Fitter International Inc v British Columbia, 2019 ABQB 990

Court of Queen’s Bench of Alberta Citation: Fitter International Inc v British Columbia, 2019 ABQB 990 Date: 20191220 Docket: 1801 08160 Registry: Calgary Between: Fitter International Inc. Applicant - and - Her Majesty the Queen in Right of British Columbia Respondents _______________________________________________________ Reasons for Decision of the Honourable Madam Justice K.D.

Nixon _______________________________________________________ Introduction [ 1 ] These reasons for decision address the jurisdiction of the provincial superior court in one province to grant declaratory relief respecting the constitutional validity of legislation of another province where that legislation purports to have extra-territorial affect.

Background [ 2 ] The British Columbia Provincial Sales Tax Act , SBC 2012, c 35 (“the PST Act ”) requires residents of British Columbia (“BC”) to pay tax on goods they bring into BC. The legislation also requires vendors outside the province of BC, but within Canada who sell goods to a person in BC and cause that property to be delivered to BC, to register, collect the sales tax and remit it to the government of BC, failing which a penalty equal to the tax plus an additional penalty may be imposed on the vendor.

The PST Act also requires the vendor to file monthly returns and allows auditors from the BC Ministry of Finance (“the Ministry”) to access the vendor’s business premises and records. [ 3 ] Fitter International Inc (“Fitter”) is an Alberta company. It supplies health and fitness equipment throughout the world. Pursuant to the PST Act , the Ministry informed Fitter that it was required to register pursuant to the PST Act and to collect the tax on purchases made by BC customers. [ 4 ] Fitter did not register or collect the tax.

It submits that the sections of the PST Act purporting to place obligations on non- residents of BC are ultra vires the Legislature of British Columbia as contrary to s 92 of the Constitution Act, 1867 . [ 5 ] The Ministry issued notices of assessment against Fitter for tax it estimated Fitter had collected in respect of purchases by BC consumers plus a penalty, a total of $441.20. Without seeking to register a BC judgment in Alberta or to obtain a judgment in Alberta, it took steps to enforce the penalty in Alberta by issuing a demand notice to Fitter’s bank in Alberta demanding payment.

The bank paid the Ministry. The bank notified Fitter that it had done so and, furthermore, that it intended to comply with any further demand notices from the Ministry. [ 6 ] Shortly thereafter, the Ministry advised Fitter that if it failed to provide certain records for audit, it would be assessed a penalty of $142,617.96, the Ministry’s estimate of the tax Fitter had failed to collect. One week later, the Ministry issued a Notice of Assessment to Fitter for $162,075.14, a penalty equivalent to the estimated tax plus interest.

Within days, this was followed with notice to Fitter that if it did not pay the assessment within 10 days, the Ministry would take legal action against it, including issuing a demand notice on Fitter’s bank and retaining a bailiff to seize and sell Fitter’s assets. [ 7 ] Fitter responded by filing its Original Application naming Her Majesty the Queen in right of British Columbia (“the BC Crown”) as Respondent.

It sought declarations that the sections of the PST Act that purport to apply to persons and property outside of BC are ultra vires as being outside the scope of provincial powers enumerated under s 92 of the Constitution Act, 1867 and that the notices of assessment and enforcements of those assessments are of no force and effect in Alberta.

Application to strike Fitter’s Originating Application [ 8 ] The BC Crown has not sought to register the demand notice or any BC order or judgment in Alberta under the Reciprocal Enforcement of Judgments Act, RSA 2000, c R-6 (“ REJA ”) nor has it sued in Alberta on any BC judgment or order against Fitter. There is no judgment or order in Alberta against Fitter in respect of the demand notices issued by the BC Crown.

The BC Crown concedes that if it had sought to register a BC judgment in Alberta pursuant to REJA , or sued in Alberta on a BC judgment, this Court would have jurisdiction to consider the relief sought. It submits, however, that because Fitter is the applicant, rather than the respondent, this Court has no jurisdiction by operation of common law Crown immunity. It applied to strike Fitter’s application pursuant to Rule 3.68(2)(

a) of the Alberta Rules of Court on that basis. [ 9 ] The application to strike Fitter’s Originating Application was heard by the Master. He dismissed the application but did not conclusively determine the jurisdiction issue, leaving that to be determined by the justice hearing Fitter’s application. The BC Crown appealed the Master’s decision and obtained an order that its appeal be heard before Fitter’s application was heard. The only issue presently before the Court, therefore, is the application by the BC Crown to strike for lack of jurisdiction.

It submits that any proceedings against it must be taken in the BC superior courts pursuant to the Crown Proceedings Act, RSBC 1996, c 89 . This Act abolishes Crown immunity for proceedings against the Crown taken in the BC superior courts. As Fitter makes its application in the Alberta superior court, the BC Crown submits that its common law Crown immunity bars Fitter’s application. [ 10 ] Fitter disagrees. It submits that Crown immunity does not apply to the relief it seeks – declarations respecting the effect in Alberta of the extra-territorial provisions of the PST Act .

It submits that Crown immunity does not apply when the issue raised is the constitutionality of provincial legislation that purports to have extra-territorial application in another province. It submits that all provincial superior courts have inherent jurisdiction to grant declarations with respect to the constitutionality of any provincial or federal legislation Issue [ 11 ] The sole issue for determination on this application to strike is whether, by operation of common law Crown immunity, this Court has no jurisdiction to grant the relief sought by Fitter. Analysis i.

Crown immunity [ 12 ] It is uncontroverted that Crown immunity “is deeply entrenched in our law … [and] that to override this immunity, which originated in the common law, requires clear and unequivocal legislative language: Canada (Procureur général) c Thouin, 2017 SCC 46 . In addressing federal Crown immunity from discovery, the Court observed:

Over the years, both Parliament and the provincial legislatures have gradually placed limits on this immunity in order to draw the legal position of the Crown and its servants closer to that of other Canadian litigants. […] (at para 1) [ 13 ] Crown immunity has been changed by provincial Crown proceedings statutes, which permit actions against a provincial Crown if taken in the courts of that province. Thus, these statutes constitute a partial waiver of Crown immunity.

As Peter Hogg, Patrick Monahan and Wade Wright explain in Liability of the Crown , 4 th ed (Toronto: Carswell, 2011): Now, there are Crown proceedings statutes in every Canadian jurisdiction granting jurisdiction to the courts of that jurisdiction to hear and determine claims against the Crown.

Nonetheless … the common law rule retains its relevance as a bar to proceedings against the Crown in a court other than the one stipulated in the applicable Crown proceedings statute. [at p 485, footnotes omitted] [ 14 ] Governmental liability was summarized by Madam Justice Karen Horsman & Gareth Morley, Government Liability: Law and Practice (Toronto: Thomson Reuters, 2017) (loose-leaf updated 2019 release 32) as follows: 1.30.20(2) - Prerogative Rights and the Civil Liability of the Crown Historically, a number of Crown prerogatives had a significant impact on the civil liability of the Crown: most importantly, the immunity from being impleaded in court without consent and immunity from tort even where it had consented to jurisdiction, but also immunities from discovery, costs, and court-ordered interest, even where it was a plaintiff.

The Crown also had (and retains) immunity from specific relief, including injunctions, specific performance and mandamus. These prerogatives were radically reduced by the 20 th century enactment of Crown proceedings legislation, but some of them remain… 1.40 Crown Proceeding Legislation As already discussed, at common law, the Crown could be liable for contractual or proprietary claims, but it had a number of prerogatives that rendered civil litigation against it very difficult. First, the Crown, as sovereign, could not be impleaded in court, except with its consent (i.e., through a petition of right).

Second, the Crown could not be guilty of any tort or crime. Third, the Crown was not obliged to provide either documentary or oral discovery. Fourth, the Crown could not be subject to any specific remedy (injunctions, mandamus, specific performance). Fifth, the Crown did not have to pay interest on awards of damages. Most of these prerogatives have either been abolished or modified through the passage of Crown proceeding statutes, although the immunity from recourse to specific remedies remains intact. . . .

All the modern Crown proceeding statutes abolish the petition of right, and requirement of a fiat, so that any person with a cause of action against the Crown may proceed directly to court to establish it. … All of the Crown proceeding statutes abolish Crown immunity from tort…. [ 15 ] It is uncontroverted that under the common law, Crown immunity applied to claims in tort against the Crown. While this common law immunity was abolished by Crown proceedings statutes, such actions must be taken in the courts of the province being sued.

In Athabasca Chipewyan First Nation v Canada (Minister of Indian Affairs and Northern Development) , 2011 ABCA 112 the court confirmed that the superior courts of Alberta did not have jurisdiction to hear a tort claim against the BC Crown. [ 16 ] In Athabasca, the plaintiff First Nation sued the BC government in Alberta for damages arising from the construction of the Bennett Dam on the Peace River in BC, which they alleged had altered the flow of the river and deleteriously affected the ecosystem of the Peace Athabasca Delta in Alberta into which the river flowed. [ 17 ] The Court confirmed that, at common law, the Crown was immune from tort until Crown proceedings statutes were passed in the provinces.

It held that the BC proceedings against the Crown legislation, which made the BC government subject to all the liabilities to which it would be subject were it a person, constituted a waiver of the Crown’s liability. However, it was not a complete waiver because the statute required suits against BC to be instituted in the BC Supreme Court.

In coming to its conclusion, the Court, at para 19 applied the presumption that: … “the legislature does not intend to make any change in the existing law beyond that which is expressly stated in, or follows by necessary implication from, the language of the statute”: [citing P. St. J. Langan, Maxwell on the

Interpretation of Statutes , 12 ed. (London: Sweet & Maxwell, 1969) at 116. [ 18 ] The BC Crown submits that Athabasca establishes that the Crown is immune from any proceedings at common law. As such, it submits that Athabasca is definitive that this Court does not have jurisdiction in respect of Fitter’s Originating Application. I disagree. [ 19 ] At common law Crown immunity did not apply to all proceedings against the Crown. [ 20 ] The extent of common law immunity with respect to proceedings against the Crown was succinctly summarized by Paul M. Perell and John W.

Morden in The Law of Civil Procedure in Ontario , 3rd ed (Toronto: Lexis Nexis, 2017) at para 4.12: At common law, the Crown is a legal person with the same legal capacities as other persons. However, at common law the Crown and its servants could not be sued in tort. Further, under the common law, the Crown is immune from actions in the law courts, unless the Crown granted a royal fiat, known as a petition of right, dispensing with its immunity. At the time of Confederation, no court had any jurisdiction regarding actions against the sovereign.

Under the common law and in the absence of some statutory authority, no process may be issued against the Crown (Her Majesty) in any of the sovereign’s courts. [footnotes omitted] [ 21 ] There were, however, exceptions to Crown immunity at common law. As noted by Perell and Morden, the Crown was subject to the law of property and contract: para 4.13. Further, there was no immunity if the Crown was engaged in a genuine commercial

activity as opposed to a governmental activity for a public purpose: para 4.13. These exceptions are not relevant here. [22] One major exception to common law Crown immunity, however, is relevant to Fitter’s application: There was and remains one major exception to the petition of right procedure, which, as we note below, itself has been replaced. Historically, the superior courts of Canada had jurisdiction in actions against the provincial or federal governments for a declaration thata statute was infra vires or ultra vires the Constitution Act, 1867, formerly the British North America Act.

The action for a declarationwithout a petition of right was epitomized by the English case of Dyson v. Attorney General. A proceeding without a petition of right fora declaration did not require any consent from the government. As noted by Justice Bora Laskin in Thorson v Canada (AttorneyGeneral), this form of action is very significant in a federal system precisely because it was the means to challenge the constitutionalityof legislation.

In Thorson, Laskin J. as he then was, also stated that in Canada, “the question of the constitutionality of legislation… hasalways been a justiciable question.”: Perell and Morden at para 4.14. [footnotes omitted] [23] This exception was discussed by the English Court of Appeal in Dyson v Attorney-General, [1911] 1 KB 410 (CA), andconfirmed by the Supreme Court of Canada in Canada (Attorney General) v Law Society (British Columbia), (SCC),[1982] 2 SCR 307 [Jabour]. [24] In holding that the plaintiff could proceed against the Attorney General without a petition of right, Lord Cozens-Hardy MRnoted that in bringing the action, the plaintiff was not seeking to divest any property of the Crown or to enforce any pecuniary claimagainst it.

Rather, the claim was only for a declaration that the plaintiff was under no obligation to comply with the provisions of thenotice. Lord Cozens-Hardy declined to draw a distinction between the courts of Chancery and the High Courts in determining thatjurisdiction to maintain an action against the Attorney General had been established – absent a petition – even where the object of theaction was to affect the rights of the Crown in favour of a claimant: pages 415-416.

Nor did he find that, in addressing form, the plaintiffwas necessarily barred from seeking purely declaratory relief against the Crown. [25] To similar effect, Lord Justice Farwell noted the distinction between cases where the estate of the Crown was directly affectedand which required a petition of right given that the courts could not order a conveyance of the estate absent the Crown’s consent, andthose cases in which the interests of the Crown were only indirectly affected.

In the latter instance, the courts of equity were able to makeorders and declarations affecting the rights of the Crown: page 421. [26] Farwell, LJ concluded: The present is not a case for a petition of right at all; the Crown is not directly affected, but the plaintiff seeks a declaration from theCourt of the true construction of

an Act which imposes burden-some and expensive inquiries upon him, and for non-compliance withwhich he is threatened with fines (at p. 422). [27] The inherent jurisdiction of the court to consider ‘Dyson’ type declarations was confirmed by the Supreme Court of Canada inJabour. [28] In the context of a disciplinary action against a lawyer in respect of his advertising, the question arose whether federallegislation, the Combines Investigation Act, RSC 1970, c C-23, applied to the Law Society of British Columbia and its members.

TheLaw Society applied in the BC superior court for a declaration whether the Act applied to it or its members and, if it did, whether it wasintra vires Parliament. [29] As intervenors, both the Federal and Provincial Attorneys General argued that the BC court had no jurisdiction to hear theapplication.

They relied on the Federal Court Act, which provided that the Federal Court Trial Division had exclusive originaljurisdiction where relief was claimed against the Crown to hear and determine any application or other proceeding for a declaration. [30] Both the BC trial court and the Court of Appeal concluded that the relief sought by the Law Society did not come within theexpression “claims against the Crown” in the Federal Court Act. At the Court of Appeal, Hinkson, JA distinguished between relief forwhich a petition of right had been necessary and a ‘Dyson’ type declaration.

He noted that the petition of right applied where “…thesubject is seeking to have something done in order to give effect to his legal rights against the Crown or seeking a decision that he isentitled to property or some interest therein or to possession thereof as against the Crown…”: (BC CA), [1980] 4 WWR6 (CA) at p 10-11. [31] Hinkson JA concluded: … it is clear that the respondents are not seeking a judgment which would declare or decide that the respondents are entitled to havesomething done in order to give effect to their legal rights as against the Crown or that they are entitled to property or some interesttherein or to the possession thereof.

Rather, they are seeking declarations of the same nature as those sought in Dyson v. A.-G. (p 10). [32] The Supreme Court agreed that the BC superior courts had jurisdiction. Speaking for the Court, Estey, J noted that thedeclaratory action had long been known in Canada and the United Kingdom and was epitomized in its modern form by the decision inDyson, where the entitlement of a plaintiff to proceed against the Crown without proceeding with a petition of right for a fiat wasconfirmed. The petition of right was the process by which a litigant sought the consent of the Crown to bring suit against the Crown.

Henoted that in R v Bradley, (SCC), [1941] SCR 270 the Court had contrasted a ‘Dyson’ type declaration from a claimrequiring a petition of right. [33] In Bradley, a patent holder sought both a declaration that the Crown in right of Canada had made use of the patent, andcompensation from the Crown for unauthorized use. Contrasting that form of declaration to the ‘Dyson’ type declaration, which involvedvalidity of a notice issued under a taxation statue, Duff, CJ in Bradley stated at p 276: This, of course, is a vastly different thing from a judgment such as that in Dyson v.

Attorney-General (supra), which does not declare ordecide that the subject is entitled to have something done in order to give effect to his legal rights as against the Crown, or that he is

entitled to property or some interest therein, or to the possession thereof. The proceeding by petition of right is not applicable to such aclaim as that in question in Dyson v. Attorney-General.

Such a proceeding is only competent where a petition of right does not lie. [34] Noting that the same idea was reflected in Thorson v Canada (Attorney General), (SCC), [1975] 1 SCR 138where Laskin, J, speaking for the majority of the Court, confirmed that the question of the constitutionality of legislation has always beena justiciable question, Estey, J observed that “[t]his form of action takes on much greater significance in a federal system where it hasbeen found to be efficient as a means of challenging the constitutionality of legislation…” (at p 323). [35] As it threw into question the basis for the Federal Court having concurrent jurisdiction with the provincial superior court tohear a ‘Dyson’ type action, a question that he concluded did not need to be answered in that case, Estey, J did not base his conclusion, ashad the trial and appeal courts, on a proper

interpretation of the Federal Court Act, that is, whether that Act required a fiat and petition ofright, but rather on a “more fundamental” aspect of the issue: … the basic principle governing the Canadian system of judicature is the jurisdiction of the superior courts of the provinces in all mattersfederal and provincial: [at p 327, citing Pigeon J in R v Foundation Co of Canada Ltd, (SCC), [1980] 1 SCR 695] [36] As held by Estey J, the claim for declarations were the core of the Law Society action, unaccompanied by any claim forrecovery of property or rights from the Crown.

The Federal Court Act could not be construed as ousting the jurisdiction of the provincialsuperior courts to declare a statue enacted by Parliament as beyond the constitutional authority of Parliament because: [t]o do so would strip the basic constitutional concepts of judicature of this country, namely the superior courts of the provinces, of ajudicial power fundamental to a federal system as described in the Constitution Act: p 328. [37] A claim against the Crown for a money judgment premised on the unconstitutionality of legislation, however, does not fallwithin the ‘Dyson’ type declaration.

This can be seen in Air Canada v British Columbia (Attorney General), (SCC),[1986] 2 SCR 539. [38] In Air Canada, the plaintiff sought declarations that it was entitled to be reimbursed by the province for monies it had paidover many years pursuant to the BC Gasoline Tax Act, RSBC 1979, c 152, on the basis that the statute was ultra vires the BC legislature.The BC Crown Proceedings Act, RSBC 1979, c 86 retained the petition of right process for causes of action that arose before August 1,1974. Air Canada had issued a petition of right seeking a fiat in respect of that portion of its claim.

The Lieutenant Governor, on theadvice of the Attorney General, had denied the fiat. [39] The Court held that the Attorney General was required to advise the Lieutenant Governor to issue the fiat and the LieutenantGovernor was required to follow that advice. Failing to do so would violate the federal structure of the constitution permitting the Crownto retain money paid under an unconstitutional act.

Referring to its earlier decision in Amax Potash Ltd v Saskatchewan, (SCC), [1977] 2 SCR 576 (where the Court held ultra vires a statute that prohibited recovery of taxes paid under protest pursuant to anunconstitutional statute), the Court stated that “if even a statute cannot permit the retention of moneys obtained under an unconstitutionalstatute, that result cannot be achieved under a purported exercise of discretion to refuse a fiat, whatever may be the legal foundation ofthat supposed discretion”: Air Canada at p 545. [40] With regard to procedure, however, the Court noted that the traditional way of suing the Crown by petition of right had beenretained by the statute.

As it was the only means to obtain a money judgment against the BC Crown, the petition of right processprovided in the Crown Proceedings Act had to be followed. [41] Thus, although the Court in Amax concluded that The Proceedings against the Crown Act, RSS 1965, c 87 was ultra vires theProvince of Saskatchewan to the extent that it barred the recovery of taxes paid pursuant to a statutory provision that was beyond thelegislative jurisdiction of the Province, it concluded that the main action – seeking a declaration that the tax statute was ultra vires and areturn of all money which may be paid under that statue – was a proceeding under The Proceedings against the Crown Act. [42] The Jabour, Air Canada and Amax cases are all consistent with the ruling in Dyson that there is an exception at common lawto Crown immunity for declarations that do not “declare or decide that the subject is entitled to have something done in order to giveeffect to his legal rights as against the Crown, or that he is entitled to property or some interest therein, or to the possession thereof” (Duff, CJ in Bradley at p 276). [43] The inherent jurisdiction of provincial superior courts to grant declarations regarding the constitutionality of legislation is alsosupported by the reasoning in Hunt v T&N plc, (SCC), [1993] 4 SCR 289. [44] Hunt was a tort action between private litigants.

The plaintiff was not seeking relief against the Crown and the question ofCrown immunity was not raised, but the jurisdiction of the courts of one province to adjudicate in respect of the vires of the legislation ofanother province did arise. In the course of the litigation, an issue arose in Hunt regarding the constitutional validity of Quebeclegislation. At issue was whether the Quebec statute, which prohibited removal of documents out of Quebec, was a “lawful excuse”under the BC rules for failing to obey the BC discovery rules.

The defendants, Quebec companies, and the Attorney General of Quebec,argued that the BC court had no jurisdiction to consider the constitutionality of the Quebec statute. [45] In finding that the BC court had jurisdiction, the Court referred to the ordinary powers of provincial superior courts toconsider construction of foreign laws for the purposes of the litigation before it.

It then went on to consider the impact of theConstitution on the jurisdiction of superior courts in Canada. [46] Justice LaForest, for the Court, began by observing that in Hunt, and similar cases, it would be unlikely that parties inside theenacting jurisdiction would be interested in challenging the legislation’s constitutionality. He observed that the Québec statute had neverbeen challenged by Québec litigants, as issues relating to the removal of documents would not arise during intra-provincial litigation, andwould be unlikely to affect Quebec residents involved in extra-provincial litigation.

[ 47 ] He noted that a range of Canadian courts are empowered to consider the constitutionality of the laws they apply, given the principle of constitutional supremacy enshrined in s 52(1) of the Constitution Act, 1982 . In considering Jabour , he restated that provincial superior courts have inherent jurisdiction over both federal and provincial matters: p 311.

He went on to state that this jurisdiction “must include a determination of whether the laws sought to be applied are constitutionally valid” (p 312), finding that the work of the courts would be stymied if they were unable to address constitutional challenges arising from the course of everyday private litigation (p 313). [ 48 ] Justice LaForest went on to state that the judiciary must be considered competent in interpreting their own Constitution, noting that they are federally appointed, trained in principles of federalism, and that the judicial process is subject to review by the Supreme Court.

In discussing instances where the legislation of one province has extra-provincial effects in another province, yet the constitutionality of the impugned legislation has yet to be challenged in the enacting province, he stated: Where the violation is as much a violation against the Constitution of Canada, then the superior courts which must legitimately face the issue should be able to deal with the question. […] Above all, it is simply not just to place the onus on the party affected to undertake costly constitutional litigation in another jurisdiction. (p 315) [ 49 ] The problem in the end, said the Court, was whether the jurisdiction should be exercised.

In this regard, given the “far- reaching impact” of such rulings, La Forest, J concluded that courts “should restrict themselves to hearing constitutional challenges to the legislation of other provinces only where there is a real interest affected in their province” (at p 315). [ 50 ] Although Crown immunity was not at issue in Hunt , the reasoning in that case is consistent with the conclusion that ‘ Dyson ’ type declarations, a long-established exception to traditional Crown immunity, are within the inherent jurisdiction of the provincial superior courts in Canada.

Such declarations do not seek a money judgment against the Crown or return of property from or interest in property of the Crown and thus do not directly affect the property of the Crown. ii. Application to Fitter’s Originating Application [ 51 ] Fitter seeks declarations respecting the constitutional validity of the extra-territorial provisions of the PST Act on persons, property or locations outside of BC and the validity of the actions of the BC Crown (the assessments, demand notices) against Fitter with respect to that Act .

Specifically, Fitter seeks the following declarations: [ 52 ] Specifically, it seeks the following declarations: (

a) a declaration that s 172 of the PST Act is ultra vires ; (

b) a declaration that s 220 of the PST Act is ultra vires to the extent it purports to apply to persons or property outside BC; (

c) in the alternative, declarations that s 172 and 220 of the PST Act do not apply to Fitter International; (

d) a declaration that the demand notice issued to its bank in Calgary is a nullity and of no force and effect in Alberta; (

e) a declaration that certain assessments made by the Ministry, and any other or further assessments, are invalid; (

f) a declaration that its bank was not required to comply with the demand notice; (

g) a declaration that s 194 of the PST Act is ultra vires to the extent it purportedly applies to persons or locations outside BC; (

h) a declaration that the demand notices issued by the BC Crown and served on savings institution branches in Alberta are of no force or effect unless issued in accordance with a court order under the Alberta REJA . [ 53 ] In addition to the above-noted declarations, Fitter also seeks an order directing the BC Crown to return the $441.20 paid by Fitter’s bank in response to the demand notice, plus interest. [ 54 ] I find that all of the above-noted declarations fit within the ‘ Dyson ’ type declarations that are not subject to Crown immunity.

This Court has inherent jurisdiction to consider Fitter’s application for those declarations. The order for return of the $441.20, however, does not fit within the ‘ Dyson ’ type declarations because it seeks to impose a positive duty on the BC Crown. [ 55 ] It is important to note the context in which Fitter seeks these declarations.

Although Fitter is the applicant, in essence the declarations sought are in defence of assessments it submits are unconstitutional and in response to the actions of the BC Crown in enforcing its assessments in Alberta, without any Alberta judgment or registration of a BC order or judgment under REJA . As noted earlier in these reasons, had it sought to register a BC order or judgment under REJA or sued in Alberta on a BC judgment, there is no dispute that this Court would have jurisdiction. Fitter’s legal position would be compromised if it were forced to challenge the assessments against it in BC.

By attorning to the jurisdiction of the BC Court, it would be denied a defence pursuant to s 2(6)(

b) of REJA , which provides that the Court of Queen’s Bench of Alberta will refuse to register a foreign judgment if the foreign debtor neither carries on business nor is ordinarily resident in the foreign jurisdiction and did not voluntarily appear or otherwise submit during the proceedings to the jurisdiction of the foreign court. Conclusion [ 56 ] I conclude that Crown immunity does not apply to the declarations sought by Fitter. This Court has inherent jurisdiction to consider the declarations it seeks. [ 57 ] Costs may be spoken to within 60 days.

Heard on the 29 th day of October, 2019. Dated at the City of Calgary, Alberta this 20 th day of December, 2019. K.D. Nixon J.C.Q.B.A. Appearances: David Robertson and Scott Joly, EY Law LLP for Fitter International Inc. Sabri M. Shawa, Q.C. and Ryan Phillips, JSS Barristers for Her Majesty the Queen in Right of British Columbia