T-1643-89
Burton Maguire (Plaintiff)
v.
Her Majesty the Queen in Right of Canada, Brian
Gillis and Ronald Manderson (Defendants)
INDEXED AS: MAGUIRE V. CANADA (T.D.)
Trial Division, McNair J.—Saint John, New
Brunswick, November 13; Ottawa, December 18,
1989.
Federal Court jurisdiction — Trial Division — Action in
contract and tort for misrepresentations by fishery officers —
Objection to jurisdiction — Federal Court Act, s. 17(5)(6),
giving Court jurisdiction over claims against Crown servants
re: performance of duties, satisfying requirement of statutory
grant of jurisdiction — Claims depending for existence on
regulatory and licensing provisions of Fisheries Act and
administration thereof — Requirement of existing body of
federal law nourishing statutory grant of jurisdiction satisfied
— Clearly "law of Canada" within Constitution Act, 1867, s.
101.
Fisheries — Action in contract and in tort for misrepre
sentations by fishery officers — Whether Court having juris
diction — Statutory grant of jurisdiction in Federal Court
Act, s. 17(5)(b) — Regulatory and licensing provisions of
Fisheries Act upon which claim founded sufficient to satisfy
requirement of existing body of federal law nourishing statu
tory grant of jurisdiction.
This was a motion for leave to file a conditional appearance
to object to jurisdiction in an action against the individual
defendants, fisheries officers, in contract and tort "for acting
outside the scope of their employment". It was alleged that
they had misrepresented that it was illegal for two licensed
commercial fishermen to fish out of the same boat, thereby
inducing the plaintiff to surrender his licence at a lower price
than what he could eventually have obtained. Such a condition
was never incorporated into the Atlantic Salmon Management
Plan.
Paragraph 17(5)(b) of the Federal Court Act gives the Trial
Division jurisdiction in proceedings in which relief is sought
against a Crown servant for any acts or omissions in the
performance of his duties, thus satisfying the first requirement
of a statutory grant of jurisdiction as set out in ITO—Interna-
tional Terminal Operators Ltd. v. Miida Electronics Inc. et al.
The defendants argued that the mere fact of employment under
a federal statute pertaining to fisheries did not satisfy the
second requirement of ITO that there be an existing body of
federal law essential to the disposition of the case which
nourishes the statutory grant of jurisdiction. They also argued
that claims in tort and contract are not so integrally connected
with any body of federal law in relation to fisheries as to satisfy
the requirement that the law on which the case was based was
"a law of Canada" within the meaning of section 101 of the
Constitution Act, 1867. In short, fisheries law was distinguish
able from the pervasive ambit of Canadian maritime law as
defined in the ITO case. The plaintiff argued that the alleged
misrepresentations arose out of the Fisheries Act and Regula
tions and the powers and duties of fisheries officers thereunder.
But for these there would not have been an occasion to make
the representations. The issue was whether the laws of contract
and tort and possibly unjust enrichment and fiduciary obliga
tion and interference with proprietary right in the commercial
salmon fishery, arising from the alleged misrepresentations,
bore such sufficient stamp of federal law as to bring the matter
within the federal jurisdictional domain.
Held, the motion should be dismissed.
The claims were founded on the statutory base of federal
law, namely, the regulatory and licensing provisions of the
Fisheries Act and the administration thereof , and this is "a law
of Canada" within the meaning of section 101 of the Constitu
tion Act, 1867. The Fisheries Act provides for the appointment
of fishery officers and defines their powers. The Minister has
absolute discretion to issue fishing licences, where the exclusive
right of fishing does not already exist by law. Saint John
harbour, where the plaintiff fished commercially for salmon, is
tidal waters, in which the public right of fishing is beyond
question. The federal Parliament has exclusive jurisdiction over
the sea coast and inland fisheries under subsection 91(12) of
the Constitution Act, 1867. Such jurisdiction includes the
general power of enacting laws for the regulation, protection
and preservation of the fisheries as a public resource, notwith
standing that such laws may impinge to some degree on the
proprietary rights of others. The alleged misrepresentations and
the consequences flowing therefrom were attributable to the
authoritative role of the individual defendants as federal fishery
officers under the Fisheries Act. The subject-matter of the
individual claims depended for its existence upon "the detailed
statutory framework of the Fisheries Act" with respect to the
terms and conditions for obtaining commercial salmon fishing
licences. The body of statutory law was sufficient to nourish the
statutory grant of jurisdiction.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as
am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule
to the Constitution Act, 1982, Item 1) [R.S.C., 1985,
Appendix II, No. 5], ss. 91(12), 101.
Federal Court Act, R.S.C., 1985, c. F-7, s. 17(5)(b).
Fisheries Act, R.S.C., 1985, c. F-14, ss. 5(1), 7, 9, 43,
49-56.
CASES JUDICIALLY CONSIDERED
APPLIED:
ITO—International Terminal Operators Ltd. v. Miida
Electronics Inc. et al., [1986] 1 S.C.R. 752; (1986), 28
D.L.R. (4th) 641; 34 B.L.R. 251; 68 N.R. 241; Oag v.
Canada, [1987] 2 F.C. 511; (1987), 33 C.C.C. (3d) 430;
73 N.R. 149 (C.A.); Rhine v. The Queen, [1980] 2
S.C.R. 442; Attorney-General for British Columbia v.
Attorney-General for Canada, [1914] A.C. 153 (P.C.);
Attorney-General for Canada v. Attorney-General for
Quebec, [1921] 1 A.C. 413 (P.C.).
CONSIDERED:
Roberts v. Canada, [1989] 1 S.C.R. 322; (sub nom.
Wewayakum Indian Band v. Canada et al.) (1989), 92
N.R. 241; 25 F.T.R. 161; Varnam v. Canada (Minister of
Health and Welfare), [1988] 2 F.C. 454; (1988), 50
D.L.R. (4th) 44; 17 F.T.R. 240; 84 N.R. 163 (C.A.);
Bradasch v. Warren (1989), 27 F.T.R. 70 (F.C.T.D.); H.
Smith Packing Corp. v. Gainvir Transport Ltd. (1989),
61 D.L.R. (4th) 489; 99 N.R. 54 (F.C.A.); The Queen v.
Robertson (1882), 6 S.C.R. 52; 2 Cart. 65.
REFERRED TO:
Pacific Western Airlines Ltd. v. R., [1980] 1 F.C. 86;
(1979), 105 D.L.R. (3d) 60; 14 C.P.C. 165 (C.A.); affg
[1979] 2 F.C. 476; (1979), 105 D.L.R. (3d) 44; 13
C.P.C. 299 (T.D.); Holt v. Canada, [1989] I F.C. 522;
(1988), 23 F.T.R. 109 (T.D.); Stephens v. R. (1982), 26
C.P.C. 1; [1982] CTC 138; 82 DTC 6132; 40 N.R. 620
(F.C.A.); Attorney-General for the Dominion of Canada
v. Attorneys-General for the Provinces of Ontario,
Quebec and Nova Scotia, [1898] A.C. 700 (P.C.); Inter-
provincial Co-operatives Ltd. et al. v. The Queen, [1976]
1 S.C.R. 477; [1975] 5 W.W.R. 382; (1975), 53 D.L.R.
(3d) 321; 4 N.R. 231; Fowler v. The Queen, [1980] 2
S.C.R. 213; [1980] 5 W.W.R. 511; (1980), 113 D.L.R.
(3d) 513; 53 C.C.C. (2d) 97; 9 C.E.L.R. 115; 32 N.R.
230.
COUNSEL:
David N. Rogers for plaintiff.
Michael F. Donovan for defendants.
SOLICITORS:
Gilbert, McGloan, Gillis, Saint John, New
Brunswick, for plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for order ren
dered in English by
McNALR J.: Shortly stated, the issue in the case
is whether this Court has statutory jurisdiction to
entertain claims, sounding in both contract and
tort, against the individual defendants, Brian Gillis
and Ronald Manderson, "for acting outside the
scope of their employment" as fisheries officers
appointed under the authority of the Fisheries Act,
R.S.C., 1985, c. F-14.
The said defendants filed a motion for leave to
file a conditional appearance for the purpose of
objecting to the Court's jurisdiction to entertain
the plaintiff's claims against them and for an order
staying the proceedings until the preliminary juris
dictional objection had been disposed of. An order
in that behalf was made by the senior prothono-
tary, Jacques Lefebvre, Esq., on September 20,
1989. The order provided as well that counsel for
the parties arrange a hearing to dispose of the
preliminary objection to jurisdiction, which was
done. The defendants filed their conditional
appearance on October 3, 1989.
In 1981 the Department of Fisheries and
Oceans implemented a scheme or program to buy
back commercial salmon fishing licences in New
Brunswick. Terms and conditions were prescribed
for obtaining commercial salmon fishing licences
in 1982. These eventually became part of the 1982
Atlantic Salmon Management Plan—Scotia-
Fundy Region (the "Plan"). The gist of the plain
tiff's complaint against the two fisheries officers,
Gillis and Manderson, is that they misrepresented
to him that two licensed commercial fishermen
could not lawfully fish out of the same boat, which
had been the plaintiff's practice for many years.
The plaintiff alleges that he was thereby induced
to sell or surrender his commercial fishing licence
to the Department at a price greatly below what
he could have eventually obtained. Seemingly, the
alleged condition against two commercial licen-
ceholders fishing out of the same boat was not
incorporated in the Plan or recognized as official
departmental policy, nor was it ever enforced as
such in 1982 or subsequent years.
Paragraph 17(5)(b) of the Federal Court Act,
R.S.C., 1985, c. F-7, reads as follows:
17....
(5) The Trial Division has concurrent original jurisdiction
(b) 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.
Plaintiff's counsel takes the view that this para
graph, coupled with the threefold test prescribed
by Mr. Justice McIntyre in the leading case of
ITO—International Terminal Operators Ltd. v.
Miida Electronics Inc. et al., [1986] 1 S.C.R. 752;
(1986), 28 D.L.R. (4th) 641; 34 B.L.R. 251; 68
N.R. 241, clears the first test hurdle of a statutory
grant of jurisdiction. Indeed, defendants' counsel
virtually concedes as much and I take it to be a
matter of common ground.
In the ITO case, McIntyre J. stated, at page
766, the following three essential requirements for
establishing Federal Court jurisdiction:
1. There must be a statutory grant of jurisdiction by the
federal Parliament.
2. There must be 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 section 101 of the Constitu
tion Act, 1867.
Defendants' counsel argues strongly that the
mere fact of employment under a federal statute
pertaining to fisheries does not satisfy the second
requirement of the ITO case that there be an
existing body of federal law essential to the dispo
sition of the case which nourishes the statutory
grant of jurisdiction afforded by paragraph
17(5)(b) of the Federal Court Act. In support of
this submission, he cites, inter alla, the following
cases: Pacific Western Airlines Ltd. v. R., [1980] 1
F.C. 86; (1979), 105 D.L.R. (3d) 60; 14 C.P.C.
165 (C.A.); affg [1979] 2 F.C. 476; (1979), 105
D.L.R. (3d) 44; 13 C.P.C. 299 (T.D.); Oag v.
Canada, [1987] 2 F.C. 511; (1987), 33 C.C.C.
(3d) 430; 73 N.R. 149 (C.A.); Varnam v. Canada
(Minister of Health and Welfare), [1988] 2 F.C.
454; (1988), 50 D.L.R. (4th) 44; 17 F.T.R. 240;
84 N.R. 163 (C.A.); Holt v. Canada, [1989] 1
F.C. 522; (1988), 23 F.T.R. 109 (T.D.); and Ste-
phens v. R. (1982), 26 C.P.C. 1; [1982] CTC 138;
82 DTC 6132; 40 N.R. 620 (F.C.A.). Finally,
defendants' counsel submits that the plaintiff has
failed to satisfy the third requirement of ITO,
namely, that the law on which the present case is
based be "a law of Canada" within the meaning of
section 101 of the Constitution Act, 1867 [30 &
31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982,
1982, c. 11 (U.K.), Schedule to the Constitution
Act, 1982, Item 1) [R.S.C., 1985, Appendix II,
No. 5]]. In his submission, claims sounding in
contract and tort are not so integrally connected
with any body of federal law in relation to fisheries
as to bring them within the ambit of federal
jurisdiction. In short, he sees a wide world of
difference between fisheries law and the pervasive
ambit of Canadian maritime law as defined in the
ITO case.
Counsel for the plaintiff contends that there is
an existing body of federal law, both by virtue of
the Fisheries Act and the federal common law
relating to fisheries, underpinning the statutory
grant of jurisdiction afforded by paragraph
17(5)(b) of the Federal Court Act. He points out
that the plaintiff is not merely alleging a violation
of the Fisheries Act, conceding that this would be
far too thin a cord on which to found and nourish
the statutory grant of jurisdiction. Rather, he
takes the position that the Fisheries Act in all its
ramifications could not be made to work without
fisheries officers such as these, against whom the
individual claims are being advanced. In support
of these propositions, he relies particularly on the
following cases: Oag v. Canada, supra; Bradasch
v. Warren (1989), 27 F.T.R. 70 (F.C.T.D.); H.
Smith Packing Corp. v. Gainvir Transport Ltd.
(1989), 61 D.L.R. (4th) 489; 99 N.R. 54 (F.C.A.);
Roberts v. Canada, [ 1989] 1 S.C.R. 322, also cited
(sub nom. Wewayakum Indian Band v. Canada et
al.) (1989), 92 N.R. 241; 25 F.T.R. 161. In the
view of plaintiff's counsel, the matter comes down
to this. The alleged misrepresentations made by
the two fisheries officers regarding the conditions
for obtaining commercial salmon fishing licences
in 1982 arose out of the Fisheries Act and Regula
tions and the powers and duties of fisheries officers
thereunder. But for this there would have been no
occasion to make the representations that are
alleged to have been made. In the circumstances,
the application of the law of contract and tort is
essential to the resolution of the dispute between
the parties and, in that context, such law com
prises an existing body of federal common law
essential to the disposition of the case. As for the
third element of the ITO test, he asserts that there
can be no doubt that the Fisheries Act is a "law of
Canada" within the meaning of section 101 of the
Constitution Act, 1867 representing, as it does,
Parliament's assertion of its legislative competence
over a class of subject-matter assigned by subsec
tion 91(12) of the Act to the federal domain.
In Roberts v. Canada, supra, the plaintiff
Indian band brought an action against the federal
Crown and the defendant Indian band for a decla
ration that it had the right to use and occupy a
certain Indian reserve and for a permanent injunc
tion to restrain the defendant Indian band, which
was the actual occupier of the reserve, from tres
passing thereon. The dispute revolved around the
determination of which band had the right to the
use and occupation of the reserve in question. The
plaintiff band alleged that the Crown breached its
fiduciary duty to protect and preserve its interest
in a reserve, which was and always had been set
aside for its exclusive use and benefit. The plaintiff
further alleged that the Crown was also in breach
of the statutory duties owed to it under the various
provisions of the Indian Act [R.S.C. 1970, c. I-6].
The defendant band brought a motion for an order
pursuant to the Federal Court Rules [C.R.C., c.
663] to have the action against it dismissed for
want of jurisdiction in the Federal Court to grant
the relief sought. The Trial Judge denied the
motion and his order was upheld on appeal, but on
slightly different grounds. The defendant band
appealed the jurisdictional issue to the Supreme
Court of Canada. The Supreme Court of Canada
dismissed the appeal, affirming that the Trial Divi
sion had jurisdiction to deal with the trespass
claim against the defendant band. In reaching this
result, the Supreme Court reiterated the threefold
test prescribed by McIntyre J. in ITO—Interna-
tional Terminal Operators Ltd. v. Miida Elec
tronics Inc. et al., supra, for determining whether
the Federal Court was properly seised of the
matter. It was held, firstly, that paragraph
17(3)(c) of the Federal Court Act [R.S.C. 1970
(2nd Supp.), c. 10] conferred the necessary juris
diction. Secondly, the Court took the view that the
second and third elements of the ITO test over
lapped, but went on to conclude that these had
been satisfied in the particular circumstances of
the case.
The rationale for satisfying the second and third
requirements prescribed in the ITO case is reflect
ed in the following statement of Wilson J., deliver
ing the judgment of the Court, at page 340 S.C.R.:
I would conclude therefore that "laws of Canada" are exclu
sively required for the disposition of this appeal, namely the
relevant provisions of the Indian Act, the act of the federal
executive pursuant to the Indian Act in setting aside the reserve
in issue for the use and occupancy of one or other of the two
claimant Bands, and the common law of aboriginal title which
underlies the fiduciary obligations of the Crown to both Bands.
The remaining two elements of the test set out in ITO, supra,
are accordingly satisfied.
In Oag v. Canada, supra, the Federal Court of
Appeal applied the tripartite test laid down by the
Supreme Court of Canada in the ITO case and
held that there was jurisdiction under paragraph
17(4)(b) of the Federal Court Act [now paragraph
17(5)(b)] to enable the Trial Division to entertain
a tortious action for false arrest and imprisonment
against individual members of the National Parole
Board. Stone J., writing the Court's opinion, con
cluded [at page 521 F.C.] that the torts com
plained of "depend for their existence upon federal
law".
In Varnam v. Canada, supra, the Federal Court
of Appeal went the other way by holding that the
Trial Division was without jurisdiction to entertain
the plaintiff's claim against the College of Physi
cians and Surgeons of British Columbia based
upon the latter's negligent and false representa
tions which resulted in the revocation of the plain
tiff's authorization to prescribe a drug. By the
terms of section 58 of the Narcotic Control Regu
lations [C.R.C., c. 1041], the Minister could only
act "after consultation with" the College. The
Trial Judge had held that this was sufficient to
give the plaintiff's claim against the College the
necessary foundation in federal law. The Trial
Judge also applied the intertwining theory to bring
the action against the College within the umbrella
grant of jurisdiction given by subsection 17(1) of
the Act. The appeal from this decision was
allowed. Hugessen J., delivering the Court's judg
ment, thus distinguished the Oag case at pages
458-459 F.C.:
The case of Oag v. Canada, [1987] 2 F.C. 511 (C.A.), relied on
by the Trial Judge, is clearly distinguishable: Oag's claim was
that the defendant Crown officers had acted illegally and
contrary to a federal statute (the Parole Act [R.S.C. 1970, c.
P-2]) in such a way as to deprive him of a freedom to which he
was entitled solely by the operation of another federal statute
(the Penitentiary Act [R.S.C. 1970, c. P-6]). Thus not only did
the damage which he suffered consist solely in the deprivation
of a right whose only source was a federal statute, but the
deprivation itself was caused solely by the alleged abuse by
federal officers of their powers under another federal statute. A
mere consultation such as is required by section 58 of the
Narcotic Control Regulations seems to me to be far too thin a
thread on which to hang the jurisdiction of this Court. [Empha-
sis added.]
The learned Judge then proceeded to deal with
the intertwining theory in the following terms at
page 461:
... it is my view that the concept of "intertwining", which does
not take its source from any words in the statute, is altogether
too vague and elastic a standard upon which to found exclusive
jurisdiction in the Federal Court. While the degree to which
claims would have to be intertwined in order to give this Court
jurisdiction is a matter which could no doubt be settled over
time by case law, the development of the necessary rules would
be a lengthy process during which litigants would be subject to
continuing uncertainty as to which court they should sue in. It
is not in the public interest that exclusive Federal Court
jurisdiction should be a matter for guesswork.
In the Roberts or Wewayakum Indian Band
case, supra, Wilson J. observed, at page 334
S.C.R.:
The fact that a claim resting on provincial law is "intertwined"
with or affected by another claim determinable according to
the "Laws of Canada" has been held not to bring the first claim
within the jurisdiction of the Federal Court: see The Queen v.
Thomas Fuller Construction Co. (1958) Ltd., [1980] 1 S.C.R.
695; per Pigeon, J., at p. 713.
The Federal Court of Appeal again relied on the
threefold test of the ITO case in H. Smith Packing
Corp. v. Gainvir Transport Ltd., supra, a case in
which the defendant shipping agent entered a con
ditional appearance and moved to have the plain
tiff's action against it dismissed on the ground of
lack of jurisdiction. The plaintiff claimed that the
shipping agent had negligently misrepresented
both the conditions under which the cargo was to
be carried aboard the transit vessel and the extent
of cargo insurance carried by the vessel's owners.
The Trial Judge, relying on the ITO case, rejected
the motion. The appeal of the defendant shipping
agent was dismissed by the Federal Court of
Appeal. Desjardins J.A., writing the Court's opin
ion, after quoting extensively from the judgment of
McIntyre J. in the ITO case and reviewing other
relevant authorities, held that the three essential
requirements for establishing jurisdiction in the
Federal Court had been met on the grounds that
the misrepresentations related to a contract of
carriage by sea and the agency relationship so
created was comprehended by the broad definition
of Canadian maritime law. The learned Judge
posed the key issue of the case and its partial
resolution as follows [at page 494 D.L.R.]:
The key issue before us is, therefore, whether the law and the
contract of agency as between a shipper and a shipping agent
where misrepresentations as to the conditions under which
cargo was to be carried aboard a vessel by the carrier and
misrepresentations as to the extent of insurance carried by the
owner and the manager of the vessel is so integrally connected
with the contract of carriage by sea itself as to become either a
matter falling into the class of subjects of shipping as this term
is understood under subsection 91(10) of the Constitution Act,
1867, (Agence Maritime Inc. v. Canada Labour Relations
Board (1969), 12 D.L.R. (3d) 722, [1969] S.C.R. 851
(S.C.C.)), or a matter necessary incidental to this class of
subjects. In such cases, the law of agency would have a double
aspect. Agency in its federal aspect would fall under federal
jurisdiction.
In the case at bar, the representations by the shipping agents
both with regard to the conditions of carriage of the cargo and
its coverage by insurance arose because of the existence of the
contract of carriage by sea. There would have been no occasion
for them to occur had there not been such a contract. It would
be hard not to concede that those representations were integral-
ly connected with the contract of carriage by sea and with the
shipping operation itself. In such circumstances, the law of
agency becomes "a law of Canada" within the meaning of s.
101 of the Constitution Act, 1867.
The recent case of Bradasch v. Warren, supra,
held that the Trial Division of the Federal Court
had jurisdiction by virtue of paragraph 17(4)(b) of
the Federal Court Act to entertain tortious claims
of assault and battery and false imprisonment
against individual RCMP defendants on the
ground that they could hardly have committed the
alleged torts without the authority and powers
conferred on them as "a member of the Force",
pursuant to the Royal Canadian Mounted Police
Act [R.S.C. 1970, c. R-9], an authentic law of
Canada. I understand the case is presently under
appeal to the Federal Court of Appeal.
The crux of the present case, as it seems to me,
is whether the law of contract and tort and poss
ibly unjust enrichment and fiduciary obligation
and interference with proprietary right in the com
mercial salmon fishery, arising from the alleged
misrepresentations of the two fisheries officers,
bore such sufficient stamp or imprint of federal
law as to bring the subject-matter within the feder
al jurisdictional domain.
As stated, there is no question that paragraph
17(5)(b) of the Federal Court Act meets the first
ITO requirement of "a statutory grant of jurisdic
tion by the federal Parliament". The next question
is whether there is an existing body of federal law
which is essential to the disposition of the case and
which nourishes the statutory grant of jurisdiction.
Subsection 5(1) of the Fisheries Act, R.S.C.,
1985, c. F-14, provides for the appointment of
fishery officers "whose powers and duties are as
defined by this Act and any other Act of Parlia
ment". Section 7 of the Act gives the Minister of
Fisheries and Oceans an absolute discretion, wher
ever the exclusive right of fishing does not already
exist by law, to issue "leases and licences for
fisheries or fishing, wherever situated or carried
on", except in the case of leases or licences for
terms exceeding nine years which can only be
issued under the authority of the Governor in
Council. Section 9 of the Act gives the Minister
the right to cancel any lease or licence issued
under the authority of the Act, if satisfied that the
operations thereunder "were not conducted in con
formity with its provisions". Section 43 enables the
Governor in Council to make regulations, inter
alla:
43... .
(a) for the proper management and control of the seacoast and
inland fisheries;
(g) respecting the terms and conditions under which a licence
and lease may be issued;
Sections 49 to 56 of the Fisheries Act set out the
powers of fishery officers and fishery guardians.
Without attempting an exhaustive enumeration, I
might mention some. A fishery officer may break
open and search any building, vehicle, vessel or
place, other than a permanent dwelling-place, if he
has reasonable grounds to believe that any fish
taken or anything used in contravention of the Act
or the regulations is concealed therein. Fishery
officers are given powers of arrest without war
rant, if they have reasonable grounds to believe
that the person arrested has committed an offence
or is committing or is about to commit such
offence. It is made an offence to resist or obstruct
any fishery officer in the execution of his duty. In
the discharge of his duties, a fishery officer may
enter on and pass through or over private property
without being liable for trespass. Fishery officers
may resolve disputes between persons relating to
fishing limits and related claims. Furthermore, the
Minister or any duly authorized fishery officer is
given power "to define the boundaries of tidal
waters and estuaries and to designate what is the
mouth of any river, stream or other water for the
purposes of this Act".
The locus of the plaintiff's commercial salmon
fishing activity was Saint John harbour, the waters
of which are tidal.
That there is an extensive body of common law
pertaining to the public right of fishing in the arms
of the sea and the estuaries of rivers below the ebb
and flow of tide is beyond question. Nor can it be
questioned that the federal Parliament has exclu
sive legislative jurisdiction under subsection
91(12) of the Constitution Act, 1867 [formerly
The British North America Act, 1867] over the
sea coast and inland fisheries and that this com
prehends the general power of enacting laws for
the regulation, protection and preservation of the
fisheries as a public resource, notwithstanding that
such laws may impinge to some degree on the
proprietary rights of others: The Queen v. Robert-
son (1882), 6 S.C.R. 52; 2 Cart. 65; Attorney-
General for the Dominion of Canada v. Attorneys-
General for the Provinces of Ontario, Quebec and
Nova Scotia, [1898] A.C. 700 (P.C.); Attorney-
General for British Columbia v. Attorney-General
for Canada, [1914] A.C. 153 (P.C.); Attorney-
General for Canada v. Attorney-General for
Quebec, [1921] 1 A.C. 413 (P.C.); Interprovincial
Co-operatives Ltd. et al. v. The Queen, [1976] 1
S.C.R. 477; [1975] 5 W.W.R. 382; (1975), 53
D.L.R. (3d) 321; 4 N.R. 231; and Fowler v. The
Queen, [1980] 2 S.C.R. 213; [1980] 5 W.W.R.
511; (1980), 113 D.L.R. (3d) 513; 53 C.C.C. (2d)
97; 9 C.E.L.R. 115; 32 N.R. 230.
In The Queen v. Robertson, supra, Ritchie C.J.
said, at page 123 S.C.R.:
To all general laws passed by the Dominion of Canada
regulating "sea coast and inland fisheries" all must submit, but
such laws must not conflict or compete with the legislative
power of the local legislatures over property and civil rights
beyond what may be necessary for legislating generally and
effectually for the regulation, protection and preservation of the
fisheries in the interests of the public at large.
Attorney-General for British Columbia v.
Attorney-General for Canada, supra, held that it
was not competent for the legislature of British
Columbia to authorize the provincial government
to grant exclusive rights of fishing in tidal waters
on the ground that the right of fishing therein was
a public right and not a proprietary one, and that
consequently the matter of its regulation rested
exclusively with the Dominion Parliament. In that
case, Viscount Haldane L.C. said, at page 175:
The principles above enunciated suffice to answer the third
question, which relates to the right of fishing in arms of the sea
and the estuaries of rivers. The right to fish is in their Lord
ships' opinion a public right of the same character as that
enjoyed by the public on the open seas. A right of this kind is
not an incident of property, and is not confined to the subjects
of the Crown who are under the jurisdiction of the Province.
Interference with it, whether in the form of direct regulation, or
by the grant of exclusive or partially exclusive rights to
individuals or classes of individuals, cannot be within the power
of the Province, which is excluded from general legislation with
regard to sea coast and inland fisheries.
In Attorney-General for Canada v. Attorney-
General for Quebec, supra, Viscount Haldane,
addressing the question of the power of the prov
ince to grant the exclusive right of fishing in tidal
waters after Confederation, said at pages 427-428:
The Dominion Parliament, having exclusive jurisdiction over
sea coast and inland fisheries, could regulate the exercise of all
fishing rights, private and public alike. As the public right was
not proprietary, the Dominion Parliament has in effect exclu
sive jurisdiction to deal with it. But as to private rights, the
provincial Legislature has exclusive jurisdiction so long as these
present no other aspects than that of property and civil rights in
the Province, or of matter of a local or private nature within it,
in the meaning of the words of s. 92.
Coming back to the matter at hand, I am of the
opinion that the misrepresentations complained of
in the present case and the consequences flowing
therefrom were attributable primarily to the
authoritative role of the individual defendants as
federal fishery officers under the Fisheries Act and
the alleged abuse of their powers thereunder, but
for which the alleged misrepresentations would not
have occurred at all. Consequently, I consider that
the subject-matter of the individual claims against
them, viewed in proper context, depends for its
existence upon "the detailed statutory framework"
of the Fisheries Act with respect to the terms and
conditions for obtaining commercial salmon fish
ing licences. Consistent with the principle of the
Oag case and Rhine v. The Queen, [1980] 2
S.C.R. 442, I am impelled to the conclusion that
the claims are founded on the statutory base of
federal law, namely, the regulatory and licensing
provisions of the Fisheries Act and the administra-
tion thereof, and that this is "a law of Canada"
within the meaning of section 101 of the Constitu
tion Act, 1867.
In Rhine v. The Queen, supra, Chief Justice
Laskin, addressing the contention that the statute
in question simply provided for the enforcement of
a contractual obligation which owed nothing to
federal law other than its origin in the statutory
authorization to make the advance, said 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.
In my opinion, the body of statutory law in the
present case is amply sufficient to nourish the
statutory grant of jurisdiction afforded by para
graph 17(5)(b) of the Federal Court Act.
The case having been resolved on the statutory
jurisdictional ground, the question of whether
there is an existing and applicable body of federal
common law "to underpin the jurisdiction of the
Federal Court" becomes academic.
For the foregoing reasons, the defendants'
motion is dismissed with costs.
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