A-823-77
AGIP S.p.A. (Applicant)
v.
Atomic Energy Control Board, Minister of
Energy, Mines and Resources, Minister of Indus
try, Trade and Commerce, Secretary of State for
External Affairs and Madawaska Mines Limited
(Respondents)
Court of Appeal, Jackett C.J., Le Dain J. and
MacKay D.J.—Toronto, April 20; Ottawa, April
25, 1978.
Practice — In application to quash this and another
application, motion made objecting to Judge's sitting —
Applicant argued that paragraph in reasons for judgment
rendered by Judge in motion brought by applicant in the s. 28
application indicated that the Judge had decided that the
matter did not fall within s. 28 — Whether or not any
disqualification or legal objection to Judge's sitting — Federal
Court Rules 324, 1100 — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 28.
Before argument of the motions to quash this and another
section 28 application, counsel for the applicant with the leave
of the Court, objected to the Chief Justice's sitting, by way of a
motion to the Court. It was argued that, in reasons for judg
ment delivered by the Chief Justice upon a motion brought on
applicant's behalf in the section 28 application, there might be
those who would read a particular paragraph as indicating that
the Chief Justice had already formed a view that the applica
tion did not fall within section 28. The issue is whether there is
any disqualification or legal objection to relieve the Chief
Justice of the duty to continue sitting and acting as part of the
Division of the Court designated to deal with these motions to
quash.
Held, the motion making the objection is dismissed. Where
the Court recognizes what appears to be a real question as to its
jurisdiction that should be raised at an early stage, the appro
priate action would appear to be to have all interested parties
given an opportunity to be heard on the matter under Rule
1100(2). Where, however, the Court recognizes a substantial
possibility of such a question on the material that is before it at
a preliminary stage, but recognizes that that possibility might
disappear in the light of other material that may be available to
the parties but is not before the Court, it is more appropriate to
suggest to the parties of the advisability of having the matter
settled by a Rule 1100(1) application. Such a suggestion could
be made orally at a hearing of an interlocutory application
without doubt as to propriety. Where the interlocutory applica
tion is in writing under Rule 324, to include such a suggestion
in the reasons for judgment comes to the same thing.
Nord-Deutsche Versicherungs Gessellschaft v. The Queen
[1968] 1 Ex.C.R. 443, referred to.
APPLICATION.
COUNSEL:
W. L. N. Somerville, Q.C., and B. Keith for
applicant.
W. P. Elcock, P. Evraire and G. W. Ainslie,
Q.C., for respondents other than Madawaska
Mines Ltd.
R. L. Falby for Madawaska Mines Ltd.
SOLICITORS:
Borden & Elliot, Toronto, for applicant.
Deputy Attorney General of Canada for
respondents other than Madawaska Mines
Ltd.
Day, Wilson, Campbell, Toronto, for Mada-
waska. Mines Ltd.
The following are the reasons for judgment on
the motion rendered in English by
JACKETT C.J.: On April 18, 1978, a letter
addressed to me, as Chief Justice of this Court,
was delivered to my chambers in Toronto. The
letter related, to this and another section 28
application, was signed by W. L. N. Somerville,
Esq., Q.C., and read as follows:
We have just received our copies of the Motions brought by
the Deputy Attorney General of Canada to quash both Section
28 originating applications brought in the captioned proceed
ings.
As a result of enquiries made, I am informed you are sitting
in Toronto as a member of the Court's appellate panel.
I fully realize that you may intend not to sit as a member of
the Court hearing the Motions to quash.
Against the possibility that you are intending to sit as one
member of the Court hearing these Motions, I consider it an
obligatory courtesy of counsel to inform you in advance that
respectfully I would object to your sitting in judgment on these
Motions.
Believe me, I am reluctant to communicate my position to
you. However, in the Reasons for judgment dated 15th Febru-
ary, 1978, which you delivered upon a Motion brought on the
applicant's behalf in the section 28 application on Court File
Number A-823-77, at page 7 you stated in part as follows:
While I do not pretend to understand what the issues are
in respect of which the applicant seeks to bring evidence, I
must say the submissions in support thereof raise a question
in my mind as to whether there is here any decision or order
within section 28 and I raise for the consideration of the
parties whether there should not be a motion to quash so as
to have that question settled before the matter becomes any
further involved in proceedings that may not be appropriate
to section 28 matters. It may be that it is a matter for an
action for a declaration where the plaintiff is required to set
out the facts upon which he relies and is then entitled to
discovery.
Under these circumstances, I regard it as part of my duty to
my client that I would be obliged to register my objection in
Court before the Motions to quash were proceeded with in the
contingency of your being a member of the Court hearing
them.'
When the motions referred to therein came on
for hearing on April 20, 1978, I was a member of
the Division of the Court to which the motions
were presented and Mr. Somerville was senior
counsel for the applicant (who was the same in
both of the section 28 applications). Before argu
ment of the motions to quash commenced, having
obtained leave of the Court, Mr. Somerville made
his objection to my sitting by way of a motion to
the Court. That motion was dismissed, without
dissent, and I, at that time, indicated that I would
file written reasons for my conclusion that the
motion should be dismissed. These are the reasons
so promised.
The reasons for judgment* of February 15 last
referred to in the above letter are my reasons for
disposing of interlocutory applications in this sec
tion 28 application. Such interlocutory applica
tions were made in writing under Rule 324 of the
Rules of this Court. This fact is worth noting
because the practice of having interlocutory
applications made in writing (rather than being
presented orally in Chambers or Court) is, in my
experience, unusual, and results, at times, in the
necessity of issuing written reasons containing the
explanation of the Court for disposing of the
motion, and other judicial comments arising there
from, that would, in the case of a motion presented
orally, usually be delivered in an informal oral
manner during the hearing of the motion. I attach
the full reasons for judgment in question to illus
trate what I say.
As further background to the matter, I may say
that, as I understand it,
' The letter carries an indication that copies were sent to
counsel for the other parties.
* [1979] 1 F.C. 112.
(a) the Court, being a creature of statute, is a
court of limited jurisdiction, and
(b) the Court has a duty, where it recognizes
any real question as to its jurisdiction, to satisfy
itself that it is not clearly without jurisdiction
before delivering any order or judgment
adversely affecting any person, even though
such question is not raised by any of the
parties. 2
In that connection, it is to be noted that the Court
has, by virtue of section 52(a) of the Federal
Court Act, jurisdiction to quash proceedings in
cases brought before it in which it has no jurisdic
tion and such jurisdiction - may be exercised "at
any time" by virtue of Rule 1100
(i) on application of a party, or
(ii) of its own motion, after giving interested
parties an opportunity to be heard.
In connection with such powers, in my view,
where the Court recognizes a serious question as to
its jurisdiction at an early stage of a matter that
shows promise of giving rise to protracted or
expensive preliminary proceedings, it should take
steps to have that question settled at an early stage
so as to avoid, if it should turn out that the Court
has no jurisdiction,
(a) unnecessary substantial expense to the par
ties and the public,
(b) delays in the litigants taking proceedings
that are available to them for the enforcement
of their rights, and
(c) delays in the disposition by the Court of
matters with which it does have a duty to deal.
(Indeed, where the Court recognizes such a ques
tion when it would, otherwise, make an interlocu-
2 Compare Westminster Bank Limited v. Edwards [1942]
A.C. 529, at page 533. It has always been my understanding of
the practice of the Supreme Court of Canada that it declines to
hear appeals that are not within its statutory jurisdiction and
that it raises such a question of its own motion when that is
necessary. See, for example, Griffith v. Harwood (1900) 30
S.C.R. 315, Price Brothers & Co. v. Tanguay (1909) 42 S.C.R.
133, and Canadian Cablesystems (Ontario) Limited v. Con
sumers Association of Canada [1977] 2 S.C.R. 740, where
similar questions were raised by the Court. Compare Coca-
Cola Company of Canada Limited v. Mathews [1944] S.C.R.
385.
tory order adversely affecting the person to whom
the order is directed, it is, in my view, its duty to
satisfy itself that the matter is within its jurisdic
tion before making the order.)' Where the Court
recognizes what appears to be a real question as to
its jurisdiction that should be raised at an early
stage, the appropriate action would appear to be to
have all interested parties given an opportunity to
be heard on the matter under Rule 1100(2).
Where, however, the Court recognizes a substan
tial possibility of such a question on the material
that is before it at a preliminary stage, but recog
nizes that that possibility may disappear in the
light of other material that may be available to the
parties but is not before the Court, as it seems to
me, it is more appropriate to suggest to the parties
consideration of the advisability of having the
matter settled by a Rule 1100(1) application. If
the parties were before me on an interlocutory
application, I should make such a suggestion orally
without doubt as to the propriety of so doing. In
my view, when the interlocutory application is in
writing under Rule 324, to include such a sugges
tion in the reasons for judgment comes to the same
thing.
I should also add, while I am discussing this
matter in a general way, that determining a real
question as to whether the Court has jurisdiction
at an early stage in a section 28 application is of
particular importance having regard to
(a) the relative novelty of this statutory remedy
and the importance of having its limits deter
mined authoritatively as soon as possible to
avoid it operating as a trap for unwary litigants,
and
(b) the very important duty imposed on the
Court by section 28(5) to determine matters
under section 28(1) "without delay and in a
summary way".
3 A possible example is the order sought by the applicant, by
a contemporaneous notice of motion, for what is, in effect,
discovery of documents in the possession of the Atomic Energy
Control Board and certain Ministers of the Crown.
Dealing specifically with the paragraph from my
reasons that is quoted in the above letter, as I read
the reasons as a whole (I do not pretend to more
than the vaguest recollection of the occasion), it
was a matter that came before me by way of an
application for interlocutory orders in section 28
matters of a nature that, in my experience, was
novel. Furthermore, while I felt constrained to
dismiss the application, it seemed probable that
there would be further applications for interlocuto
ry orders of a character that had not previously
been necessary. If, assuming jurisdiction, the
Court had power to make such orders, it would be
its duty to do so in an appropriate case. It did,
however, appear to be a case where, if there was a
real question of the Court's jurisdiction, that
should be decided before any such orders were
made. Whether or not there was a real question of
jurisdiction depended on material not available to
the Court but presumably available to the parties.
Hence my suggestion that counsel should consider
whether there should be a Rule 1100(1) applica
tion.
As I understood Mr. Somerville in oral argu
ment, he suggested that there might be those who
would read the paragraph of my reasons in ques
tion as indicating that I had already formed a view
that the application did not fall within section 28.
In my view, what I said is not open to that
interpretation. 4 I have now no recollection of
having formed any view on the matter and a
reading of my reasons indicates to me that I did
not.
In these circumstances, I was not able to detect
any disqualification or other legal objection or
excuse that would relieve me of the duty to contin
ue sitting and acting as part of the Division of the
Court designated to deal with the matters coming
on for hearing in Toronto on April 20. While I am
° In any event, in my view, previous declarations on a ques
tion of law, when they have arisen in the course of a judge's
work, do not excuse him from sitting when the same question
arises again. Compare Nord-Deutsche Versicherungs Gessell-
schaft v. The Queen [1968] 1 Ex.C.R. 443, and the cases
referred to therein. See, also, the same reference at page (viii).
My recollection is that what was dismissed by the Supreme
Court of Canada in that case was an application for leave—not
an appeal.
not, any more than any other judge, happy when
sitting after an objection has been made to my
doing so, I was of the view that an unfounded
objection did not excuse me from performing my
duty. I, therefore, came to the conclusion that the
motion making the objection should be dismissed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.