T-1087-96
Bert Moxham and Leon Moxham (Plaintiffs)
v.
Her Majesty the Queen in Right of Canada, Solicitor General of Canada and Brian Kegler (Defendants)
Indexed as: Moxham v. Canada (T.D.)
Trial Division, Teitelbaum J."Regina, April 28; Ottawa, April 30, 1998.
Constitutional law — Distribution of powers — Provincial no-fault automobile insurance legislation prohibiting individual from suing federal Crown in Federal Court — Whether constitutionally invalid as binding Crown without adoption by Parliament — Plaintiffs' arguments: Crown's rights affected as province having relieved federal Crown of statutory liability under Crown Liability and Proceedings Act; Federal Court jurisdiction unconstitutionally restricted — Crown's arguments: legislation affecting only plaintiff's rights, not those of Crown; provincial legislation adopted by Crown Liability and Proceedings Act, s. 32 — On facts of case at bar, rights of federal Crown not affected — Might be otherwise if federal Crown suing for losses caused by accident — Furthermore, provincial legislation adopted by federal statute, Crown Liability and Proceedings Act.
Constitutional law — Charter of Rights — Equality rights — Saskatchewan enacting no-fault automobile accident insurance scheme — Legislation prohibiting litigation before Federal Court of Canada — Charter s. 15 having no application herein — Plaintiff not discriminated against, singled out — All those in Saskatchewan involved in auto accidents equally governed by scheme.
Federal Court jurisdiction — Trial Division — Plaintiff submitting no-fault scheme established by Saskatchewan Automobile Accident Insurance Act, ss. 102, 103 constitutionally invalid as binding Crown without adoption by Parliament — Further arguing provincial legislation unconstitutionally restricting Federal Court jurisdiction — Federal Court without jurisdiction to hear action for negligence against Crown servant as not arising from federal law — Insufficient relationship between action, existing federal law — Action based upon common law of tort — That reference must be made to Crown Liability and Proceedings Act not underpinning action in federal law.
Crown — Torts — Plaintiff injured in car accident caused by negligence of Crown officer — No right of action against defendants in Federal Court under no-fault scheme created by Saskatchewan's Automobile Accident Insurance Act, ss. 102, 103(2) — Provisions adopted by Parliament via Crown Liability and Proceedings Act, s. 32.
Insurance — Plaintiff injured in motor-vehicle accident caused by negligence of RCMP officer in Saskatchewan — Provincial legislation establishing no-fault automobile insurance prohibiting plaintiff from proceeding in Federal Court — Automobile Accident Insurance Act, ss. 102, 103 constitutionally valid as only plaintiff, an individual, directly affected by being unable to sue in F.C.T.D. — Could be otherwise if federal Crown wishing to sue — No violation of plaintiff's Charter s. 15 equality rights — All people in province governed by legislation — Plaintiff not singled out.
This was an application on behalf of the defendants for a preliminary determination as to whether section 102 and subsection 103(2) of The Automobile Accident Insurance Act (AAIA) of the province of Saskatchewan prohibit the plaintiff, Bert Moxham, from proceeding in the Federal Court. Both plaintiffs had brought an action in negligence following a car accident admittedly caused by the negligence of one of the defendants, an RCMP officer, but Leon Moxham and the defendants agreed to a settlement in full satisfaction of his claim. The accident occurred in Saskatchewan where legislation has established a no-fault automobile insurance scheme. The main argument brought by the plaintiff was that section 102 is constitutionally invalid as the federal Crown is not bound by provincial legislation absent adoption by Parliament. Two issues were raised before the Court: (1) the constitutionality of section 102 and subsection 103(2) of the AAIA as a bar to the plaintiff's action, and (2) whether the Federal Court has jurisdiction to hear the action against the Crown servant.
Held, the application should be allowed.
(1) Section 102 of the AAIA bars the plaintiff's claim and substitutes an insurance system providing him with benefits arising out of the accident, while subsection 103(2) of the Act prescribes that a claim for economic loss can be heard only by the Saskatchewan Court of Queen's Bench. These provisions are valid in that it is only the plaintiff, an individual, who is directly affected by being unable to sue in Court and the rights of the federal Crown are not affected by them. It might be otherwise were it the federal Crown that wished to sue. Moreover, Parliament has adopted the impugned provisions via section 32 of the Crown Liability and Proceedings Act as "laws relating to prescription and the limitation of actions in force in a province between subject and subject". There was no basis for the plaintiff's argument that the federal law and the provincial law violated his rights under section 15 of the Charter. This was not a case of discrimination "based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability". All persons involved in an automobile accident in Saskatchewan are equally governed by the laws of that province. The plaintiff had not been singled out.
(2) The second prong of the test for the determination of Federal Court jurisdiction requires an existing body of federal law which is essential to the disposition of the case and nourishes the statutory grant of jurisdiction. The Federal Court has no jurisdiction to hear an action for negligence against a servant of the Crown because it does not arise from federal law. That did not mean that an action in tort could never be sufficiently supported by federal law to be heard in the Federal Court. But there was an insufficient relationship between this action and any existing and applicable federal law. This action was based upon the common law of tort and the mere fact that reference must be made to the Crown Liability and Proceedings Act did not underpin the action in federal law. This was an action in tort and federal law was not essential to its disposition. The Federal Court had no jurisdiction to hear the claim against the Crown servant because there was no existing and applicable federal law to support the claim against him.
statutes and regulations judicially considered
Automobile Accident Insurance Act (The), R.S.S. 1978, c. A-35, ss. 102 (as enacted by S.S. 1994, c. 34, s. 18), 103(2) (as enacted idem), 108(1).
Automobile Insurance Act, R.S.Q. 1977, c. A-25.
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], s. 15.
Civil Code of Lower Canada, Art. 1056d.
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. 92.
Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50 (as am. by S.C. 1990, c. 8, s. 21), ss. 3(a), 4, 10, 11, 32 (as am. idem, s. 31), 36 (as am. idem, s. 32).
Federal Court Act, R.S.C., 1985, c. F-7, s. 17(5)(b) (as am. by S.C. 1990, c. 8, s. 3).
Federal Court Rules, C.R.C., c. 663, RR. 401(c), 474(1)(a).
Federal Court Rules, 1998, SOR/98-106, RR. 208(d), 220(1)(a).
Government Employees Compensation Act, R.S.C., 1985, c. G-5.
Interpretation Act, R.S.C., 1985, c. I-21, s. 17.
Interpretation Act (The), R.S.S. 1978, c. I-11, s. 7.
Interpretation Act, 1995 (The), S.S. 1995, c. I-11.2, s. 14.
Manitoba Public Insurance Corporation Act, R.S.M. 1987, c. P215, ss. 70(1) "bodily injury caused by an automobile" (as enacted by S.M. 1993, c. 36, s. 5), 72 (as enacted idem ).
Occupiers Liability Act, R.S.B.C. 1979, c. 303, s. 8(1).
Workers' Compensation Act, 1979 (The), S.S. 1979, c. W-17.1, s. 44.
cases judicially considered
applied:
Rice v. Canada, [1992] F.C.J. No. 1142 (T.D.) (QL); Pacific Western Airlines Ltd. v. R., [1980] 1 F.C. 86; (1979), 105 D.L.R. (3d) 60; 14 C.P.C. 165 (C.A.); 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; Stephens v. R. (1982), 26 C.P.R. 1; [1982] CTC 138; 82 DTC 6132; 40 N.R. 620 (F.C.A.); Tomossy v. Hammond, [1979] 2 F.C. 232; (1979), 13 C.P.C. 150 (T.D.); Nichols v. R., [1980] 1 F.C. 646; (1979), 106 D.L.R. (3d) 189 (T.D.).
distinguished:
Oag v. Canada, [1987] 2 F.C. 511; (1987), 33 C.C.C. (3d) 430; 73 N.R. 149 (C.A.); Kigowa v. Canada, [1990] 1 F.C. 804; (1990), 67 D.L.R. (4th) 305; 10 Imm. L.R. (2d) 161; 105 N.R. 278 (C.A.).
considered:
McMillan v. Thompson (Rural Municipality) (1997), 144 D.L.R. (4th) 53; [1997] 3 W.W.R. 1; 115 Man. R. (2d) 2; 40 C.C.L.I. (2d) 147; 32 C.C.L.T. (2d) 1; 37 M.P.L.R. (2d) 41 (C.A.); A.G. Can. v. Ahenakew, [1984] 3 W.W.R. 442 (Sask. Q.B.); Platts v. Canada (1990), 35 F.T.R. 262 (F.C.T.D.).
referred to:
Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon, [1994] 3 S.C.R. 1022; (1994), 120 D.L.R. (4th) 289; [1995] 1 W.W.R. 609; 100 B.C.L.R. (2d) 1; 26 C.C.L.I. (2d) 1; 22 C.C.L.T. (2d) 173; 32 C.P.C. (3d) 141; 7 M.V.R. (3d) 202; 175 N.R. 161; Quebec North Shore Paper Co. et al. v. Canadian Pacific Ltd. et al., [1977] 2 S.C.R. 1054; (1976), 71 D.L.R. (3d) 111; 9 N.R. 471; McNamara Construction (Western) Ltd. et al. v. The Queen, [1977] 2 S.C.R. 654; (1977), 75 D.L.R. (3d) 273; 13 N.R. 181.
authors cited
Dukelow, D. A. and B. Nuse. The Dictionary of Canadian Law. Scarborough, Ont.: Carswell, 1991, "prescribe".
APPLICATION on behalf of defendants for a preliminary determination as to whether section 102 and subsection 103(2) of The Automobile Accident Insurance Act of the province of Saskatchewan prohibit the plaintiff, Bert Moxham, from proceeding in the Federal Court. Application allowed.
appearances:
David G. MacKay for plaintiff.
F. William Johnson for defendants.
solicitors:
MacKay, McLean, Regina, for plaintiff.
Gerrand Rath Johnson, Regina, for defendants.
The following are the reasons for judgment rendered in English by
Teitelbaum J.:
INTRODUCTION
This is an application by the Deputy Attorney General of Canada on behalf of all the defendants for a preliminary determination of whether section 102 [as enacted by S.S. 1994, c. 34, s. 18] and subsection 103(2) [as enacted idem] of The Automobile Accident Insurance Act of the province of Saskatchewan, R.S.S. 1978, c. A-35 (hereinafter the AAIA), largely a no-fault automobile insurance act, prohibit the plaintiff, Bert Moxham, from proceeding in the Federal Court. On behalf of the defendant, Brian Kegler, the Deputy Attorney General also moves under paragraph 401(c) of the Federal Court Rules [C.R.C., c. 663] (now paragraph 208(d) [of the Federal Court Rules, 1998, SOR/98-106]) for leave to file a conditional appearance for the purpose of objecting to the jurisdiction of the Court and for an order dismissing the action against this defendant.
FACTS
The plaintiffs, Leon Moxham and Bert Moxham, are residents of Saskatchewan. The defendant, Brian Kegler, is a member of the Royal Canadian Mounted Police (RCMP). On May 13, 1995, Leon Moxham was driving an automobile in the province of Saskatchewan when it was struck by a vehicle operated by Mr. Kegler and owned by Her Majesty the Queen. Bert Moxham was a passenger in Leon Moxham's automobile. The defendants admit that the collision was caused by the negligence of Mr. Kegler and that as a result of the said accident, the plaintiff, Bert Moxham, suffered personal injuries.
The plaintiffs brought an action in negligence against the defendants on May 9, 1996, claiming general and special damages allegedly resulting from the accident. Pursuant to a settlement agreement dated December 18, 1996, Leon Moxham and the defendants agreed to a settlement in full satisfaction of his claim.
Pursuant to paragraph 474(1)(a) of the Federal Court Rules (now paragraph 220(1)(a) of the Rules, 1998), the defendants brought the current motion for a preliminary determination of whether section 102 and subsection 103(2) of the AAIA prohibit Bert Moxham from proceeding in the Federal Court. The defendants also argue that the Federal Court has no jurisdiction to hear the individual claim against Mr. Kegler because there is no existing and applicable federal law to support the claim.
SUBMISSIONS
1. The Plaintiff's Submissions
The plaintiff argues that the federal Crown can only be affected by provincial legislation if such legislation is adopted by Parliament. Therefore, the plaintiff submits that section 102 is constitutionally invalid because the Saskatchewan government has enacted legislation which is binding upon the Crown without any adoption by Parliament. The plaintiff also cites section 7 of The Interpretation Act, R.S.S. 1978, c. I-11, (note: this Act has been repealed and the applicable section is now section 14 of The Interpretation Act, 1995, S.S. 1995, c. I-11.2) and section 17 (note: the plaintiff incorrectly cites section 16) of the Interpretation Act, R.S.C., 1985, c. I-21, which, according to the plaintiff, provides that no statute affects the Crown unless it expressly applies to the Crown. The plaintiff submits that these sections repealed the common law rule that a statute may also apply to the Crown by necessary intendment.
In response to the defendants' contention that these sections are not invalid because they do not affect the federal Crown's rights, the plaintiff submits that the federal Crown's rights are affected because the province has relieved the federal Crown of liability which Parliament imposed upon it under paragraph 3(a) and section 4 of the Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50 [as am. by S.C. 1990, c. 8, s. 21] (hereinafter the CLPA). Paragraph 3(a) and section 4 of the CLPA provide that the federal Crown is vicariously liable for the negligence of a Crown servant in the operation of a motor vehicle (paragraph 3(a)) and directly liable as owner of the vehicle (section 4). Section 36 [as am. idem, s. 32] of the CLPA states that a member of the RCMP shall be deemed to be a servant of the Crown for the purposes of determining liability.
The plaintiff also notes that clause 102(b) of the AAIA states that "no action or proceeding lies or may be instituted in any court." Since Parliament granted the Federal Court concurrent jurisdiction over the federal Crown through the Federal Court Act , R.S.C., 1985, c. F-7, the plaintiff submits that the Saskatchewan legislature has unconstitutionally restricted the Federal Court's jurisdiction.
In addition, the plaintiff distinguishes the decisions cited by the defendants (see the defendants' submissions below). The plaintiff submits that Rice v. Canada, [1992] F.C.J. No. 1142 (T.D.) (QL), superficially deals with the issue in the case at bar and is not helpful. Moreover, the plaintiff submits that it does not discuss the plaintiff's constitutional rights. The plaintiff also distinguishes McMillan v. Thompson (Rural Municipality) (1997), 144 D.L.R. (4th) 53 (Man. C.A.) on the grounds that it does not deal with any constitutional questions and only considers whether injuries received by the plaintiff were "bodily injuries caused by an automobile."
The plaintiff submits that the current provisions of the AAIA are analogous to those contained in The Workers' Compensation Act, 1979, S.S. 1979, c. W-17.1 (hereinafter the WCA). The plaintiff cites A.G. Can. v. Ahenakew, [1984] 3 W.W.R. 442 (Sask. Q.B.) where the Court held that the federal Crown was not barred by section 44 of the WCA in its claim for subrogation to the rights of its servant which the federal Crown paid to his family under the Government Employees Compensation Act, R.S.C., 1985, c. G-5. The Court held that there was no evidence establishing that the federal Crown had submitted to the operation of the WCA nor that the federal Crown had adopted the WCA through incorporation by reference.
The plaintiff also cites Platts v. Canada (1990), 35 F.T.R. 262 (F.C.T.D.) where the Court dealt with the injury of a motocross rider on federal Crown land. Subsection 8(1) of the Occupiers Liability Act, R.S.B.C. 1979, c. 303 (hereinafter the OLA) stated that "[e]xcept as otherwise provided in subsection (2), the Crown and its agencies are bound by this Act." In response to the defendant's argument that liability should be denied by reason of the OLA, the Court stated [at page 276] that by virtue of section 17 of the Interpretation Act (Can.), Parliament has paramount power, if not sole power, to "expand, limit, immunize or bind the rights, prerogatives and liabilities" of the federal Crown.
The plaintiff submits that the province cannot legislate in relation to the federal Crown as an independent subject-matter nor can provincial legislation authorized under section 92 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]], proprio vigore affect in any way the vested rights or the capacities of the federal Crown or the operation of prerogative rules conferring exemptions, additional rights or extraordinary powers on it. The plaintiff adds that provincial legislation cannot affect the federal Crown unless it applies under federal legislation or it applies as part of the general law of the province under which the federal Crown enters into contracts or asserts claims. Under the AAIA, Saskatchewan automobile drivers do not avoid liability for compensation to injured motorists, rather, compensation is determined and delivered according to a legislative regime. The plaintiff submits that such provincial legislation determines the general law only so far as it affects Saskatchewan vehicle owners and drivers in respect to accidents for which benefits are payable.
The plaintiff submits that although the law applicable to claims against the federal Crown under the CLPA is the law applicable between subject and subject in the place where the act occurs, this is subject to the qualification that such provincial law shall only apply if it is not repugnant to the statute upon which Crown liability was imposed and does not place a liability on the federal Crown different from that imposed by Parliament.
To summarize, the plaintiff submits that provincial legislation cannot apply to the federal Crown of its own force and the AAIA has not been adopted by the federal Crown nor does it specifically apply to the federal Crown and thus, the federal Crown cannot benefit from the provisions of the AAIA. The plaintiff argues that the defence provided by the AAIA is solely one between a subject who is a Saskatchewan resident and another such resident, which submission I do not accept. The plaintiff contends that the resident involved in an accident with a servant of the federal Crown is in an analogous position to those under subsection 108(1) of the AAIA (dealing with accidents occurring outside Saskatchewan) and so the Saskatchewan government should be entitled to reduce his benefits by the amount he receives in this action. The plaintiff submits that, as a resident of Canada and as a citizen of Canada, such a citizen should be governed by the laws of Canada when injured by a servant of the federal Crown and should not be limited to dealing with Saskatchewan law unless Parliament has so determined in clear and unambiguous language. Countering the defendants' argument concerning the applicable law (see the defendants' submissions below), the plaintiff submits that Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon, [1994] 3 S.C.R. 1022 is of little value because that case dealt with the choice of law in two different provinces. The plaintiff submits that the federal Crown is not just another province and that its authority and responsibility encompasses the territory of the province of Saskatchewan.
The plaintiff also disputes the defendants' claim that the federal Crown has adopted the AAIA via section 32 [as am. by S.C. 1990, c. 8, s. 31] of the CLPA. The plaintiff notes that in D. A. Dukelow and B. Nuse, The Dictionary of Canadian Law (Scarborough, Ont.: Carswell, 1991) "prescribe" is defined as "to regulate the details after the general nature of the proceedings is indicated". The plaintiff submits that section 102 of the AAIA does not merely provide details to a legislation of general application. Instead, it abolishes a person's right of action, it rescinds jurisdiction of the courts and it substitutes the benefits determined under the Act for all other benefits, including the benefits enacted by the federal Crown. In the alternative, if the defendants are correct that the Saskatchewan government can prescribe the liability of the federal Crown, the plaintiff submits that the federal law and the actions of the province are invalid as a breach of section 15 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] (hereinafter Charter).
On the question of whether the Federal Court has jurisdiction to hear the claim against Mr. Kegler, the plaintiff submits that the applicable federal law is section 3 of the CLPA which provides that Mr. Kegler is an agent of the federal Crown. Therefore, the plaintiff submits that Mr. Kegler is an appropriate defendant and subject to Federal Court jurisdiction.
2. The Defendants' Submissions
The defendants submit that section 102 of the AAIA prohibits the plaintiff from suing for personal
The defendants also submit that the Manitoba Court of Appeal considered similar legislation in McMillan, supra. McMillan concerned the meaning of the words "caused by" in the definitions section [subsection 70(1)] of Part II of the Manitoba Public Insurance Corporation Act , R.S.M. 1987, c. P215, as enacted by S.M. 1993, c. 36, section 5 (MPIC Act). Part II of the MPIC Act provides insurance benefits for persons injured by anautomobile, while section 72 [as enacted idem] provides that no tort actions can be brought as a result of such injuries. The Court held that "caused by" did not import an element of fault for that would undermine the legislative intent to provide immediate compensation to Manitobans who suffer bodily injuries resulting from automobile accidents.
The defendants also submit that subsection 103(2) of the AAIA prevents the plaintiff from suing in the Federal Court for economic loss arising from the alleged injuries. The defendants note that subsection 103(2) expressly states that such an action can only be brought in the Saskatchewan Court of Queen's Bench.
Concerning the plaintiff's constitutional challenge, the defendants submit that, in the context of the text at bar, the provincial legislation does not affect the federal Crown's rights at all. They submit that section 102 and subsection 103(2) of the A.A.I.A only limit the rights of a plaintiff by prohibiting his lawsuit for injury and economic loss from an automobile accident except in accordance with the AAIA.
Furthermore, the defendants submit that the federal Crown has adopted the AAIA pursuant to section 32 of the CLPA. Section 32 of the CIPA provides, in part, that "the laws relating to prescription and the limitation of actions in force in a province between subject and subject apply to any proceedings by or against the Crown in respect of any cause of action arising in that province." The defendants submit that the AAIA provisions are prescriptions and therefore the federal Crown has endorsed the Saskatchewan prescription and the plaintiff's claim is barred.
To the plaintiff's submission that federal law applies and not Saskatchewan law because the plaintiff was injured by a servant of the federal Crown, the defendants submit that Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon, [1994] 3 S.C.R. 1022 stands for the proposition that the law to be applied in respect of torts occurring in Canada is the law of the jurisdiction in which the tort occurred. In this case, the tort occurred in Saskatchewan so the defendants submit that the applicable law is the AAIA.
Finally, in support of their contention that there is no existing and applicable federal law to invoke the individual claim against Mr. Kegler, the defendants cite the decision in Pacific Western Airlines Ltd. v. R., [1980] 1 F.C. 86 (C.A.). In that case, the Court considered the decisions in Quebec North Shore Paper Co. et al. v. Canadian Pacific Ltd. et al. [1997] 2 S.C.R. 1054 and McNamara Construction (Western) Ltd. et al. v. The Queen, [1977] 2 S.C.R. 654 and held that a claim against a servant of the Crown founded in negligence did not involve federal law and was beyond the Court's jurisdiction. By analogy to Pacific Western, supra, the defendants submit that the claim against Mr. Kegler should be dismissed.
RELEVANT STATUTORY PROVISIONS
Section 102 and subsection 103(2) of the AAIA of the province of Saskatchewan read as follows:
102 Notwithstanding any other Part of this Act or any other Act or law, but subject to the other provisions of this Part:
(a) no person has a right of action respecting, arising out of or stemming from bodily injuries caused by an automobile arising out of an accident that occurs on or after the day this Part comes into force;
(b) no action or proceeding lies or may be instituted in any court respecting, arising out of or stemming from bodily injuries caused by an automobile arising out of an accident that occurs on or after the day this Part comes into force; and
(c) the right to benefits stands in lieu of all rights of action to which a person is or may be entitled to respecting, arising out of or stemming from bodily injuries caused by an automobile arising out of an accident that occurs on or after the day this Part comes into force.
103 . . .
(2) Notwithstanding section 102 but subject to section 44 of The Workers' Compensation Act, 1979, a victim or dependent may bring an action for damages in the Court of Queen's Bench to recover any of the victim's or dependent's economic losses.
The relevant sections of the CLPA are:
3. The Crown is liable in tort for the damages for which, if it were a private person of full age and capacity, it would be liable
(a) in respect of a tort committed by a servant of the Crown; or
. . .
4. The Crown is liable for the damage sustained by any person by reason of a motor vehicle, owned by the Crown, on a highway, for which the Crown would be liable if it were a private person of full age and capacity.
. . .
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.
11. No proceedings lie against the Crown by virtue of section 4 in respect of damage sustained by any person by reason of a motor vehicle on a highway unless the driver of the motor vehicle or the driver's personal representative is liable for the damage so sustained.
. . .
32. Except as otherwise provided in this Act or in any other Act of Parliament, the laws relating to prescription and the limitation of actions in force in a province between subject and subject apply to any proceedings by or against the Crown in respect of any cause of action arising in that province, and proceedings by or against the Crown in respect of a cause of action arising otherwise than in a province shall be taken within six years after the cause of action arose.
. . .
36. For the purposes of determining liability in any proceedings by or against the Crown, a person who was at any time a member of the Canadian Forces or of the Royal Canadian Mounted Police shall be deemed to have been at that time a servant of the Crown.
Section 17 of the Interpretation Act, R.S.C., 1985, c. I-21, reads:
17. No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty's rights or prerogatives in any manner, except as mentioned or referred to in the enactment.
Section 14 of The Interpretation Act, 1995, S.S. 1995, c. I-11.2, reads:
14 No enactment binds the Crown or affects the Crown or any of the Crown's rights or prerogatives, except as is mentioned in the enactment.
DISCUSSION
There are two issues to determine in this case. The first issue is the constitutionality of section 102 and subsection 103(2) of the AAIA as a bar to the plaintiff's action. Section 102 of the AAIA bars the plaintiff's claim and substitutes an insurance system to pay benefits to the plaintiff arising out of the accident. Subsection 103(2) of the AAIA provides that a claim for economic loss can only be heard by the Saskatchewan Court of Queen's Bench. Therefore, if the impugned sections of the AAIA are found to be valid, then the plaintiff has no right of action against the defendants in the Federal Court due to the bar in section 102 or subsection 103(2) of the AAIA.
The plaintiff submits that section 102 is constitutionally invalid because the Saskatchewan government has enacted legislation which is binding upon the Crown by its own force without any adoption by Parliament. The defendants counter that these sections are not "unconstitutional" because they do not affect the federal Crown's rights at all in the context of this case , but only limit the rights of the plaintiff. The plaintiff replies that the federal Crown's rights are affected because the province is relieving the federal Crown of liability which Parliament imposed upon it under the CLPA. Moreover, the plaintiff notes that clause 102(b) of the AAIA states that "no action or proceeding lies or may be instituted in any court". According to the plaintiff, this legislates the jurisdiction of the Federal Court to whom Parliament has granted jurisdiction over the federal Crown. The plaintiff adds that he should not have to refer to provincial laws to determine his rights and procedures unless they have been expressly adopted by Parliament such that they are applicable to the federal Crown.
I am satisfied that the impugned sections of the AAIA are valid in that, only the plaintiff is directly affected by being unable to sue in a court. Given the facts in the case at bar, the rights of the federal Crown are not affected by these provisions. If the federal Crown were suing for losses caused by the accident, then the validity of the AAIA may be raised. However, other than in the abstract sense, I do not see how the federal Crown's rights are affected.
I am further satisfied that the defendants' alternative submission is correct, that is, that Parliament adopted the impugned provisions via section 32 of the CLPA. It is clear that section 102 and subsection 103(2) of the AAIA are "laws relating to prescription and the limitation of actions in force in a province between subject and subject" as it is stated in section 32 of the CLPA. I do not believe that the plaintiff's reference to the definition of "prescribe" in The Dictionary of Canadian Law is of any support since section 32 of the CLPA concerns laws relating to "prescription" and the "limitation of actions". Clearly, section 102 and subsection 103(2) of the AAIA are limitations on actions since they bar all claims for damages from motor vehicle accidents in Saskatchewan (except for the limited case of economic loss under subsection 103(2)). Therefore, the impugned sections have been adopted by Parliament via section 32 of the CLPA.
Furthermore, I find no basis for the plaintiff's argument that the federal law and the provincial law violate the plaintiff's rights pursuant to section 15 of the Charter.
Section 15 of the Charter states:
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
With all due respect to the submission of counsel for the plaintiff, I fail to see how section 15 of the Charter is applicable in the present case.
First, I am satisfied that there is no issue of discrimination "based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability". All that we are dealing with in this case is a simple automobile accident governed by the laws of the province of Saskatchewan. Secondly, the plaintiff is not being discriminated against. All persons involved in an automobile accident in Saskatchewan are equally governed by the law of the province. Bert Moxham is not particularly being singled out.
The second issue is whether the Federal Court has the jurisdiction to hear the action against Mr. Kegler. In all such cases, one must turn to the decision in ITO—International Terminal Operators Ltd. v. Miida Electronics Inc. et al., [1986] 1 S.C.R. 752 where the three-pronged test for the determination of Federal Court jurisdiction is set out at page 766:
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 .
Since paragraph 17(5)(b) [as am. by S.C. 1990, c. 8, s. 3] of the Federal Court Act satisfies the first prong of the test, the next issue is whether there is an existing body of federal law which is essential to the disposition of the case and nourishes the statutory grant of jurisdiction. On this question, reference should be had to the decision in Stephens v. R. (1982), 26 C.P.R. 1 (F.C.A.), at page 8 where the Court stated:
The issue is the relationship that must exist between the cause of action and the existing and applicable federal law to give the Court jurisdiction.
There is a substantial line of cases that demonstrate that the Federal Court has no jurisdiction to hear an action for negligence against a servant of the Crown because it does not arise from federal law (see Tomossy v. Hammond, [1979] 2 F.C. 232 (T.D.); Pacific Western Airlines, supra; Nichols v. R., [1980] 1 F.C. 646 (T.D.); Stephens, supra). In Tomossy, supra, the Court wrote, at page 233:
In Quebec North Shore Paper Company v. Canadian Pacific Limited, and . . . McNamara Construction (Western) Limited v. The Queen, the Supreme Court of Canada has defined the expression "the Laws of Canada" and has excluded from that definition both provincial statute law and the common law except "common law associated with the Crown's position as a litigant". The Crown referred to is, of course, the Crown in right of Canada.
The personal liability of an individual for a tort committed by him arises under the common law. It arises whether he commits it in the course of his employment or in other circumstances. The fact that the individual is a servant of the Crown and commits a tort in the course of that employment in no way alters the basis in law for his liability. It does not arise under "the laws of Canada" or "federal law" as the term has been defined by the McNamara and Quebec North Shore decisions.
However, this does not mean that an action in tort can never be sufficiently supported by federal law to be heard in the Federal Court. In Stephens, supra, the Court noted, at page 9 that:
. . . a cause of action in contract (or tort) may be held to be one sufficiently supported by federal law to give the Federal Court jurisdiction if the contractual or tortious liability can be said to be one that is provided for by federal law.
Indeed, in Oag v. Canada, [1987] 2 F.C. 511 (C.A.) and Kigowa v. Canada, [1990] 1 F.C. 804 (C.A.), the Court held that the circumstances were such that it did have jurisdiction to hear a tort action against a servant of the Crown. Unfortunately for the plaintiff, the facts in the case at bar do not allow such a conclusion. There is an insufficient relationship between this action and any existing and applicable federal law. As in Tomossy, supra, the action is based upon the common law of tort and the mere fact that reference must be made to the CLPA does not underpin the action in federal law. This is purely an action in tort and federal law is not essential to its disposition. Therefore, the Federal Court has no jurisdiction to hear the claim against Mr. Kegler.
Furthermore, I am satisfied that the case of Rice, supra, is on all fours with the present case. In the case of Rice, supra, Mr. Justice Pinard, when faced with a similar situation as the case at bar, states [at page 3 (QL)]:
As this case concerns an accident and damage caused by an automobile within the meaning of s. 1 of the Automobile Insurance Act, [R.S.Q. 1977, c. A-25] the victim-plaintiff in that accident loses all recourse against the Crown, whose employees were involved here, as a consequence of the combined effect of ss. 5 and 83.57 of that Act, s. 10 of the Act respecting the liability of the Crown and proceedings by or against the Crown [R.S.C. 1985, c. C-50, as amended.] and art. 1056d of the Civil Code of Lower Canada (see also the text by Dussault and Borgeat, Traité de droit administratif, tome III, 2d ed., pp. 867-868).
As also the plaintiff's constitutional rights are not in any way affected in the case at bar, the application must be allowed and the statement of claim struck out with costs against the plaintiff.
The only differences from the Rice case and the case at bar are the references to the provincial legislation. Section 10 of the CLPA is equally applicable and which section clearly states no proceedings lie against the Crown pursuant to paragraph 3(a) of the CLPA in the circumstances of this case.
CONCLUSION
I am satisfied that section 102 and subsection 103(2) of the AAIA prohibit the plaintiff, Bert Moxham, from proceeding in the Federal Court. Furthermore, I am satisfied that the Federal Court has no jurisdiction to hear the claim against Mr. Kegler on the ground that there is no existing and applicable federal law to support the claim against him.
The action of the plaintiff is dismissed with costs which I fix at the sum of $500.