Greeley v. Ship Tami Joan, (1996) 113 F.T.R. 66 (TD)

• Judge: MacKay, J.
• Court: Federal Court (Canada)
• Case Date: April 11, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1996), 113 F.T.R. 66 (TD)

Greeley v. Ship Tami Joan (1996), 113 F.T.R. 66 (TD)

MLB headnote and full text

David Greeley (plaintiff) v. The Owners and all others interested in the Ship "Tami Joan" (defendants)

(T-2778-92)

Indexed As: Greeley v. Ship Tami Joan

Federal Court of Canada

Trial Division

MacKay, J.

May 30, 1996.

Summary:

In May 1992, the plaintiff, a Newfoundland fisherman, leased the defendant motor vessel, the "Tami Joan", from Lord. When the plaintiff took possession of the vessel, it was subject to a mortgage held by the New Brunswick Fisheries Development Board as mortgagee. The mortgage went into default. In October 1992 Her Majesty the Queen in Right of New Brunswick as represented by the Minister of Fisheries and Aquaculture, took possession of the vessel. Thereafter, the plaintiff sued the Minister for, inter alia, wrongfully taking the vessel without notice and for failing to account for improvements made to the vessel by the plaintiff. The Minister, after filing a defence to the in rem action, sought an order striking out the Minister as a defendant and striking out the portions of the claim that sought relief against the Minister et al. The plaintiff sought an order adding MacFarlane, an employee of the province of New Brunswick, as a party to the action.

The Federal Court of Canada, Trial Division, allowed the Minister's application and dismissed the plaintiff's application.

Courts - Topic 4018

Federal Court of Canada - Jurisdiction - Trial Division - Acts of officer or servant of Crown - [See third Courts - Topic 4210 ].

Courts - Topic 4210

Federal Court of Canada - Jurisdiction - Particular matters - Claims by individuals against provincial Crown - In May 1992, the plaintiff leased the defendant motor vessel, the "Tami Joan", from Lord - The vessel, at all times, was subject to a mortgage held by the New Brunswick Fisheries Development Board - The mortgage went into default - In October 1992 Her Majesty in Right of New Brunswick, as represented by the Minister of Fisheries and Aquaculture, took possession of the vessel - The plaintiff sued the Minister for, inter alia, wrongfully taking the vessel without notice - The Minister sought an order striking out the Minister as a defendant and striking out the portions of the claim that sought relief against the Minister et al. - The Federal Court of Canada, Trial Division, allowed the Minister's application where, by virtue of ss. 2 and 17 of the Federal Court Act, the Federal Court did not have jurisdiction to grant relief against Her Majesty in Right of a Province - See paragraphs 1 to 22.

Courts - Topic 4210

Federal Court of Canada - Jurisdiction - Particular matters - Claims by individuals against provincial Crown - Section 17 of the Federal Court Act provided the Federal Court with jurisdiction over actions against the Crown in certain circumstances, stating that except "as otherwise provided in this Act or any other Act of Parliament, the Trial Division has concurrent original jurisdiction in all cases where relief is claimed against the Crown ..." - The term "Crown" was defined in s. 2 as meaning "Her Majesty in right of Canada" - The Federal Court of Canada, Trial Division, stated that pursuant to ss. 17 and 2, the Federal Court did not have jurisdiction to grant relief against Her Majesty in Right of a Province - Moreover, a Minister representing the province does not submit to the jurisdiction of the court by filing a statement of defence and counterclaim - The court's jurisdiction cannot be extended - See paragraphs 11 to 21.

Courts - Topic 4210

Federal Court of Canada - Jurisdiction - Particular matters - Claims by individuals against provincial Crown - In May 1992, the plaintiff leased the defendant motor vessel, the "Tami Joan", from Lord - The vessel was subject to a mortgage held by the New Brunswick Fisheries Development Board - The mortgage went into default - In October 1992, Her Majesty the Queen in Right of New Brunswick, as represented by the Minister of Fisheries and Aquaculture, took possession of the vessel - The plaintiff sued the Minister for, inter alia, wrongfully taking the vessel - Subsequently, the plaintiff sought an order adding MacFarlane, the provincial employee who actually seized the vessel, as a party to the action - The Federal Court of Canada, Trial Division, dismissed the plaintiff's application where such an action was outside the Federal Court's jurisdiction - See paragraphs 23 to 25.

Cases Noticed:

Union Oil Co. of Canada Ltd. v. R., [1976] 1 F.C. 74 (F.C.A.), folld. [para. 18].

Canadian Javelin Ltd. v. R., [1978] 1 F.C. 408; 77 D.L.R.(3d) 317 (F.C.A.), folld. [para. 19].

Avant Inc. et al. v. Ontario, [1986] 2 F.C. 91; 1 F.T.R. 270 (T.D.), refd to. [para. 19].

Trainor Surveys (1974) Ltd. v. New Brunswick et al., [1990] 2 F.C. 168; 35 F.T.R. 228 (T.D.), refd to. [para. 19].

Saugeen Board of Indians v. Canada (Minister of Fisheries and Oceans) - see Kahgee et al. v. Canada (Minister of Fisheries and Oceans) et al.

Kahgee et al. v. Canada (Minister of Fisheries and Oceans) et al., [1992] 3 F.C. 576; 56 F.T.R. 253 (T.D.), refd to. [para. 20].

Statutes Noticed:

Federal Court Act, R.S.C. 1985, c. F-7, sect. 17(1) [para. 12].

Counsel:

John R. Sinnott, Q.C., for the plaintiff;

Clyde Spinney, for the defendant.

Solicitors of Record:

Lewis & Sinnott, St. John's, Newfoundland, for the plaintiff;

Attorney General of New Brunswick, for the defendant.

This application was heard on April 11, 1996, at Fredericton, New Brunswick, before MacKay, J., of the Federal Court of Canada, Trial Division, who delivered the following decision at Ottawa, Ontario, on May 30, 1996.