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T-2316-78
Thomas W. Wilcox (Plaintiff)
v.
Canadian Broadcasting Corporation (Defendant)
Trial Division, Thurlow A.C.J.—Halifax, April 27; Ottawa, May 17, 1979.
Jurisdiction — Prerogative writs — Declaration — Public Service — Pensions — Contract of employment — Plaintiff claims that arrangements be made for transfer of accumulated pensionable service to CBC pension plan as term or condition of contract and seeking declaration that he is entitled to transfer that pensionable service — Claim for damages also included — Whether or not claim for damages enforceable in this Court — Whether or not the Court has jurisdiction under s. 18 to issue declaration — Whether or not defendant a 'federal board, commission or other tribunal" — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 2, 18 — Broadcasting Act, R.S.C. 1970, c. B-11, ss. 38(3), 40(1).
Canada Metal Co. Ltd. v. Canadian Broadcasting Corp. (No. 2) (1975) 65 D.L.R. (3d) 231, agreed with.
APPLICATION. COUNSEL:
A. L. Caldwell, Q.C. and M. H. Robertson for
plaintiff.
A. R. Pringle for defendant.
SOLICITORS:
Walker, Dunlop, Halifax, for plaintiff.
Deputy Attorney General of Canada for defendant.
The following are the reasons for judgment rendered in English by
THURLOW A.C.J.: In this action the plaintiff, an employee of the defendant for the past fifteen years, seeks a declaration that, for the purpose of calculating his pensionable service with the defendant, he is entitled to count some seventeen years of pensionable service which he had accumulated before leaving the Royal Canadian Mounted Police to take up his employment with the defendant.
The claim is based on the contract of employ ment. The plaintiff's case is that it was a term or
condition of the contract that arrangements were to be made by the defendant for the transfer of his accumulated pensionable service to the CBC pen sion plan.
As pleaded, the claim included a claim for damages for alleged breach of contract by failing to arrange the transfer but this aspect of the claim was disclaimed by counsel at the trial.
The defence, which was pleaded by the Deputy Attorney General as if the action were an action against the Crown, did not raise the question of the jurisdiction of the Court to entertain the action. However, at the request of the Court, the matter was discussed by counsel in the course of argument. The plaintiff's position was that the defendant is a "federal board, commission or other tribunal" within the meaning of that expression, as defined in section 2 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, and that the Court has exclusive jurisdiction under section 18 to grant the declaratory relief which the plaintiff seeks. No reliance was placed on any other section of the Act.
The position of counsel for the defendant was that he had presumed that the action was one for damages and that, on that basis, he had no serious objection to the jurisdiction but that he was not prepared to concede that there was jurisdiction under section 18 or that the defendant was a "federal board, commission or other tribunal" within the meaning of section 2.
In view of the position taken by counsel for the plaintiff as to the nature of the action, it is un necessary to deal with what the situation would be if the claim were one for damages. But even if damages, were claimed, the claim for them would not, as I see it, be enforceable in this Court. The Crown may be sued in this Court for breach of its contract whether made on its behalf by its Minis ters or officers or by an agent, but this action is not brought against the Crown and there is not so much as an allegation that the plaintiffs contract of employment was a contract with the Crown. Under subsection 40(1) of the Broadcasting Act, R.S.C. 1970, c. B-11, the defendant is, except as provided in subsection 38(3), an agent of the
Crown for all purposes of the Act and exercises its powers only as an agent of the Crown. But it appears to me that the effect of the exception of subsection 38(3) which provides that employees employed under subsection 38(2) are not employees of the Crown, that the plaintiff's con tract of employment is a contract with the defend ant on its own behalf and not on behalf of the Crown.
In support of his submission that the Court has jurisdiction under section 18 of the Federal Court Act, counsel for the plaintiff relied principally on the judgment of the Ontario Court of Appeal in the City of Hamilton v. Hamilton Harbour Commissioners'. He conceded that the judgment of the same Court, though differently constituted, in Canada Metal Co. Ltd. v. Canadian Broadcast ing Corp. (No. 2) 2 is against his position but submitted that the comments of the Court on the point in that case were obiter dicta.
In the latter case, the Hamilton case was referred to and distinguished in the following pas sage from the judgment of MacKinnon J.A. (as he then was) at pages 234-235:
Mr. Laskin argued that s. 18 of the Federal Court Act, 1970-71-72 (Can.), c. I [see now R.S.C. 1970, c. 10, (2nd Supp.)], clearly grants to the Trial Division of the Federal Court the exclusive jurisdiction "to issue an injunction ... against any federal board, commission or tribunal". He then turned to the definition of federal board, commission or other tribunal under s. 2 of the Federal Court Act, which section defines "federal board, commission or other tribunal" as meaning:
... any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of the Parliament of Canada, 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 British North America Act, 1867;
He argued that the Canadian Broadcasting Corporation is a body which exercises powers conferred by an Act of Parliament and, therefore, by virtue of s. 18, only the Federal Court has power to grant an injunction. He relied on the recent decision of this Court in City of Hamilton v. Hamilton Harbour Com'rs, [1972] 3 O.R. 61, 27 D.L.R. (3d) 385. In that case the
' [1972] 3 O.R. 61, (1972) 27 D.L.R. (3d) 385. ' (1975) 65 D.L.R. (3d) 231.
Court, after quoting the above-noted interpretation section, held that the Hamilton Harbour Commissioners were a federal tribunal and accordingly the Supreme Court of Ontario did not have jurisdiction to make the declaratory order requested against the commissioners. The legislation governing the Hamilton Harbour Commissioners makes it clear that they have extensive powers to make administrative orders, such as licensing and regulating other people in the use of the harbour, as well as power to impose penalties upon persons infringing on their governing statute or their by-laws. This, in my view, is completely different from the C.B.C., a corporate entity carry ing on the business of broadcasting in this country with none of the attributes of a federal board, commission or tribunal. Indeed the C.B.C. is itself licensed and regulated by the Canadian Radio-Television Commission, and the argument would have more cogency if it were being made against an attempted assumption of jurisdiction by a provincial superior Court over the C.R.T.C. with relation to an injunction matter. It should be noted further that s. 40(4) of the Broadcasting Act, R.S.C. 1970, c. B- I 1, allows for any legal proceedings to be brought against the C.B.C. in any Court that would have jurisdiction if the corporation were not an agent of Her Majesty.
Notwithstanding the submission of counsel, 1 do not think this reasoning can be regarded as obiter dicta. It appears to me to have been part of the reasoning leading to the Court's conclusion that the injunction granted by the High Court should be upheld. But in any event the reasoning is in point and is persuasive authority for the conclusion that the defendant is, at least in respect of its broadcasting activities, not a federal board, com mission or other tribunal within the meaning of section 2 or to which section 18 applies.
While I see no reason to doubt that the powers referred to in the definition of "federal board, commission or other tribunal" in section 2 are not confined to powers that are required by law to be exercised on a judicial or quasi-judicial basis, it appears to me that the expression "jurisdiction or powers" refers to jurisdiction or powers of a public character in respect of the exercise of which proce dures by prerogative writs or by injunction or declaratory relief would formerly have been appro priate ways of invoking the supervisory authority of the superior courts. 1 do not think it includes the private powers exercisable by an ordinary corpora tion created under a federal statute which are merely incidents of its legal personality or of the business it is authorized to operate. Absurd and very inconvenient results would flow from an inter pretation that it does include such powers and it
does not appear to me that that was intended or that it is necessary to so interpret the expression in the context in which it is used.
It appears to me, as well, that if the powers of the defendant under the Broadcasting Act in respect of the defendant's broadcasting activities are not powers of the kind embraced by the defini tion, there is even less reason to conclude that the power of the defendant to engage employees falls within the meaning of the definition.
I am accordingly of the opinion that the Court does not have jurisdiction under section 18 to entertain the plaintiff's claim and, as the Court has no general common law or equity jurisdiction but has only such jurisdiction to administer federal law as has been conferred on it by statute, there is, as well, no jurisdiction to entertain an ordinary proceeding between subject and subject for the declaratory relief which the plaintiff seeks.
In view of this conclusion, I do not think I should express any view on the merits of the case. Rather, I think the merits should be left to be dealt with by a court that has jurisdiction, unaf fected by any comments by me on the material in evidence.
The action will be dismissed without costs.
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