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T-5608-81
The Queen (Plaintiff)
v.
Air Canada (Defendant)
Trial Division, Cattanach J. Toronto, March 2,
1982.
Practice — Motion to strike pleadings — Motion to strike out third party notice — Plaintiff sued defendant under nisi . toms Act as sufferance warehouseman for customs duties on goods released without duties being paid — Defendant seeks to join customs broker as third party, seeking relief over on grounds of negligence in failing to ensure payment of duties or unlawful inducement of defendant to release goods — Third party action therefore based on provincial laws No jurisdic tion in Court under s. 17(4)(a) of Federal Court Act to hear third party action between subject and subject based upon provincial laws although principal action based upon Customs Act, a federal law — Motion allowed — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 17(4)(a) Customs Act, R.S.C. 1970, c. C-40, s. 278(4).
MOTION.
COUNSEL:
No one appearing for plaintiff.
C. B. Black for defendant.
R. Gasparotto for third party.
SOLICITORS:
Deputy Attorney General of Canada for
plaintiff.
Giard,iGagnon, Montreal, for defendant.
Ivey & Dowler, London, for third party.
The following are the reasons for judgment rendered in English by
CATTANACH J.: This is a motion by a third party to strike out the third party notice.
In my view, the matter in issue between the defendant and the third party is one over which this Court has no jurisdiction as being between subject and subject and jurisdiction is not
bestowed on this Court under paragraph 17(4)(a) of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10.
Under the Customs Act, R.S.C. 1970, c. C-40, Her Majesty may recover customs duties as a debt from the importer or the exporter, the customs broker or the sufferance warehouseman. Air Canada operates a sufferance warehouse and released goods without the duties being paid. By virtue of the obligation imposed on Air Canada under subsection 278(4) of the Customs Act, Air Canada may be liable therefor, subject to the defence provided in the subsection.
Her Majesty sued Air Canada. It is the privilege of a plaintiff to decide whom shall be sued as a defendant.
Air Canada seeks to join the customs broker, International Import Customs Brokers Inc., as a third party in order to recover over against the third party in the event of it being held liable in the principal action and so seeks relief from the third party on the grounds of negligence by it in failing to ensure payment of the duties, and induc ing the defendant to release the goods upon modi fied or falsified documents.
Thus the right sought to be enforced in the third party action is a right resulting from negligence or unlawful inducement which, in either instance, is conferred by provincial laws and, in my view, the jurisdiction of this Court is not extended by para graph 17(4)(a) of the Federal Court Act to cover this circumstance as ancillary to the principal action. The actions are separate and distinct, the principal action being based upon a precise federal law, i.e. the Customs Act and the third party action upon provincial laws.
Accordingly, the third party notice is struck out and the third party is entitled to recover its costs from the defendant, Air Canada.
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