Toney v. Royal Canadian Mounted Police et al., (2012) 422 F.T.R. 178 (FC)

• Judge: Mactavish, J.
• Court: Federal Court (Canada)
• Case Date: September 04, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 422 F.T.R. 178 (FC);2012 FC 1412

Toney v. RCMP (2012), 422 F.T.R. 178 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] F.T.R. TBEd. AP.027

Admiralty Action In Rem and In Personam

Alan Toney, Yvonne Toney, and Courtenay Toney & Rebecca Toney as represented by their litigation guardian Alan Toney (plaintiffs) v. Her Majesty the Queen in Right of Canada in the Name of the Royal Canadian Mounted Police, and Her Majesty the Queen in Right of the Province of Alberta as Represented by The Minister of Sustainable Resource Development, and the Canadian Ship Bearing Licence No. AB1275024 (defendants)

(T-1577-11; 2012 FC 1412; 2012 CF 1412)

Indexed As: Toney v. Royal Canadian Mounted Police et al.

Federal Court

Mactavish, J.

December 3, 2012.

Summary:

The Toney family were on a boating trip when their boat became disabled and they had to call for assistance. In the course of being rescued, a vessel then owned and operated by Alberta capsized, resulting in the drowning death of one of the Toney children. The Toneys commenced an in rem and in personam action against the R.C.M.P., Alberta, and the rescue vessel. Alberta moved to have the action struck as against it in personam, and as against the rescue vessel in rem, for lack of jurisdiction.

The Federal Court, in a decision reported at [2011] F.T.R. Uned. 877, struck out the in rem action against the rescue vessel, on the basis that ownership of the vessel had not remained the same between the time the cause of action arose and the commencement of the action. The court refused to strike the action as against Alberta in personam as it was not "plain and obvious" that the Federal Court did not have personal jurisdiction over Alberta in the matter. Alberta appealed.

The Federal Court of Appeal, in a decision reported at [2012] N.R. Uned. 87, dismissed the appeal. Alberta and the plaintiffs then came to an agreement that the issue of the Federal Court's jurisdiction over Alberta should be decided as a question of law in advance of the trial.

The Federal Court held that it did have in personam jurisdiction over Alberta in this matter.

Admiralty - Topic 3101

Jurisdiction - Particular cases - Fatal accidents - The Toney family were on a boating trip when their boat became disabled and they had to call for assistance - In the course of being rescued, a vessel then owned and operated by Alberta capsized, resulting in the drowning death of one of the Toney children - The Toneys commenced, inter alia, an action in personam against Alberta and an action in rem against the rescue vessel - Alberta moved to have the in personam action struck for lack of jurisdiction - The parties agreed that the issue of the court's jurisdiction over Alberta should be decided as a question of law in advance of the trial - The Federal Court held that it did have in personam jurisdiction over Alberta - The court had concurrent jurisdiction with the Alberta courts over the subject-matter of the action, given that the claim related to navigation and shipping and came within the express provisions of ss. 22(2)(d) and 22(2)(g) of the Federal Courts Act (FCA) - The Marine Liability Act (MLA), which dealt expressly with damages for death and the rights of dependants, was binding on the provinces (s. 3) - The court had jurisdiction over a claim against a province where that province was the owner of a vessel, if the claim was a maritime claim - The court had concurrent original jurisdiction, between subject and subject "as well as otherwise", where a claim was made pursuant to maritime law (FCA, s. 22(1)) - Section 22 encompassed claims against vessels owned by provincial Crown defendants - This interpretation was supported by provisions of the FCA and MLA that prohibited in rem actions against provincially or federally owned ships engaged in government service - These prohibitions would be meaningless if the court did not have personal jurisdiction over a province as owner of a vessel.

Admiralty - Topic 8405

Practice - Actions in personam - Fatal accidents - [See Admiralty - Topic 3101 ].

Courts - Topic 4008

Federal Court of Canada - Jurisdiction - General - Provincial Crown - [See Admiralty - Topic 3101 ].

Courts - Topic 4026

Federal Court of Canada - Jurisdiction - Federal Court - Maritime and admiralty matters - [See Admiralty - Topic 3101 ].

Courts - Topic 4210

Federal Court of Canada - Jurisdiction - Particular matters - Claims by individuals against provincial Crown - [See Admiralty - Topic 3101 ].

Cases Noticed:

R. v. Eldorado Nuclear Ltd.; R. v. Uranium Canada Ltd., [1983] 2 S.C.R. 551; 50 N.R. 120; 1 O.A.C. 243, refd to. [para. 20].

Union Oil Co. of Canada Ltd. v. Canada and British Columbia, [1976] 1 F.C. 74; 16 N.R. 427; 72 D.L.R.(3d) 81 (C.A.), affd. (1976), 16 N.R. 425; 72 D.L.R.(3d) 82 (S.C.C.), refd to. [para. 24].

Avant Inc. et al. v. Ontario, [1986] 2 F.C. 91; 1 F.T.R. 270 (T.D.), refd to. [para. 24].

Greeley v. Ship Tami Joan (1996), 113 F.T.R. 66 (T.D.), refd to. [para. 26].

Kusugak v. Northern Transportation Co. et al. - see Sateana Estate v. Northern Transportation Co. et al.

Sateana Estate v. Northern Transportation Co. et al. (2004), 266 F.T.R. 92; 2004 FC 1696, dist. [para. 27].

Irving (J.D.) Ltd. v. Siemens Canada Ltd. et al. (2012), 434 N.R. 84; 2012 FCA 225, refd to. [para. 36].

Greeley v. Ship Tami Joan (1997), 135 F.T.R. 290 (T.D.), affd. (2001), 273 N.R. 310; 2001 FCA 238, refd to. [para. 37].

Ship-Source Oil Pollution Fund v. British Columbia (Minister of Finance) (2012), 416 F.T.R. 302; 2012 FC 725, refd to. [para. 37].

Lubicon Lake Indian Band v. Canada, [1980] F.C.J. No. 272 (T.D.), refd to. [para. 38].

Canada and Canada (Attorney General) v. National Association of Broadcast Employees and Technicians et al., [1980] 1 F.C. 820; 31 N.R. 19 (F.C.A.), refd to. [para. 39].

Artificial Reef Society of Nova Scotia v. Canada et al. (2010), 374 F.T.R. 81; 2010 FC 865, refd to. [para. 42].

F.C. Yachts Ltd. v. Ship No. QFY10703E709 et al. (2007), 320 F.T.R. 125; 2007 FC 1257, refd to. [para. 45].

Westcan Stevedoring Ltd. v. Ship Armar, [1973] F.C. 1232 (T.D.), refd to. [para. 45].

Mount Royal/Walsh Inc. v. Ship Jensen Star et al., [1990] 1 F.C. 199; 99 N.R. 42 (F.C.A.), refd to. [para. 45].

Maritima de Ecologia, S.A. de C.V. v. Ship Maersk Defender et al. (2007), 366 N.R. 162; 2007 FCA 194, refd to. [para. 45].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 49].

Athabasca Chipewyan First Nation v. Canada (Minister of Indian Affairs and Northern Development) et al. (2001), 281 A.R. 38; 248 W.A.C. 38; 2001 ABCA 112, refd to. [para. 52].

Statutes Noticed:

Federal Courts Act, R.S.C. 1985, c. F-7, sect. 22(1) [para. 35].

Proceedings Against the Crown Act, R.S.A. 2000, c. P-25, sect. 8 [para. 51]; sect. 22 [para. 48].

Counsel:

Darren Williams, for the plaintiffs;

Marta Burns and Hilary Flaherty, for the defendants (Her Majesty the Queen in Right of the Province of Alberta);

Nil, for the defendants (Deputy Attorney General of Canada).

Solicitors of Record:

Merchant Law Group, LLP, Vancouver, British, Columbia, for the plaintiffs;

Alberta Justice & Attorney General Legal Services Division, Edmonton, Alberta, for the defendants (Her Majesty the Queen in Right of the Province of Alberta);

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the defendants.

This motion was heard at Edmonton, Alberta, on September 4, 2012, before Mactavish, J., of the Federal Court, who delivered the following order and reasons for order on December 3, 2012.