the government of the N.W.T. without requiring or ensuring that its delegate itself complies with the language rights of the Canadian citizens residing in the N.W.T.;
(b) a declaration that, in abdicating its language obligations in the aforementioned manner, the Canadian government is reneging on its commitment to enhance the vitality of the French linguistic minority community in the N.W.T., to support and assist its development, and to foster the full recognition and use of French in Canadian society, as stipulated in Part VII of Canada’s Official Languages Act;
(c) owing to the failure, since 1982, of Her Majesty the Queen and the Government of Canada to guarantee the plaintiffs full compliance with their constitutional language rights in the N.W.T.:
(i) general damages;
(ii) special damages;
(iii) punitive damages;
…
The Government of the Northwest Territories:
(f) a declaration that the Commissioner of the N.W.T., the Legislative Assembly and the Government of the Northwest Territories are subject to sections 16 and 20 of the Charter and must comply with the Official Languages Act of the Northwest Territories and, without limiting the above, a declaration that:
(i) any member of the public has the right to communicate in French, and to receive some services from, any head or central office of an institution of the N.W.T. Government under sections 16 and 20 of the Charter and section 14 of the Official Languages Act of the N.W.T.;
(ii) there is a significant demand for the use of French in the following institutions of the N.W.T. Government or it is reasonable due to the nature of the office, under sections 16 and 20 of the Charter and section 14 of the Official Languages Act of the N.W.T.:
•€€ The Languages Commissioner;
•€€ The Department of Education, Culture and Employment;
•€€ The Department of Finance;
•€€ The Department of Justice;
•€€ The Department of Municipal and Community Affairs;
•€€ The Department of Health and Social Services;
•€€ The Department of Transportation;
•€€ The Department of Public Works;
•€€ The Department of Resources, Wildlife and Economic Development;
•€€ The Boards, Commissions and Agencies of the N.W.T., including:
- Business Credit Corporation;
- Aurora College;
- Water Board;
- Social Assistance Appeal Board;
- Liquor Licensing Board;
- Workers’ Compensation Board;
- Legal Services Board;
- Labour Standards Board;
- Highway Transport Board;
- Territorial Board of Revision;
- Status of Women Council;
- Territorial Development Corporation;
- Science Institute;
- Northwest Territories Power Corporation;
- Northwest Territories Housing Corporation;
- Assessment Appeal Tribunal;
- Financial Management Board Secretariat;
(iii) these institutions of the N.W.T. government required to communicate with the public and provides services to the public in French must make an “active offer” in French under sections 16 and 20 of the Charter and section 14 of the Official Languages Act of the N.W.T.;
(g) a declaration that the policy and guidelines of the N.W.T. government issued for the purpose of implementing the Official Languages Act of the N.W.T. are, in their entirety, in conflict with sections 8, 10, 11 and 14 of the said Act and sections 16 and 20 of the Charter;
(h) a declaration that the Legislative Assembly of the N.W.T. is subject to section 18 of the Charter;
(i) a declaration that, in so far as section 11 of the Official Languages Act of the N.W.T. does not require that any instrument in writing issuing from the Legislature or the Government of the N.W.T. that is addressed to the public be drawn up in the French language, it is inconsistent with sections 16 and 20 of the Charter and, to the extent of the inconsistency, is of no force or effect;
(j) against the Commissioner of the N.W.T., the Legislative Assembly of the N.W.T. and the Languages Commissioner, an order to take the necessary steps within a reasonable period to comply with their responsibilities under the Official Languages Act of the N.W.T. and sections 16 and 20 of the Charter, including:
(i) within one year, to fulfill their institutional language obligations concerning services to the public, in particular by creating and filling bilingual positions in the head or central office of all the institutions of the Government of the N.W.T. and in each office in which there is a significant demand for communications with and services from that office or it is reasonable due to the nature of the office;
(ii) henceforth, to print and publish in French all of the instruments in writing issuing from the Legislative Assembly or the Government of the N.W.T. that are addressed to the public and, within one year, to print and publish all of the instruments in writing produced by the said entities since 1982; and
(iii) henceforth, to communicate effectively in French, in particular by disseminating all announcements of the Government of the N.W.T. in French through the media serving the Franco-ténois, including the newspaper l’Aquilon;
(k) against the Legislative Assembly of the N.W.T., an order to take the necessary steps within a reasonable period to comply with its responsibilities under section 18 of the Charter, including henceforth printing and publishing in French all of the records, minutes and proceedings of the Legislative Assembly and, within one year, printing and publishing in French all of the records, minutes and proceedings of the Legislative Assembly since 1982;
(l) owing to the flagrant and ongoing breach of their language obligations and the rights of the public to obtain services in French and to communicate in French with the authorities of the Assembly and the Government of the N.W.T.:
(i) general interests;
(ii) special damages;
(iii) punitive damages;
[4] On March 9, 2000, Her Majesty availed herself of the provisions of rule 182 of the Federal Court Rules, 1998 [SOR/98-106] (the Rules) and third partied her three co-defendants, the territorial defendants, in the main action. Through this third party proceeding, Her Majesty was asking the Court to order that the said co-defendant(s) indemnify Her Majesty should the claim for relief against Her Majesty be allowed on the basis of some breach attributable to one of the said co-defendants.
[5] On March 10, 2000, the territorial defendants, each represented by the Territories Department of Justice, moved to dismiss the statement of claim for want of jurisdiction of the Federal Court in regard to each of them. Should the Court conclude that it does have jurisdiction in regard to one but not all of them, the Court was urged to decline jurisdiction so as to allow the proceedings to be brought instead in the Supreme Court of the Territories.
[6] On March 13, 2000, Her Majesty, relying on paragraph 50(1)(b) of the Federal Court Act, applied for a stay of the proceeding on the ground that the Federal Court did not have jurisdiction over all of the defendants and that it would be more appropriate to hear and determine the matter in the only court having jurisdiction to decide the entire case, the Supreme Court of the Territories.
[7] On September 8, 2000, Mr. Justice Rouleau dismissed both motions (Fédération Franco-Ténoise v. Canada, [2001] 1 F.C. 241 (T.D.)).
[8] In regard to the motion for dismissal filed by the territorial defendants, the Judge found that the conditions set out by the Supreme Court of Canada in ITO—International Terminal Operators Ltd. v. Miida Electronics Inc. et al., [1986] 1 S.C.R. 752, at page 766 for establishing jurisdiction of the Federal Court are fulfilled in this instance: the three territorial defendants being part of the “federal Crown” in his opinion, there is, through section 17 of the Federal Court Act, a grant of jurisdiction to the Federal Court; the ordinances enacted by the Government of the Territories constitute federal law; and as the law relied on in this case is in the last analysis the Northwest Territories Act, R.S.C., 1985, c. N-27, it is a law of Canada within the meaning of section 101 of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982 c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]].
[9] In regard to the motion to stay the proceeding filed by Her Majesty, the Judge simply disposed of it in the following words, at paragraph 36:
In light of the Court’s finding with respect to jurisdiction, I propose to dismiss this motion.
[10] The territorial defendants and Her Majesty appealed Mr. Justice Rouleau’s order.
[11] The reasons that follow will occasionally refer to some provisions of constitutional documents preceding the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] that still have no official French version. I will use the texts that were proposed in 1990 by the report of the French Constitutional Drafting Committee, which was assigned to prepare a draft French version of certain constitutional documents pursuant to section 55 of the Constitution Act, 1982 [Final Report of the French Constitutional Drafting Committee Responsible for Providing the Minister of Justice of Canada with a Draft Official French Version of Certain Constitution Enactments].
[12] The Northwest Territories Act calls an “ordinance” what the Legislative Assembly of the Territories refers to as an “Act”. The word “ordinance”, of course, is the correct one, but in practice nothing hangs on the use of either word, neither of which is disallowed by the Parliament of Canada. I note that the Nunavut Act, which received royal assent in June 1993 (S.C. 1993, c. 28), uses the word “Act” to refer to a statute adopted by the Legislature of Nunavut.
B. Limited framework of the submissions in the Court in docket A-555-00
[13] The Court is asked to characterize the status of the Commissioner of the Territories, the Speaker of the Legislative Assembly and the Languages Commissioner solely for the purposes of determining whether they may be sued in Federal Court in an action based on section 17 of the Federal Court Act. That section reads as follows:
17. (1) Except as otherwise provided in this Act or any other Act of Parliament, the Trial Division has concurrent original jurisdiction in all cases where relief is claimed against the Crown.
(2) Without restricting the generality of subsection (1), the Trial Division has concurrent original jurisdiction, except as otherwise provided, in all cases in which
(a) the land, goods or money of any person is in the possession of the Crown;
(b) the claim arises out of a contract entered into by or on behalf of the Crown;
(c) there is a claim against the Crown for injurious affection; or
(d) the claim is for damages under the Crown Liability and Proceedings Act.
…
(5) The Trial Division has concurrent original jurisdiction
(a) in proceedings of a civil nature in which the Crown or the Attorney General of Canada claims relief; and
(b) in proceedings in which relief is sought against any person for anything done or omitted to be done in the performance of the duties of that person as an officer, servant or agent of the Crown.
[14] It is trite law that the Federal Court has jurisdiction in relation to that part of the action that is directed against Her Majesty the Queen in right of Canada.
[15] It is conceded that the Supreme Court of the Territories would have jurisdiction to hear the case in its entirety as regards the four co-defendants, should the matter come before it.
[16] This Court is not ruling on the merits of the claim of the Franco-ténois. It is not deciding the validity of the delegation the Government of Canada made of its statutory jurisdiction over the language rights of Francophones in the Territories. It is not deciding whether the Territories are a “federal institution” “within the meaning of sections 16 and 20 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] (the Charter). It is not deciding whether Her Majesty or any of the territorial defendants has breached a constitutional or statutory language rights obligation.
[17] The Court must also presume, at the stage of these interlocutory motions, that the federal statutes and territorial ordinances cited by the parties are valid.
[18] Nor is the Court called upon to prejudge the quality of the French-language services that the Franco-ténois would receive in the Supreme Court of the Territories should the action ultimately be disposed of in that Court. Section 12 [as am. by R.S.N.W.T. 1988, c. 56 (Supp.), s. 10] of the Territories’ Official Languages Act [R.S.N.W.T. 1988, c. O-1] allows the use of French in the Territories’ courts and in any pleading in or process issuing from a court, and section 13 [as am. idem, ss. 11, 21] of the Act requires that final decisions, orders and judgments, including any reasons given for them, shall be issued in both English and French. We are entitled to assume, therefore, that the right of the Franco-ténois to be tried in French would be respected if the proceedings were to be brought in the Supreme Court of the Territories.
[19] I note in passing that the action was not brought against the Government of the Northwest Territories in the strict sense (which was held to have standing in our Court in Northwest Territories v. Public Service Alliance of Canada, 2001 FCA 162; [2001] F.C.J. No. 791 (C.A.) (QL), paragraph 15) nor was it brought against the Attorney General of the Territories (who, under paragraph 5(c) of the Department of Justice Act, R.S.N.W.T. 1988, c. 97 (Supp.), “shall superintend and conduct all litigation for or against the Government of the Northwest Territories or any department of the Government of the Northwest Territories in respect of any subject within the authority or jurisdiction of the Legislature”).
C. Status of the Territories
[20] Counsel for the Government of the Territories does not argue that the Territories have a constitutional status equivalent to that of the provinces. It is indeed certain, in the jurisprudence, that such is not the case (see Morin v. Northwest Territories (1999), 14 Admin. L.R. (3d) 284 (N.W.T. S.C.), Vertes J.; Royal Bank of Canada v. Scott (1971), 20 D.L.R. (3d) 728 (N.W.T. Terr. Ct.), Morrow J.A.; R. v. Lynn Holdings Ltd. (1969), 68 W.W.R. 64 (Y. Mag. Ct.), Varcoe J.; Canada Labour Relations Board et al. v. Yellowknife, [1977] 2 S.C.R. 729; Northwest Territories v. Public Service Alliance of Canada, [1996] 3 F.C. 182 (T.D.), affd on jurisdictional aspect by (1997), 208 N.R. 385 (F.C.A.), leave to appeal dismissed, S.C.C. 25924, August 28, 1997). The legal scholars are of the same inclination (see Jacques-Yvan Morin and José Woehrling, Les constitutions du Canada et du Québec: du régime français à nos jours, Vol. 1 Éditions Thémis, 1994, page 406; Gérald-A. Beaudoin, Le fédéralisme au Canada: les institutions, le partage des pouvoirs, Wilson & Lafleur, 2000, page 894; Peter W. Hogg, Constitutional Law of Canada, 3rd ed. Carswell, 1992, page 38).
[21] In Northwest Territories v. P.S.A.C. (1999), 183 D.L.R. (4th) 175, Dubé J. seems to me to have accurately described the status of the Territories when he stated, at paragraphs 31-32:
I cannot accept the argument of the GNWT that there was an evolution to a separate Crown in the NWT and that this evolution towards responsible government would give rise to a separate entity placing the NWT on the same footing as the ten Canadian provinces. As mentioned by counsel for the CHRC, such a theory would create “constitutional Darwinism”. In biology, the theory of evolution teaches that a species is born out of a rudimentary species and becomes a different and more complex entity.
Undoubtedly, the powers and authority of the GNWT have increased over the years, but the source of its increased powers and authority remains the Federal Crown. The English Crown has divested itself of its power and authority over Canada in favour of Parliament and the Legislatures of the provinces but not in favour of the territories until they have achieved full provincial status. The Northwest Territories Act is purely a federal statute providing for a local government headed by a federal appointee. The NWT has not become a province by evolution but it is still a territory under simple delegation of power.
[22] This is also the interpretation the Canadian government adopts in its relations with the Territories, as is indicated by an Instruction given to the Commissioner of the Territories on March 29, 2000 by the federal Minister of Indian Affairs and Northern Development. Although this instruction was not filed in the proceedings before Rouleau J., the Court agreed to its being filed on appeal. It is a public document that clarifies the discussion and is part of the historic framework within which the status of the Territories must be determined. I think it is worth reproducing certain extracts from this Instruction:
The Government of Canada is committed to the principles of representative and responsible government in the Northwest Territories. The Government of the Northwest Territories is empowered under federal constitutional authority and is established to represent and serve all its residents consistent with the Charter of Rights and Freedoms. The legal framework for its essential structure of government is provided by the Northwest Territories Act (Act).
The Office of Commissioner is dealt with primarily in Sections 3 through 5 of the Act. In particular, Section 3 creates the Office of Commissioner, while Section 5 requires the Commissioner to “administer the government of the Territories under instructions, from time-to-time, given by the Governor in Council or the Minister.” Although you are to act in accordance with instructions issued by former Ministers, where there are conflicts, this letter supersedes all previous instructions.
…
It is appropriate that the Commissioner’s role continue to evolve in a manner consistent with, and supportive of, responsible government in the Northwest Territories. The framework for this relationship is to be found in the applicable provisions of the Act and the conventions of responsible government. As a general guide, and having due regard to the constitutional differences between provinces and territories, you shall carry out your role as Commissioner in a manner similar in practice to that of a provincial Lieutenant Governor.
The Executive Council, established by Section 9 of the Act, is the paramount institution for the exercise of executive authority in the Government of the Northwest Territories. Consistent with Canadian constitutional conventions, you shall act by and with the advice of your Premier and the Executive Council in all those manners [sic] relating to territorial policy and administrative decisions which fall within the competence of your office. There are only a few instances where your Premier alone has the capacity to provide direction or where the prerogatives you possess, similar to those held by a provincial Lieutenant Governor, may be of relevance.
[23] Counsel for the Government of the Territories argues, however, that the Federal Court Act should be interpreted as meaning that the Court’s jurisdiction in relation to the federal administration does not extend to a territorial administration that bears a closer resemblance to a provincial government than it does to the federal government. He makes much of the fact that Parliament, in the Interpretation Act, R.S.C., 1985, c. I-21, has treated the Territories as tantamount to a province and, moreover, has ensured that certain significant federal legislation does not apply in the Territories.
[24] Section 35 of the Interpretation Act stipulates that in all federal enactments—subject, of course, to particular provisions in a given statute—the expression “province” [as am. by S.C. 1993, c. 28, s. 78, Sch. III, item 82] includes the Northwest Territories and that the expressions “lieutenant governor” [as am. idem] and “lieutenant governor in council” [as am. idem] include the Commissioner of the Territories. Section 35 also states that “Act” [as am. by S.C. 1998, c. 15, s. 28], meaning an Act of a provincial legislature, when used in a federal enactment, includes the ordinances of the Territories.
[25] The Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50, states, in section 2 [as am. by S.C. 1998, c. 15, s. 21], that servants and agents of the federal Crown do not include “any person appointed or employed by or under the authority of an ordinance of … the Northwest Territories”.
[26] Subsection 3(1) [as am. by S.C. 1993, c. 28, s. 78, Sch. III, item 116] of the Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31 and section 2 [as am. by S.C. 1993, c. 28, s. 78, Sch. III, item 16] of the Canadian Multiculturalism Act, R.S.C., 1985, (4th Supp.), c. 24 state that the expression “federal institution” does not include, for the purposes of enforcement of these Acts, “any institution of the Council or government of the Northwest Territories”. In addition, subsection 7(3) [as am. by S.C. 1993, c. 28, s. 78, Sch. III, item 117] of the Official Languages Act states that ordinances of the Territories and the instruments made thereunder are not subject to the bilingualism requirements applicable to legislation made in the execution of a legislative power by the Governor in Council or federal ministers.
[27] A 1993 amendment (c. 28, s. 78, Sch. III, item 69) to the Canadian Human Rights Act, R.S.C., 1985, c. H-6, provides, in section 63, that “Where a complaint under this Part [Part III, Discriminatory Practices and General Provisions] relates to an act or omission that occurred in the … Northwest Territories … , it may not be dealt with under this Part unless the act or omission could be the subject of a complaint under this Part had it occurred in a province.” Subsection 66(1) [as am. idem, item 70] of this Act, moreover, states that “This Act is binding on Her Majesty in right of Canada, except in matters respecting the Government of … the Northwest Territories…”
[28] The Canada Labour Code [R.S.C., 1985, c. L-2] provides, in subsections 123(1) [as am. by S.C. 1993, c. 28, s. 78, Sch. III, item 89] and 167(1) [as am. idem, item 90], that Part II of the Code (Occupational Safety and Health) and Part III of the Code (Standard Hours, Wages, Vacations and Holidays) do not apply in respect of employment in an undertaking or business of a local or private nature in the Territories.
[29] Many Acts contain definitions or lists of federal institutions that expressly or by implication exclude the departments and institutions of the Territories:
•€€€€€€ Access to Information Act, R.S.C., 1985, c. A-1, s. 3;
•€€€€€€ Privacy Act, R.S.C., 1985, c. P-21, s. 3;
•€€€€€€ Financial Administration Act, R.S.C., 1985, c. F-11, s. 2;
•€€€€€€ Canadian Environmental Assessment Act, S.C. 1992, c. 37, s. 2;
•€€€€€€ Public Service Staff Relations Act, R.S.C., 1985, c. P-35, s. 2;
•€€€€€€ National Archives of Canada Act, R.S.C., 1985 (3rd Supp.), c. 1 , s. 2;
•€€€€€€ Status of the Artist Act, S.C. 1992, c. 33, s. 6;
•€€€€€€ Emergency Preparedness Act, R.S.C., 1985 (4th Supp.), c. 6, s. 2.
[30] These Acts very definitely establish that Parliament has fully exercised the authority conferred on it by 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 Constitution Act, 1982, Item 5) [R.S.C., 1985, Appendix II, No. 11] to “make provision for the administration, peace, order, and good government of any territory not for the time being included in any Province”. It seems to me that Parliament has done whatever it could under the Constitution to give the Northwest Territories a status close, but not equal to that of the provinces.
[31] The Acts also serve to remind us, simply by virtue of their existence, that if federal enactments are not to apply to the Territories they must say so directly, as in the case of the Official Languages Act, or indirectly, as through the application of section 35 of the Interpretation Act.
[32] Counsel also drew our attention to section 30 and subsection 32(1) of the Charter, which read as follows:
30. A reference in this Charter to a province or to the legislative assembly or legislature of a province shall be deemed to include a reference to the Yukon Territory and the Northwest Territories, or to the appropriate legislative authority thereof, as the case may be.
…
32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territories and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
[33] I understand from section 30 that it establishes the same correlation, for the purposes of the application of the Charter, between the provinces and the Territories, that section 35 of the Interpretation Act establishes between the provinces and the Territories for the purposes of the application of federal enactments. This section must be read together with section 31, which states that “Nothing in this Charter extends the legislative powers of any body or authority.” Thus, while the Territories are for some purposes tantamount to provinces, this is not because their legislative powers are extended by the Charter, and they cannot claim to be the equals of the provinces in terms of legislative powers.
[34] As I understand section 32—which is headed by the title “Application of Charter”—its purpose is to ensure that all fields of legislative jurisdiction under the Constitution are covered by the Charter, irrespective of whether these powers are exercised by the federal government, the provincial governments or the governments of the Northwest Territories and Yukon Territory. I do not share the opinion of counsel for the Franco-ténois that section 32 serves to dilute the scope of section 30. Section 32 simply says that the Charter applies to the areas of jurisdiction exercised by the Territories, which are attributed to the Parliament of Canada by the Constitution. In short, the Charter applies to all areas of jurisdiction, even those the exercise of which is delegated to the Territories by Parliament.
[35] Part V of the Constitution Act, 1982 is also relevant in the circumstances. It defines the procedure for amending the Constitution of Canada, and provides in paragraphs 42(1)(e) and (f) that:
42. (1) An amendment to the Constitution of Canada in relation to the following matters may be made only in accordance with subsection 38(1):
…
(e) the extension of existing provinces into the territories; and
(f) notwithstanding any other law or practice, the establishment of new provinces.
Section 44 states:
44. Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.
[36] This constitutional amendment procedure establishes beyond the shadow of a doubt not only that the Territories are not provinces but that the federal Parliament may not convert them to provinces without the consent of the provinces.
[37] Counsel for the Franco-ténois, for his part, contends that the Territories, because they constitute a delegated government under the ultimate trusteeship of the federal government, have the status of a servant or agent of the federal government. This submission is without foundation. In relation to the Parliament of Canada, the Territories are in a situation analogous to that of municipalities in relation to the provincial legislature or the British colonies in relation to the Imperial Parliament: subject to the ultimate power of review the Parliament of Canada has reserved for itself and provided it acts within the limits of its jurisdiction, the Legislative Assembly of the Territories exercises a legislative authority in the same capacity as the federal Parliament exercises its authority, and it acts for and on behalf of itself. As Mr. Justice Vertes notes in Morin v. Northwest Territories (supra, paragraph 20), at paragraph 53:
It has long been recognized that the territorial assemblies, whether of the Northwest Territories or the Yukon, are not acting as agents or delegates of the federal Parliament when legislating within their sphere of powers. In this sense they have a sovereign-like legislative character. This was noted by the Yukon Court of Appeal in R. v. Chamberlist (1970), 72 W.W.R. 746 (Y.T. C.A.), when discussing the powers of the Yukon Commissioner in Council (per Morrow J.A. at pages 749-750):
Although the powers may be expressly limited, nevertheless it is quite possible for a parliament, such as that of the dominion of Canada, to pass on the power to legislate to another legislative body so long as these powers do not exceed those of the initiating legislature.
For example, in discussing the question of delegation of legislative power in respect to the Indian Councils Act, 1861, 24 & 25 Vict., ch. 67 Lord Selborne states in Reg. v. Burah (1873) 3 App Cas 889, at p. 904:
“… The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But, when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation as large, and of the same nature, as those of Parliament itself.”
[38] From this constitutional, legislative and jurisprudential overview, the following conclusions can be drawn:
(a) Constitutionally
[39] Constitutionally, the Territories do not have the same status as provinces. They remain a creature of the federal government, subject in principle to the good will of the Government of Canada. Her Majesty the Queen, in the Territories, is Her Majesty the Queen in right of Canada. Although some legislative and political arrangements may have the appearance of agreements between the Government of Canada and the Government of the Territories, these arrangements cannot convert the Territories into a province: indeed, the Territories cannot gain provincial status without an amendment to that effect to the Canadian Constitution, in accordance with the method provided by the Constitution.
(b) Legislatively
[40] Legislatively, the Parliament of Canada has invested the Territories with the attributes of a genuine responsible government and given this government the plenary executive, legislative and judicial powers that the country’s Constitution allowed Parliament to delegate, stopping just short of the plenary powers associated with a sovereign responsible government, those powers being limited by the Constitution to the Government of Canada and the provincial governments.
[41] However, Parliament has reserved to the Governor in Council the ultimate control over the exercise by the Government of the Territories of its legislative power. And Parliament went to some pains to note in its legislation that federal laws applied to the institutions of the Territories failing provision to the contrary.
[42] Although any comparison between territories and municipalities is unfair to the Territories since their status is closer to that of a province than it is to a municipality, it can be said that the Territories are no more the agents of their respective creators than are the municipalities when they administer the territory they have been empowered to manage.
(c) Politically
[43] Politically, the Government of Canada deals with the Territories as if it were dealing with provinces, inasmuch, it seems to me, as this is allowed by the Constitution. The political reality can clarify the juridical issue; however, it cannot falsify it: whatever the political appearances may be, there is not, in law, a “territorial” Crown, or a “territorial” province, or Her Majesty the Queen “in right of the Territories”.
D. Status of the Territories for the purposes of section 18 of the Federal Court Act
[44] It will be useful at this point to say something about the cases that have considered the status of the Territories for the purposes of applying section 18 [as am. by S.C. 1990, c. 8, s. 4] of the Federal Court Act. That section allows an application for judicial review of a decision rendered by a “federal board, commission or other tribunal”. The Federal Court Act, in subsection 2(1) [as am. idem, s. 1], defines “federal board, commission or other tribunal” (office fédéral) as follows:
2. (1) …
“federal board, commission or other tribunal” means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867;
[45] In Fortier Arctic Ltd. and Liquor Control Board of the Northwest Territories, (Re) (1971), 21 D.L.R. (3d) 619 [at pages 626-628], Mr. Justice Morrow of the Northwest Territories Territorial Court, held that the Liquor Control Board of the Territories was not a “federal board, commission or other tribunal” within the meaning of section 18 of the Federal Court Act:
It is suggested here that the Board is a body exercising powers under the authority of the Liquor Ordinance which in turn was passed under authority of the Northwest Territories Act, R.S.C. 1952, c. 331, s. 13 [am. 1966-67, c. 22, s. 4 (now R.S.C. 1970, c. N-22)]. That therefore this brings it within the definition of a “federal board, commission or other tribunal” as defined in s. 2(g) above since the Northwest Territories Act is an Act of the Parliament of Canada, and as a consequence by s. 18(a) above the proceedings should have been launched in the new Federal Court.
…
By virtue of s. 3(1) of the Interpretation Act, 1967-68 (Can.), c. 7 [now R.S.C. 1970, c. I-23], effect must be given to s. 28 where the meaning of s. 2(g) of the Federal Court Act is considered. Section 28(29) of the Interpretation Act states:
28. In every enactment,
(29) “province” means a province of Canada, and includes the Yukon Territories and the Northwest Territories;
Using Province in the sense it is used above the relevant exceptions set forth in s. 2(g) of the Federal Court Act can quite properly be read as “any such body constituted or established by or under a law of the Northwest Territories …”. To arrive at any other construction would in my opinion throw a cloud over the enactments of the Commissioner in Council and unless the language clearly does this a Court should strive against it. In this respect I approve the language of C. R. O. Munro, Q.C., set forth in his brief submitted on behalf of the Attorney-General of Canada where he states:
Any argument to the contrary involves the proposition that there is no such thing as a law of the Northwest Territories. Such a proposition violates common sense, and is inconsistent with section 13 of the Northwest Territories Act which confers upon the Commissioner in Council legislative power to make laws for the Government of the Territories similar in scope to the legislative powers of the provinces. The argument in effect elevates to a constitutional issue what is really a semantic matter. It is true that all ordinances of the Northwest Territories are made under the authority of Parliament, and in that sense could be described as laws of Canada. However, they are made by the Legislature constituted for the Territories and in that sense are laws of the Territories. Whether they are to be considered one or the other is not a constitutional issue, but a question of definition of terms.
[46] In Johnston v. Attorney General of Canada, [1977] 2 F.C. 301 Federal Court of Appeal [at pages 304-305], per Chief Justice Jackett, suggested that the Attorney General of the Northwest Territories was not a “federal board, commission or other tribunal” within the meaning of section 18 of the Federal Court Act:
With reference to the first of these questions, for the purpose of the Federal Court Act, “federal board, commission or other tribunal” is so defined, by section 2 thereof, as to exclude therefrom “any person … appointed under or in accordance with a law of a province …”. If therefore, the question had arisen in one of the ten provinces of Canada, I should have thought that one could take judicial notice of the fact that the “prosecutor” did not fall within this statutory definition of “federal board, commission or other tribunal”. Having regard to the fact that, by virtue of section 28 of the Interpretation Act, the word “province” in a federal statute is to be read as including the Northwest Territories, I should have thought that the same question would have to be considered in a case arising in those Territories. However, as it seems to me, there are not enough facts on the record as yet for a decision to be made with regard thereto.
[47] In Pfeiffer and Commissioner of the Northwest Territories (Re) (1977), 75 D.L.R. (3d) 407, Mr. Justice Tallis of the Supreme Court of the Northwest Territories held that the Commissioner of the Territories was not a “federal board, commission or other tribunal” within the meaning of the Federal Court Act nor an agent of the Crown when he extended, under an ordinance of the Territories, the periods allotted for holding municipal elections. He relied in particular on the decisions of Morrow J.A. in Fortier Arctic Ltd. and of the Federal Court of Appeal in Johnston.
[48] These decisions are well founded, in my opinion. The ministers and institutions of the Territories are not “federal boards, commissions or other tribunals” in regard to which the Federal Court may exercise a power of review.
E. Language rights in the Northwest Territories
[49] The parties have acknowledged in their proceedings—unfortunately, the appeal books contain nothing on this—that in May 1984, the Government of Canada tabled a bill, Bill C-26, to amend the Northwest Territories Act to install a regime of legislative and judicial bilingualism in the Territories. Faced with opposition from the territorial government, the Canadian government abandoned Bill C-26, but only after signing the following agreement with the Government of the Territories: in return for the territorial government’s firm undertaking to have the Commissioner in Council adopt an ordinance on official languages guaranteeing the provision of French-language services by the Government of the Territories, the federal government undertook to fund the costs associated with such provision.
[50] In 1984, in the wake of this agreement, the Commissioner of the Territories, on the advice and with the consent of the Legislative Assembly, enacted the Official Languages Ordinance, S.N.W.T. 1984(2), c. 2.
[51] In 1988, the Parliament of Canada adopted the Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31. Under section 98 of that Act, the Northwest Territories Act was amended through the insertion of Part II.1, entitled “Official Languages” and including sections 43.1 and 43.2:
43.1 Subject to section 43.2, the ordinance entitled the Official Languages Act, made on June 28, 1984 by the Commissioner in Council, as amended on June 26, 1986, may be amended or repealed by the Commissioner in Council only if the amendment or repeal is concurred in by Parliament through an amendment to this Act.
43.2 Nothing in this Part shall be construed as preventing the Commissioner, the Commissioner in Council or the Government of the Territories from granting rights in respect of, or providing services in, English and French or any languages of the aboriginal peoples of Canada, in addition to the rights and services provided for in the ordinance referred to in section 43.1, whether by amending the ordinance, without the concurrence of Parliament, or by any other means.
[52] At the same time, subsection 3(1) of the 1988 Official Languages Act excluded “any institution of the Council or government of the Northwest Territories” from the “federal institutions” to which it was to apply (see supra, paragraph 26).
[53] In 1988 (R.S.N.W.T. 1988, c. O-1), the Commissioner of the Territories amended the Official Languages Ordinance of 1984 to add to it Part II, which establishes the office of Languages Commissioner, and Part III, which sets out some general provisions. Under section 18 [as am. by R.S.N.W.T. 1988, c. 56 (Supp.), s. 15], the Languages Commissioner is appointed by the Commissioner of the Territories “after approval of the appointment by resolution of the Legislative Assembly” (subsection 18(1)). The Languages Commissioner holds office during good behaviour for a term of four years, “but may be removed by the Commissioner [of the Territories] at any time on address of the Legislative Assembly” (subsection 18(2)). The Languages Commissioner “shall rank as and have all the powers of a Deputy Minister of a department” (subsection 19(3) [as am. idem]) and is given investigative powers similar to those held by the Commissioner of Official Languages of Canada.
[54] Section 26 [as am. idem, ss. 17, 18], in Part III, provides:
26. (1) Anyone whose rights under this Act or the regulations have been infringed or denied may apply to a court of competent jurisdiction to obtain a remedy that the court considers appropriate and just in the circumstances.
(2) The Languages Commissioner may
(a) appear before the Supreme Court on behalf of any person who has applied under subsection (1) for a remedy; or
(b) with leave of the Supreme Court, appear as a party to any proceedings under subsection (1).
[55] Counsel for the Franco-ténois informed the Court, at the hearing, that the 1988 amendments to the Territories’ Official Languages Act were not ratified by the Parliament of Canada and, he said, did not need such ratification because they were considered an enhancement of the existing provisions. Section 43.2 of the Northwest Territories Act (supra, paragraph 51) provides, in fact, that the Commissioner, the Commissioner in Council or the Government of the Territories may grant rights or provide additional services “without the concurrence of Parliament”. I need not determine here whether counsel is right in thinking that these amendments could be made without the concurrence of Parliament.
F. The motion to dismiss for lack of jurisdiction of the Federal Court filed by the three territorial defendants (docket A-555-00)
[56] The first requirement in establishing the jurisdiction of the Federal Court, pursuant to the ITO judgment, is the grant of jurisdiction to this Court by an Act of Parliament.
[57] In the case at bar, the Franco-ténois rely primarily on subsection 17(1) of the Federal Court Act, which I reproduced in paragraph 13 of these reasons, although it is worth reproducing again:
17. (1) Except as otherwise provided in this Act or any other Act of Parliament, the Trial Division has concurrent original jurisdiction in all cases where relief is claimed against the Crown.
[58] The Crown contemplated by this subsection is the federal Crown. The “federal Crown” is an expression used to refer to the executive power, which in practice is exercised by the prime minister and his cabinet. The expression does not cover the legislative power; nor does it cover the judicial power [McArthur, Matthew v. The King, [1943] Ex. C.R. 77, per Thorson P., at page 104):
When “the Crown” is spoken of in a statute, the term is symbolic of the executive power and means the King acting in his executive capacity. This, in effect, means “the Government”.
(see also Hogg and Monahan, Liability of the Crown, 3rd ed. (Carswell, 2000), at page 11; Henriette Immarigeon, La responsabilité extra-contractuelle de la Couronne au Canada (Collection des travaux de la Faculté de droit de l’Université d’Ottawa) (Montréal: Wilson et Lafleur, 1965), pages 24 and 25).
[59] It follows, on its face, that the Speaker of the Legislative Assembly of the Territories cannot be the “Crown” within the meaning of subsection 17(1). The fact that the Legislative Assembly of the Territories is a legislative creature rather than a constitutional institution like the Parliament of Canada does not make this Assembly a component of the territorial executive power any more than it is a component of the federal executive power.
[60] It follows as well that the Languages Commissioner in the Territories could not be the “Crown” for the purposes of subsection 17(1). The Languages Commissioner is appointed by the Commissioner of the Territories after a resolution of the Legislative Assembly. She holds office during good behaviour for a term of four years, but may be removed by the Commissioner of the Territories on address of the Legislative Assembly. It is true that she “shall rank as and have all the powers of a Deputy Minister of a department” (see paragraph 53 of these reasons), but in no way can it be said that she exercises the executive power or that she is an agent of the executive power. The Languages Commissioner of the Territories is no more the “Crown” than is the Commissioner of Official Languages of Canada.
[61] At best, the Commissioner is a “board, commission or other tribunal”, which would be of no use to the Franco-ténois. On the one hand, their action is not based on section 18 of the Federal Court Act (this section gives the Federal Court exclusive jurisdiction over judicial review of the federal administration). On the other hand, as I said earlier (paragraph 48), their action could not in any event be based on section 18 since the very definition of “federal board, commission or other tribunal” in subsection 2(1) of the Federal Court Act excludes a board, commission or tribunal constituted under an ordinance of the Territories. Moreover, one need only consult the list of “boards, commissions or tribunals” listed in the statement of claim (see paragraph 3, supra) to be persuaded of the merits of this case law: who, for example, would argue that such boards as the Territories’ Highway Transport Board or Social Assistance Appeal Board are “federal boards, commissions or other tribunals” subject to judicial review by the Federal Court?
[62] Moreover, even if the Territories’ Language Commissioner was a “federal board, commission or other tribunal”, she could not be both a “federal board, commission or other tribunal” and “the Crown” (see Minister of National Revenue & Queen (The) v. Creative Shoes Ltd., [1972] F.C. 993 (C.A.), leave to appeal to S.C.C. refused, [1972] F.C. 1425) and could not therefore be a defendant in an action brought under section 17 of the Federal Court Act. Worse still, a declaratory judgment, under subsection 18(3) of the Federal Court Act, cannot be obtained against a federal board, commission or other tribunal except by an application for judicial review; but the proceeding in question, here, is an action.
[63] The Trial Judge therefore erred when he concluded that subsection 17(1) granted jurisdiction to the Federal Court in relation to the claim for relief made against the Speaker of the Legislative Assembly of the Territories and against the Languages Commissioner of the Territories.
[64] Now, what is the situation in regard to the Commissioner of the Northwest Territories? As the holder of the executive power in the Territories, albeit under federal trusteeship, can he be “the Crown” for the purposes of subsection 17(1) of the Federal Court Act?
[65] Subsection 2(1) of the Federal Court Act defines “Crown” as “Her Majesty in right of Canada”. This had to be stated in order to ensure that the Federal Court does not have jurisdiction in regard to Her Majesty in right of a province. However, for the reasons set out above, it does not follow that in using the word “Crown” to cover the federal state, Parliament also intended to cover the Government of the Territories. Indeed, to the contrary, a careful reading of sections 17 and 18 of the Federal Court Act leads me to conclude that it was not Parliament’s intention that the Federal Court should have jurisdiction over the Commissioner of the Territories irrespective of how his status is characterized.
[66] If he is a “federal board, commission or other tribunal”, which is not impossible since he exercises “jurisdiction or powers conferred by or under an Act of Parliament” within the meaning of subsection 2(1) of the Federal Court Act, this “Act of Parliament” being the Northwest Territories Act, he is not the Crown. The Federal Court might have jurisdiction if it were an application for judicial review under section 18. It certainly does not have it when it is a claim for relief against the Crown under section 17.
[67] If he is comparable to a head of government, the comparison would be, not with the Governor General but with a lieutenant governor, a comparison that would be completely consistent with section 35 of the Interpretation Act. And the Federal Court certainly does not have jurisdiction in regard to a lieutenant governor.
[68] To argue that he is an employee of the federal Crown would be contrary to the letter and spirit of the Northwest Territories Act, and contrary to the cases that have held that, in exercising delegated powers of responsible government, the Commissioner of the Territories enjoys full autonomy.
[69] To argue that he is the Crown would place him in a strange situation. The Crown Liability and Proceedings Act would be applicable to him, but that Act, in section 2, is careful to exclude from the definition of “servant”
2. …
… any person appointed or employed by or under the authority of an ordinance of the … Northwest Territories ….
The Commissioner of the Territories would thus be liable in an action in damages in the Federal Court for the torts he committed personally, but he would not be liable in such an action for the torts committed by a servant, as provided by paragraph 3(a) of the Crown Liability and Proceedings Act. Since the claim par excellence for relief against the Crown that is contemplated by subsection 17(1) of the Federal Court Act is the action in damages based on the Crown Liability and Proceedings Act (see paragraph 17(2)(d) of the Federal Court Act), and since the liability of the master is generally associated with that of his servants, the Federal Court would have jurisdiction over a tort committed by the Commissioner provided that none of his servants was implicated. That is an impracticable result that Parliament cannot have intended.
[70] The same reasoning applies in regard to paragraph 17(5)(b) of the Federal Court Act, which assigns jurisdiction to the Court “in proceedings in which relief is sought against any person for anything done or omitted to be done in the performance of the duties of that person as an officer, servant or agent of the Crown”. This paragraph, by its very language, refers to the Crown Liability and Proceedings Act, which, as we know, does not apply to employees of the Territories.
[71] In short, from whatever angle the status of the Commissioner of the Territories is envisaged, section 17 of the Federal Court Act is meaningless if the Commissioner is the Crown.
[72] I will add that my reading of section 17 fits well with the only possible reading of section 18. This section, as I said earlier, does not allow the Federal Court to review the Administration of the Territories. There is an obvious and necessary correlation between sections 17 and 18 of the Federal Court Act: the “boards, commissions and other tribunals” contemplated by section 18 are those constituted by the government contemplated in section 17. There is a definite symmetry in an interpretation that leads to the conclusion that the Government of the Territories is no more the target of section 17 than are its institutions in section 18.
[73] The interpretation that I am adopting also has the advantage of reconciling, on the one hand, the Federal Court’s mandate to oversee the lawfulness of the actions taken by the central administration and, on the other hand, the status of responsible government charged with the local administration of the Territories that the Government of the Territories is now acknowledged to have. It would be contrary to political and legislative history to make the Federal Court, in the Territories, a sort of instrument of federal judicial trusteeship over activities of a local nature in the Territories when the federal executive and legislative trusteeships have for all practical purposes disappeared.
[74] Furthermore, there exists in the Territories a superior court capable of ensuring the lawfulness of the actions taken by the Government of the Territories just as there are in the provinces superior courts capable of ensuring the lawfulness of the actions taken by the provincial governments. The Federal Court would betray its vocation as an “additional court for the better administration of the laws of Canada” (to paraphrase section 101 of the Constitution Act, 1867) if it were to be so bold as to review the implementation of the laws in the Territories. I note that in language rights matters, the Territories’ Official Languages Act, an ordinance that has not been disallowed by the Governor in Council, has established the office of the Languages Commissioner and expressly allowed this official to apply to the Supreme Court of the Territories in order to enforce the language rights in the Territories. Thus there exists, for the Territories, the equivalent of what exists federally, with this difference that at the federal level it is the Commissioner of Official Languages of Canada and the Federal Court of Canada that oversee compliance with Canada’s official languages policy. Here again, there is a symmetry in the administration of justice that appears to me to have been the intention of both Parliament and the Legislative Assembly of the Territories.
[75] The Franco-ténois also rely, in a part of their statement of claim, on the language rights agreement signed between the Government of Canada and the Government of the Territories on June 28, 1984. Paragraph 17(2)(b) of the Federal Court Act, which I reproduced earlier in paragraph 13 of these reasons, prescribes:
17. (1) …
(2) Without restricting the generality of subsection (1), the Trial Division has concurrent original jurisdiction, except as otherwise provided, in all cases in which
…
(b) the claim arises out of a contract entered into by or on behalf of the Crown;
[76] One must be careful not to read subsection 17(2) out of context. This subsection is addressed to cases in which, under subsection 17(1), the Crown is a defendant. While subsection 17(2) grants jurisdiction to the Federal Court over that part of the action that is based on the agreement and that designates Her Majesty in right of Canada as a defendant, the Court does not have jurisdiction in regard to the other defendants which, as we have seen, are not the Crown for the purposes of subsection 17(1). Subsection 17(2) is of no use to the Franco-ténois.
[77] I conclude, therefore, that the Federal Court lacks jurisdiction as well in this case in regard to the action taken against the Commissioner of the Territories.
[78] It follows that the motion to dismiss the proceedings for want of jurisdiction, presented by the Commissioner of the Territories, the Speaker of the Legislative Assembly of the Territories and the Languages Commissioner of the Territories, should have been allowed.
G. The application to stay the action presented in the alternative by the territorial defendants (docket A-555-00)
[79] If my conclusion is wrong, and the Federal Court does have jurisdiction over one or more of the territorial defendants, it would then be necessary for me to examine the particular facet of the motion by these defendants that seeks a stay of the proceedings in the Federal Court.
[80] Section 50 of the Federal Court Act provides:
50. (1) The Court may, in its discretion, stay proceedings in any cause or matter,
(a) on the ground that the claim is being proceeded with in another court or jurisdiction; or
(b) where for any other reason it is in the interest of justice that the proceedings be stayed.
(2) The Court shall, on the application of the Attorney General of Canada, stay proceedings in any cause or matter in respect of a claim against the Crown if it appears that the claimant has an action or proceeding in respect of the same claim pending in any other court against a person who, at the time when the cause of action alleged in the action or proceeding arose, was, in respect thereof, acting so as to engage the liability of the Crown.
(3) Any stay ordered under this section may subsequently be lifted in the discretion of the Court.
[81] It is clear, from a reading of paragraphs 50(1)(a) and (b), taken together, that the Court may order the stay of a proceeding even though no other proceeding is pending before another court. As we know, in the case at bar no action has so far been brought in the Supreme Court of the Territories.
[82] I would have no hesitation in ordering the stay of the action if I had to determine the question. There is in the Territories a superior court that would have jurisdiction in relation to all of the defendants and in relation to all of the remedies that are sought. No problem of jurisdiction, standing, procedural vehicle or choice of remedy would be posed in the Supreme Court of the Territories. The action could be carried to completion without the interlocutory proceedings that have already delayed the progress of the proceedings in the Federal Court and that apparently are still not exhausted.
H. The application to stay the action presented by Her Majesty the Queen (docket A-558-00)
[83] In presenting her application for a stay, Her Majesty assumed that it was not “evident and manifest” that the Federal Court did not have jurisdiction and thus avoided taking a position on the issue of jurisdiction. However, she argued that the Supreme Court of the Territories would constitute a more appropriate forum since no jurisdictional or procedural argument could impede the progress of the proceedings there.
[84] In view of the conclusion I have reached, that the Federal Court does not have jurisdiction over the action brought against each of the three territorial defendants, the application for a stay of proceedings presented by Her Majesty appears in a completely different light.
[85] It is self-evident, for the reasons I set out in paragraph 82, that the application by Her Majesty ought to be allowed.
[86] There is more. Should the Franco-ténois decide to amend their statement of claim and to claim relief only against Her Majesty, she could cite on her behalf subsection 50.1(1) [as enacted by S.C. 1990, c. 8, s. 16] of the Federal Court Act, which reads:
50.1 (1) The Court shall, on application of the Attorney General of Canada, stay proceedings in any cause or matter in respect of a claim against the Crown where the Crown desires to institute a counter-claim or third-party proceedings in respect of which the Court lacks jurisdiction.
[87] The Court would then have no choice but to order a stay of the proceedings once the Attorney General of Canada so requested. As one will easily imagine in light of the third-party proceeding already filed in this case, the Attorney General of Canada would file a motion under subsection 50.1(1) even if the statement of claim of the Franco-ténois were amended, so a stay of the current proceedings seems to me to be inevitable for all intents and purposes. It is better to accept this now.
CONCLUSION
Docket A-555-00
[88] The appeal should be allowed, the Trial Division judgment overturned, the motion to dismiss the proceedings for want of jurisdiction allowed and the action brought against the Commissioner of the Northwest Territories, the Speaker of the Legislative Assembly of the Northwest Territories and the Languages Commissioner of the Northwest Territories dismissed. No costs should be awarded in the circumstances, either on appeal or at trial.
Docket A-558-00
[89] The appeal should be allowed, the Trial Division judgment overturned, the application for a stay of proceedings allowed and the action brought against Her Majesty the Queen stayed, without prejudice to the right of the plaintiffs to bring a new proceeding in the Supreme Court of the Northwest Territories. No costs should be awarded in the circumstances, either on appeal or at trial.
Richard C.J.: I agree.
Létourneau J.A.: I agree.