A-881-85
Donald Oag (Appellant) (Plaintiff)
v.
The Queen in right of Canada, National Parole
Board, William Outerbridge, Kenneth W. How-
land, Keith Wright, Norman J. Fagnou and
Robert Fenner (Respondents) (Defendants)
INDEXED AS: OAG V. CANADA
Court of Appeal, Thurlow C.J., Heald and Stone
JJ.—Toronto, January 29; Ottawa, February 18,
1987.
Federal Court jurisdiction — Trial Division — Parole —
Mandatory supervision revoked — Action for false arrest and
imprisonment — Appeal from Trial Division decision striking
out statement of claim on ground action not based in federal
law — Three-part test set out by Supreme Court of Canada in
ITO-International met — Jurisdiction granted Trial Division
by s. 17(4)(6) Federal Court Act — Claim based on existing
body of federal law: Parole Act and Penitentiary Act — Body
of federal law within legislative competence of Parliament
found in s. 91(27) and (28) Constitution Act, 1867 — Appeal
allowed — 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), ss. 91(27),(28), 101 — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 17(4)(b) — Interpretation
Act, R.S.C. 1970, c. I-23, s. 2.
Parole — Mandatory supervision — Suspension — Action
for false arrest and imprisonment — Action based on federal
law — Source of freedom at time of arrest and imprisonment
found in Parole Act and Penitentiary Act — Compliance with
terms of mandatory supervision conferring on appellant right
to enjoy "partial freedom" — Parole Act, R.S.C. 1970, c. P-2,
ss. 10(1), 12, 15(1) (as am. by S.C. 1976-77, c. 53, s. 28), (2)
Penitentiary Act, R.S.C. 1970, c. P-6, s. 24(1) (as am. by S.C.
1976-77, c. 53, s. 41).
Crown — Torts — Plaintiff arrested while free on mandato
ry supervision — Action for false arrest and imprisonment —
Whether based in federal law or in tort — Statutory frame
work granting appellant right to be free and remain so —
Cause of action dependent upon federal law — Damages, if
any, recoverable in Trial Division.
Pursuant to a decision of the National Parole Board, the
plaintiff became entitled to be released on mandatory supervi
sion. The Board suspended his mandatory supervision on two
occasions. On both occasions, the plaintiff was arrested,
detained and released. He instituted an action in the Trial
Division for false arrest and imprisonment. The Trial Judge
struck out the statement of claim on the ground that the action
was not based in "federal law". The issue in this appeal is
whether the Trial Division has jurisdiction to entertain the
plaintiff's claims against the individual Board members, the
appeal against the remaining respondents having been
abandoned.
The appellant contends that the circumstances surrounding
his arrest and detention were governed by the Parole Act and
the Penitentiary Act. The respondents argue that the appel
lant's claim is founded in tort, that the essence of that claim is
that the appellant was deprived of his liberty without lawful
sanction and that the relationship, if any, between the parties as
established by federal law is not material to the appellant's
cause.
Held, the appeal should be allowed.
The respondents' characterization of the appellant's claims
could not be agreed with. Having been sentenced to a term of
imprisonment, the appellant has lost his common law right to
freedom during that term. The source of his freedom at the
time of his alleged false arrest and imprisonment can be found
in federal law, particularly in subsection 24(1) of the Peniten
tiary Act, and subsections 10(1), 15(1),(2) and section 12 of
the Parole Act. As long as the appellant fulfilled the terms of
his mandatory supervision, he was entitled to enjoy a degree of
freedom, "partial freedom" as described by the British
Columbia Court of Appeal in Truscott. In that case, remission
was seen as a right which cannot be taken away except as
provided in the legislation. That principle was approved in R. v.
Moore where the Supreme Court of Canada ruled that the
"gating" practice was illegal.
There thus exists, to use the phrase of Laskin C.J.C. in the
Rhine case, "a detailed statutory framework" of federal law
under which the appellant acquired not only the right to be free
but also the right to remain so. The torts of false arrest and
imprisonment herein alleged depend for their existence on
federal law. If they were committed, that was because the
appellant's right to remain free as delineated by federal statutes
was interfered with. Any provable damages resulting therefrom
are recoverable in the Trial Division.
The appellant has met the three-part test laid down by the
Supreme Court of Canada in the ITO—International decision
to determine the existence of jurisdiction in the Trial Division:
(1) there must be a statutory grant of jurisdiction by the
federal Parliament; (2) that grant must be nourished by an
existing body of federal law and (3) the law on which the case
is based must be "a law of Canada" pursuant to section 101 of
the Constitution Act, 1867.
Clearly, the second requirement has been met. The third
requirement is also satisfied since the applicable body of federal
law falls within the legislative competence of Parliament found
in subsections 91(27) and 91(28) of the Constitution Act, 1867.
With respect to the first requirement, paragraph 17(4)(b) of
the Federal Court Act conferred on the Trial Division jurisdic
tion to hear and determine the claims against the individual
respondents.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Rhine v. The Queen; Prytula v. The Queen, [1980] 2
S.C.R. 442.
APPLIED:
Truscott v. Director of Mountain Institution et al.
(1983), 147 D.L.R. (3d) 741 (B.C.C.A.); ITO—Interna-
tional Terminal Operators Ltd. v. Miida Electronics et
al., [1986] 1 S.C.R. 752; McNamara Construction
(Western) Ltd. et al. v. The Queen, [1977] 2 S.C.R. 654;
Quebec North Shore Paper Co. et al. v. Canadian Pacific
Ltd. et al., [1977] 2 S.C.R. 1054.
NOT FOLLOWED:
Stephens v. The Queen et al. (1982), 26 C.P.C. 1
(F.C.A.).
DISTINGUISHED:
Tomossy v. Hammond, [1979] 2 F.C. 232 (T.D.);
Nichols v. R., [1980] 1 F.C. 646 (T.D.).
REFERRED TO:
R. v. Moore; Oag v. The Queen et al., [1983] 1 S.C.R.
658.
COUNSEL:
D. Fletcher Dawson for appellant (plaintiff).
Brian Evernden for respondents (defendants).
SOLICITORS:
Cohen, Melnitzer, London, Ontario, for
appellant (plaintiff).
Deputy Attorney General of Canada for
respondents (defendants).
The following are the reasons for judgment
rendered in English by
STONE J.: This is an appeal from the decision of
Muldoon J. in the Trial Division [[1986] 1 F.C.
472] whereby, inter alia, he struck out the state-
ment of claim as against the respondent Board and
as against certain individuals including the
respondents Outerbridge and Howland. The only
real issue before this Court is whether the Trial
Division has jurisdiction to hear and determine the
claims made in the action against these two
individual respondents. The appeal in respect of
the respondent Board and the remaining individual
respondents has been abandoned.
In his statement of claim the appellant alleges
that in or about February 1981, while serving a
sentence for various offences which was due to
expire in or about October 1987, he was trans
ferred to the Edmonton Institution from the Mill-
haven Institution in Kingston, Ontario. There then
followed the series of events pleaded in the follow
ing paragraphs of the statement of claim, which
must be taken as true for the purposes of these
proceedings.
10. Due to a sentence recalculation, the Defendant, The Na
tional Parole Board, determined that the Plaintiff was entitled
to be released on mandatory supervision pursuant to the Parole
Act, R.S.C. 1970, c. P-2, (as amended), on the 6th day of
December, 1982.
11. On or about the 6th day of December, 1982, the Plaintiff
was placed in handcuffs and taken from the Edmonton Institu
tion by members of either the Edmonton City Police or the
Royal Canadian Mounted Police to the Londonderry Police
Station (Edmonton City Police). At that location the Plaintiff
was removed from the police vehicle, presented by another
police officer with a letter from the Defendant Norman J.
Fagnou, Regional Executive Officer of the National Parole
Board, Prairie Regional Office, which indicated that his man
datory supervision had been "suspended", by the Chairman of
the National Parole Board. Immediately after having been
served with the said letter, the Plaintiff was "arrested" and
returned to the Edmonton Institution.
12. The Plaintiff had never indicated to the National Parole
Board, its servants, officers or agents, that he did not wish to be
released subject to mandatory supervision pursuant to the
provisions of the Parole Act, R.S.C. 1970, c. P-2, (as
amended).
14. An application for an Order in the Nature of habeas corpus
was brought on behalf of the Plaintiff in the Court of Queen's
Bench of Alberta, Judicial District of Edmonton. On or about
the 23rd day of December, 1982, the said application was
granted, and the Plaintiff was ordered to be released by the
Honourable Mr. Justice D. C. McDonald.
15. Prior to the 4th day of January, 1983, the Plaintiff had
made arrangements to fly to eastern Canada to be with his
family and was scheduled to depart the Edmonton Internation
al Airport at 5:30 p.m. on the 4th day of January, 1983. On or
about the 4th day of January, 1983, the Plaintiff was asked to
sign a Mandatory Supervision Certificate containing certain
special conditions, and did so.
16. On or about the 4th day of January, 1983, the Plaintiff was
taken from the Edmonton Institution to the Edmonton Interna
tional Airport by two Federal Correctional Officers. The Plain
tiff was accompanied to the cafeteria area of the Edmonton
International Airport and left seated at a table. Shortly thereaf
ter, the Plaintiff walked to the main foyer area of the airport,
was approached by Royal Canadian Mounted Police Officers,
and arrested pursuant to a warrant of apprehension and suspen
sion of Mandatory Supervision, issued by the Defendant the
National Parole Board, on the authority of the Chairman of the
National Parole Board the Defendant William Outerbridge,
and signed by the Defendant Keith Wright.
17. The Plaintiff did not breach any of the conditions of the
Mandatory Supervision Certificate.
18. The Plaintiff was informed by the National Parole Board
that he should undergo psychiatric and psychological assess
ments prior to a determination being made about the propriety
of his further release. The Plaintiff was transferred to the
Regional Psychiatric Centre in the City of Saskatoon, in the
Province of Saskatchewan, and psychiatric and psychological
assessments were completed.
19. An application in the Nature of habeas corpus was brought
on behalf of the Plaintiff in the Court of Queen's Bench in
Alberta, Judicial District of Edmonton, on the 17th day of
March, 1983. The said Application was allowed by the Honour
able Mr. Justice R. P. Foisy, and the Plaintiff was ordered
released.
20. An appeal of the Order of the Honourable Mr. Justice R. P.
Foisy was launched in the Court of Appeal of Alberta, the said
appeal being allowed and the Order of the Honourable Mr.
Justice R. P. Foisy being set aside on the 23rd day of March,
1983.
21. An appeal to the Supreme Court of Canada was launched
on behalf of the Plaintiff, said appeal being allowed, and the
Plaintiff being ordered released on or about the 17th day of
May, 1983, and the Plaintiff was subsequently released.
The claims asserted in the statement of claim
are found in paragraphs 26, 27 and 28:
26. The Plaintiff claims that his unauthorized and illegal
continued detention constituted a false arrest, a false imprison
ment, an assault and a battery.
27. Further or in the alternative the Plaintiff states that the
Defendant The Queen in The Right of Canada, The National
Parole Board and William Outerbridge were negligent in order
ing that the Plaintiff be detained beyond his mandatory release
date. Without limiting the generality of the foregoing the said
Defendants were negligent in failing to take adequate steps
prior to the Plaintiff's mandatory release date, to determine the
legality of the action subsequently taken by them and referred
to in paragraphs 11 and 16 above.
28. Further, or in the alternative the Plaintiff states that
between December 6, 1982, and May 18, 1983, the Defendants
individually and cumulatively deprived him of his constitutional
rights as provided by s. 7 and s. 9 of the Canadian Charter of
Rights and Freedoms, and the Plaintiff claims damages pursu
ant to s. 24(1) of the Charter.
The only other pleas relevant to this appeal are
contained in paragraphs 4, 5 and 29 of the state
ment of claim:
4. The Defendant, William Outerbridge, resides in the Province
of Ontario, and at all material times hereto was the Chairman
of the National Parole Board.
5. The Defendant Kenneth W. Howland, was at all material
times hereto a member of the National Parole Board who was
involved in the decision making process which resulted in the
unlawful suspension or revocation of the Plaintiff's mandatory
supervision, as outlined below.
29. The Plaintiff pleads and relies upon the Parole Act, R.S.C.
1970, c. P-2, (as amended).
The learned Judge's reasons for concluding as
he did appear at pages 476-477 of his reasons for
judgment:
In regard to the individual defendants, the disposition of
their motion is clear. Counsel argues for them that the action
against them is not based in "federal law" or in "the laws of
Canada" pursuant to 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)]. Those terms have been
defined by the Supreme Court of Canada in the cases of
McNamara Construction (Western) Ltd. et al. v. The Queen,
[1977] 2 S.C.R. 654, and Quebec North Shore Paper Co. et al.
v. Canadian Pacific Ltd. et al., [1977] 2 S.C.R. 1054, and since
then the two cited decisions have been followed in Tomossy v.
Hammond, [1979] 2 F.C. 232 (T.D.), and in Nichols v. R.
[1980] 1 F.C. 646 (T.D.), to cite only two of several decisions
of this Court.
Accordingly, the statement of claim is to be struck out as
against William Outerbridge, Kenneth W. Howland, Keith
Wright, Norman J. Fagnou and Robert Benner and as against
them this action is dismissed on the ground that the Federal
Court of Canada, Trial Division, lacks the jurisdiction to
entertain this action against them.
It is not necessary here to examine the many
cases in which this Court has been called upon to
decide whether the Trial Division lacked jurisdic
tion to hear and determine particular claims. It is
sufficient to point out that none of the cases
decided subsequent to McNamara Construction
(Western) Ltd. et al. v. The Queen, [ 1977] 2
S.C.R. 654 and Quebec North Shore Paper Co. et
al. v. Canadian Pacific Ltd. et al., [1977] 2 S.C.R.
1054 dealt with the precise issue raised on this
appeal. The matter is therefore free of authority.
In any event, the appellant seeks to distinguish the
cases relied upon in the Court below. In paragraph
5 of his memorandum of fact and law he asserts:
It will be argued that the situation in the case at bar is
distinguishable from McNamara Construction (Western) Ltd.
v. The Queen [1977] 2 S.C.R. 654; Quebec North Shore Paper
Co. v. Canadian Pacific Ltd. [1977] 2 S.C.R. 1054; Tomossy v.
Hammond [1979] 2 F.C. 232; and Nichols v. The Queen
[1980] 1 F.C. 646, inasmuch as the entire circumstances
surrounding the Appellant's detention and release was governed
by the provisions of the Parole Act R.S.C. 1970, c. P-2 (as
amended), and the Penitentiary Act, R.S.C. 1970 c. P-6 (as
amended), which constitute a detailed statutory framework and
scheme of regulation in existing and applicable federal law
sufficient to underpin the jurisdiction of the Federal Court of
Canada.
In the course of the oral hearing of this appeal,
the appellant placed considerable reliance upon the
decision of the Supreme Court of Canada in Rhine
v. The Queen; Prytula v. The Queen, [1980] 2
S.C.R. 442. In that case the Supreme Court reject
ed an argument that the Trial Division lacked
jurisdiction over a claim by Her Majesty for
repayment of monies advanced pursuant to the
Prairie Grain Advance Payments Act, R.S.C.
1970, c. P-18, where a written undertaking was
given in virtue of the Act and was relied upon as
providing a contractual basis for the claim. Par
ticular emphasis was placed upon the following
portion of the reasons of Laskin C.J.C., speaking
for the Court at page 447:
I do not agree that the matter can be disposed of in such
simple terms. What we have here is a detailed statutory frame
work under which advances for prospective grain deliveries are
authorized as part of an overall scheme for the marketing of
grain produced in Canada. An examination of the Prairie
Grain Advance Payments Act itself lends emphasis to its place
in the overall scheme. True, there is an undertaking or a
contractual consequence of the application of the Act but that
does not mean that the Act is left behind once the undertaking
or contract is made. At every turn, the Act has its impact on
the undertaking so as to make it proper to say that there is here
existing and valid federal law to govern the transaction which
became the subject of litigation in the Federal Court. It should
hardly be necessary to add that "contract" or other legal
institutions, such as "tort" cannot be invariably attributed to
sole provincial legislative regulation or be deemed to be, as
common law, solely matters of provincial law.
For the respondents it is argued that the matter
is governed by the decision of this Court in Ste-
phens v. The Queen et al. (1982), 26 C.P.C. 1
(F.C.A.). That case was concerned with the juris
diction of the Trial Division to hear and determine
claims for trespass and wrongful seizure of prop
erty in respect of unpaid income tax assessed
pursuant to the Income Tax Act, S.C. 1970-71-72,
c. 63, as amended. In deciding that the Trial
Division was without jurisdiction, Le Dain J.
stated on behalf of the Court at pages 9-10:
In the present case it is contended that the income tax assess
ments were invalid and the defendants other than the Crown
acted without legal authority in seeking to recover the unpaid
arrears. The contention that they acted without legal justifica
tion would appear to be a necessary basis of their liability in
tort, if any. Thus the claims against the defendants other than
the Crown would necessarily involve the construction and
application of provisions of the Income Tax Act. Is this suffi
cient to give the Court jurisdiction to entertain the claims
against them, having regard to the implications of the Supreme
Court's decision in Rhine and Prytula? Having given these
implications the best consideration I can, I have come to the
conclusion that it is not sufficient for jurisdiction. What I infer
from Rhine and Prytula is that a cause of action in contract (or
tort) may be held to be one sufficiently supported by federal
law to give the Federal Court jurisdiction if the contractual or
tortious liability can be said to be one that is provided for by
federal law. The Supreme Court appears to have concluded in
Rhine and Prytula that the rights asserted there found their
source essentially or substantially in federal law because of the
extent to which they were provided for and governed by the
applicable federal statutes. In the present case, despite the
necessary application of the provisions of the Income Tax Act
to the question of validity or legal justification, the right to
damages cannot be said to be provided for by federal law. If it
exists at all, it is created by provincial law. The applicable
federal law does not purport to create or provide for this right.
We were pressed with the following submission
which appears in paragraph 8 of the respondents'
memorandum of fact and law:
8. It is respectfully submitted that, as pleaded, the Plaintiff's
claim is founded in tort and does not arise under the "laws of
Canada" or "Federal law". The essence of the claim is that the
Respondents deprived the Appellant of his liberty without
lawful sanction. In actions for false arrest or imprisonment, the
Plaintiff need not allege in the Statement of Claim the arrest or
imprisonment was unlawful since the burden of proof is on the
Defendant to show that it was lawful. Since the relationship, if
any, between the Plaintiff and the Respondents as established
by Federal law is not material to his cause of action as against
them, then this action is not based in Federal law or the laws of
Canada, and cannot, therefore, proceed in the Federal Court.
With respect, I cannot agree with this characteri
zation of the appellant's claims. The fact is that
having been sentenced by a court of competent
jurisdiction to a term of imprisonment, the appel
lant has lost his common law right to freedom
during that term. The source of the freedom being
enjoyed by him at the time of his alleged false
arrest and imprisonment is found in federal law.
The relevant statutory provisions are subsection
24(1) of the Penitentiary Act [R.S.C. 1970, c. P-6
(as am. by S.C. 1976-77, c. 53, s. 41)], and
subsection 10(1), section 12 and subsections 15 (1)
and (2) of the Parole Act [R.S.C. 1970, c. P-2 (as
am. by S.C. 1976-77, c. 53, s. 28)]
24. (1) Subject to section 24.2, every inmate may be credit
ed with fifteen days of remission of his sentence in respect of
each month and with a number of days calculated on a pro rata
basis in respect of each incomplete month during which he has
applied himself industriously, as determined in accordance with
any rules made by the Commissioner in that behalf, to the
program of the penitentiary in which he is imprisoned.
10. (I) The Board may
(b) impose any terms and conditions that it considers desir
able in respect of an inmate who is subject to mandatory
supervision;
12. Where
(a) the Board grants parole to an inmate, or
(b) an inmate is released from imprisonment subject to
mandatory supervision,
the Board shall issue a parole certificate or mandatory supervi
sion certificate under the seal of the Board and in a form
prescribed by it, and shall cause the certificate to be delivered
to the inmate and a copy thereof to be delivered to the inmate's
parole supervisor, if any.
15. (1) Where an inmate is released from imprisonment,
prior to the expiration of his sentence according to law, solely
as a result of remission, including earned remission, and the
term of such remission exceeds sixty days, he shall, notwith
standing any other Act, be subject to mandatory supervision
commencing upon his release and continuing for the duration of
such remission.
(2) Paragraph 10(1)(e), section I1, section 13 and sections
16 to 21 apply to an inmate who is subject to mandatory
supervision as though he were a paroled inmate on parole and
as though the terms and conditions of his mandatory supervi
sion were terms and conditions of his parole.
It is apparent that so long as the appellant
fulfilled the terms of the mandatory supervision he
was entitled to enjoy a degree of freedom. In
Truscott v. Director of Mountain Institution et al.
(1983), 147 D.L.R. (3d) 741, Seaton J.A. speak
ing for a majority of the British Columbia Court
of Appeal described that freedom in the following
words at pages 744-745:
Before this legislation the practice was for a prisoner to stay in
prison until a certain date and then go free. He went from no
freedom, imprisonment, to complete freedom. It did not work
very well; people could not make the adjustment from no
freedom to complete freedom, and reports to Parliament sug
gested that that sudden move was undesirable; so mandatory
supervision was introduced. There would be a period of partial
freedom to ease the adjustment from no freedom to complete
freedom. The period chosen was the period of remission, which
used to be a period of complete freedom; it is now to be a period
of partial freedom outside the prison, but under supervision.
That period of remission is, at least in part, earned, pursuant to
s. 24 of the Penitentiary Act, R.S.C. 1970, c. P-6. The statute
contemplates remission being taken away as a penalty; again s.
24.1 of the Penitentiary Act. Remission, it seems to me, is an
entitlement, a right, if you will, and no one has the power to
give it or take it away except as in the legislation provided.
That decision was approved by the Supreme Court
of Canada when, in effect, it ruled the so-called
"gating" practice upon which this action is based
to be illegal (R. v. Moore; Oag v. The Queen et al.,
[1983] 1 S.C.R. 658, at page 659).
There thus appears, to use the phrase of Laskin
C.J.C. in the Rhine and Prytula case, "a detailed
statutory framework" of federal law under which
the appellant not only acquired the right to be free
but also the right to remain so. It must be empha
sized that, as he remained under sentence, the
quality of freedom he enjoyed was not the same as
that possessed by a person not under sentence. Its
limits were demarcated by federal statutes. If the
torts of false arrest and imprisonment were com
mitted as alleged, they were committed because
his right to remain free thus delineated was inter-
fered with. I do not think that law need expressly
provide a remedy for such interference for the
claims to be governed by it. These torts, in my
view, depend for their existence upon federal law;
any provable damages resulting from their com
mission are recoverable in the Trial Division. I
have concluded that the claims are provided for in
the "laws of Canada" or "federal law".
In a very recent case, ITO—International Ter
minal Operators Ltd. v. Miida Electronics et al.,
[1986] 1 S.C.R. 752, the Supreme Court of
Canada laid down a three-part test for determin
ing the existence of jurisdiction in the Trial Divi
sion. It is found in the following words of McIn-
tyre J. speaking for the Court at page 766:
The general extent of the jurisdiction of the Federal Court
has been the subject of much judicial consideration in recent
years. In Quebec North Shore Paper Co. v. Canadian Pacific
Ltd., [1977] 2 S.C.R. 1054, and in McNamara Construction
(Western) Ltd. v. The Queen, [1977] 2 S.C.R. 654, the essential
requirements to support a finding of jurisdiction in the Federal
Court were established. They are:
1. There must be a statutory grant of jurisdiction by the
federal Parliament.
2. There must been an existing body of federal law which is
essential to the disposition of the case and which nourishes
the statutory grant of jurisdiction.
3. The law on which the case is based must be "a law of
Canada" as the phrase is used in s. 101 of the Constitution
Act, 1867.
As I have already indicated, the second require
ment is met here. I think the third requirement is
also satisfied because the applicable body of feder
al law falls within the legislative competence of
Parliament over "Criminal Law" found in subsec
tion 91(27) 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)] and its like competence over the "Estab-
lishment, Maintenance, and Management of Peni
tentiaries" found in subsection 91(28) of that Act.
The only remaining question is whether there is
here a "statutory grant of jurisdiction by the feder
al Parliament" to satisfy the first requirement. In
my view, such a grant of jurisdiction is found in
paragraph 17(4)(b) of the Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10:
17....
(4) The Trial Division has concurrent original jurisdiction
(6) 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.
While the word "officer" is not defined by that
Act, the definition of "public officer" in section 2
of the Interpretation Act, R.S.C. 1970, c. I-23 is
relied upon:
2.(1)...
"public officer" includes any person in the public service of
Canada
(a) who is authorized by or under an enactment to do or
enforce the doing of an act or thing or to exercise a power, or
(b) upon whom a duty is imposed by or under an enactment;
I do not think it necessary to deal in any definitive
way with the point, there being no evidence before
us that establishes the duties and responsibilities of
the two individual respondents. In view of this lack
of evidence the parties are content that each of the
respondents be considered an "officer" of the Na
tional Parole Board for purposes of this appeal. On
that basis, I am satisfied that paragraph 17(4)(b)
of the Federal Court Act does confer jurisdiction
on the Trial Division to hear and determine the
claims made against the individual respondents in
the action. I see no reason for giving the language
of that paragraph a narrower construction.
In the result, I would allow the appeal with
costs. Paragraph 1 of the order below should be
varied accordingly and as so varied should read as
follows:
1. IT IS ORDERED that the statement of claim be, and it is
hereby, struck out against the defendants the National Parole
Board, Keith Wright, Norman J. Fagnou and Robert Benner,
as against whom this action is dismissed; and the style of cause
is henceforth to be amended as a consequence of this Order; all
without costs;
In all other respects I would affirm the said
order.
THURLOW C. J.: I agree.
HEALD 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.