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A-263-74
Union Oil Company of Canada Limited (Appellant)
v.
The Queen in right of Canada (Respondent) (First Defendant)
and
The Queen in right of the Province of British Columbia, and as owner of the ships of the British Columbia Ferry Fleet (Respondent) (Second Defendant)
Court of Appeal, Thurlow and Urie JJ. and Smith D.J.—Vancouver, June 3 and 4, 1975.
Jurisdiction—Excise tax on fuel—Vendor suing Crown in right of Canada to recover tax—Vendor suing Crown in right of British Columbia to recover payment of tax due from purchaser—Exemption claimed by Provincial Crown—No jurisdiction over action against Provincial Crown—Excise Tax Act, R.S.C. 1970, c. E-13, s. 70(1)—Interpretation Act, R.S.C. 1970, c. I-23, s. 16—Federal Court Act, ss. 17, 19, 22.
Plaintiff sold fuel to the Provincial Crown of British Columbia, pursuant to purchase orders "declaring" the Provin cial Crown exempt under section 44 of the Excise Tax Act. Plaintiff did not include the tax in its selling price, but on the insistence of the Crown in right of Canada, paid tax and penalty to the latter. Plaintiff sued for recovery, and the Trial Division, on a motion to strike the Provincial Crown as defend ant, held that there was no jurisdiction over it under the Federal Court Act. Plaintiff appealed.
Held, dismissing the appeal, the Federal Court is not author ized by any statute to entertain a proceeding against the Crown in right of a province. The Federal Court Act was not intended to abrogate the traditional immunity of the Crown in right of a province.
In re Silver Brothers Limited [ 1932] A.C. 514, applied.
APPEAL. COUNSEL:
R. W. V. Dickerson for appellant.
G. O. Eggertson for respondent, the Queen in right of Canada.
H. L. Henderson and N. Prelypchan for respondent, the Queen in right of the Province of British Columbia.
SOLICITORS:
Farris, Vaughan, Wills and Murphy, Vancou- ver, for appellant.
Deputy Attorney General of Canada for respondent, the Queen in right of Canada. Harman and Co., Victoria, for respondent, the Queen in right of the Province of British Columbia.
The following are the reasons for judgment of the Court delivered orally in English by
THURLOW J.: We have decided not to call on counsel for the respondents. At the same time our taking this course should not be interpreted as reflecting any disrespect for the very able and comprehensive argument addressed to us by Mr. Dickerson.
We do not necessarily adopt the reasons of the learned Trial Judge and in particular we do not adopt his view that fraud or deceit are necessary to a claim founded on subsection 70(1) of the Excise Tax Act. But we are not persuaded that he erred in striking out the claim against the Crown in right of the Province of British Columbia.
The jurisdiction of the Federal Court is entirely statutory and, accepting that it lies within the powers of the Parliament of Canada, when legis lating in a field within its competence, to give the Federal Court jurisdiction to implead the Crown in right of a province, we do not think any of the statutory provisions to which we were referred, or any others of which we are aware, authorize the Court to entertain a proceeding at the suit of a subject against the Crown in right of a province.
The provisions of the Federal Court Act confer ring jurisdiction on the Court by reference to subject matter are, without doubt, broadly expressed but we think that section 16 of the Interpretation Act, though somewhat reworded since the judgment of the Privy Council in In re Silver Brothers Limited [1932] A.C. 514, and the interpretation put upon that provision, as it then was, by that judgment, coupled with the specific
[1974] 2 F.C. 452. _
definition and references in the Federal Court Act to the Crown in right of Canada are sufficient to show that the traditional immunity of the Crown in right of the provinces from suit in its courts was not intended to be abrogated by the general descriptions of subject matter of jurisdiction in the Federal Court Act.
It should not be taken that we are n'a sympa thetic to the unfortunate position in which the appellant finds itself but we are of the opinion that the Court is without jurisdiction to entertain the claim against the Crown in right of the Province of British Columbia and that the appeal accordingly fails and must be dismissed.
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