A-276-85
Canadian Saltfish Corporation (Appellant) (Third
Defendant)
v.
Joen Pauli Rasmussen and S/LF Bordoyarvik
(First Respondents) (Plaintiffs)
and
Herb Breau, Minister of Fisheries and Oceans,
Canada (Second Respondent) (First Defendant)
and
The Queen (Third Respondent) (Second Defen
dant)
INDEXED AS: RASMUSSEN V. BREAD (ECA.)
Court of Appeal, Thurlow C.J., Heald and Mac-
Guigan JJ.-St. John's, May 13; Ottawa, July 3,
1986.
Federal Court jurisdiction - Trial Division - Canadian
Saltfish Corporation - Fisheries officials seizing respondents'
cargo - Corporation purchasing then selling cargo - Failure
to return fish or value thereof - Court without jurisdiction to
entertain claim based on tort of conversion - S. 17 Federal
Court Act authorizing action against Crown eo nomine only,
not against Crown agency - No federal law to be adminis
tered - Neither Crown Liability Act nor Sailfish Act giving
rise to Corporation's liability - Law of province where pur
chase and sale occurred applicable to claim for damages
Appeal allowed - Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, ss. 17(1),(2), 48, 64(1) - Saltfish Act, R.S.C.
1970 (1st Supp.), c. 37, ss. 3, 7, 14 (as am. by S.C. 1984, c. 31,
s. 14), 23 - Coastal Fisheries Protection Act, R.S.C. 1970, c.
C-21, s. 6(9) - Crown Liability Act, S.C. 1952-53, c. 30, ss. 3,
7(1),(2) - Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.)
IR.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 - Financial Administration Act, R.S.C.
1970, c. F-10, ss. 105, 106, 107, 108 (enacted by S.C. 1984, c.
31, s. 11) - An Act to amend the Exchequer Court Act, S.C.
1938, c. 28 - An Act to amend the Petition of Right Act, S.C.
1950-51, c. 33 - An Act to amend "The Supreme and
Exchequer Courts Act," and to make better provision for the
Trial of Claims against the Crown, S.C. 1887, c. 16, s. 16(c).
Crown - Action for damages against statutory corporation
acting as Crown agent - Seizure of fish - Tort of conversion
- Whether jurisdiction in Federal Court - S. 17 of Act
conferring jurisdiction on Court only in proceedings against
Crown eo nomine — Words "cases in which the land, goods or
money ... are in possession of the Crown" not embracing
claim against Corporation — Phrase "arises out of a contract
entered into by or on behalf of the Crown" not extending to
tort claims — Whether Crown Liability Act, s. 7(2) conferring
concurrent jurisdiction on Federal Court not determined in
absence of argument — Crown's liability for alleged tort may
arise under Crown Liability Act but not Corporation's —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 17 —
Crown Liability Act, S.C. 1952-53, c. 30, s. 7(2).
Fisheries — Claim for damages for conversion against
Canadian Sailfish Corporation — Seizure of cargo by Fisher
ies officials and sale to Corporation — Federal Court lacking
jurisdiction, claim under provincial not federal law — Claim
not in tort if based on Coastal Fisheries Protection Act —
Coastal Fisheries Protection Act, R.S.C. 1970, c. C-21, s. 6(9)
— Saltfish Act, R.S.C. 1970 (1st Supp.), c. 37, ss. 3, 7, 14.
Canadian Fisheries officials seized the respondents' cargo of
fish and sold it to the appellant, the Canadian Saltfish Corpora
tion. The appellant failed to return the fish or their value. The
respondents instituted an action against the Corporation based
on the tort of conversion. The Corporation moved for an order
dismissing the action as against it for lack of jurisdiction of the
Court. The Trial Judge dismissed the motion holding that, for
the purposes of subsections 17(1) and (2) of the Federal Court
Act (the "Act"), the Corporation, as agent of the Crown,
should be regarded as being the Crown. Section 17 confers
jurisdiction on the Court where relief is claimed against the
Crown.
Held, the appeal should be allowed.
This case was to be distinguished from Brière v. Canada
Mortgage and Housing Corporation, [1986] 2 F.C. 484 (C.A.)
in that, in the instant case, the tort was allegedly committed by
the Corporation itself and the issue of the latter's vicarious
liability for acts committed by its servants does not arise.
The history of section 17 of the Act doe not support the
respondents' position that this Court has jurisdiction to enter
tain the matter. In Yeats v. Central Mortgage & Housing
Corp., [ 1950] S.C.R. 513 and in Canadian National Railway
Company v. North-West Telephone Company, [1961] S.C.R.
178, the Supreme Court of Canada held that the provisions of
the Exchequer Court Act corresponding to the present section
17 conferred jurisdiction on the Court only in a proceeding
against the Crown eo nomine, not in a proceeding by or against
a statutory corporation acting as an agent of the Crown.
The respondents' contention, that the wording of subsectior
17(2) of the Act is apt language to include its claims,
rejected. The words "cases in which the land, goods or mone}
of any person are in the possession of the Crown" do nog
embrace the claim for the proceeds of sale of the fish in so fai
as the claim is asserted against the Corporation. As for the
phrase "arises out of a contract entered into by or on behalf of
the Crown", that refers only to claims to enforce contractual
rights, not claims based on tort.
Subsection 7(2) of the 1953 Crown Liability Act provided
that the Exchequer Court should have concurrent jurisdiction
with respect to claims which could be pursued in provincial
courts against an agency of the Crown in accordance with an
Act of Parliament that authorizes such proceedings. The ques
tion whether subsection 7(2) confers on this Court concurrent
jurisdiction to entertain the claim against the agency itself or
against the Crown eo nomine could not be determined in the
absence of argument on the issue.
In any event, it was unnecessary to reach a concluded opinion
on that matter since the appeal had to be allowed on the ground
that there is no federal law to be administered against the
appellant for damages for the alleged conversion. The whole
basis for relief is the law of the province in which the alleged
unlawful purchase and sale occurred. The law regarding this
matter was set out in Conseil des Ports Nationaux v. Langelier
et al., [1969] S.C.R. 60 in which it was held that the situation
of an "individual" who is an agent of the Crown was no
different from that of a "corporation" agent of the Crown. As
stated by Martland J., "there was always recourse in the
common law courts in respect of acts done, without legal
justification, by an agent of the Crown, and the Board, on that
principle, is liable if it commits itself [such] an act". While the
Crown's liability for the alleged tort of the appellant may arise
under the Crown Liability Act, that of the appellant will not.
Nor will it arise under section 14 of the Saltfish Act or any
similar provision. The applicable law is that of Newfoundland.
In so far as the claim for the proceeds of sale of the fish can
be based on subsection 6(9) of the Coastal Fisheries Protection
Act, although there appears to be federal law to support the
jurisdiction of the Court, such a claim is not one in tort. It is a
situation in which the property of a person is in the hands of the
Crown and the only jurisdiction of this Court is that conferred
by section 17 of the Federal Court Act which, as it has been
found, does not authorize an action against an agency of the
Crown but only against the Crown eo nomine.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Yeats v. Central Mortgage & Housing Corp., [1950]
S.C.R. 513; Conseil des Ports Nationaux v. Langelier et
al., [1969] S.C.R. 60.
DISTINGUISHED:
Brière v. Canada Mortgage and Housing Corporation,
[1986] 2 F.C. 484 (C.A.).
CONSIDERED:
Mackenzie-Kennedy v. Air Council, [1927] 2 K.B. 517
(C.A.).
REFERRED TO:
Canadian National Railway Company v. North-West
Telephone Company, [1961] S.C.R. 178; National Capi
tal Commission v. Bourque, [1972] F.C. 519 (CA.); The
Queen v. Filion (1895), 24 S.C.R. 482; The King v.
Dubois, [1935] S.C.R. 378; Quebec North Shore Paper
Co. et al. v. Canadian Pacific Ltd. et al., [1977] 2 S.C.R.
1054; McNamara Construction (Western) Ltd. et al. v.
The Queen, [1977] 2 S.C.R. 654.
COUNSEL:
David Sgayias for appellant (third defen
dant), second respondent (first defendant)
and third respondent (second defendant).
John R. Sinnott for first respondents (plain-
tiffs).
SOLICITORS:
Deputy Attorney General of Canada for
appellant (third defendant), second respon
dent (first defendant) and third respondent
(second defendant).
Lewis, Sinnott & Heneghan, St. John's, for
first respondents (plaintiffs).
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: This is an appeal from an order
of the Trial Division [[1985] 2 F.C. 445] which
dismissed the appellant's motion for an order dis
missing the action as against the appellant for lack
of jurisdiction with respect to the claim against it.
The action was brought by the first respondents
against the appellant, the Minister and the Crown.
As both the Minister and the Crown in their
memorandum of argument supported the appel
lant's position and took no separate part at the
hearing it will be convenient for present purposes
to disregard them and refer to the first respondents
as "the respondents".
The claim against the appellant is founded in
tort for unlawful conversion of fish alleged to have
been unlawfully unloaded by Canadian Fisheries
officials from the fishing vessel Bordoyarvik and
purportedly bought by the appellant from the
Crown and subsequently sold to persons unknown,
and for unlawful conversion by the appellant by
failure to return the fish or their value and to
account for all moneys recovered as proceeds of
their sale.
It is of some importance to note that what is
alleged against the appellant, which for present
purposes must be accepted as true, is the commis
sion of a tort by the appellant itself and that on
this allegation no question of vicarious liability of
the appellant for acts of its servants or employees
arises. This feature distinguishes the situation
from that in the case of Brière v. Canada Mort
gage and Housing Corporation, [1986] 2 F.C. 484
(C.A.), in which judgment is being pronounced
today by another panel of the Court.
The first issue in the appeal is whether jurisdic
tion has been conferred on this Court to entertain
such a claim against the appellant.
The appellant is the corporation established by
section 3 of the Saltfish Act.' Its purpose is to
improve the earnings of primary producers of
cured saltfish by curing fish and trading in and
marketing cured fish and the by-products of fish
curing. Under section 7 it has broad powers to buy,
process and sell cured fish and under section 23 it
has, subject to certain limitations, the exclusive
right to trade in and to market cured fish and the
1 R.S.C. 1970 (1st Supp.), c. 37.
by-products of fish curing in interprovincial and
export trade. Section 14 provides that: 2
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.
Plainly this section does nothing to confer on
this Court jurisdiction to entertain an action
against the appellant. It does, however, deprive the
appellant of any right it might otherwise have had
to assert in any court of competent jurisdiction
immunity from suit on the basis of its being or its
having acted as an agent of the Crown. Similar
provisions were held to confer on provincial courts
authority to entertain claims based on contract
against the Crown's statutory agent in Yeats v.
Central Mortgage & Housing Corp. 3
That, however, leaves unresolved the question
whether jurisdiction has anywhere been conferred
on this Court to entertain against the appellant a
claim of the kind asserted in the statement of
claim. The Court is a superior court of record but
it has no general common law or civil law jurisdic
tion. It has only such jurisdiction as has been
2 This section has since been repealed and replaced by a new
section 14 which provides only that the Corporation is for all
purposes of the Act an agent of Her Majesty in right of
Canada. At the same time general provisions applicable to
Crown agency corporations similar in effect to those of the
former section 14 were included in sections 105 to 108 inclusive
of the Financial Administration Act [R.S.C. 1970, c. F-10
(enacted by S.C. 1984, c. 31, s. 11)]. See S.C. 1984, c. 31,s. 14
and Schedule II, item 47.
3 [1950] S.C.R. 513.
specifically conferred on it by statute and even this
is subject to the limits on the authority of Parlia
ment under 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)] to establish additional courts
for the better administration of the laws of
Canada.
The learned Trial Judge based his decision on
subsections 17(1) and (2) of the Federal Court
Act [R.S.C. 1970 (2nd Supp.), c. 10] and on his
view that, because of the right of some corpora
tions which have been similarly established as
agents of the Crown to claim Crown immunity
from suit, such corporations and the appellant
should be regarded as being the Crown for the
purposes of subsections 17(1) and (2) of the Fed
eral Court Act. With respect I do not agree with
that conclusion.
Subsections 17(1) and (2) provide:
17. (1) The Trial Division has original jurisdiction in all
cases where relief is claimed against the Crown and, except
where otherwise provided, the Trial Division has exclusive
original jurisdiction in all such cases.
(2) Without restricting the generality of subsection (I), the
Trial Division has exclusive original jurisdiction, except where
otherwise provided, in all cases in which the land, goods or
money of any person are in the possession of the Crown or in
which the claim arises out of a contract entered into by or on
behalf of the Crown, and in all cases in which there is a claim
against the Crown for injurious affection.
These and other provisions of the Act, though
somewhat changed in` form, continue in the Feder
al Court the jurisdiction formerly exercised by the
Court under the Exchequer Court Act. Under its
provisions the Court had exclusive jurisdiction to
entertain claims against the Crown including
"cases in which the land, goods or money of the
subject are in the possession of the Crown, or in
which the claim arises out of a contract entered
into by or on behalf of the Crown". Such provi
sions have been in the law from the time of the
enactment of chapter 16 of S.C. 1887 [An Act to
amend "The Supreme and Exchequer Courts
•
Act," and to make better provision for the Trial of
Claims against the Crown.]
At that time and indeed until the coming into
force of the Federal Court Act in 1971 proceed
ings invoking the jurisdiction under such provisions
could be brought only by petition of right and until
its abolition in 1951 by S.C. 1950-51, c. 33 [An
Act to amend the Petition of Right Act], the fiat
of the Governor General was required before the
Court could entertain the proceeding. It seems
unlikely that a fiat would ever have been granted
on a petition seeking relief against the Crown and
a Crown corporation agent as well. The Petition of
Right Act did not provide for it. That Act was
repealed by subsection 64(1) of the Federal Court
Act. In its place section 48 authorized the bringing
of proceedings against the Crown by a particular
procedure and by a form of action set out in
Schedule I. Nowhere in the section is there author
ity to join any other party as a defendant in such
an action.
In the Yeats case already referred to and again
in Canadian National Railway Company v.
North-West Telephone Company 4 the Supreme
Court held that the language of the provisions of
the Exchequer Court Act corresponding to subsec
tions 17(1) and (2) of the Federal Court Act
conferred jurisdiction on the Court only in a pro
ceeding against the Crown eo nomine, and not by
or against a statutory corporation acting as an
agent of the Crown. In the Yeats case, on appeal
from the judgment of the Alberta Court of
Appeal, Kerwin J. (as he then was) wrote [at
pages 516-517]:
The Exchequer Court Act, R.S.C. 1927, chapter 34, was
referred to in the reasons for judgment of H.J. Macdonald, J.,
but the only suggested applicable sections are 18 and 19.
Section 18 does not apply as this case is not the "subject of a
suit or action against the Crown" and the meaning of these
words in the early part of the section is not enlarged by the
concluding phrase "or in which the claim arises out of a
contract entered into by or on behalf of the Crown." Section
19, so far as it might have any relevancy, makes provision in
[1961] S.C.R. 178.
respect of "claims against the Crown." Here, the appellants
desire to have decided their claims against the Corporation (not
the Crown) at the same time as their claims against the other
defendants. The provisions of the Central Mortgage and Hous
ing Corporation Act are apt to authorize the Corporation being
sued in the Provincial Court and the judgments below should,
therefore, be set aside and the motion to strike out the Corpora
tion as a party defendant and dismiss the action as against it,
should be dismissed.
The same view was expressed by Jackett C.J. in
National Capital Commission v. Bourque' in ref
erence to subsection 17(3) of the Federal Court
Act. There is thus nothing in the history of section
17 which lends support for the respondents' posi
tion. The jurisprudence is to the contrary.
It appears to me that for the same reason the
respondents' submission that as the claim for the
proceeds of sale of the fish falls within what is
contemplated by the wording, "cases in which the
land, goods or money of any person are in the
possession of the Crown", the Court has jurisdic
tion to entertain it, even if sound in respect of the
claim against the Crown, must fail in so far as it is
asserted against the appellant.
Counsel for the respondents also submitted that,
as what is alleged against the appellant is that it
bought and sold the fish as an agent of the Crown,
the wording of subsection 17(2), "arises out of a
contract entered into by or on behalf of the
Crown", is apt language to embrace the claim. In
my opinion, the wording refers only to claims to
enforce contractual rights and not claims sounding
in tort. Again, in my view, the history of this
provision lends no support to the respondents' sub
mission. The position of the Crown at common
law, as I understand it, was that the Crown was
bound by its contracts, that is to say, bound to
carry out its part of a bargain. That was the
substantive law. But until there was a court
authorized to entertain a subject's claim on such a
contract there was no means of obtaining legal
redress. That gap was filled by the petition of right
procedure. The same applied where the claim was
for property of the subject in the hands of the
Crown. But where the claim was for a tort, not
only was there no court in which the claim could
5 [1972] F.C. 519 (C.A.), at p. 524.
be heard, there was no liability of the Crown. The
tort, if there was one, was that of the perpetrator
and of him alone. He could be sued in any court of
competent jurisdiction and he enjoyed no Crown
immunity because the tort could not be attributed
to the Crown.
This situation was somewhat alleviated by the
passage in 1887 6 of a provision which transferred
to the Exchequer Court certain jurisdiction which
had been vested in the Official Arbitrators in 1870
with respect to claims based on the negligence of
Crown officers or servants while acting within the
scope of their duties or employment for damages
for injuries sustained on a public work. This was
held to have conferred both a right to recover the
damages and jurisdiction in the Court to entertain
the claim. See The Queen v. Filion 7 and The King
v. Dubois. 8 The procedure was by petition of right
and a fiat was still required. The provision was
expanded by chapter 28 of the S.C. 1938 [An Act
to amend the Exchequer Court Act], so as to
render the Crown liable for damages caused by the
negligence of its officers or servants while acting
within the scope of their duties or employment.
That remained the situation with respect to Crown
liability for tort until 1953 when the Crown Lia
bility Act 9 came into effect. The procedure in the
Exchequer Court under that Act continued to be
by petition of right until the coming into force in
1971 of section 48 of the Federal Court Act and
the repeal of the Petition of Right Act.
The Crown Liability Act provided in section 3 of
Part I that the Crown is liable for the tort of its
"servant", an expression which is defined as
including "agent". The effect was to impose on the
6 S.C. 1887, c. 16, s. 16(c).
7 (1895), 24 S.C.R. 482.
8 [1935] S.C.R. 378.
9 S.C. 1952-53, c. 30.
Crown itself liability for the tort. The Act did not
purport to impose liability on the servant or agent
who committed the tort. He was, ex hypothesi,
already liable under the general law of the locality
where the tort occurred. Whether the statute may
also have had the effect of imposing on a corporate
Crown agent liability for a tort committed by its
employee where the employee is himself a servant
of the Crown is a question that is unnecessary to
consider as the tort alleged in this case is that of
the appellant itself.
The Act went on to provide in subsection 7(1)
that the Exchequer Court should have exclusive
jurisdiction to hear and determine claims under
the statute in certain instances and in subsection
7(2) that that Court should have concurrent juris
diction in certain other situations, notably in
respect to claims which could be pursued in pro
vincial courts against an agency of the Crown in
accordance with an Act of Parliament that author
izes such proceedings to be so brought. That the
purport of subsection 7(2) is to confer on the
Federal Court concurrent jurisdiction to hear and
determine the subject-matter of such a claim
seems clear but the subsection was not referred to
by counsel either in their memoranda of argument
or in the course of the hearing and whether it
confers on this Court concurrent jurisdiction to
entertain the claim against the agency itself or
only against the Crown eo nomine appears to me
to be a point that should not be determined in the
absence of argument on the question. It is, how
ever, unnecessary to reach a concluded opinion on
the point as, even assuming that the provision
purports to give this Court jurisdiction to hear and
determine the claim against the agency, in my
opinion this appeal must nevertheless succeed on
the second ground argued, that is to say, that there
is no federal law to be administered on the claim
against the appellant for damages for the alleged
conversion. As the conversion is alleged to be the
act of the appellant itself, it appears to me that the
whole basis for relief against the appellant in
damages for the alleged tort is the law of the
province in which the alleged unlawful purchase
and sale occurred.
In Conseil des Ports Nationaux v. Langelier et
a1. 1 ° the Supreme Court considered the question of
the liability at common law for a tort committed
by an agent of the Crown. Martland J., speaking
for the Court, summarized the position thus [at
pages 71-72]:
After reviewing the authorities cited by counsel, and a
number of other cases, which I do not think it is necessary to
list, my understanding of the position of servants or agents of
the Crown, at common law, in respect of a claim in tort, is this:
First is the proposition that the Crown itself could not be
sued in tort.
Second is the proposition that Crown assets could not be
reached, indirectly, by suing in tort, a department of govern
ment, or an official of the Crown. As to a government depart
ment, there was the added barrier that, not being a legal entity,
it could not be sued.
Third is the proposition that a servant of the Crown cannot
be made liable vicariously for a tort committed by a subordi
nate. The subordinate is not his servant but is, like himself, a
servant of the Crown which, itself, cannot be made liable.
Fourth is the proposition that a servant of the Crown, who
commits a wrong, is personally liable to the person injured.
Furthermore, if the wrongful act is committed by a subordi
nate, at his behest, he is equally liable, not because the subordi
nate is his servant, but because the subordinate's act, in such a
case, is his own act. This is what is said in the passage from
Raleigh v. Goschen, previously cited.
Is the position any different because the agent in this case is
not an individual, but a corporation? I think not, and I agree
with the reasoning of Atkin L.J. in the Mackenzie-Kennedy
case.
Earlier in his reasons Martland J. had cited [at
page 69] the following from the judgment of Atkin
L.J. in the Mackenzie-Kennedy v. Air Council
case [[1927] 2 K.B. 517 (CA.), at pages
532-533]:
If, however, the Air Council were incorporated different con
siderations might apply. The Crown may and does employ as its
servant or servants, an individual, a joint committee or board of
individuals, or a corporation. None can be made liable in a
representative capacity for tort; the individuals may be made
liable in their private capacity, and I see no reason why this
liability should not extend to the juristic person, the corpora
tion, as well as to the individual. It may be true that the
corporation in such a case will have no private assets available
to meet execution, but that may also be true of the individual.
One must also face the difficulty that such! a corporation will
have no servants, for as in the case of individual officials, those
10 [1969] S.C.R. 60.
who serve under it are not its servants, but servants of the
Crown. It is, therefore, only for torts actually committed by it,
or to which it is directly privy, as by giving orders for their
performance, that it can be made liable. But for such a tort
proved, for example, by a minute of an incorporated board
expressly commanding the commission of a tort, in principle, as
it appears to me, an action would lie, however unprofitable such
an action would be.
Martland J. summed up the position as follows
[at pages 74-75]:
But, as already stated, there was always recourse in the
common law courts in respect of acts done, without legal
justification, by an agent of the Crown, and the Board, on that
principle, is liable if it commits itself, or orders or authorizes its
servants to commit, an act done without legal justification.
That, in my opinion, is the law and the only law
on which the appellant can be held liable for the
conversion alleged in the statement of claim. It is
the law of the province of Newfoundland and in no
way federal law. Federal Crown law is not
involved. And while liability of the Crown, for the
alleged tort of the appellant, may arise under the
Crown Liability Act, that of the appellant will not.
Nor will it arise under section 14 of the Sailfish
Act or any like provision. It seems to me to follow
that the Court has no federal law to administer in
respect of the claim against the appellant and that
the Court is without jurisdiction to entertain it.
See Quebec North Shore Paper Co. et al. v.
Canadian Pacific Ltd. et al." and McNamara
Construction (Western) Ltd. et al. v. The Queen. 12
In so far as the claim for the proceeds of sale of
the fish can be based on subsection 6(9) of the
Coastal Fisheries Protection Act," it appears to
me that there is federal law to support the jurisdic
tion of the Court but, in my opinion, such a claim
is not one in tort. It is, as it seems to me, simply a
situation in which property of a person is in the
hands of the Crown and the only jurisdiction of
this Court to entertain a proceeding for its recov-
" [1977] 2 S.C.R. 1054.
12 [ l 977] 2 S.C.R. 654.
13 R.S.C. 1970, c. C-21.
ery is that conferred by section 17 of the Federal
Court Act which, as I have already indicated, does
not authorize an action against an agency of the
Crown but only against the Crown eo nomine.
Accordingly, I am of the opinion that the
motion should have been granted and the action
should have been dismissed as against the
appellant.
Before leaving the matter I should mention a
submission by counsel for the respondents that the
Court should lean towards holding that it has
jurisdiction to entertain the claim because of the
inconvenience to a plaintiff in pursuing his action
in this Court against the Crown and in a provincial
court against the Corporation and because of the
substantial delays already incurred as a result of
the appellant's motion and appeal. It is no doubt
desirable from the point of view of a plaintiff to be
able to bring his action in one court against all
necessary defendants but I have not been persuad
ed that there is either any necessity to sue or any
procedural advantage to be gained by suing the
Crown's agent as well as the Crown in respect of a
subject matter of the kind here in issue. In any
event the convenience or advantage, if any, to be
obtained is not a reason for extending the jurisdic
tion of the Court beyond its statutory limits.
Moreover, in the circumstances of this case, the
delays occasioned by the motion and appeal are in
my view attributable to the misjoinder of the
appellant by the respondents.
I would allow the appeal with costs, set aside the
order of the Trial Division and dismiss the action
as against the appellant with costs.
HEALD J.: I concur.
MACGUIGAN J.: I agree.
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.