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T-340-79
Leslie Tomossy (Plaintiff) v.
James Hammond, the Queen and Selim Shakra (Defendants)
Trial Division, Mahoney J.—Toronto, February 26; Ottawa, March 1, 1979.
Jurisdiction — Crown — Torts — Negligence — Motor vehicle collision involving vehicle owned by the Crown and operated by defendant Hammond — Whether or not action against defendant Hammond should be dismissed for want of jurisdiction — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 17(4)(6) — The British North America Act, 1867, 30 & 31 Via., c. 3, s. 101. [R.S.C. 1970, Appendix III.
APPLICATION. COUNSEL:
John Davis for plaintiff. Paul Evraire for defendants.
SOLICITORS:
Lawson, McGrenere, Wesley, Jarvis & Rose, Toronto, for plaintiff.
Deputy Attorney General of Canada for defendants.
The following are the reasons for order ren dered in English by
MAHONEY J.: This is an action for negligence arising out of a motor vehicle collision involving vehicles owned and operated by the plaintiff and the defendant Shakra and a vehicle owned by Her Majesty the Queen and operated by her servant, the defendant Hammond. Counsel for Her Majes ty and Hammond moves to dismiss the action as against Hammond on the ground that this Court has no jurisdiction to entertain it.
The Federal Court Act' provides:
17....
(4) The Trial Division has concurrent original jurisdiction
' R.S.C. 1970 (2nd Supp.), c. 10.
(b) in proceedings in which relief is sought against any person for anything done or omitted to be done in the performance of his duties as an officer or servant of the Crown.
At first blush that would appear to invest this Court with the necessary jurisdiction. However, the authority of Parliament to vest jurisdiction upon this Court is prescribed by section 101 of The
British North America Act, 1867. 2
101. The Parliament of Canada may, notwithstanding any thing in this Act, from Time to Time provide for the Constitu tion, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any addition al Courts for the better Administration of the Laws of Canada.
In Quebec North Shore Paper Company v. Canadian Pacific Limited, 3 and its earlier report ed but subsequently delivered decision in 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". 5 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. The import of those decisions was extensively can vassed by the Federal Court of Appeal in Associated Metals & Minerals Corporation v. The "Evie W' 6 and it would be an exercise of some leisure on my part either to recite or summarize that analysis.
2 30 & 31 Vict., c. 3 (U.K.).
3 [1977] 2 S.C.R. 1054. ° [1977] 2 S.C.R. 654.
5 [1977] 2 S.C.R. 1054 at 1063.
6 [1978] 2 F.C. 710 at 711 to 716, per Jackett C.J.
Since McNamara, there have been some appar ently inconsistent determinations in this Division. Attridge v. The Queen,' appears to indicate that the Court felt it had jurisdiction to entertain an action against two R.C.M.P. officers in a similar situation to that in which the defendant Hammond finds himself here. It is, however, apparent that the motion to dismiss that action as against certain defendants did not deal with the R.C.M.P. officers but only with defendants who were not Crown servants. Where a motion came before the same Judge which raised the precise issue, an action in tort against a Minister of the Crown personally was dismissed. 8 The same result in a negligence action arising out of a motor vehicle collision was reached by the Associate Chief Justice in Parsons v. The Queen. 9
While it is clearly dicta, the Federal Court of Appeal in one of the several actions entitled Murray v. The Queen, 10 had this to say:
There is another aspect of the matter that was not raised by the parties but, in my view, should be raised by the Court. Having regard to recent decisions [e.g., the McNamara case], it would seem to me that there is an obvious question as to whether the Trial Division has any jurisdiction in respect of the claims in the Statement of Claim other than those against Her Majesty.
There, the action was founded on (1) breach of contract, (2) damages from a civil conspiracy, and (3) defamation, and named as defendants, in addi tion to Her Majesty, a number of individual feder al public servants.
ORDER
The action is dismissed as against the defendant Hammond for want of jurisdiction in this Court to entertain it. The time for Her Majesty to file and serve a statement of defence is extended to the 30th day of March, 1979. The defendant Ham- mond is entitled to his costs of this application if he requests them.
7 (1978) 86 D.L.R. (3d) 543.
8 Matichuk v. The Queen. Unreported decision rendered November 16, 1978. Court No. T-2549-78.
Unreported decision rendered May 3, 1978. Court No. T-463-77.
10 Unreported decision rendered May 11, 1978. Court No. A-639-77.
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