2013 FCA 217, 2013 FCA 217

A-541-12 2013 FCA 217 Her Majesty the Queen in Right of the Province of Alberta as represented by The Minister of Sustainable Resources Development ( Appellant ) v . Alan Toney, Yvonne Toney and Courtenay Toney & Rebecca Toney as represented by their litigation guardian Alan Toney ( Respondents ) and Her Majesty the Queen in Right of Canada in the name of The Royal Canadian Mounted Police and The Canadian Ship Bearing Licence No. AB 1275024 ( Defendants in action, not party to appeal ) Indexed as: Toney v. Canada Federal Court of Appeal, Sharlow, Webb and Near JJ.A.—Vancouver, June 3; Ottawa, September 18, 2013.

Maritime Law — Appeal from Federal Court order determining, as question of law in advance of trial, that Federal Court having in personam jurisdiction over appellant in underlying action — Action arising from death of young daughter, sister to plaintiffs in action, following boating incident in Alberta — Appellant consistently objecting to Federal Court’s exercise of in personam jurisdiction thereover in present proceedings — Whether Federal Court having in personam jurisdiction over appellant in present matter — Per Near J.A. (Webb J.A. concurring): Claim herein relating to maritime law; therefore, falling within subject-matter jurisdiction of Federal Court pursuant to Federal Courts Act (Act), s. 22 — Crown presumptively not bound by legislation unless expressly named, bound by necessary implication, or having waived immunity — Fact Crown defined in Act, s. 2 as “Her Majesty in right of Canada” contraindicative of clear intention to bind provinces — View supported by absence of any indication of Parliamentary intention to confer on Federal Courts in personam jurisdiction over provinces in legislative history of Act, s. 22, which deals with subject-matter jurisdiction — Also, Act, s. 19 not applying herein to grant Federal Court jurisdiction over appellant since requirements not met — Regarding necessary implication, purpose of Federal Courts Act would not be wholly frustrated if appellant herein not bound — As for waiver, respondents not establishing that appellant waiving immunity by past conduct — Appeal allowed — Per Sharlow J.A. (dissenting): Based on Act, ss. 22, 43 , read in entirety, context, Parliament intending to give Federal Court complete, comprehensive jurisdiction in all claims under Marine Liability Act , including claims of respondents against appellant — Therefore, provinces bound by Act, ss. 22, 43.

This was an appeal from a Federal Court order determining, as a question of law in advance of trial, that the Federal Court has in personam jurisdiction over the appellant in the underlying action. The action arose from the death of five-year old Janessa Toney, daughter and sister to the plaintiffs in the action, following a boating incident on Lake Newell in southern Alberta. The Toney family (respondents) and Janessa were allegedly out on their boat and encountered a malfunction in their steering equipment.

They called for help and, in the course of the rescue, the rescue vessel, owned and operated by the appellant, capsized. All of the members of the rescue team and the respondents, except for Janessa, were taken to shore. She may have been pinned under the rescue vessel and died of drowning. The statement of claim sets out a series of allegations against the appellant, which consistently objected to the Federal Court’s exercise of in personam jurisdiction over it in these proceedings. The issue was whether the Federal Court has in personam jurisdiction over the appellant in this matter.

Held (Sharlow J.A. dissenting), the appeal should be allowed. Per Near J.A. (Webb J.A. concurring): There was no dispute that the claim herein related to maritime law and thus fell within the subject-matter jurisdiction of the Federal Court pursuant to

section 22 of the Federal Courts Act (Act). The contest was strictly about whether Parliament has shown a clear intention to grant the Federal Court in personam jurisdiction over the appellant in this matter. Doctrine has established that the Crown is presumptively not bound by legislation unless it is expressly named, bound by necessary implication or has waived its immunity. The fact that the Crown is defined in

section 2 of the Act as “ Her Majesty in right of Canada” was contraindicative of a clear intention to bind the provinces. When compared with other statutes that contain express language of an intention to bind the provinces, the words “as well as otherwise” in

section 22 thereof were not sufficiently express to convey Parliament’s clear intention to bind the provinces. This view was supported by an absence of any indication of a Parliamentary intention to confer on the Federal Courts in personam jurisdiction over the provinces in the legislative history of

section 22 of the Act.

Section 22 deals with subject-matter jurisdiction and there was nothing in the provision or in the remainder of the statute whereby the conclusion could be drawn that Parliament clearly intended to bind the provincial Crown by express language or through logical inference.

Section 19 of the Act does grant jurisdiction to the Federal Court over the provincial crowns in cases of intergovernmental controversies if the particular province involved has adopted legislation accepting such jurisdiction. The appellant has accepted such jurisdiction under its Judicature Act (

section 27 ).

Section 19 of the Act cannot be invoked if an individual or a company commences an action against both the Federal government and the provincial government but may be invoked if the action is commenced against the Federal government and the Federal government then commences a third party proceeding against the provincial Crown. As a result, since this action was commenced by the respondents against the appellant and the Federal government,

section 19 of the Act did not apply to grant the Federal Court jurisdiction over the appellant. Contrary to what the respondents argued, there was no clear intention to grant in personam jurisdiction when

section 22 of the Act was read in conjunction with sections 4 and 8 of the appellant’s Proceedings Against the Crown Act (APACA).

Section 4 of APACA grants

the right to substantive relief against the Crown and

section 8 describes the forum and procedural rules that will govern proceedingsagainst the appellant commenced in accordance with APACA. The Saskatchewan Court of Appeal has endorsed the

interpretation thatsection 8 leads to the conclusion that the Alberta legislature intended that actions against the appellant can only proceed when brought ina court in Alberta. The Alberta legislature has not generally granted jurisdiction to the Federal Court over the appellant but rather hasonly granted jurisdiction in specific circumstances, a conclusion supported by

section 27 of the appellant’s Judicature Act. Given theSaskatchewan Court of Appeal’s

interpretation of

section 8 of APACA and absent more explicit language to the contrary in any otherprovincial statute, there was no basis to find that the appellant granted the Federal Court jurisdiction thereover other than as provided insection 27 of the appellant’s Judicature Act. Regarding necessary implication, an intention to bind the Crown may be found where the purpose of the statute would be whollyfrustrated if the government were not bound or, in other words, if an absurdity were produced.

It could not be seen how the purpose ofthe Federal Courts Act—to advance the better administration of the Laws of Canada in accordance with the Constitution Act, 1867—would be wholly frustrated if the appellant was not bound. This was particularly so given that the plaintiffs in the underlying action werenot without remedy in this case and could bring their action in the Alberta Court of Queen’s Bench. As for waiver, the respondents did not establish that the appellant waived its immunity by its past conduct.

Per Sharlow J.A. (dissenting): The jurisdiction of the Federal Court in this matter depended solely on federal legislation. It had to bedetermined whether the respondent’s claim was based on federal legislation and whether federal legislation was binding on theprovinces. It was clear that the respondent’s claims were based on two federal statutes—the Marine Liability Act and the Federal CourtsAct.

The phrase “in all cases” in subsection 43(1) of the Federal Courts Act, which deals in particular with in personam jurisdiction, wasbroad enough to include an in personam claim for damages caused by a ship or its operation where the ship is owned by a province.Given the statutory context, that is what that provision was intended to mean.

In conclusion, based on sections 22 and 43 of the FederalCourts Act read in their entirety and in context, Parliament intended to give the Federal Court complete and comprehensive jurisdictionin all claims under the Marine Liability Act, including the claims of the respondents in this case against the appellant. The test in section17 of the federal

Interpretation Act being met, the provinces were bound by sections 22 and 43 of the Federal Courts Act. STATUTES AND REGULATIONS CITED Alberta Treasury Branches Act, R.S.A. 2000, c. A-37, s. 2(4). 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], s. 101. Crown Proceeding Act, R.S.B.C. 1996, c. 89. Excise Tax Act, R.S.C. 1970, c. E-13. Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 19, 23. Federal Courts Act, R.S.C., 1985, c. F-7, ss. 2 “Crown”, 17, 19, 20, 22, 23, 43. Federal Courts Rules, SOR/98-106.

Interpretation Act, R.S.A. 2000, c. I-8, ss. 14, 28 “Her Majesty”.

Interpretation Act, R.S.C., 1985, c. I-21, ss. 16, 17. Judicature Act, R.S.A. 2000, c. J-2, s. 27. Marine Liability Act, S.C. 2001, c. 6, ss. 3, 4 “dependant”, 5, 6(2), 79(3). Proceedings Against the Crown Act, R.S.A. 2000, c. P-25, ss. 4, 8. Species at Risk Act, S.C. 2002, c. 29, s. 5. CASES CITED APPLIED: Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission), (SCC),[1989] 2 S.C.R. 225, (1989), 61 D.L.R. (4th) 193; Medvid v. Alberta (Health and Wellness), 2012 SKCA 49 , 349 D.L.R. (4th)72. CONSIDERED: Trainor Surveys

(1974) Limited v. New Brunswick, (FC), [1990] 2 F.C. 168 (T.D.); R. v. Eldorado Nuclear Ltd.; R.v. Uranium Canada Ltd., (SCC), [1983] 2 S.C.R. 551, (1983), 4 D.L.R. (4th) 193; Friends of the Oldman River Societyv. Canada (Minister of Transport), (SCC), [1992] 1 S.C.R. 3, (1992), 88 D.L.R. (4th) 1; Kusugak v. NorthernTransportation Co., 2004 FC 1696, 247 D.L.R. (4th) 323; National Association of Broadcast Employees and Technicians v. The Queenin right of Canada, (FCA), [1980] 1 F.C. 820, (1979), 107 D.L.R. (3d) 186 (C.A.); Canadian Javelin Ltd. v.

TheQueen in Right of Newfoundland, (FCA), [1978] 1 F.C. 408, (1977), 77 D.L.R. (3d) 317 (C.A.); Greeley v. Tami Joan(The) (1996), 113 F.T.R. 66 (F.C.T.D.); Union Oil Co. of Canada Ltd. v. The Queen, (FC), [1974] 2 F.C. 452, (1974),52 D.L.R. (3d) 388 (T.D.), affd (FCA), [1976] 1 F.C. 74 (C.A.), affd (1976), 16 N.R. 425 (S.C.C.); Fairford Band v.Canada (Attorney General), (FC), [1995] 3 F.C. 165, (1995), 96 F.T.R. 172 (T.D.), affd (1996), 205 N.R. 380

(F.C.A.); R. in right of Newfoundland v. Commission Hydro-Electrique de Québec; Churchill Falls (Labrador) Corporation Ltd. v.Commission Hydro-Electrique de Québec), (SCC), [1982] 2 S.C.R. 79, (1982), 137 D.L.R. (3d) 577; AthabascaChipewyan First Nation v. British Columbia, 2001 ABCA 112 , 281 A.R. 38; Scott Steel Ltd. v. Alarissa (The), (FC), [1996] 2 F.C. 883, (1996), 111 F.T.R. 81 (T.D.); Toney v. Canada, 2011 FC 1440, affd 2012 FCA 167. REFERRED TO: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Manitoba v.

Canadian Copyright Licensing Agency (Access Copyright), 2013FCA 91, 358 D.L.R. (4th) 563; Province of Bombay v. Municipal Corporation of Bombay, [1947] A.C. 58 (P.C.); Mount Royal/WalshInc. v. Jensen Star (The), [1990] 1 F.C. 199, (1989), 99 N.R. 42 (C.A.); Avant Inc. v. R., (FC), [1986] 2 F.C. 91,(1986), 25 D.L.R. (4th) 156 (T.D.); Dableh v. Ontario Hydro (1990), 33 C.P.R. (3d) 544 (F.C.T.D.). AUTHORS CITED Horsman, Karen and Gareth Morley. Government Liability: Law and Practice, loose-leaf. Aurora, Ont.: Canada Law Book, 2007.

APPEAL from a Federal Court order (2012 FC 1412, 422 F.T.R. 178) determining, as a question of law in advance of trial, that theFederal Court has in personam jurisdiction over the appellant in the underlying action taken by the respondents. Appeal allowed,Sharlow J.A. dissenting. APPEARANCES Marta Burns and Bruce Hughson for appellant. Darren G. Williams for respondents. SOLICITORS OF RECORD Deputy Attorney General of Canada for appellant. Merchant Law Group LLP, Victoria, for respondents.

The following are the reasons for judgment rendered in English by [1] Near J.A.: Her Majesty the Queen in right of Alberta (Alberta) appeals from the December 3, 2012 order of the Federal Court(2012 FC 1412, 422 F.T.R. 178) in which the Judge determined, as a question of law in advance of trial, that the Federal Court has inpersonam jurisdiction over Alberta in the underlying action. [2] The action arises from the death of five-year-old Janessa Toney, daughter and sister to the plaintiffs, following a boating incidenton Lake Newell in southern Alberta.

It is alleged that the Toney family was out on their boat on Lake Newell on September 27, 2008,and encountered a malfunction in their steering equipment. They called for help and, in the course of the rescue, the rescue vessel,owned and operated by Alberta, capsized. All of the members of the rescue team and of the Toney family, except for Janessa, were takento shore.

It is believed that she was pinned under the rescue vessel and died of drowning. [3] The statement of claim sets out a series of allegations against Alberta at paragraph 63, including “failing to identify and utilizethe reasonably safest method, means and route for retrieving the Plaintiffs” and “overloading the [rescue] Vessel given the wind andwave conditions, and otherwise operating [it] in such a manner as swamping and/or capsizing of the Vessel was likely, and did in factoccur”. [4] Alberta has consistently objected to the Federal Court’s exercise of in personam jurisdiction over it in these proceedings. I.

ISSUES [5] The sole issue to be decided is whether the Federal Court has in personam jurisdiction over Alberta in this matter. As a questionof law, the Judge’s determination in this regard is reviewable on the standard of correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002]2 S.C.R. 235, at paragraph 8; Trainor Surveys

(1974) Limited v. New Brunswick, (FC), [1990] 2 F.C. 168 (T.D.), atpage 175. II. ANALYSIS A. Basic Principles [6] Four basic principles will frame my analysis. First, Parliament and the provincial legislatures have “unequivocally adopted thepremise that the Crown is prima facie immune” from legislation: R. v. Eldorado Nuclear Ltd.; R. v. Uranium Canda Ltd., (SCC), [1983] 2 S.C.R. 551, at page 558. Alberta’s statutory directive on this point is found in

section 14 of its

Interpretation Act,R.S.A. 2000, c. I-8, and governs the approach to Alberta’s statutes: Crown not bound 14 No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty’s rights or prerogatives in any manner, unless theenactment expressly states that it binds Her Majesty. [Emphasis mine.] “Her Majesty” is defined in

section 28 of the same Act as “the Sovereign of the United Kingdom, Canada and Her other realms andterritories, and Head of the Commonwealth”. The federal equivalent, found in

section 17 of the

Interpretation Act, R.S.C., 1985, c. I-21,and applicable to federal statutes, states:

Her Majesty not bound oraffected unless stated 17. No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty’s rights or prerogativesin any manner, except as mentioned or referred to in the enactment. [Emphasis mine.] “Her Majesty” is defined identically as in the provincial statute. [7] The Supreme Court of Canada has cautioned that courts are not entitled to question the basic concept of Crown immunity(Eldorado, at page 558), and has emphasized that, in light of the language in the

Interpretation Acts, a clear Parliamentary intention tobind the Crown—federal or provincial—is required to displace it: Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission), (SCC), [1989] 2 S.C.R. 225 (AGT), at pages 281–282. While certainlyhelpful, such an intention need not necessarily be expressed with such words as: “This Act shall bind Her Majesty” [at page 280]. As setout in Friends of the Oldman River Society v.

Canada (Minister of Transport), (SCC), [1992] 1 S.C.R. 3 (OldmanRiver), at page 53, “a contextual analysis of a statute may reveal an intention to bind the Crown if one is irresistibly drawn to thatconclusion through logical inference” (emphasis mine). [8] Second, where Parliament has the authority to legislate in an area, a provincial Crown will be bound if Parliament so chooses:AGT, at page 275. [9] Third, the Federal Court, created by Parliament pursuant to

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]]obtains its jurisdiction from statute. In order for the provincial Crowns to be sued in this Court, there must be “some legislative provisionpermitting suits”: Trainor Surveys, at page 176. [10] Fourth and finally, the Court must have jurisdiction over both the subject-matter of the dispute and the parties: Kusugak v.Northern Transportation Co., 2004 FC 1696, 247 D.L.R. (4th) 323, at paragraph 42. There is no dispute that the claim relates tomaritime law, and thus falls within the subject-matter jurisdiction of the Federal Court pursuant to

section 22 of the Federal Courts Act,R.S.C., 1985, c. F-7. The contest is strictly about whether Parliament has shown a clear intention to grant the Federal Court in personamjurisdiction over Alberta in this matter. B. Has Parliament shown a clear intention to bind the Province? [11] In their text, Government Liability: Law and Practice, loose-leaf (Aurora, Ont.: Canada Law Book, 2007), Horsman and Morleypoint out that the Crown is presumptively not bound by legislation unless (

i) it is expressly named; (ii) it is bound by necessaryimplication; or (iii) it has waived its immunity. This is a useful rubric for assessing the parties’ arguments in this case, being evermindful that the starting presumption is that the Crown is not bound. i. Expressly Named (

a) Section 22 of the Federal Courts Act [12]

Section 22 of the Federal Courts Act reads, in relevant part, as follows: Navigationandshipping 22.

(1) The Federal Court has concurrent original jurisdiction, between subject and subject as well as otherwise, in all casesin which a claim for relief is made or a remedy is sought under or by virtue of Canadian maritime law or any other law ofCanada relating to any matter coming within the class of subject of navigation and shipping, except to the extent thatjurisdiction has been otherwise specially assigned. [13] The respondents submit that the phrase “between subject and subject as well as otherwise” expressly grants in personamjurisdiction over provincial Crowns.

Relying primarily on National Association of Broadcast Employees and Technicians v. The Queenin right of Canada, (FCA), [1980] 1 F.C. 820 (C.A.) (N.A.B.E.), the respondents argue that “as well as otherwise” canonly refer to public authorities, which includes provincial and territorial governments: Kusugak, at paragraph 50. [14] I do not find the authorities relied on by the respondents persuasive for two reasons: First, N.A.B.E. was decided in a purelyfederal context, without regard to the potential difference between levels of government.

For its part, the Court in Kusugak did notconsider the phrase “as well as otherwise”, limiting itself only to a consideration of the meaning of “between subject and subject”. [15] Second, the fact that the Crown is defined in

section 2 of the Federal Courts Act as “Her Majesty in right of Canada” iscontraindicative of a clear intention to bind the provinces. In Canadian Javelin Ltd. v. The Queen in Right of Newfoundland, (FCA), [1978] 1 F.C. 408 (C.A.), the Court noted at page 410 that “where the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10]contemplates conferring jurisdiction in claims against Her Majesty, it does so (e.g., section 17(1)) by express reference to claims againstthe ‘Crown’, which is defined, for purposes of the Federal Court Act, by

section 2 thereof as ‘Her Majesty in right of Canada’”. Whencompared with other statutes that contain express language of an intention to bind the provinces, such as

section 5 of the Species at RiskAct, S.C. 2002, c. 29 (“This Act is binding on Her Majesty in right of Canada or a province”), I am not convinced that the words “as wellas otherwise” are sufficiently express to convey Parliament’s clear intention to bind the provinces. While language as explicit as that inthe Species at Risk Act is not strictly required, my view is supported by the absence of any indication of a Parliamentary intention toconfer on the Federal Courts in personam jurisdiction over the provinces in the legislative history of

section 22 of the Federal CourtsAct. [16] This

interpretation is equally consistent with the case law that explicitly dealt with whether similar provisions in the FederalCourts Act and its predecessors intended to bind the provinces. In Javelin, for example, this Court held that

section 23 of the FederalCourt Act [R.S.C. 1970 (2nd Supp.), c. 10] did not confer jurisdiction in respect of Her Majesty in right of Newfoundland. While itrelated to bills of exchange and promissory notes,

section 23 of the former Federal Court Act contained similar language as

section 22 ofthe current Federal Courts Act. The Court’s holding flowed from then-section 16 of the federal

Interpretation Act, which provided thatHer Majesty is bound by an enactment only where she is therein mentioned or referred to: Javelin, at pages 409–410. No mention or

reference to Her Majesty was found. [17] In Trainor Surveys, the Federal Court adopted the Javelin reasoning that “it is clear law that the Crown cannot be impleaded in acourt in respect of a claim against the Crown except where statutory jurisdiction has been conferred on the court to entertain claimsagainst the Crown of a class in which the particular claim falls”: Trainor Surveys, at page 176; Javelin, at page 409. While TrainorSurveys was a case related to copyright infringement pursuant to

section 20 of the Federal Courts Act, the language at issue was againthe same as in our case. The Court held that a general description of subject-matter of concurrent jurisdiction was insufficient to displacethe traditional immunity enjoyed by provincial Crowns from suits in the Federal Court (at page 176; see also Greeley v.

Tami Joan (The)(1996), 113 F.T.R. 66 (F.C.T.D.), particularly at paragraph 21): In my opinion, the mere fact that the Federal Court has concurrent jurisdiction with provincial courts to hear and determine civil actionsfor copyright infringement is insufficient to vest the Court with jurisdiction to entertain the present suit impleading the provincialCrowns and the Crown agencies named as defendants in the absence of some specific provision to that effect, whether contained infederal legislation or in the respective Crown proceedings statutes of the three provinces.

I concur with the reasoning of Collier J. inAvant Inc. v. R., supra, and, paraphrasing his words, conclude that “for the provincial Crown[s] to be sued in this court, there must, … besome legislative provision permitting suits”, and here there is none. I am also of the opinion that the traditional immunity of theprovincial Crowns and their agencies from suits in the Federal Court is not abrogated in the present case by the general descriptions ofsubject matter of concurrent jurisdiction with respect to copyright contained in the Federal Court Act, on the principle of Union OilCompany v.

The Queen, supra. [Emphasis mine.] [18] I am of the same mind with respect to

section 22 of the Federal Courts Act: it deals with subject-matter jurisdiction, and I seenothing in the provision, or in the remainder of the statute (other than

section 19 of the Federal Courts Act), that irresistibly draws me tothe conclusion that Parliament clearly intended to bind the provincial Crown by express language or through logical inference: seeManitoba v. Canadian Copyright Licensing Agency (Access Copyright), 2013 FCA 91, 358 D.L.R. (4th) 563, at paragraph 48; OldmanRiver, at pages 52–53. (

b) Section 19 of the Federal Courts Act [19]

Section 19 of the Federal Courts Act does grant jurisdiction to the Federal Court over the provincial crowns in cases ofintergovernmental controversies if the particular province involved has adopted legislation accepting such jurisdiction. Alberta hasaccepted such jurisdiction (section 27 of Alberta’s Judicature Act, R.S.A. 2000, c. J-2). [20] In Union Oil Co. of Canada Ltd. v. The Queen, (FC), [1974] 2 F.C. 452 (T.D.), the plaintiff had sold fuel oilto the Province of British Columbia who claimed an exemption from the tax imposed under the Excise Tax Act, R.S.C. 1970, c.

E-13.The Federal government did not agree that the exemption was applicable. The plaintiff commenced an action against both the Federalgovernment and the Province of British Columbia. In striking the claim against the Province of British Columbia, Collier J. made thefollowing comments in relation to the argument that the Federal Court had jurisdiction over the Province of British Columbia as a resultof the provisions of

section 19 of the then Federal Court Act [at page 459]: In my opinion

section 19 has no application to this case. There is no doubt there is a dispute or disagreement between Canada and BritishColumbia as to whether the diesel fuel was exempt from tax.

Assuming that dispute or disagreement to be a “controversy”, it seems tome the jurisdiction of the Federal Court can only be invoked by Canada or by the Province, and not by the commencement of legalproceedings by a private citizen. [21] In dismissing the appeal by Union Oil Co. of Canada Ltd. ( (FCA), [1976] 1 F.C. 74), the Federal Court ofAppeal stated [at page 75] that: The jurisdiction of the Federal Court is entirely statutory and, accepting that it lies within the powers of the Parliament of Canada, whenlegislating in a field within its competence, to give the Federal Court jurisdiction to implead the Crown in right of a province, we do notthink any of the statutory provisions to which we were referred, or any others of which we are aware, authorize the Court to entertain aproceeding at the suit of a subject against the Crown in right of a province. [22] The Supreme Court of Canada, in brief reasons ((1976), 16 N.R. 425) also dismissed the company’s appeal and noted that [atpage 426]: … the appellant has failed to show any ground of jurisdiction in the Federal Court over the Crown in right of British Columbia in thiscase. [23] In Fairford Band v.

Canada (Attorney General), [1995] 3 F.C. 165 (T.D.) (affirmed on appeal (1996), 205 N.R. 380 (F.C.A.)),the courts distinguished the Union Oil case and held that

section 19 of the Federal Court Act could be invoked if the Federal government(against whom a claim was being made) commenced a third party proceeding against a provincial Crown.

Therefore it seems to me thatsection 19 of the Federal Courts Act cannot be invoked if an individual or a company commences an action against both the Federalgovernment and a provincial government but may be invoked if the action is commenced against the Federal government and the Federalgovernment then commences a third party proceeding against the provincial Crown. [24] Even though it may be necessary or desirable to have both the Federal government and the province of Alberta before the FederalCourt without the necessity of first commencing an action against the Federal government and then, if the Federal government should sochoose, having the federal government commence a third party proceeding against the province of Alberta, as noted by the SupremeCourt of Canada in R. in Right of Newfoundland v.

Commission Hydro-Electrique de Québec), (SCC), [1982] 2 S.C.R.79 [at page 92]: As Collier J. rightly stated in Union Oil Co. of Canada Ltd. v. The Queen in right of Canada (1974), (FC), 52 D.L.R.(3d) 388, in a note at the foot of p. 393:

The fact that one defendant is properly before the Court, and another party may be a necessary or desirable defendant, does not conferjurisdiction. [25] As a result, since this action was commenced by the Toney family against the province of Alberta and the Federal government,section 19 of the Federal Courts Act does not apply to grant the Federal Court jurisdiction over the province of Alberta. (

c) Alberta’s Proceedings Against the Crown Act and

section 22 of the Federal Courts Act [26] The respondents argue that, even if

section 22 of the Federal Courts Act merely grants the Federal Court subject-matterjurisdiction, a clear intention to grant in personam jurisdiction is evident when it is read in conjunction with sections 4 and 8 of Alberta’sProceedings Against the Crown Act, R.S.A. 2000, c. P-25 (APACA). This is particularly so, they posit, when compared with theequivalent provisions in the Crown proceedings legislation in other provinces, which specify in which courts proceedings against theCrown must be brought (generally the superior courts of the province in question).

The respondents submit that had the Alberta legislatorintended to exclude the jurisdiction of the Federal Courts over proceedings commenced by individuals or companies against it, it wouldhave included language to that effect. [27] I am not persuaded by this line of reasoning.

Section 4 of APACA grants the right to substantive relief against the Crown, andreads as follows: Right to sue Crown 4 A claim against the Crown that, if this Act had not been passed, might be enforced by petition of right, subject to the grant of a fiat bythe Lieutenant Governor, may be enforced as of right by proceedings against the Crown in accordance with this Act, without the grant ofa fiat by the Lieutenant Governor. [28]

Section 8 of APACA describes the forum and procedural rules that will govern proceedings against Alberta commenced inaccordance with APACA, and reads as follows: Proceedings against Crown 8 Except as otherwise provided in this Act, all proceedings against the Crown in any court shall be instituted and proceeded with inaccordance with the relevant law governing the practice in that court. [Emphasis mine.] [29] By way of comparison, the equivalent provision in British Columbia’s (B.C.) Crown Proceeding Act, R.S.B.C. 1996, c. 89, readsas follows (subsection 4(1)): Institution of claims in the Supreme Court 4

(1) Subject to this Act, all proceedings against the government in the Supreme Court must be instituted and proceeded with under theSupreme Court Act and, if applicable, under the Class Proceedings Act. [30] In Athabasca Chipewyan First Nation v. British Columbia, 2001 ABCA 112 , 281 A.R. 38 (Athabasca), the AlbertaCourt of Appeal held that the Alberta courts had no jurisdiction over the B.C. Crown by virtue of subsection 4(1) of B.C.’s CrownProceeding Act, R.S.B.C. 1996, c. 89. [31] The Alberta Court of Appeal in Athabasca recognized that the B.C. Crown had largely waived its historical immunity withrespect to tort liability (particularly in paragraph 2(

c) of the Crown Proceeding Act), but reasoned that the B.C. Crown maintained part ofits procedural immunity by virtue of subsection 4(1) (at paragraph 19): Second, there is a presumption that “the legislature does not intend to make any change in the existing law beyond that which isexpressly stated in, or follows by necessary implication from, the language of the statute”. P. St. J. Langan, Maxwell on theInterpretation of Statutes, 12th ed. (London: Sweet & Maxwell, 1969) at 116. At common law, the general rule is that the Crown cannotbe sued. Young v. S.S. “Scotia”, [1903] A.C. 501 at 505 (P.C., Can.); Can.

Javelin v. The Queen Nfld., (FCA), [1978]1 F.C. 408 at 409 (F.C.A.). The Crown can be sued, of course, in a court that has been granted jurisdiction over it by statute. The B.C.Act does not expressly give jurisdiction over the B.C. government to the Alberta Court of Queen’s Bench. While it does not give expressjurisdiction over the government to the B.C. Supreme Court either, it does so by implication of s. 4(1).

Absent more explicit language(such as that found in the similar federal legislation), the above principle suggests that s. 4(1) should not be interpreted as grantingjurisdiction to any court other than the B.C. Supreme Court. In the result, while British Columbia has largely waived its substantiveimmunity through s. 2(c), it has only partly waived its procedural immunity through s. 4(1). [Emphasis mine.] [32] In Medvid v. Alberta (Health and Wellness), 2012 SKCA 49 , 349 D.L.R. (4th) 72, the Saskatchewan Court of Appealdealt with the issue of the

interpretation of

section 8 of the APACA. The decision of the Saskatchewan Court of Appeal was released onApril 25, 2012 which was over four months before the motion that is under appeal was heard by Mactavish J. on September 4, 2012.However there is no indication that this case was brought to her attention and this case was not included in the joint book of authoritiesthat was submitted to this Court. Counsel for the Medvids and Coreen Hardy before the Saskatchewan Court of Appeal were E.F.A.Merchant, Q.C. and Nicholas Robinson. [33] The Saskatchewan Court of Appeal endorsed the

interpretation of

section 8 of the APACA adopted by Dawson J. and repeatedthis

interpretation in paragraph 39:

Section 8 of the Alberta Act leads to the inevitable conclusion that the Alberta Legislature intended that actions against Alberta can onlyproceed when brought in a court in Alberta. The Proceedings Against the Crown Act of Alberta does not open the door for an actionagainst Alberta in another jurisdiction.

[34]

Section 27 of Alberta’s Judicature Act, also supports the conclusion that Alberta Legislature has not generally grantedjurisdiction to the Federal Court over Alberta but rather has only granted jurisdiction in specific circumstances: Jurisdiction of federal courts 27 The Supreme Court of Canada and the Federal Court of Canada, or the Supreme Court of Canada alone, according to the SupremeCourt Act (Canada) and the Federal Court Act (Canada) have jurisdiction (

a) in controversies between Canada and Alberta; (

b) in controversies between Alberta and any other province or territory of Canada in which

an Act similar to this Act is in force; (

c) in proceedings in which the parties by their pleadings have raised the question of the validity of

an Act of the Parliament of Canada orof

an Act of the Legislature of Alberta, when in the opinion of a judge of the court in which they are pending the question is material,and in that case the judge shall, at the request of the parties, and may without request if the judge thinks fit, order the case to be removedto the Supreme Court of Canada in order that the question may be decided. [35] Given the

interpretation of

section 8 of the APACA adopted by the Saskatchewan Court of Appeal in Medvid and absent moreexplicit language to the contrary in any other provincial statute, there is no basis to find that the Province of Alberta has granted theFederal Court jurisdiction over the Province of Alberta other than as provided in

section 27 of the Alberta Judicature Act. ii. Necessary Implication [36] The respondents rely on various provisions that prohibit in rem proceedings against ships owned by a province—primarilysubsections 43(7) of the Federal Courts Act and 79(3) of the Marine Liability Act, S.C. 2001, c. 6—to argue that, because a statutoryright in rem, without a maritime lien, does not lie without the liability of the ship owner, the only logical

interpretation of theprohibitions is to imply that the Federal Court has in personam jurisdiction over the provinces as the owners of vessels. Otherwise, theyposit, these provisions would have no meaning. The Federal Court Judge accepted this line of argument: see reasons, at paragraphs 41–49. However, as noted above, the Federal Court does have jurisdiction over the provinces in intergovernmental disputes where theprovince has accepted such jurisdiction. [37] The Supreme Court of Canada recognized in AGT that the common law doctrine of necessary implication elaborated in Provinceof Bombay v. Municipal Corporation of Bombay, [1947] A.C. 58 (P.C.) remains applicable with the advent of modern

InterpretationActs. An intention to bind the Crown may be found “where the purpose of the statute would be ‘wholly frustrated’ if the governmentwere not bound, or, in other words, if an absurdity (as opposed to simply an undesirable result) were produced”: AGT, at page 281. [38] I fail to see how the purpose of the Federal Courts Act—i.e. to advance the better administration of the Laws of Canada inaccordance with

section 101 of the Constitution Act, 1867—is “wholly frustrated” if Alberta is not bound. This is particularly so giventhat the plaintiffs in the underlying action are not without remedy in this case—they could bring their action in the Alberta Court ofQueen’s Bench. [39] I also fail to see how the purpose of the in rem provisions referred to by the respondents would be “wholly frustrated” if Albertawere not bound. Indeed, the Federal Court Judge suggested that the purpose of the provisions is to prevent the arrest of ships engaged ingovernment service: reasons, at paragraph 42.

Given that the starting presumption is that the Crown is immune from such proceedings,both at common law and in the various applicable statutes, it is not apparent that this purpose would be “wholly frustrated” if Albertawere not bound. iii. Waiver [40] In their written submissions, the respondents argue that Alberta has waived its immunity by its past conduct. By attorning to theFederal Court’s jurisdiction in Scott Steel Ltd. v.

Alarissa (The), (FC), [1996] 2 F.C. 883 (T.D.), they posit, Albertatook the benefit of the Federal Courts Act and the Federal Courts Rules, SOR/98-106, and therefore cannot now deny the burden of thesame statutes. [41] The facts of the Scott Steel case, however, do not support the respondents’ proposition. Indeed, the Alberta entity thatpurportedly took the benefit of the Federal Courts Act and Rules was Alberta Treasury Branches. Pursuant to subsection 2(4) of theAlberta Treasury Branches Act, R.S.A. 2000, c.

A-37, it is clear that the corporation established as the “Alberta Treasury Branches” is tobe treated, for the purposes of in personam jurisdiction, as if it were a private party, and not as an agent of the Crown in right of Alberta.In my view, the Scott Steel case is of no assistance to the respondents in seeking to establish that Alberta has in any way waived itsimmunity by virtue of its conduct. Indeed, this case would seem to indicate the contrary, given the operation of subsection 2(4) of theAlberta Treasury Branches Act. III.

CONCLUSION [42] For the reasons above, I would allow the appeal, set aside the order of the Federal Court, and, rendering the judgment that shouldhave been rendered, grant the appellant’s application for a determination on a point of law that the Federal Court has no jurisdiction inthis matter over Her Majesty the Queen in right of Alberta. Webb J.A.: I agree. *** The following are the reasons for judgment rendered in English by

[43] Sharlow J.A. (dissenting): I regret that I am unable to agree with my colleagues on the disposition of this appeal. I would dismissthe appeal. [44] This is the second time in this case that the jurisdiction of the Federal Court has been put in issue by Alberta. The subject of thisappeal is the Federal Court’s dismissal of Alberta’s application for a determination before trial on a question of law, specifically, that theFederal Court does not have the jurisdiction to determine the Toney family’s claim against Alberta.

That application was dismissed, andthis appeal by Alberta followed. [45] Alberta had previously applied to strike the Toney family’s claim against Alberta for want of jurisdiction. In a decision that wasupheld by this Court (2012 FCA 167), Justice Harrington dismissed that motion [2011 FC 1440]. He concluded [at paragraph 5] that the“action falls within the federal legislative class of action of navigation and shipping, there is actual federal law to administer, and theadministration of that law has been confided to this Court pursuant to

section 22 of the Federal Courts Act (ITO-International TerminalOperators Ltd v Miida Electronics Inc, (SCC), [1986] 1 SCR 752).” He also concluded that it was irrelevant that one ofthe defendants is the Crown in right of a province because this is not an action against the Crown as such under

section 17 of the FederalCourts Act. [46] I might have been sympathetic to the argument that the matter of the jurisdiction of the Federal Court in this matter was settled byJustice Harrington. However, that argument was not made, so I will say no more about it. [47] Alberta’s position is rooted in the Crown’s common law immunity, which includes immunity from legal claims and immunityfrom the operation of statutes. Alberta’s position is that Alberta legislation permitting claims against the Crown in right of Alberta is notbroad enough to encompass maritime law claims brought in the Federal Court.

In my view, that position is based on the incorrectpremise that the question of the jurisdiction of the Federal Court in relation to the claims of the Toney family against Alberta dependsupon the laws of Alberta. [48] In my view, the jurisdiction of the Federal Court in this matter depends solely on federal legislation. The relevant legal questionsare as follows:

(1) Is the Toney family’s claim based on federal legislation?

(2) Is that federal legislation binding on the provinces? If theanswer to both questions is yes, then no Alberta legislation can prevent the Federal Court from exercising its statutory jurisdiction. [49] As to the first question, it is clear that the Toney family’s claims are based on two federal statutes. At the risk of oversimplifying,it could be said that the substantive aspects of their claims are governed by the Marine Liability Act, and the procedural aspects aregoverned by the Federal Courts Act. In determining the answer to the second question—whether those enactments are binding on theprovinces, it is necessary to consider

section 17 of the federal

Interpretation Act, which reads as follows: Her Majesty not bound oraffected unless stated 17. No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty’s rights orprerogatives in any manner, except as mentioned or referred to in the enactment. [50] In

section 17 of the federal

Interpretation Act, “Her Majesty” includes the Crown in right of Canada and the Crown in right of aprovince or territory (see AGT (cited in the majority reasons), at pages 270–275). Thus, a province is immune from the application of afederal enactment “except as mentioned or referred to in the enactment.” [51] There is a long line of jurisprudence relating to the

interpretation of

section 17 of the federal

Interpretation Act, and in particularthe meaning of the phrase “except as mentioned or referred to in the enactment.” That jurisprudence was recently considered by thisCourt in Manitoba v. Canadian Copyright Licensing Agency (Access Copyright) (cited in the majority reasons), which followed the mostrecent case in the Supreme Court of Canada, Oldman River (also cited in the majority reasons). [52] According to Oldman River, the Crown is bound by a federal statute if it meets any of the following tests: (

a) the statute contains a provision stating that the Crown is bound, (

b) a purposive and contextual analysis of the statute discloses a clear parliamentary intention to bind the Crown, or (

c) the purpose of the statute would be wholly frustrated unless the Crown is bound. [53] The subject-matter of the claims of the Toney family against Alberta in respect of the death of Janessa is a matter of admiraltyand maritime law, which is a matter within the legislative authority of Parliament. That conclusion is not disputed and it cannot bedisputed. [54] Nor can it be disputed that

Part 2 [sections 15 to 23] of the Marine Liability Act applies to the claims of the Toney family againstAlberta (see

section 5). The Marine Liability Act states that it is “binding on her Majesty in right of Canada or a province” (see section3). Therefore, Alberta does not and cannot dispute that it can be held liable for damages for such of the Toney family’s claims as areproved at trial in a “court of competent jurisdiction” (see subsection 6(2) and the definition of “dependant” in

section 4 of the MarineLiability Act). Indeed, Alberta admits that it would be liable for the damages claimed by the Toney family if the claims were proved at atrial in the Alberta Court of Queen’s Bench, which is a court of competent jurisdiction for their claims. [55] The position of Alberta essentially is that the Toney family’s claims against Alberta cannot be heard in the Federal Court becauseAlberta is not bound by the provisions of the Federal Courts Act (sections 22 and 43) in which Parliament has given the Federal Courtjurisdiction in claims under the Marine Liability Act. Thus, the key question is whether, in the words of

section 17 of the federalInterpretation Act, there is anything “mentioned or referred to” in the Federal Courts Act that manifests an intention on the part ofParliament to bind the provinces to sections 22 and 43 of the Federal Courts Act. [56] The Toney family, like most claimants in admiralty and maritime law matters, have a choice of forum. The jurisdiction of theAlberta Court of Queen’s Bench is inherent. The jurisdiction of the Federal Court is statutory. It flows from subsection 22(1) of theFederal Courts Act, which reads as follows:

Navigation and shipping 22.

(1) The Federal Court has concurrent original jurisdiction, between subject and subject as well as otherwise, in all cases in which a claim for relief is made or a remedy is sought under or by virtue of Canadian maritime law or any other law of Canada relating to any matter coming within the class of subject of navigation and shipping, except to the extent that jurisdiction has been otherwise specially assigned. [ 57 ] This Court has held that the phrase “as well between subject and subject as otherwise” in the predecessor to

section 23 of the Federal Courts Act (reworded in the current version of

section 23 to read “between subject and subject as well as otherwise”) is broad enough to refer to an action against a public authority ( N.A.B.E. , cited in the majority reasons, at pages 824–825). I agree, and I see no reason to give it a different meaning in

section 22 of the Federal Courts Act . I conclude that the similar phrase in

section 22, read literally, is broad enough to include a claim against a province. Whether that literal meaning is the correct one depends upon a purposive and contextual

interpretation of the rest of

section 22 and the related provision,

section 43. [ 58 ] Subsection 22(2) of the Federal Courts Act provides a long list of the specific types of claims that fall within the scope of subsection 22(1). It is clear that the claims of the Toney family are within that list, specifically, paragraphs 22(2)(

d) and ( g ): 22. … Maritime jurisdiction

(2) Without limiting the generality of subsection (1), for greater certainty, the Federal Court has jurisdiction with respect to all of the following: … (

d) any claim for damage or for loss of life or personal injury caused by a ship either in collision or otherwise; … (

g) any claim for loss of life or personal injury occurring in connection with the operation of a ship including, without restricting the generality of the foregoing, any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or of the wrongful act, neglect or default of the owners, charterers or persons in possession or control of a ship or of the master or crew thereof or of any other person for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or control of the ship are responsible, being

an act, neglect or default in the management of the ship, in the loading, carriage or discharge of goods on, in or from the ship or in the embarkation, carriage or disembarkation of persons on, in or from the ship; [ 59 ] The scope of the Federal Court’s

section 22 jurisdiction in relation to claims for damages relating to ships and their operation is illustrated by subsection 22(3), which reads as follows: 22. … Jurisdiction applicable

(3) For greater certainty, the jurisdiction conferred on the Federal Court by this

section applies (

a) in relation to all ships, whether Canadian or not and wherever the residence or domicile of the owners may be; … (

c) in relation to all claims, whether arising on the high seas, in Canadian waters or elsewhere and whether those waters are naturally navigable or artificially made so, including, without restricting the generality of the foregoing, in the case of salvage, claims in respect of cargo or wreck found on the shores of those waters… [ 60 ] It has not been suggested that any aspect of the claims of the Toney family, or any defence asserted by Alberta, is a matter in respect of which, in the words of subsection 22(1) of the Federal Courts Act , “jurisdiction has been otherwise specially assigned.” Therefore, that exception to the scope of subsection 22(1) does not apply to this case. [ 61 ]

Section 43 of the Federal Courts Act specifies the circumstances in which the Federal Court may exercise its

section 22 jurisdiction in personam (that is, against a person, such as the owner or operator of a ship), and when it may exercise its

section 22 jurisdiction in rem (that is, against a ship). As noted by Justice Harrington, subsection 43(3) of the Federal Courts Act precludes the Toney family from pursuing an action in rem in the Federal Court against the rescue vessel because it was not owned by the same person when the cause of action arose and when the action was commenced. Subsection 43(3) reads as follows: 43. … Exception

(3) Despite subsection (2), the jurisdiction conferred on the Federal Court by

section 22 shall not be exercised in rem with respect to a claim mentioned in paragraph 22(2) ( e ), ( f ), ( g ), ( h ), ( i ), ( k ), ( m ), ( n ), (

p) or (

r) unless, at the time of the commencement of the action, the ship, aircraft or other property that is the subject of the action is beneficially owned by the person who was the beneficial owner at the time when the cause of action arose. [ 62 ] Justice Harrington also held that the Toney family can pursue their action in the Federal Court against the party that was the owner and operator of the rescue vessel when the cause of action arose—Alberta. Their in personam claim against Alberta is literally within the scope of the

section 22 jurisdiction of the Federal Court by virtue of subsection 43(1) of the Federal Courts Act which reads as follows: 43. …

Jurisdiction inpersonam

(1) Subject to subsection (4), the jurisdiction conferred on the Federal Court by

section 22 may in all cases beexercised in personam. [My emphasis.] [63] Subsection 43(1) is subject to subsection 43(4), which does not apply in this case but I reproduce it here for the sake ofcompleteness. It reads as follows: 43. … Where action in personam may becommenced

(4) No action in personam may be commenced in Canada for a collision between shipsunless (

a) the defendant is a person who has a residence or place of business in Canada; (

b) the cause of action arose in Canadian waters; or (

c) the parties have agreed that the Federal Court is to have jurisdiction. [64] The phrase “in all cases” in subsection 43(1) of the Federal Courts Act is broad enough to include an in personam claim fordamages caused by a ship or its operation where the ship is owned by a province. In my view, given the statutory context, that is whatthis provision is intended to mean. I reach that conclusion because maritime claims against a province are specifically mentionedelsewhere in

section 43, in paragraph 43(7)(b). [65] Paragraph 43(7)(

b) precludes an action in rem in the Federal Court against any ship owned or operated by Canada or a provincewhere the ship is engaged on government service. Generally, in the absence of a maritime lien there is no statutory right in rem in theabsence of personal liability of the ship owner (Mount Royal/Walsh Inc. v. Jensen Star (The), [1990] 1 F.C. 199 (C.A.), at page 216).Therefore, the paragraph 43(7)(

b) bar to an action in rem against any ship owned or operated by a province makes no sense if the FederalCourt has no jurisdiction to consider a claim in personam against a ship owner that is a province. [66] I conclude, based on sections 22 and 43 of the Federal Courts Act read in their entirety and in context, that Parliament intendedto give the Federal Court complete and comprehensive jurisdiction in all claims under the Marine Liability Act, including the claims ofthe Toney family in this case against Alberta. The test in

section 17 of the federal

Interpretation Act is met (that is, the second branch ofthat test as explained in Oldman River), and therefore the provinces are bound by sections 22 and 43 of the Federal Courts Act. [67] In my view, this conclusion is not inconsistent with any of the cases cited by Alberta in argument. None of those cases involve aclaim for damages under the Marine Liability Act, or a claim falling within the scope of sections 22 and 43 of the Federal Courts Act ora similar statutory scheme. I note as well that none of those cases refers to the purposive and contextual

interpretation of

section 17 of thefederal

Interpretation Act mandated by Oldman River and the cases upon which it relied. [68] One of the main cases cited by Alberta is Union Oil (cited in the majority reasons). Union Oil involved a claim by a corporationagainst both Canada and British Columbia for reimbursement of federal taxes it had paid to the federal government in respect of diesel oilsold to the province. The position of the corporation was that it should have been entitled to the benefit of a tax exemption. Thecorporation also argued that its claim against British Columbia was based on maritime law, but that argument was rejected. Therefore,the Federal Court could have jurisdiction only under

section 17 of the Federal Courts Act. That provision gives the Federal Court generaljurisdiction in “all cases in which relief is claimed against the Crown.” However,

section 17 can apply only to claims against Canadabecause of the restrictive definition of “Crown” in the Federal Courts Act. Therefore, there was no statutory foundation for the argumentthat the Federal Court had jurisdiction against British Columbia in respect of the corporation’s claim for reimbursement. [69] In Javelin (cited in the majority reasons), this Court held that the Federal Court does not have the jurisdiction to entertain a claimagainst a province involving one of the matters mentioned in

section 23 of the Federal Courts Act—bills of exchange and promissorynotes where the federal Crown is a party to the proceedings, aeronautics, and interprovincial or extraprovincial works and undertakings.Section 23 gives the Federal Court jurisdiction in such claims “between subject and subject as well as otherwise”. I note that the meaningof that phrase apparently was not in issue in Javelin, as it was two years later in N.A.B.E. (cited in the majority reasons).

It is an openquestion whether Javelin would have been decided the same way after that case. [70] The Federal Court has also determined that it has no jurisdiction to consider a claim against a province for infringement of apatent or copyright (Avant Inc. v. R., (FC), [1986] 2 F.C. 91 (T.D.), Trainor Surveys (cited in the majority reasons);and Dableh v. Ontario Hydro (1990), 33 C.P.R. (3d) 544 (F.C.T.D.)).

The jurisdiction of the Federal Court in such matters is governedby subsection 20(2) of the Federal Courts Act, which does not include the phrase “between subject and subject as well as otherwise” orany analogous words. [71] There is one case involving maritime claims where the action in personam against a province was struck for want of jurisdiction:Greeley v. Tami Joan (The) (cited in the majority reasons).

That decision, which was not appealed, removed the province of NewBrunswick, the mortgagee of a ship, as an in personam defendant in a maritime law claim by a lessee under a charterparty for wrongfulseizure of a vessel, but the province remained as an in rem defendant by virtue of the mortgage. For reasons that are not entirely clear, thejurisdiction of the Federal Court in respect of the in personam claim against the province was determined on the basis of

section 17 of theFederal Courts Act rather than sections 22 and 43, and neither subsection 43(1) nor paragraph 43(7)(

b) was mentioned. [72] For these reasons, I conclude that the Federal Court has the jurisdiction to determine the claims of the Toney family againstAlberta. [73] I add that I would have been inclined to reach the same conclusion on the basis of

section 19 of the Federal Courts Act, whichreads as follows:

Intergovernmental disputes 19. If the legislature of a province has passed

an Act agreeing that the Federal Court, the Federal Court of Canada or the Exchequer Court of Canada has jurisdiction in cases of controversies between Canada and that province, or between that province and any other province or provinces that have passed a like Act, the Federal Court has jurisdiction to determine the controversies. [ 74 ]

Section 27 of the Alberta Judicature Act meets the conditions in

section 19 of the Federal Courts Act . It reads in relevant part as follows: Jurisdiction of federal courts 27 The Supreme Court of Canada and the Federal Court of Canada, or the Supreme Court of Canada alone, according to the Supreme Court Act (Canada) and the Federal Court Act (Canada) have jurisdiction (

a) in controversies between Canada and Alberta … [ 75 ]

Section 19 of the Federal Courts Act is applicable in an action for damages against the federal Crown and a province in relation to the same facts, if either of them were to make a cross-claim or a third party claim against the other. For example, if the Toney family had asserted their claim initially against Canada only, and Canada had made a third party claim against Alberta, the entire matter would have been within

section 19 of the Federal Courts Act (see Fairford Band , cited in the majority reasons). [ 76 ] In this case, the Toney family asserted their claims in the Federal Court against Canada and Alberta simultaneously. Later, Canada and Alberta each asserted a claim against the other, in the Federal Court, for contribution and indemnity. The claim of Canada against Alberta for contribution and indemnity raises a controversy between Canada and Alberta to which

section 19 of the Federal Courts Act should apply, and the same could be said of the claim of Alberta against Canada for contribution and indemnity. In the face of

section 19, the existence of either claim for contribution and indemnity precludes Alberta from disputing the jurisdiction of the Federal Court in this matter.