T-1708-84
Joen Pauli Rasmussen and S/LF Bordoyarvik
(Plaintiffs)
v.
Herb Breau, Minister of Fisheries and Oceans,
Canada (First Defendant)
and
The Queen (Second Defendant)
and
Canadian Saltfish Corporation (Third Defendant)
Trial Division, Strayer J.—St. John's, Newfound-
land, February 13; Ottawa, February 25, 1985.
Jurisdiction — Federal Court — Trial Division — Jurisdic
tion in Trial Division to hear case against Canadian Saltfish
Corporation as latter, being Crown agent, to be considered
Crown for purposes of Federal Court Act s. 17(1) and (2) —
As Corporation also to be considered Crown for purposes of
Crown Liability Act, said Act constituting applicable "law of
Canada" within Constitution Act s. 101, thereby meeting
jurisdictional requirement Court administer "laws of Canada"
— Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s.
17(1),(2),(4)(b) — Saltfish Act, R.S.C. 1970 (1st Supp.), c. 37,
s. 14 — Interpretation Act, R.S.C. 1970, c. I-23, s. 16 —
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (R.S.C. 1970,
Appendix II, No. 51 (as am. by Canada Act 1982, 1982, c. 11
(U.K.), Schedule to the Constitution Act, 1982, Item 1), s. 101
— Crown Liability Act, R.S.C. 1970, c. C-38, ss. 2, 3(1)(a) —
Coastal Fisheries Protection Act, R.S.C. 1970, c. C-21.
Believing the plaintiff, Rasmussen, to be fishing in Canadian
waters without authorization, Canadian Fisheries officers
seized the plaintiff's cargo of saltfish and sold it to the defen
dant Canadian Saltfish Corporation. When the charge against
the plaintiff was dismissed, the latter sought the return of the
fish or their value. He was paid the amount for which the fish
was sold to the Corporation. He now sues for damages for the
tort of conversion, claiming the difference between the amount
paid to him and the amount he alleges the fish would have been
worth had he been able to sell it himself.
The Corporation applies for leave to enter a conditional
appearance and to be struck out as a defendant. It argues that
it is not suable in the Federal Court, pleading section 14 of the
Saltfish Act, and further that there are no "laws of Canada"
involved as required by section 101 of the Constitution Act,
1867.
Held, the application to strike out the Corporation as a party
should be dismissed.
The jurisdiction given to provincial superior courts by subsec
tion 14(4) of the Saltfish Act with respect to actions against
the Corporation is concurrent with any jurisdiction the Federal
Court may have. The Corporation, as an agent of the Crown,
cannot come within paragraph 17(4)(b) of the Federal Court
Act which refers to officers or servants of the Crown. However,
given its direct relationship to the Crown, it can be considered
to be the Crown itself for the purposes of subsections 17(1) and
(2) of the Act, which pertain to claims against the Crown itself.
This would be in accordance with the fact that agents of the
Crown are regarded as the Crown for the purposes of achieving
Crown immunity under section 16 of the Interpretation Act.
The defendant's second argument is based on the constitu
tional principle that this Court can only administer the "laws of
Canada". The case law holding that no relevant liability law
had been adopted is distinguishable. The Corporation can be
regarded as the Crown for the purposes of the Crown Liability
Act for the same reason it can be so regarded for the purposes
of the Federal Court Act. T his provides the required "law of
Canada" and establishes the vicarious liability of agents of the
Crown for the torts of their servants. In any event, the Crown
would be vicariously liable for the Corporation's torts since
section 2 of the Act says that "servant includes agent".
CASES JUDICIALLY CONSIDERED
APPLIED:
Canadian Broadcasting Corporation v. Attorney-General
for Ontario, [1959] S.C.R. 188; Formea Chemicals Lim
ited v. Polymer Corporation Limited, [1968] S.C.R. 754;
R. v. Eldorado Nuclear Ltd., [ 1983] 2 S.C.R. 551.
DISTINGUISHED:
Lees v. The Queen, [1974] 1 F.C. 605 (T.D.); 46 D.L.R.
(3d) 603; Lubicon Lake Band (The) v. R., [1981] 2 F.C.
317; (1980), 117 D.L.R. (3d) 247 (T.D.); Fiducie Prêt et
Revenu v. Canada Mortgage and Housing Corporation,
judgment dated November 28, 1984, Federal Court, Trial
Division, T-654-84, not yet reported; Stephens' Estate v.
Minister of National Revenue, Wilkie, Morrison, Smith,
Statham (Deputy Sheriff County of Oxford), Constable
Ross and Davidson (1982), 1 N.R. 620 (F.C.A.); Pacif
ic Western Airlines Ltd. v. R., [1980] 1 F.C. 86; (1979),
105 D.L.R. (3d) 45 (C.A.); Agrex S.A. v. Can. Dairy
Comm. (1984), 24 B.L.R. 206 (F.C.T.D.).
REFERRED TO:
McNamara Construction (Western) Ltd. et al. v. The
Queen, [1977] 2 S.C.R. 654; 75 D.L.R. (3d) 273.
COUNSEL:
John R. Sinnott for plaintiffs.
Allison R. Pringle for first and second
defendants.
Ian F. Kelly for third defendant.
SOLICITORS:
Lewis, Sinnott & Heneghan, St. John's, New-
foundland, for plaintiffs.
Deputy Attorney General of Canada for first
and second defendants.
Curtis, Dawe, Russell, Bonnell, Winsor &
Stokes, St. John's, Newfoundland, for third
defendant.
The following are the reasons for order ren
dered in English by
STRAYER J.: This was an application by the
defendant Canadian Saltfish Corporation for leave
to enter a conditional appearance, and to be struck
out as a defendant. The two matters were heard
together.
The plaintiff, a resident of the Faroe Islands,
was fishing in Canadian fisheries waters on
November 5, 1982, when his boat was boarded by
Canadian Fisheries officers and ordered to St.
John's, Newfoundland. He was subsequently
charged under the Coastal Fisheries Protection
Act [R.S.C. 1970, c. C-21] with fishing without
authorization. The Fisheries officers off-loaded his
cargo of saltfish and sold it to the defendant
Canadian Saltfish Corporation, a federal Crown
corporation, for $51,394.57.
On March 22, 1984, the charge against the
plaintiff was dismissed. He then sought the return
of the fish or their value. He was paid $51,394.57,
the amount received by Fisheries from the Canadi-
an Saltfish Corporation. He now sues for damages
for the tort of conversion, claiming the difference
between the amount paid to him and the amount
he alleges the fish would have been worth had he
been able to take them to the Faroes.
The defendant Corporation applies to be struck
out as a party on the grounds that this Court has
no jurisdiction over it. It contends that by its
legislation, the Saltfish Act, R.S.C. 1970 (1st
Supp.), c. 37, s. 14, it is not suable in the Federal
Court, and further that there are no "laws of
Canada" involved as required by section 101 of the
Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.)
[R.S.C. 1970, Appendix II, No. 5] (as am. by
Canada Act 1982, 1982, c. 11 (U.K.), Schedule to
the Constitution Act, 1982, Item 1)]. The section
of its Act invoked by the Corporation provides as
follows:
14. (1) The Corporation is for all purposes of this Act an
agent of Her Majesty and its powers under this Act may be
exercised only as an agent of Her Majesty.
(2) The Corporation may, on behalf of Her Majesty, enter
into contracts in the name of Her Majesty or in the name of the
Corporation.
(3) Property acquired by the Corporation is the property of
Her Majesty and title thereto may be vested in the name of Her
Majesty or in the name of the Corporation.
(4) Actions, suits or other legal proceedings in respect of any
right or obligation acquired or incurred by the Corporation on
behalf of Her Majesty, whether in its name or in the name of
Her Majesty, may be brought or taken by or against the
Corporation in the name of the Corporation in any court that
would have jurisdiction if the Corporation were not an agent of
Her Majesty.
Subsection 14(4), in giving jurisdiction to pro
vincial superior courts with respect to actions
against the Canadian Saltfish Corporation is not
necessarily denying such jurisdiction to the Feder
al Court. The jurisdiction of the provincial courts
is concurrent with any jurisdiction the Federal
Court may have: see Lees v. The Queen, [1974] 1
F.C. 605 (T.D.), at pages 608-609; 46 D.L.R. (3d)
603, at page 607. It remains to be seen, then,
whether jurisdiction has been granted to the Fed
eral Court to entertain actions against an agent of
the Crown, as this Corporation is so defined in
section 14 of its Act. There are several cases in this
Court holding that such agents cannot come within
paragraph 17(4)(b) of the Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, which gives the
Trial Division concurrent jurisdiction over relief
sought against an "officer or servant of the
Crown": see e.g. Lees case, supra; Lubicon Lake
Band (The) v. R., [1981] 2 F.C. 317; (1980), 117
D.L.R. (3d) 247 (T.D.); Fiducie Prêt et Revenu v.
Canada Mortgage and Housing Corporation
(judgment dated November 28, 1984, Federal
Court, Trial Division, T-654-84, not yet reported).
I think, however, that it is worthy of consideration
as to whether an agent which is put in such a
direct relationship to the Crown, as is the Corpora
tion here in question by section 14 of its Act,
should be considered to be the Crown itself and
thus within the jurisdiction of the Trial Division by
subsections 17(1) and (2) of the Federal Court
Act conferring general jurisdiction "where relief is
claimed against the Crown". I do not think the
decided cases in this Division have expressly
rejected that possibility.
It is obvious that agents of the Crown in right of
Canada frequently assert, successfully, their iden
tity with the Crown in order to claim immunity
from liability under federal laws on the grounds
that like the Crown they are entitled to the benefit
of section 16 of the Interpretation Act, R.S.C.
1970, c. I-23 which provides that no statute is
binding on Her Majesty except only as therein
mentioned or referred to. See, e.g. Canadian
Broadcasting Corporation v. Attorney-General for
Ontario, [1959] S.C.R. 188; Formea Chemicals
Limited v. Polymer Corporation Limited, [1968]
S.C.R. 754; R. v. Eldorado Nuclear Ltd., [1983] 2
S.C.R. 551. These cases have established that a
reference in a federal statute to the Crown should
be taken to include a Crown agency. In the
Eldorado case, the two corporations were each by
statute an agent of the Crown "for all its pur
poses". The Supreme Court at page 567 held this
to be the equivalent of the language of the Broad
casting Act [R.S.C. 1970, c. B-11] which makes
the Canadian Broadcasting Corporation an agent
of the Crown "for all purposes of this Act", the
same language which is employed in subsection
14(1) of the Saltfish Act. The Court held that the
two corporations were entitled to the benefit of the
immunity afforded by section 16 when acting
within the scope of Crown purposes.
If corporations with such statutory mandates as
agents of the Crown are to be regarded as the
Crown for the purposes of achieving Crown
immunity under section 16 of the Interpretation
Act, I can think of no reason why they should not
be regarded as the Crown for the purposes of
subsections 17(1) and (2) of the Federal Court
Act.
In conclusion on the first ground advanced in
support of this application, I therefore find that
the Federal Court has been given jurisdiction to
hear claims against an agent of the Crown such as
the Canadian Saltfish Corporation.
As to the second ground, it is based on the
constitutional principle that this Court can only
administer the "laws of Canda". In some cases it
has been held that Parliament had adopted no
relevant law as to the liability there of servants or
agents of the Crown in right of Canada: see Ste-
phens' Estate v. Minister of National Revenue,
Wilkie, Morrison, Smith, Statham (Deputy She
riff County of Oxford), Constable Ross and
Davidson (1982), 40 N.R. 620 (F.C.A.); Pacific
Western Airlines Ltd. v. R., [1980] 1 F.C. 86;
(1979), 105 D.L.R. (3d) 45 (C.A.); Agrex S.A. v.
Can. Dairy Comm. (1984), 24 B.L.R. 206
(F.C.T.D.); and Fiducie Prêt et Revenu case,
supra. It should be noted, however, that the two
cited decisions of the Federal Court of Appeal
involved attempts to implead individual servants of
the Crown in the Federal Court, not corporate
bodies whose whole existence was limited to the
role of "agent of Her Majesty". They did not
purport to deal with the type of defendant in
question in the present case. The Agrex and Fidu-
cie Prêt et Revenu cases, while involving a statu
tory agent of Her Majesty, involved actions in
contract. The present case is an action for the tort
of conversion.
I am satisfied that, for the same reasons as I
held above that a statutory agent such as the
Canadian Saltfish Corporation should be regarded
as the Crown for the purposes of subsections 17(1)
and (2) of the Federal Court Act, it should also be
regarded as the Crown for the purposes of section
3 of the Crown Liability Act, R.S.C. 1970, c. C-38
which provides:
3. (1) The Crown is liable in tort for the damages for which,
if it were a private person of full age and capacity, it would be
liable
(a) in respect of a tort committed by a servant of the
Crown....
Just as this provides the "law of Canada" upon
which the myriad of tort and delict claims against
the Crown are heard in this Court, so also does it
establish the vicarious liability of agents of the
Crown for the torts of their servants. As recog
nized in McNamara Construction (Western) Ltd.
et al. v. The Queen, [1977] 2 S.C.R. 654, at pages
662-663; 75 D.L.R. (3d) 273, at pages 279-280,
the regulation of liability of the Crown in right of
Canada is a matter for federal law. As Crown
corporations partake of Crown immunity except to
the extent it is modified by statute, the definition
of their tort liability—through adoption by refer
ence of provincial laws as has been done in para
graph 3(1)(a) of the Crown Liability Act—is
clearly within the purview of Parliament.
Any other conclusion would lead to the anomaly
that while a litigant may and must come to this
Court to sue the Crown in a case such as this, he
cannot join as a defendant an emanation of the
Crown distinguishable from the government itself
only by the statutory label of "agent". The Crown
is in any event vicariously liable for the Corpora
tion's torts. This flows from section 2 of the Crown
Liability Act which says that in that Act "servant
includes agent" and from the provisions of para
graph 3(1)(a) making the Crown vicariously liable
for the torts of its "servant". But to the extent that
there may be procedural advantages in having the
Corporation itself as a party to the action, these
would otherwise be denied the plaintiff if the
Corporation's arguments here were to prevail.
ORDER
The application to strike out the Canadian Salt-
fish Corporation as a party is therefore dismissed
with costs.
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.