2015 FCA 88, 2015 FCA 88

A-297-14 2015 FCA 88 The Canadian Transit Company ( Appellant ) v. The Corporation of the City of Windsor ( Respondent ) Indexed as: Canadian Transit Company v. Windsor (City) Federal Court of Appeal, Dawson, Stratas and Scott JJ.A.—Toronto, March 2; Ottawa, April 7, 2015.

Federal Court Jurisdiction — Appeal from Federal Court decision striking out appellant’s notice of application on ground Federal Court having no jurisdiction to determine it — Appellant, owner, operator of Ambassador Bridge, acquiring properties near bridge with intent to demolish homes — Respondent issuing repair orders against properties — Appellant arguing by-laws not applying to properties on basis of constitutional doctrines of interjurisdictional immunity, paramountcy; bridge constituting work, undertaking for general advantage of Canada — Federal Court determining, inter alia, insufficient federal law in proceeding to clothe Federal Court with jurisdiction; proceeding failing test for jurisdiction set out in ITO—International Terminal Operators Ltd. v.

Miida Electronics Inc. et al. — Whether: test in ITO met; Federal Court having jurisdiction to make declarations on constitutional matters such as paramountcy, interjurisdictional immunity; appellant’s application should be converted to action — Test in ITO met — Relevant statutory grant of jurisdiction Federal Courts Act , s. 23 (c) — Sufficient federal law for Federal Court to have jurisdiction including

An Act to incorporate The Canadian Transit Company (federal Special Act) — Provincial law playing only subsidiary or incidental role — Question not whether Federal Court doing any provincial law, but whether there is federal law essential to claim that nourishes Court’s jurisdiction or, whether sufficient federal law to give Court jurisdiction — Federal Special Act valid exercise of federal legislative authority — Federal Court can apply doctrines of paramountcy, interjurisdictional immunity — Able to determine matter herein fully —Federal Court having jurisdiction to make declarations in constitutional matters based on paramountcy, interjurisdictional immunity as long as ITO test met — Those doctrines affecting force of federal legislation, intertwined with federal legislative power under Constitution Act, 1867, s. 91 — Must be regarded as part of law of Canada that Federal Court can interpret, apply — Federal Court has always had ability to consider constitutional issues of validity, operability, applicability — Where Federal Court having jurisdiction, also having power to make determinations under Constitution Act, 1982, s. 52 — Doctrines of paramountcy, interjurisdictional immunity fitting within s. 52 rubric — Implied power of courts including doctrines of paramountcy, interjurisdictional immunity — Appellant’s request for conversion of pleading not properly before Court, not granted — Appeal allowed.

Constitutional Law — Distribution of Powers — Appellant, owner, operator of Ambassador Bridge, acquiring properties near bridge with intent to demolish homes — Respondent issuing repair orders against properties — Appellant arguing by-laws not applying to properties on basis of constitutional doctrines of interjurisdictional immunity, paramountcy; bridge constituting work, undertaking for general advantage of Canada — Federal Court having jurisdiction to make declarations on constitutional matters such as paramountcy, interjurisdictional immunity — Those doctrines affecting force of federal legislation, intertwined with federal legislative power under Constitution Act, 1867, s. 91 — Where Federal Court having jurisdiction, also having power to make determinations under Constitution Act, 1982, s. 52 — Doctrines of paramountcy, interjurisdictional immunity fitting within s. 52 rubric — Implied power of courts including doctrines of paramountcy, interjurisdictional immunity.

This was an appeal from a Federal Court decision striking out the appellant’s notice of application on the ground that the Federal Court had no jurisdiction to determine it. The appellant also sought an order to convert the application into an action. The appellant, owner and operator of the Ambassador Bridge connecting Windsor and Detroit, acquired 114 properties near the bridge in Windsor, with the intent to demolish those homes for the purpose of building another span across the river. Relying upon its by-laws, the respondent issued repair orders against the properties.

Before the Federal Court, the appellant sought a declaration that the respondent’s by-law did not apply to the properties on the basis of the constitutional doctrines of interjurisdictional immunity, paramountcy, or both. The appellant argued, inter alia , that the bridge, its approaches, terminal facilities, machinery and appurtenances constitute both an international work and undertaking declared by Parliament to be for the general advantage of Canada. The Federal Court determined, inter alia , that there was insufficient federal law in the proceeding to clothe the Federal Court with jurisdiction.

In its view, the proceeding failed the test for jurisdiction set out in ITO—International Terminal Operators Ltd. v. Miida Electronics Inc. et al. ( ITO ). At issue was whether the test in ITO was met; whether the Federal Court has jurisdiction to make declarations on constitutional matters such as paramountcy and interjurisdictional immunity; and whether the appellant’s application should be converted to an action. Held , the appeal should be allowed. All three branches of the test in ITO were met.

(1) The relevant statutory grant of jurisdiction was paragraph 23 (

c) of the Federal Courts Act .

(2) There was sufficient federal law for the Federal Court to have jurisdiction. Several provisions of An Act to incorporate The Canadian Transit Company (federal Special Act) were essential to the determination of the appellant’s proceeding. Federal law played an essential role in the outcome of this case, with provincial law playing only a subsidiary or incidental role. The Federal Court can entertain a proceeding even though there is some provincial law involved in the case. The question is not whether the Federal Court is doing any provincial law; it often is.

The question is whether there is federal law essential to the claim that nourishes the Court’s jurisdiction or, put another way, whether there is sufficient federal law to give the Court jurisdiction. A number of the declarations the appellant sought concerned what it can and cannot do under the framework of the federal Special Act and what its work or undertaking consists of—subjects that have no provincial law content whatsoever.

(3) Finally, the federal Special Act is a valid exercise of federal legislative authority. The Federal Court, established to administer federal law, and drawing on implied powers to determine the constitutional validity, operability and applicability of laws before it, can apply the doctrines of paramountcy and interjurisdictional immunity. This was a

federal matter through and through and the Federal Court could determine it fully. As long as the test in ITO is met, the Federal Courthas jurisdiction to make declarations in constitutional matters, such as declarations of invalidity or, as sought here, declarations ofinoperability and inapplicability based on the doctrines of paramountcy and interjurisdictional immunity. Those doctrines can affect theforce of federal legislation, in some circumstances permitting that legislation to be applied according to its terms notwithstandingprovincial and municipal laws. As such, these doctrines are intertwined with federal legislative power under

section 91 of theConstitution Act, 1867 or are “a quality inherent in federal legislative power”. Thus, the doctrines of paramountcy and interjurisdictionalimmunity must themselves be regarded as part of the law of Canada that the Federal Court can interpret and apply.

Section 101 of theConstitution Act, 1867, which exists to prevent interjurisdictional inconsistency and inequality, allows the federal Parliament to createfederal courts with national jurisdiction to administer federal laws. The Federal Court and its predecessors have always had the ability toconsider constitutional issues of validity, operability and applicability. Where the Federal Court does have subject-matter jurisdiction—both statutory and constitutional jurisdiction under the test in ITO—it also has the power to make determinations under

section 52 of theConstitution Act, 1982. Were it otherwise, the Federal Court would have a constitutional jurisdiction narrower than many of theadministrative decision makers it reviews. The constitutional doctrines of paramountcy and interjurisdictional immunity fit within thesection 52 rubric. In order to act according to law, a court of law—even a statutory court like the Federal Court—must have an impliedpower to determine the law that is valid, operative, applicable and relevant to the case before it. This implied power has to include thedoctrines of paramountcy and interjurisdictional immunity.

Finally, the appellant’s request for conversion of its pleading was not properly before the Court and could not be granted. Under section52 of the Federal Courts Act, the Court does not have the power to determine a motion that could have been brought in the Federal Courtbut was not. Rather, the appellant should have sought conversion of its pleading by way of motion in the Federal Court. STATUTES AND REGULATIONS CITED

An Act to incorporate The Canadian Transit Company, S.C. 1921, c. 57, ss. 2, 8, 10. British North America Act, 1867 (The), 30 & 31 Vict., c. 3 (U.K.) [R.S.C., 1985, Appendix II, No. 5], ss. 91, 92. Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 1. Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)[R.S.C., 1985, Appendix II, No. 44]. Colonial Laws Validity Act, 1865 (U.K.), 28 & 29 Vict., c. 63, s. 2. Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.),

Schedule to the Constitution Act,1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 91, 92(10),(14), 101. Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52. Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 3. Federal Courts Act, R.S.C., 1985, c. F-7, ss. 2 “relief”, 3 (as am. by S.C. 2002, c. 8, s. 16), 4 (as am. idem), 23(c), 52. Federal Courts Rules, SOR/98-106, rr. 57, 300. Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1. Railway Act, 1919 (The), S.C. 1919, c. 68, s. 20. Soldier Settlement Act, 1919 (The), S.C. 1919, c. 71. Statute of Westminster, 1931, (U.K.), 22 Geo. V, c. 4 [R.S.C., 1985, Appendix II, No. 27], ss. 2, 7(3).

Supreme and Exchequer Court Act (The), S.C. 1875, c. 11. Water Clauses Consolidation Act, 1897, R.S.B.C., c. 190. CASES CITED APPLIED: ITO—International Terminal Operators Ltd. v. Miida Electronics Inc. et al., (SCC), [1986] 1 S.C.R. 752, (1986), 28D.L.R. (4th) 641. DISTINGUISHED: Northern Telecom Canada Ltd. et al. v. Communications Workers of Canada et al., (SCC), [1983] 1 S.C.R. 733, (1983),147 D.L.R. (3d) 1; Harry Sargeant III v. Al-Saleh, 2014 FCA 302, 26 C.B.R. (6th) 133. CONSIDERED: Bensol Customs Brokers Ltd. v.

Air Canada, (FCA), [1979] 2 F.C. 575, (1979), 99 D.L.R. (3d) 623 (C.A.); R. v.Montreal Urban Community Transit Commission, (FCA), [1980] 2 F.C. 151, (1980), 112 D.L.R. (3d) 266 (C.A.);McNamara Construction (Western) Ltd. et al. v. The Queen, (SCC), [1977] 2 S.C.R. 654, (1977), 75 D.L.R. (3d) 273;Rhine v. The Queen, (SCC), [1980] 2 S.C.R. 442, (1980), 116 D.L.R. (3d) 385; Peter G. White Management Ltd. v.

Canada (Minister of Canadian Heritage), 2006 FCA 190, [2007] 2 F.C.R. 475; John Deere Plow Co. v. Wharton, (UKJCPC), [1915] A.C. 330 (P.C.); Re Manitoba Language Rights, (SCC), [1985] 1 S.C.R. 721, (1985), 19 D.L.R. (4th) 1;Huson v. Township of South Norwich (1895), 1895 CanLII 1 (SCC), 24 S.C.R. 145; Del Zotto v.

Canada, (FCA),[1997] 3 F.C. 40, (1997), 147 D.L.R. (4th) 457 (C.A.), revd on other grounds, (SCC), [1999] 1 S.C.R. 3, (1999), 169D.L.R. (4th) 130; Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217, (1998), 161 D.L.R. (4th) 385;Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island; Reference re Independence and Impartiality ofJudges of the Provincial Court of Prince Edward Island, (SCC), [1997] 3 S.C.R. 3, (1997), 150 D.L.R. (4th) 577;MacMillan Bloedel Ltd. v. Simpson, (SCC), [1995] 4 S.C.R. 725, (1995), 130 D.L.R. (4th) 385; Early RecoveredResources Inc. v.

British Columbia, 2005 FC 995, [2006] 1 F.C.R. 187. REFERRED TO: Canada (National Revenue) v. RBC Life Insurance Company, 2013 FCA 50, 18 C.C.L.I. (5th) 263; Bell ExpressVu Limited Partnershipv. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, (1998), 36 O.R.(3d) 418; Re Exported Natural Gas Tax, (SCC), [1982] 1 S.C.R. 1004, (1982), 37 A.R. 541; A.H. Boulton Co. Ltd. v.Trusts and Guarantee Co.

Ltd., (SCC), [1942] S.C.R. 130, [1942] 2 D.L.R. 145; Canada (Human Rights Commission) v.Canadian Liberty Net, (SCC), [1998] 1 S.C.R. 626, (1998), 157 D.L.R. (4th) 385; Hupacasath First Nation v. Canada(Attorney General), 2015 FCA 4, 379 D.L.R. (4th) 737; Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585;Algoma Central Railway Co. v. Canada (1901), (CA EXC), 7 Ex. C.R. 239, revd on other grounds (1902), (SCC), 32 S.C.R. 277, affd [1903] A.C. 478 (P.C.); The Queen v. Chandler (1868), 2 Cart. 421, 1 Hannay 556 (N.B.S.C.);Pope v. Griffith (1872), 2 Cart. 291, 16 L.C. Jurist 169 (Que.

Q.B.); Ex p. Dansereau (1875), 2 Cart. 165, 19 L.C. Jurist 210 (Que. Q.B.);L’Union St. Jacques v. Belisle (1872), 1 Cart. 72, 20 L.C. Jurist 29 (Que. Q.B.), revd (1874), L.R. 6 (P.C.); Burrard Power Co. Limitedet al. v. The King (1909), (CA EXC), 12 Ex. C.R. 295, affd (SCC), [1910] 43 S.C.R. 27, affd [1911]A.C. 87 (P.C.); The King v. Powers, (CA EXC), [1923] Ex. C.R. 131; Re: Resolution to amend the Constitution, (SCC), [1981] 1 S.C.R. 753, (1981), 34 Nfld. & P.E.I.R. 1; Operation Dismantle Inc. et al. v. The Queen et al., (SCC), [1985] 1 S.C.R. 441, (1985), 18 D.L.R. (4th) 481; Singh v.

Canada (Attorney General), (FCA), [2000] 3F.C. 185, (2000), 183 D.L.R. (4th) 458 (C.A.); Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504; Douglas/Kwantlen Faculty Assn. v. Douglas College, (SCC), [1990] 3 S.C.R. 570, (1990), 77 D.L.R. (4th) 94; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), (SCC), [1991] 2 S.C.R. 5, (1991), 81 D.L.R. (4th) 121; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), (SCC), [1991] 2 S.C.R. 22, (1991), 81 D.L.R. (4th) 358; Early Recovered Resources Inc. v.

Gulf Log Salvage Co-OperativeAssn., 2003 FCA 35, [2003] 3 F.C. 447; Brooks Aviation, Inc. v. Boeing SB-17G, 2004 FC 710, [2005] 1 F.C.R. 352; Quebec (AttorneyGeneral) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536. AUTHORS CITED Bringham, Tom H. The Rule of Law, London: Allen Lane (Penguin Books), 2010. Finkelstein, Neil. Laskin’s Canadian Constitutional Law, 5th ed. Toronto: Carswell, 1986. Hogg, Peter W. Constitutional Law of Canada, 5th ed. supplemented, Vol. 1, loose-leaf. Toronto: Carswell, 2007. Jacob, Isaac Hai. “The Inherent Jurisdiction of the Court” (1970), 23 Curr.

Legal Probs. 23. Mason, Keith. “The Inherent Jurisdiction of the Court” (1983), 57 Austl. L. J. 449. Saunders, Brian J., Donald J. Rennie and Graham Garton. “The Jurisdiction of the Federal Courts: An Overview” in Federal CourtsPractice 2015. Toronto: Carswell, 2014. appeal from a Federal Court decision (2014 FC 461, 455 F.T.R. 154) striking out the appellant’s notice of application on the ground thatthe Federal Court had no jurisdiction to determine it. Appeal allowed. APPEARANCES Larry P. Lowenstein, Laura K. Fric, Kevin O’Brien and Pierre-Alexandre Henri for appellant. Christopher J. Williams, Courtney V.

Raphael and Jody E. Johnson for respondent. SOLICITORS OF RECORD Osler, Hoskin & Harcourt LLP, Toronto, for appellant. Aird & Berlis LLP, Toronto, for respondent. The following are the reasons for judgment rendered in English by [1] Stratas J.A.: The Canadian Transit Company appeals from the judgment dated May 21, 2014 of the Federal Court (per JusticeShore): 2014 FC 461, 455 F.T.R. 154. The Federal Court struck out Canadian Transit’s notice of application on the ground that theFederal Court had no jurisdiction to determine it. [2] Canadian Transit appeals to this Court.

It also seeks an order converting its application to an action. [3] For the reasons that follow, I would grant the appeal with costs. The Federal Court has jurisdiction to determine this proceeding.However, I would decline to make the conversion order; the Federal Court, not this Court, is the proper forum for that.

A. Background [4] Canadian Transit is the owner and operator of the Ambassador Bridge. The bridge connects Windsor and Detroit, crossing theDetroit River and the border between Canada and the United States. [5] The bridge needs extensive maintenance. Canadian Transit also hopes to build another span across the river, with consequentialnew security facilities and approaches to the bridge. To these ends, Canadian Transit has acquired 114 properties near the bridge inWindsor.

It intends to demolish the homes on the properties to advance these purposes. [6] The respondent, Windsor, alleges that the properties have not been properly maintained and have become a blight on thecommunity. Relying upon its by-laws, Windsor has issued repair orders against the 114 properties. Since that time, proceedingsregarding the by-laws and the repair orders have ensued before a municipal committee and the Ontario Superior Court of Justice. [7] Canadian Transit then applied to the Federal Court for declaratory relief.

Soon after the application was brought, Windsor movedto strike it on the ground that the Federal Court did not have jurisdiction over it. [8] On consent, the Ontario Superior Court of Justice has stayed some of its proceedings until the jurisdictional issues are resolved.On this record, it cannot be said that Canadian Transit’s resort to the Federal Court for relief constitutes an abuse of process. B.

The application before the Federal Court [9] In its notice of application, Canadian Transit seeks a declaration that the Windsor by-law “does not apply to properties purchased,leased or otherwise acquired and held” by it, including the 114 properties. [10] In support of that declaration, Canadian Transit says that the bridge, its approaches, terminal facilities, machinery andappurtenances constitute both an international work and undertaking, and a work and undertaking declared by Parliament to be for thegeneral advantage of Canada:

An Act to incorporate The Canadian Transit Company, S.C. 1921, c. 57,

section 2 (federal Special Act).As such, they fall under federal regulatory jurisdiction under subsections 91(29) and 92(10) 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]].

Canadian Transit also seeks other declarations concerning its rights and obligations under the federal Special Act, such as itsrights to purchase, lease or otherwise acquire and hold lands for the Ambassador Bridge, its rights to expropriate and take easements overlands, and its obligation to maintain the Ambassador Bridge and associated works in good condition. [11] Overall, Canadian Transit intends to argue that the Windsor by-law does not apply to the properties on the basis of theconstitutional doctrines of interjurisdictional immunity, paramountcy, or both. [12] Canadian Transit’s application also seeks other declarations that establish components of the case for interjurisdictionalimmunity and paramountcy.

These include declarations that Canadian Transit has the power under the federal Special Act to implementits plans for the bridge, and that the properties are necessary to implement those plans. [13] The application has been brought in the Federal Court under paragraph 23(

c) of the Federal Courts Act, R.S.C., 1985, c. F-7.Paragraph 23(

c) provides as follows: Bills of exchange andpromissory notes —aeronautics andinterprovincial works andundertakings 23. Except to the extent that jurisdiction has been otherwise specially assigned, the Federal Court hasconcurrent original jurisdiction, between subject and subject as well as otherwise, in all cases in which aclaim for relief is made or a remedy is sought under

an Act of Parliament or otherwise in relation to anymatter coming within any of the following classes of subjects: … (

c) works and undertakings connecting a province with any other province or extending beyond the limitsof a province. C. The Federal Court’s decision [14] The Federal Court granted Windsor’s motion to strike the application. In its view, the application did not support a cause ofaction and, thus, could not succeed. [15] Among other things, the Federal Court characterized the application as one seeking a legal opinion concerning whether CanadianTransit’s enabling legislation has any bearing on the matter, something which the Federal Court has no jurisdiction to do (at paragraphs12–13).

It also noted that the pleading before it was a notice of application—the pleading used to start an application for judicial review—but the notice of application did not assert any cognizable administrative law claim (at paragraphs 14 and 16). [16] Next, the Federal Court turned to paragraph 23(

c) of the Federal Courts Act, above, the purported basis for the application. Itfound (at paragraph 15) that declaratory remedies could not be awarded under paragraph 23(c). Further, the Federal Court found (atparagraph 17) that there was insufficient federal law in the proceeding to clothe the Federal Court with jurisdiction. In its view, theproceeding failed the well-known test for jurisdiction set out in ITO—International Terminal Operators Ltd. v. Miida Electronics Inc. etal., (SCC), [1986] 1 S.C.R. 752. [17] On appeal, Canadian Transit submits that the Federal Court erred on all these issues. D.

The issues in this appeal and their interrelationship [18] The Federal Court is a statutory court, established “for the better Administration of the Laws of Canada” under

section 101 of the

Constitution Act, 1867. In order to adjudicate a particular matter, it must have both statutory and constitutional jurisdiction. [19] In particular, a party asserting that the Federal Court has jurisdiction over a matter must establish the following: • Statutory jurisdiction. There must be a statutory provision (usually in the Federal Courts Act) empowering the Federal Court todecide the matter. Sometimes the meaning and scope of the statutory provision is disputed. Sometimes a party submits that a statutoryprovision gives rise to plenary, implied or necessarily incidental powers: Canada (National Revenue) v.

RBC Life Insurance Company,2013 FCA 50, 18 C.C.L.I. (5th) 263, at paragraph 36. Issues such as these are resolved by the usual principles of statutory

interpretation:Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Rizzo & Rizzo Shoes Ltd. (Re), (SCC),[1998] 1 S.C.R. 27, (1998), 36 O.R. (3d) 418. • Constitutional jurisdiction. There must be a matter that a court established “for the better Administration of the Laws of Canada”under

section 101 of the Constitution Act, 1867 can determine. [20] Long ago, the Supreme Court of Canada established a three-fold test to determine whether the Federal Court has statutory andconstitutional jurisdiction along the above lines: ITO—International Terminal Operators, above, at page 766. The following are thethree branches of that test: 1. A statutory grant of jurisdiction. The Federal Courts may only deal with matters given to them by federal legislation, expressly orimpliedly.

The only exception to this is a narrow category of plenary or necessarily incidental powers the Federal Courts have to operateas courts and to manage matters before them. 2. Federal law must play a sufficient role. Because the Federal Court has been established to administer the laws of Canada undersection 101 of the Constitution Act, 1867, the Federal Court cannot act unless there is an existing body of federal law which is essentialto the disposition of the case and which nourishes the statutory grant of jurisdiction.

Authorities, described below, use a variety of termsto describe the level of federal law that is sufficient. 3. The federal law must be validly federal under the constitutional division of powers. The Federal Courts, as courts under section101 of the Constitution Act, 1867, are established to administer the “[l]aws of Canada.” The laws they administer must fall under federaljurisdiction in the Constitution. All three branches of this test must be present in order for the Federal Courts to have jurisdiction. [21] I agree with those who consider the third branch of this test to duplicate somewhat the second.

After considering whether federallaw plays a sufficient role in the case (the second branch of the test), the question whether the law is validly federal (the third branch ofthe test) has already been answered or the answer is self-evident. And the two branches together address a single concept, whether or notthe Federal Court has the constitutional jurisdiction to act under

section 101 of the Constitution Act, 1867. Nevertheless, I shall applyeach of the three branches of the test in ITO—International Terminal Operators in the first

section of the reasons that follow. [22] The case at bar, however, raises one additional constitutional wrinkle: whether the Federal Court can make a declaration that theWindsor by-law does not apply based on the constitutional doctrines of paramountcy, interjurisdictional immunity, or both. During oralargument, we asked counsel about the nature and status of these doctrines in the Federal Court and whether the Federal Court has thepower to consider and apply them. We asked this because some commentators have queried this: see “The Jurisdiction of the FederalCourts: An Overview” in Brian J. Saunders, Donald J.

Rennie and Graham Garton, Federal Courts Practice 2015 (Toronto: Carswell,2014), at page 9. Their query stems from a passing suggestion in the case law that the Acts in the Constitution are not “laws of Canada”that the Federal Court can apply because the Parliament of Canada did not make them: Northern Telecom Canada Ltd. et al. v.Communications Workers of Canada et al., (SCC), [1983] 1 S.C.R. 733, at page 745. I shall deal with this in the secondsection of the reasons that follow. [23] Finally, there is a procedural question before us.

Canadian Transit now concedes that it should have started its proceeding by wayof statement of claim rather than by way of notice of application. Therefore, it asks this Court to permit it to convert its application to anaction. I shall deal with this in the final

section of the reasons that follow. [24] In light of the foregoing discussion, then, my reasons shall address three questions: • Is the test in ITO—International Terminal Operators met? In other words, does the Federal Court have statutory andconstitutional jurisdiction over this proceeding? • Does the Federal Court have jurisdiction to make declarations on constitutional matters such as paramountcy andinterjurisdictional immunity? • Should Canadian Transit’s application be converted to an action? E. Is the test in ITO—International Terminal Operators met?

In other words, does the Federal Court have statutory andconstitutional jurisdiction over this proceeding? [25] In my view, in this case, all three branches of the test in ITO—International Terminal Operators are met.

(1) Statutory grant of jurisdiction [26] The relevant statutory grant of jurisdiction is paragraph 23(

c) of the Federal Courts Act, above. Paragraph 23(

c) of the FederalCourts Act allows a party to seek “relief … under

an Act of Parliament or otherwise in relation to … works and undertakings connectinga province with any other province or extending beyond the limits of a province.”

Section 2 of the Federal Courts Act defines “relief” as“every species of relief, whether by way of … declaration ... or otherwise”.

[ 27 ] Read with that definition in mind, paragraph 23 (

c) of the Federal Courts Act , then, allows a party to seek “[a declaration] in relation to … works and undertakings connecting a province with any other province or extending beyond the limits of a province.” [ 28 ] In its notice of application, Canadian Transit seeks exactly those sorts of declaration: see paragraphs 9–12, above. Its proceeding is authorized by paragraph 23 (

c) of the Federal Courts Act . The requirement that there be a statutory grant of jurisdiction to the Federal Court to determine the matter—the first branch of the ITO—International Terminal Operators test—is met.

(2) Federal law plays a sufficient role [ 29 ] Under this branch of the ITO—International Terminal Operators test, the first step is to assess the nature of the proceeding before us, including what body or bodies of law will be necessary to determine it.

Then we must assess whether, overall, federal law will play a primary role in the sense of being “essential to the disposition of the case and which nourishes the statutory grant of jurisdiction”: ITO—International Terminal Operators , above, at page 766. [ 30 ] In this proceeding, Canadian Transit alleges that the federal Special Act creates it, gives it powers to construct, maintain and operate the Ambassador Bridge and surrounding facilities and properties, and, to some extent, regulates those physical things and powers.

It says that the bridge and surrounding facilities and properties, taken together, are a work or undertaking that extends beyond the limits of the province and, thus, are federally regulated: Constitution Act , 1867 , subsections 91(29) and 92(10) .

Finally, it says that by virtue of the constitutional doctrines of paramountcy and interjurisdictional immunity, Windsor’s by-law does not apply to Canadian Transit, its exercise of some or all of its powers under the federal Special Act, and the bridge and surrounding facilities and properties. [ 31 ] In considering those issues, the Federal Court will have to, among other things, interpret the federal Special Act, interpret the Windsor by-law, consider whether the bridge and surrounding facilities and properties constitute a federal enclave immune from the by- law on the basis of the constitutional doctrine of interjurisdictional immunity and, finally, consider whether there is a conflict between the Act and the by-law such that the Act prevails over the by-law under the constitutional doctrine of paramountcy. [ 32 ] Taken together, is there sufficient federal law for the Federal Court to have jurisdiction?

In my view, there is. [ 33 ] First, the federal Special Act. Several provisions of it bear upon the issue whether Canadian Transit is entitled to the declarations it seeks: •

Section 2 declares the work and undertaking of Canadian Transit (i.e., the bridge and any other things that the court hearing the proceeding finds are associated with it) to be for the general advantage of Canada, thereby triggering federal jurisdiction under subsections 91(29) and 92(10) of the Constitution Act, 1867 . •

Section 8 allows Canadian Transit, among other things, to construct, maintain and operate its work and undertaking, including the facilities mentioned in paragraph 8( e ). •

Section 10 goes some way toward mediating the interests of Canadian Transit and Windsor. It requires Canadian Transit to obtain the consent of Windsor, expressed through by-law, before engaging in construction or operation of the work. If consent cannot be had, the “Board of Railway Commissioners”, now the federal Canadian Transportation Agency, is to decide what terms shall be imposed on the construction or operation of the work. •

Section 20 of The Railway Act, 1919 [S.C. 1919, c. 68], a federal statute, applies to the work and undertaking to the extent that it is not inconsistent with the federal Special Act. [ 34 ] This is federal law essential to the determination of Canadian Transit’s proceeding. Perhaps one of the most central tasks of the Federal Court in this proceeding will be to assess, in light of and in the context of the [federal] Special Act, to what extent, if any, the surrounding properties and facilities are part of this federal work or undertaking and regulated by the [federal] Special Act. Another central task will be to assess the extent to which

section 10 of the [federal] Special Act sets up a regulatory regime to govern conflicts between this federal work or undertaking and any municipal by-laws. [ 35 ] Windsor submits that Canadian Transit’s proceeding involves plenty of provincial law and so there is not enough federal law to support the Federal Court’s jurisdiction. It says that the Federal Court would have to interpret the relevant Windsor by-law, a quintessentially provincial matter under the Constitution Act, 1867 , ascertaining its policies and scope.

In Windsor’s view, this significant element of provincial law takes the proceeding beyond the Federal Court’s jurisdiction. [ 36 ] I reject Windsor’s submission.

In my view, federal law plays an essential role in the outcome of this case, with provincial law playing only a subsidiary or incidental role. [ 37 ] At the outset of explaining why this is so, it is worth noting that the Federal Court can entertain a proceeding even though there is some provincial law involved in the case ( ITO—International Terminal Operators , above, at pages 781–782): The Federal Court is constituted for the better administration of the laws of Canada. It is not, however, restricted to applying federal law in cases before it.

Where a case is in “pith and substance” within the court’s statutory jurisdiction, the Federal Court may apply provincial law incidentally necessary to resolve the issues presented by the parties; [Citations omitted.] [ 38 ] This is not a controversial proposition. Of necessity, the Federal Courts regularly decide incidental questions of provincial law. For example, when deciding income tax appeals from the Tax Court of Canada, a federal matter, this Court often must decide issues of contract, trust law and provincial corporate law, among others.

When the federal Crown is sued in tort in the Federal Court, the provincial common law is treated as federal law. In federal maritime law cases, the Federal Court often must apply provincial laws of contributory negligence. The question is not whether the Federal Court is doing any provincial law; it often is. The question is whether there is federal law essential to the claim that nourishes the Court’s jurisdiction or, put another way, whether there is sufficient federal law to give the Court jurisdiction.

[39] Different cases use different words and approaches to describe the degree of federal law that is sufficient. ITO—InternationalTerminal Operators, above, inquires into whether provincial law is only “incidentally necessary” to the federal law in the case (at pages781–782). Other authorities start with the federal law and ask whether it bears upon the case. For example, one formulation is whether“the rights and obligations of the parties are to be determined to some material extent by federal law” or whether the cause of action “isone affected” by federal law: Bensol Customs Brokers Ltd. v.

Air Canada, (FCA), [1979] 2 F.C. 575 (C.A.), at page583. Yet another formulation is whether “the federal statute has an important part to play in determining the rights of the parties”: R. v.Montreal Urban Community Transit Commission, (FCA), [1980] 2 F.C. 151 (C.A.), at page 153. [40] Examples abound where an element of provincial law is before the Federal Court—sometimes a fairly large element—yet theFederal Court has nevertheless been held to have jurisdiction because of the essentiality and prominence of the federal law in the case. InMcNamara Construction (Western) Ltd. et al. v.

The Queen, (SCC), [1977] 2 S.C.R. 654, the Supreme Court confirmedthe ability of the Federal Court to apply the provincial law of contribution and indemnity to resolve a dispute as long as it does so under abody or framework of federal law given to it. In Rhine v. The Queen, (SCC), [1980] 2 S.C.R. 442 [Rhine; Prytula], theSupreme Court held that the Federal Court could deal with an action to enforce contractual promises—a matter governed by provinciallaw—to repay loans made under and affected by federal statutes. Finally, in Peter G. White Management Ltd. v.

Canada (Minister ofCanadian Heritage), 2006 FCA 190, [2007] 2 F.C.R. 475, this Court held that the Federal Courts could deal with common law torts,matters of provincial law, where they were “in pith and substance” based on federal law or informed by it and where there was a“detailed [federal] statutory framework”. [41] In the case at bar, provincial law plays a role that is only subsidiary or incidental to the large body of federal law in the federalSpecial Act set out above.

Indeed, a number of the declarations Canadian Transit seeks concern what it can and cannot do under theframework of the federal Special Act and what its work or undertaking consists of—subjects that have no provincial law contentwhatsoever. [42] When applying the constitutional doctrines of paramountcy and interjurisdictional immunity, the Federal Court will have tointerpret the scope of Windsor’s by-law and the purposes behind it. But in applying those same doctrines, the Federal Court will have tointerpret the federal Special Act to the same extent.

And, as we shall see, these doctrines, in themselves, can be regarded as part of thelaw of Canada that the Federal Court can interpret and apply. Therefore, on the authorities cited above, there is a very significant body offederal law to be interpreted and applied that will determine this case, as much or even more than was present in the Supreme Court casesof Rhine; Prytula and ITO—International Terminal Operators, both above, and this Court’s case of Peter G. White, above, all of whichconcluded the Federal Court had jurisdiction.

Overall, the federal Special Act plays a predominant role in this case, it is essential to itsdetermination, and provincial law plays only a subsidiary or incidental role. [43] Windsor submits that this Court’s recent decision in Harry Sargeant III v. Al-Saleh, 2014 FCA 302, 26 C.B.R. (6th) 133, isdirectly on point and supports its position. I disagree.

In Sargeant, a party asserted an interest in the proceeds of disposition of a ship.However, in order to assert that interest, the party had to bring an application in a provincial superior court to enforce a foreign judgmentand then obtain a declaration of entitlement to a constructive trust, both matters of provincial law. In Sargeant, provincial law was thedominant body of law needed to determine the proceeding.

In the case at bar, provincial law plays only a subsidiary or incidental role. [44] Therefore, there is a sufficient body of federal law essential to the determination of Canadian Transit’s proceeding and thatnourishes the Federal Court’s jurisdiction. The second branch of the ITO—International Terminal Operators test is met.

(3) The federal law must be validly federal under the constitutional division of powers [45] Under the final branch of the ITO—International Terminal Operators test, we must ensure that the Federal Courts will be actingwithin their constitutional jurisdiction. [46] The federal Special Act is a valid exercise of federal legislative authority. The federal Parliament has authority overinterprovincial works and undertakings and federal corporations: subsections 91(29) and 92(10) of the Constitution Act, 1867; JohnDeere Plow Co. v.

Wharton, (UK JCPC), [1915] A.C. 330 (P.C.) (in which the federal power to incorporate andregulate corporations was first recognized and was held to fall within subsection 91(2) and the federal “Peace, Order and goodGovernment” power). This branch of the test is met. F.

Does the Federal Court have jurisdiction to make declarations on constitutional matters such as paramountcy andinterjurisdictional immunity? [47] For the reasons set out below, as long as the test in ITO—International Terminal Operators is met, the Federal Court hasjurisdiction to make declarations in constitutional matters, such as declarations of invalidity or, as sought here, declarations ofinoperability and inapplicability based on the doctrines of paramountcy and interjurisdictional immunity. [48] Above, I mentioned that some commentators have queried the jurisdiction of the Federal Court to make such declarations relyingupon a passage in Northern Telecom.

The passage reads as follows (at page 745): The Constitution Act, 1867, as amended, is not of course a “law of Canada” in the sense of the foregoing cases because it was notenacted by the Parliament of Canada. The inherent limitation placed by s. 101 [of the Constitution Act, 1867] on the jurisdiction whichmay be granted to the Federal Court by Parliament therefore might exclude a proceeding founded on the Constitution Act [sic]. [Myemphasis.] [49] This passage appears after the discussion necessary to determine the specific issues in the case.

And it suggests only that theFederal Court might not be able to entertain a proceeding concerning constitutional issues. Absent in this passage is any detailed analysisof the Federal Court’s jurisdiction to consider constitutional issues, perhaps because the facts of this case, which took place four yearsbefore the constitutional reforms in 1982, did not call for it. In the 1982 constitutional reforms, all of the Acts comprising ourConstitution were transformed into laws of Canada: see

section 1 of the Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,No. 44] (“enacted for and [having] the force of law in Canada”) and

section 52 of the Constitution Act, 1982 [Schedule B, Canada Act

1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] (the Constitution is the “supreme law of Canada”). Finally, while thispassage suggests that the Federal Court “might” not be able to consider a proceeding founded on “the Constitution Act”, a later passagesays something quite different (at page 745): the Federal Court “is competent to decide a question of law, even of a constitutional nature,when that question is raised, as it is in the case at bar, in connection with a proceeding or principal action based on the application offederal law” (my emphasis).

In other words, in today’s language, where the Federal Court has jurisdiction under the ITO—InternationalTerminal Operators test, the Federal Court can decide a constitutional question. [50] In light of these considerations, what should now be made of the passage in Northern Telecom? Is the Federal Court able toconsider the constitutional doctrines of paramountcy and interjurisdictional immunity? [51] I begin by examining the provenance of these constitutional doctrines. They arise from the concluding words of

section 91 of theConstitution Act, 1867, and perhaps also the “notwithstanding” clause at the start of

section 91 of the Constitution Act, 1867,

an Act that,as we have seen, is now a law of Canada: Re Exported Natural Gas Tax, (SCC), [1982] 1 S.C.R. 1004, at pages 1030–1031; A.H. Boulton Co. Ltd. v. Trusts and Guarantee Co. Ltd., (SCC), [1942] S.C.R. 130, at page 136; Neil Finkelstein,Laskin’s Canadian Constitutional Law, 5th ed. (Toronto: Carswell, 1986), at page 263; Peter W. Hogg, Constitutional Law of Canada,5th ed. loose-leaf (consulted on 7 April 2015), (Toronto: Carswell, 2007), at page 16-3, footnote 10.

The doctrines of paramountcy andinterjurisdictional immunity can affect the force of federal legislation, in some circumstances permitting that legislation to be appliedaccording to its terms notwithstanding provincial and municipal laws. As such, these doctrines are intertwined with federal legislativepower under

section 91 or are “a quality inherent in federal legislative power”: Hogg, above, at page 16-3, footnote 9. Thus, the doctrinesof paramountcy and interjurisdictional immunity must themselves be regarded as part of the law of Canada that the Federal Court caninterpret and apply. [52] The purposes of

section 101 of the Constitution Act, 1867, the constitutional underpinning of the Federal Court, buttress thisconclusion.

Section 101 exists over and above the power of each individual province to establish and administer provincial superiorcourts under subsection 92(14). Were it not for Parliament’s ability to create a national court to administer federal laws under section101, provincial and territorial superior courts, 13 in all, would administer those laws. One jurisdiction’s superior court might disagreewith another jurisdiction’s superior court. Perhaps a third or fourth point of view may emerge as other jurisdictions’ superior courtsweigh in on the issue.

So, for example, in some jurisdictions, a particular expense might be deductible for income tax purposes; in others,not. In some jurisdictions, a federal administrative tribunal’s decision would be binding and in force; in others, not. In some jurisdictions,an illegal strike or lockout in an essential national service might be enjoined; in others, not. Interjurisdictional inconsistency andinequality would prevail, perhaps pleasing forum shoppers, but undermining the workability and unity of the federation. [53]

Section 101 exists to prevent this. It allows the federal Parliament to create federal courts with national jurisdiction to administerfederal laws. And Parliament did not wait long after Confederation to create such a court. That court, created at the same time Parliamentcreated the Supreme Court of Canada, was the Exchequer Court of Canada, the predecessor of the Federal Court of Canada, the FederalCourt and this Court: The Supreme and Exchequer Court Act, S.C. 1875, c. 11. Parliament intended the Exchequer Court and itssuccessors to be strong national institutions—courts in every sense—able to fulfil the purpose of

section 101 by adjudicating federalmatters completely and to conclusion: Canada (Human Rights Commission) v. Canadian Liberty Net, (SCC), [1998] 1S.C.R. 626; Hupacasath First Nation v. Canada (Attorney General), 2015 FCA 4, 379 D.L.R. (4th) 737, at paragraphs 52–57; RBC LifeInsurance, above, at paragraphs 33–36. To achieve that end, the Exchequer Court and its successors must be able to identify theoperative and applicable laws before them, even when those laws are affected by paramountcy and interjurisdictional immunity. [54] Were it otherwise, the purposes

section 101 seeks to advance would be frustrated. Suppose that, as here, a party seeks in theFederal Court a declaration of its rights under a federal statute and is met with the argument that the doctrines of paramountcy andinterjurisdictional immunity do not apply and so provincial law applies fully to affect those rights.

If the Federal Court has no power todeal with paramountcy or interjurisdictional issues, the parties would have to proceed to a provincial superior court and later to provincialappeal courts and ultimately to the Supreme Court for a ruling on those issues, and then, depending on the result, proceed back to theFederal Court. Federal-provincial-federal hop-scotching does nothing to further access to justice: Canada (Attorney General) v. TeleZoneInc., 2010 SCC 62, [2010] 3 S.C.R. 585, at paragraphs 18–19 and 32.

Further, over time, provincial superior courts and provincialappellate courts might disagree on the issues of paramountcy or interjurisdictional immunity, spawning the very inconsistency andinequality that

section 101 was meant to prevent. [55] Quite aside from

section 101 of the Constitution Act, 1867, in my view the Federal Court and its predecessors, the Federal Courtof Canada and the Exchequer Court of Canada, have always had the ability to consider constitutional issues of validity, operability andapplicability. That ability comes from a more fundamental source. [56] In 1875, the Exchequer Court of Canada was created. Like all courts, it had to act according to law, interpreting and applying thelaw. At the time of the Exchequer Court’s birth, one law on the books was the Colonial Laws Validity Act, 1865 (U.K.), 28 & 29 Vict., c.63. Under

section 2 of that Act, all Canadian courts, including the Exchequer Court, had to declare “void and inoperative” any federal orprovincial laws inconsistent with those of the Parliament of the United Kingdom, including The British North America Act, 1867 [30 &31 Vict., c. 3 (U.K.) [R.S.C. 1985, Appendix II, No. 5]]: see also the discussion in Re Manitoba Language Rights, (SCC), [1985] 1 S.C.R. 721, at page 746.

The Exchequer Court recognized this power and understood that in appropriate cases it coulddecline to apply legislation that conflicted with a law of the Parliament of the United Kingdom: see, e.g., Algoma Central Railway Co. v.Canada (1901), (CA EXC), 7 Ex. C.R. 239, at pages 254–255, revd on other grounds (1902), (SCC),32 S.C.R. 277, affd [1903] A.C. 478 (P.C.). Even before the Exchequer Court came into existence, other Canadian courts regularlyexercised the power to declare legislation invalid or inoperative: see, e.g., The Queen v.

Chandler (1868), 2 Cart. 421 (N.B.S.C.); Pope v.Griffith (1872), 2 Cart. 291 (Que. Q.B.); Ex p. Dansereau (1875), 2 Cart. 165 (Que. Q.B.), at page 190; L’Union St. Jacques v. Belisle(1872), 1 Cart. 72 (Que. Q.B.), revd (1874), L.R. 6 (P.C.).

Thus, from the very outset, all Canadian courts, including the ExchequerCourt, could measure legislation up against laws of the Parliament of the United Kingdom, including The British North America Act,1867, and determine whether they were invalid or inoperative. [57] From 1875 to 1982, the doctrines of paramountcy and interjurisdictional immunity developed as part of the jurisprudence undersections 91 and 92 of the British North America Act, 1867. For example, as early as 1895, the doctrine of paramountcy was described as

being “necessarily implied in our constitutional act”, one that had to be followed under the Colonial Laws Validity Act, 1865: Huson v.Township of South Norwich (1895), 1895 CanLII 1 (SCC), 24 S.C.R. 145, at page 149. These constitutional doctrines became part of thelaw that all Canadian courts, including the Exchequer Court, were bound to apply. [58] And so the Exchequer Court did.

In one case, it found that provincial water rights legislation, the Water Clauses ConsolidationAct, 1897, R.S.B.C., c. 190, could not apply to lands owned by the federal Crown that fell under exclusive federal jurisdiction undersubsection 91(1A) of the Constitution Act, 1867: Burrard Power Co. Limited et al. v. The King (1909), (CA EXC), 12Ex. C.R. 295, affd (SCC), [1910] 43 S.C.R. 27, affd [1911] A.C. 87 (P.C.).

In another case, it found that federallegislation, The Soldier Settlement Act, 1919, S.C. 1919, c. 71, was intra vires the federal Parliament and if it conflicted with provinciallegislation, it would prevail: The King v. Powers, (CA EXC), [1923] Ex. C.R. 131, at pages 133–134. [59] In 1931, the Colonial Laws Validity Act, 1865 was repealed, allowing federal and provincial laws in Canada to diverge from thelaws of the Parliament of the United Kingdom: Statute of Westminster, 1931, (U.K.), 22 Geo. V, c. 4 [R.S.C., 1985, Appendix II, No.27],

section 2, now known as the Constitution Act, 1931. But the requirement that federal and provincial laws respect the constitutionaldivision of powers in the British North America Act, 1867 was preserved: Constitution Act, 1931, subsection 7(3) and see the discussionin Re: Resolution to amend the Constitution, (SCC), [1981] 1 S.C.R. 753, at page 835.

So from 1931 until the passage ofthe Constitution Act, 1982, the Exchequer Court still had the power—indeed the duty—to enforce the constitutional division of powers insections 91 and 92 of the British North America Act, 1867, including the constitutional doctrines of paramountcy and interjurisdictionalimmunity. [60] In 1971, the Exchequer Court of Canada was continued as the Federal Court of Canada and that Court was later continued as theFederal Court and this Court: Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,

section 3; Federal Courts Act, above, sections 3 and 4(amended by S.C. 2002, c. 8,

section 16). As successor courts, the Federal Court of Canada, the Federal Court and this Court have hadwhat the Exchequer Court has had since its inception in 1875—the power to enforce the constitutional division of powers in sections 91and 92 of the British North America Act, 1867 and later the Constitution Act, 1867, including the constitutional doctrines of paramountcyand interjurisdictional immunity. [61] In 1982, the Constitution Act, 1982 came into force. It preserved subsection 7(3) of the Statute of Westminster, 1931 and therequirement that federal and provincial laws respect the constitutional division of powers: see the

Schedule to the Constitution Act, 1982.But

section 52 of the Constitution Act, 1982 transformed the implied power of courts to determine issues of constitutionality, includingthe constitutional doctrines of paramountcy and interjurisdictional immunity, into an express power. As the Supreme Court said in ReManitoba Language Rights, above, at page 746,

section 52 of the Constitution Act, 1982 did “not alter the principles which haveprovided the foundation for judicial review over the years.” It merely confirmed the power that all courts already had. See alsoOperation Dismantle Inc. et al. v. The Queen et al., (SCC), [1985] 1 S.C.R. 441, at pages 482–483; Singh v. Canada(Attorney General), (FCA), [2000] 3 F.C. 185 (C.A.), at paragraphs 14–16. [62] In several decisions after 1982, the Supreme Court has examined

section 52 of the Constitution Act, 1982. It has held that anystatutorily established adjudicative bodies that have the power to decide questions of law—such as the Federal Courts, the Tax Court ofCanada, the provincial courts and even certain administrative decision makers—have the power to determine whether the law beforethem is inconsistent with the Constitution: Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504.

That is so, as long as the statutorily established adjudicative bodyhas subject-matter jurisdiction over the case: Douglas/Kwantlen Faculty Assn. v. Douglas College, (SCC), [1990] 3S.C.R. 570; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), (SCC), [1991] 2 S.C.R. 5; Tétreault-Gadoury v.Canada (Employment and Immigration Commission), (SCC), [1991] 2 S.C.R. 22. So

section 52 of the Constitution Act,1982 does not expand the subject-matter jurisdiction of the Federal Court. [63] But where the Federal Court does have subject-matter jurisdiction—both statutory and constitutional jurisdiction under the test inITO—International Terminal Operators, above—it also has the power to make

section 52 determinations. Indeed, it has a duty to do so:Re Manitoba Language Rights, above, at pages 745–746. Were it otherwise, the Federal Court would have a constitutional jurisdictionnarrower than many of the administrative decision makers it reviews—truly an absurd result. [64] In practice, the ability of the Federal Court and this Court to use

section 52 of the Constitution Act, 1982 where the ITO—International Terminal Operators test is met is undoubted. For example, using its declaratory power under

section 52, this Court struckdown a provision of the Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1 on Charter [Canadian Charter of Rights and Freedoms, beingPart I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] grounds, andits decision did not depend on whether the Charter,

Part I of the Constitution Act, 1982, was a “law of Canada”: Del Zotto v. Canada, (FCA), [1997] 3 F.C. 40 (C.A.), revd on other grounds, (SCC), [1999] 1 S.C.R. 3. This Court had asufficient body of federal law before it, namely the Income Tax Act and a federal order and federal subpoena issued under it. [65] The constitutional doctrines of paramountcy and interjurisdictional immunity fit within the

section 52 rubric. Where a federal lawis on the books and there is provincial law that conflicts with the federal law or invades a supposed federal enclave of jurisdiction, theFederal Court must find that the federal law must prevail over the provincial law—otherwise, using the words of

section 52, there wouldbe an inconsistency with the Constitution, namely the proper division of federal and provincial powers under sections 91 and 92 of theConstitution Act, 1867. [66] Over and above

section 52 of the Constitution Act, 1982, is the rule of law, a binding constitutional principle contained in thepreamble to

Part I of that Act.

It requires, among other things, that all courts, including the Federal Court, must act only according to law.Judges, like everyone else, are subject to laws and must follow them: Re: Resolution to amend the Constitution, above, at pages 805–806;Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217, at paragraphs 71–72 “one law for all”; Reference reRemuneration of Judges of the Provincial Court of Prince Edward Island; Reference re Independence and Impartiality of Judges of theProvincial Court of Prince Edward Island, (SCC), [1997] 3 S.C.R. 3, at paragraph 10 “the exercise of all public powermust find its ultimate source in a legal rule”.

Put another way, “[t]he job of judges is to apply the law, not to indulge their personalpreferences”: Tom Bingham, The Rule of Law (London: Allen Lane (Penguin Books) 2010), at page 51.

[67] In order to act according to law, a court of law—even a statutory court like the Federal Court—must have an implied power todetermine the law that is valid, operative, applicable and relevant to the case before it. This is an “immanent attribute” or part of its“essential character”: MacMillan Bloedel Ltd. v. Simpson, (SCC), [1995] 4 S.C.R. 725, at paragraph 30. Without thispower, any court is emasculated, and is not really a court at all: see MacMillan Bloedel, above, at paragraphs 30–38, citing with approvalKeith Mason, “The Inherent Jurisdiction of the Court” (1983), 57 Austl. L.

J. 449, at page 449 and Isaac Hai Jacob, “The InherentJurisdiction of the Court” (1970), 23 Curr. Legal Probs. 23, at pages 27–28; see also RBC Life Insurance, above, at paragraph 36.

Thisimplied power has to include the doctrines of paramountcy and interjurisdictional immunity, matters that affect the operability andapplicability of laws. [68] In light of the foregoing discussion, it is not surprising that there have been many cases where, despite the isolated comment inNorthern Telecom, above, the Federal Court has had to determine whether a federal law applied to the exclusion of a provincial law in amatter before it.

In these cases, the Federal Court interpreted federal and provincial laws, examined whether they conflicted, and decidedwhether federal law should prevail: see, e.g., Early Recovered Resources Inc. v. Gulf Log Salvage Co-Operative Assn., 2003 FCA 35,[2003] 3 F.C. 447; Early Recovered Resources Inc. v. British Columbia, 2005 FC 995, [2006] 1 F.C.R. 187; Brooks Aviation, Inc. v.Boeing SB-17G, 2004 FC 710, [2005] 1 F.C.R. 352.

In the 2005 Early Recovered Resources case, the Court went further and made adeclaration in support of its conclusion. [69] The Supreme Court’s decision in ITO—International Terminal Operators, above, is itself another illustration of the FederalCourt’s ability to interpret and apply constitutional doctrines. Under the third branch of the ITO—International Terminal Operators test,the Supreme Court requires the Federal Court to engage in division of powers analysis: whether the federal law that nourishes theFederal Court’s jurisdiction under the second branch is indeed validly federal under the constitution.

In making that assessment, theFederal Court has to draw upon the common law developed in the area of the constitutional division of powers and analyse it. [70] The matter before us cannot be distinguished from these authorities. Canadian Transit is asking the Federal Court to determine,using common law doctrines developed in the area of the constitutional division of powers, whether the Ambassador Bridge andsurrounding properties and facilities that it says are necessary for the bridge are to be regulated by federal law to the exclusion ofprovincial (municipal) law.

Since the Federal Court has statutory jurisdiction and constitutional jurisdiction under the test in ITO—International Terminal Operators, it can apply the doctrines of paramountcy and interjurisdictional immunity. G. A qualification [71] Throughout these reasons, I have stated that the Federal Court has jurisdiction to make declarations on constitutional matters suchas paramountcy and interjurisdictional immunity. But I have qualified that statement with the requirement that the ITO—InternationalTerminal Operators test be met.

In part, this is because the ITO—International Terminal Operators test is used to ensure that the FederalCourt has the statutory and constitutional jurisdiction to act. But the qualification is important for another reason. [72] The doctrine of interjurisdictional immunity, unlike the doctrine of paramountcy, can apply even where there is no federallegislation occupying the field: Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R.536.

So, for example, a party, relying on the federal jurisdictional enclave of aeronautics alone, can invoke the doctrine ofinterjurisdictional immunity to attack provincial law that trenches upon that enclave. Could that party seek a paragraph 23(

c) declarationbased on interjurisdictional immunity and

section 52 of the Constitution Act, 1982 concerning the validity of the provincial law in theFederal Court? Would there be sufficient federal law in that circumstance to nourish the Federal Court’s jurisdiction under the ITO—International Terminal Operators test?

The answers to these questions should await full argument in a future case where they arise. [73] In this case, Canadian Transit—established as a federal corporation under the federal Special Act to pursue federal objects andinvoking a federal provision allowing the Federal Court to make declarations concerning federal works and undertakings—has asked theFederal Court what exactly its rights are under the federal Special Act concerning an international bridge, which it says is a federal workor undertaking, federally-regulated, and regulated in substantial part by the federal Special Act.

To answer that question, the FederalCourt, armed with one of the “laws of Canada”, namely

section 52 of the Constitution Act, 1982, will draw in large part upon itsinterpretation of the federal Special Act and

section 91 of the Constitution Act, 1867, another one of the “laws of Canada”. That particularlaw of Canada sets out federal powers that, in some circumstances defined in the case law, are given paramount or wholly exclusivestatus under the doctrines of paramountcy and interjurisdictional immunity. The Federal Court, established to administer federal law, anddrawing on implied powers it and its predecessors have had for almost a century-and-a-half to determine the constitutional validity,operability and applicability of laws before it, can apply the doctrines of paramountcy and interjurisdictional immunity.

This is a federalmatter through and through and the Federal Court can determine it fully. H. Should Canadian Transit’s application be converted to an action? [74] Canadian Transit brought its proceeding by way of application. After receiving the judgment of the Federal Court, it realized thatit should have proceeded by way of action, not by way of application. [75] Accordingly, as part of the relief sought in this appeal, Canadian Transit asks this Court for an order converting its application toan action. Attached to Canadian Transit’s notice of appeal in this Court is a draft statement of claim.

The draft statement of claim isvirtually identical to the notice of application. [76] Under rule 300 of the Federal Courts Rules, SOR/98-106, applications are reserved for reviews of administrative action andmatters required or permitted by

an Act of Parliament to be brought by application, motion, originating notice of motion, originatingsummons or petition or to be determined in a

summary way. None of these apply in the present case. So Canadian Transit is correct thatit must convert its application to an action. [77] In support of the order for conversion, Canadian Transit invokes rule 57: an originating document should not be set aside only onthe ground that a different originating document should have been used. Filing the wrong originating document is an irregularity that canbe rectified, not a fatal error that brings the proceeding to an end.

[ 78 ] Canadian Transit’s request for conversion of its pleading is not properly before us and cannot be granted.

Section 52 of the Federal Courts Act , above, sets out this Court’s powers on appeal. Under that

section we do not have the power to determine a motion that could have been brought in the Federal Court but was not. Rather, Canadian Transit should seek conversion of its pleading by way of motion in the Federal Court. [ 79 ] Windsor opposes Canadian Transit’s request for conversion. It has the right to file evidence responding to Canadian Transit’s request for conversion. It cannot do so in the appeal before us.

The Federal Court is the proper place for Canadian Transit to bring a motion for conversion and for Windsor to respond. [ 80 ] Therefore, I would not deal with Canadian Transit’s request for conversion. Canadian Transit remains free to move for that relief in the Federal Court. I. Proposed disposition [ 81 ] Therefore, I would order that the appeal be allowed, the judgment dated May 21, 2014 of the Federal Court in file no. T-1699-13 be set aside, and the motion to strike be dismissed. [ 82 ] The parties have agreed that this Court should fix costs.

As costs should follow the event, I would award Canadian Transit its costs in the amount of $5 500 in this Court and $9 500 in the Federal Court, all inclusive. Dawson J.A. : I agree. Scott J.A .: I agree.