Toney v. Royal Canadian Mounted Police et al., (2013) 448 N.R. 175 (FCA)

• Judge: Sharlow, Webb and Near, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: June 03, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 448 N.R. 175 (FCA);2013 FCA 217

Toney v. RCMP (2013), 448 N.R. 175 (FCA)

MLB headnote and full text

[French language version follows English language version]

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

Temp. Cite: [2013] N.R. TBEd. SE.012

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 and 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 License No. AB 1275024 (defendants in action, not party to appeal)

(A-541-12; 2013 FCA 217; 2013 CAF 217)

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

Federal Court of Appeal

Sharlow, Webb and Near, JJ.A.

September 18, 2013.

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, in a decision reported at 422 F.T.R. 178, held that it did have in personam jurisdiction over Alberta in this matter. Alberta appealed.

The Federal Court of Appeal, Sharlow, J.A., dissenting, allowed the appeal.

Admiralty - Topic 3101

Jurisdiction - Particular cases - Fatal accidents - [See all Crown - Topic 2881 , Crown - Topic 2883 and Crown - Topic 2885 ].

Admiralty - Topic 8405

Practice - Actions in personam - Fatal accidents - [See all Crown - Topic 2881 , Crown - Topic 2883 and Crown - Topic 2885 ].

Courts - Topic 4008

Federal Court of Canada - Jurisdiction - General - Provincial Crown - [See all Crown - Topic 2881 , Crown - Topic 2883 and Crown - Topic 2885 ].

Courts - Topic 4012

Federal Court of Canada - Jurisdiction - General - Claims outside Court's jurisdiction - [See all Crown - Topic 2881 , Crown - Topic 2883 and Crown - Topic 2885 ].

Courts - Topic 4026

Federal Court of Canada - Jurisdiction - Federal Court - Maritime and admiralty matters - [See all Crown - Topic 2881 , Crown - Topic 2883 and Crown - Topic 2885 ].

Courts - Topic 4028

Federal Court of Canada - Jurisdiction - Federal Court - Claims against Crown and related claims - [See all Crown - Topic 2881 , Crown - Topic 2883 and Crown - Topic 2885 ].

Courts - Topic 4210

Federal Court of Canada - Jurisdiction - Particular matters - Claims by individuals against provincial Crown - [See all Crown - Topic 2881 , Crown - Topic 2883 and Crown - Topic 2885 ].

Crown - Topic 2803

Crown immunity - General - Immunity under provincial legislation - [See fourth Crown - Topic 2881 ].

Crown - Topic 2804

Crown immunity - General - Immunity under federal legislation - [See second and third Crown - Topic 2881 ].

Crown - Topic 2881

Crown immunity - Exceptions - General - 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 - Alberta moved to have the action struck for lack of jurisdiction - The parties agreed to have the issue of the court's jurisdiction over Alberta decided as a question of law in advance of the trial - Mactavish, J., held that the Federal Court did have in personam jurisdiction over Alberta - Alberta appealed - The Federal Court of Appeal allowed the appeal - Parliament and the provincial legislatures had unequivocally adopted the premise that the Crown was prima facie immune from legislation - A clear intention to bind the Crown was required to displace this presumption - Given that the Federal Court obtained its jurisdiction from statute, there had to be a legislative provision permitting provincial Crowns to be sued in that court, and the court had to have jurisdiction over both the subject matter of the dispute and the parties - In this case, Parliament had not shown a clear intention to bind Alberta - Alberta had not been expressly named in a relevant statute, it was not bound by necessary implication, nor had it waived its immunity - See paragraphs 6 to 11.

Crown - Topic 2881

Crown immunity - Exceptions - General - 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 - Alberta moved to have the action struck for lack of jurisdiction - The parties agreed to have the issue of the court's jurisdiction over Alberta decided as a question of law in advance of the trial - Mactavish, J., held that the Federal Court did have in personam jurisdiction over Alberta - Section 22 of the Federal Courts Act stated that the court had concurrent original jurisdiction, "between subject and subject as well as otherwise", where a claim was made pursuant to maritime law - This section encompassed claims against vessels owned by provincial Crown defendants - Alberta appealed - The Federal Court of Appeal allowed the appeal - The phrase "as well as otherwise" was not sufficiently express to convey Parliament's clear intention to bind the provinces - Section 2 defined the Crown as "Her Majesty in right of Canada" - This was contraindicative of a clear intention to bind the provinces - Section 22 dealt with subject matter jurisdiction and did not abrogate Alberta's immunity - See paragraphs 12 to 18.

Crown - Topic 2881

Crown immunity - Exceptions - General - 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 - Alberta moved to have the action struck for lack of jurisdiction - The parties agreed to have the issue of the court's jurisdiction over Alberta decided as a question of law in advance of the trial - Mactavish, J., held that the Federal Court did have in personam jurisdiction over Alberta - Alberta appealed - The Toneys submitted that s. 19 of the Federal Courts Act applied to grant to the court jurisdiction - That section stated that the Federal Court had jurisdiction over a provincial Crown in cases of intergovernmental controversies if the province had adopted legislation accepting such jurisdiction - The Federal Court of Appeal rejected this argument - Alberta had adopted legislation accepting such jurisdiction - However, s. 19 could only be invoked if an action was commenced against the federal government, and the federal government then commenced a third party proceeding against the provincial Crown - In this case, the Toney family commenced an action against Alberta and the federal government - Therefore, s. 19 therefore did not apply - See paragraphs 19 to 25.

Crown - Topic 2881

Crown immunity - Exceptions - General - 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 - Alberta moved to have the action struck for lack of jurisdiction - The parties agreed to have the issue of the court's jurisdiction over Alberta decided as a question of law in advance of the trial - Mactavish, J., held that the Federal Court did have in personam jurisdiction over Alberta - Alberta appealed - The Toneys submitted that Parliament's clear intention to grant in personam jurisdiction was evident when s. 22 of the Federal Courts Act (FCA) was read in conjunction with ss. 4 and 8 of Alberta's Proceedings Against the Crown Act (PACA) - Section 22 of the FCA stated that the court had concurrent original jurisdiction, between subject and subject as well as otherwise", where a claim was made pursuant to maritime law - Section 4 of the PACA granted the right to substantive relief against the Crown, and s. 8 described the forum and procedural rules that governed proceedings in Alberta - The Federal Court of Appeal rejected the Toneys' argument - In Medvid v. Saskatchewan (2012 Sask. C.A.), s. 8 of the PACA had been interpreted to mean that actions against Alberta could only proceed when brought in an Alberta court, and the PACA did not open the door for an action against Alberta in another jurisdiction - Given this interpretation and absent more explicit language to the contrary in any other provincial statute, there was no basis to find that Alberta had granted the Federal Court jurisdiction over it, other than in the specific circumstances provided for in s. 27 of the Judicature Act - See paragraphs 26 to 35.

Crown - Topic 2883

Crown immunity - Exceptions - Application by necessary implication - 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 - Alberta moved to have the action struck for lack of jurisdiction - The parties agreed to have the issue of the court's jurisdiction over Alberta decided as a question of law in advance of the trial - Mactavish, J., held that the Federal Court did have in personam jurisdiction over Alberta - Alberta appealed - The Toneys argued that Alberta was bound by necessary implication - They referred to various provisions that prohibited in rem proceedings against ships owned by a province - They argued that because a statutory right in rem, without a maritime lien, did not lie without the liability of the ship owner, the only logical interpretation of those prohibitions was to imply that the Federal Court had in personam jurisdiction over the provinces as owners of vessels - Otherwise, those provisions would have no meaning - The Federal Court of Appeal rejected this argument - The purpose of the Federal Courts Act (to advance the better administration of the laws of Canada), and the purpose of the in rem provisions (to prevent the arrest of ships engaged in government service), would not be "wholly frustrated" if Alberta was not bound - See paragraphs 36 to 39.

Crown - Topic 2885

Crown immunity - Exceptions - Benefit/burden or waiver exception - 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 - Alberta moved to have the action struck for lack of jurisdiction - The parties agreed to have the issue of the court's jurisdiction over Alberta decided as a question of law in advance of the trial - Mactavish, J., held that the Federal Court did have in personam jurisdiction over Alberta - Alberta appealed - The Toneys argued that Alberta had waived its immunity by its past conduct - By attorning to the Federal Court's jurisdiction in Scott Steel Ltd. v. The Alarissa (1996 F.C.), Alberta took the benefit of the Federal Courts Act and the Federal Court Rules, and could not now deny the burden of the same statutes - The Federal Court of Appeal rejected this argument - In the Scott Steel case, the "government" entity was Alberta Treasury Branches (ATB) - ATB was to be treated, for purposes of in personam jurisdiction, as if it were a private party, and not as an agent of the Alberta Crown (Alberta Treasury Branches Act, s. 2(4)) - That case did not assist the Toneys in establishing that Alberta had waived its immunity, and would seem to indicate the contrary - See paragraphs 40 and 41.

Cases Noticed:

Housen v. Nikolaisen et al. (2002), 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 5].

Trainor Surveys (1974) Ltd. v. New Brunswick et al., [1990] 2 F.C. 168; 35 F.T.R. 228 (T.D.), refd to. [paras. 5, 70].

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. 6].

CNCP Telecommunications v. Alberta Government Telephones and CRTC, [1989] 2 S.C.R. 225; 98 N.R. 161, refd to. [para. 7].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [paras. 7, 51].

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, refd to. [para. 10].

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. [paras. 13, 57].

Canadian Javelin Ltd. v. Newfoundland, [1978] 1 F.C. 408 (F.C.A.), refd to. [paras. 15, 69].

Greeley v. Ship Tami Joan (1996), 113 F.T.R. 66 (T.D.), refd to. [paras. 17, 71].

Manitoba et al. v. Canadian Copyright Licensing Agency (2013), 444 N.R. 202; 2013 FCA 91, refd to. [paras. 18, 51].

Union Oil Co. of Canada Ltd. v. Canada and British Columbia, [1974] 2 F.C. 452; 16 N.R. 428 (T.D.), refd to. [para. 20].

Union Oil Co. of Canada Ltd. v. Canada and British Columbia, [1976] 1 F.C. 74; 16 N.R. 427 (C.A.), refd to. [para. 21].

Union Oil Co. of Canada Ltd. v. Canada et al. (1976), 16 N.R. 425 (S.C.C.), refd to. [paras. 22, 68].

Fairford First Nation et al. v. Canada (Attorney General), [1995] 3 F.C. 165; 96 F.T.R. 172 (T.D.), affd. (1996), 205 N.R. 380 (F.C.A.), refd to. [paras. 23, 75].

Newfoundland v. Quebec (Commission Hydro Electrique) - see Quebec Hydro v. Churchill Falls (Labrador) Corp. Ltd. et al.

Quebec Hydro v. Churchill Falls (Labrador) Corp. Ltd. et al., [1982] 2 S.C.R. 79; 43 N.R. 541, refd to. [para. 24].

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. 30].

Medvid et al. v. Saskatchewan (Minister of Health) et al. (2012), 393 Sask.R. 157; 546 W.A.C. 157; 2012 SKCA 49, refd to. [para. 32].

Bombay v. Municipal Corp. of Bombay, [1947] A.C. 58 (P.C.), refd to. [para. 37].

Scott Steel Ltd. v. Ship Alarissa et al., [1996] 2 F.C. 883; 111 F.T.R. 81 (T.D.), refd to. [para. 40].

Miida Electronics Inc. v. Mitsui O.S.K. Lines Ltd. and ITO-International Terminal Operators Ltd., [1986] 1 S.C.R. 752; 68 N.R. 241, 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. 65].

Avant Inc. et al. v. Ontario, [1986] 2 F.C. 91; 1 F.T.R. 270 (T.D.), refd to. [para. 70].

Dableh v. Ontario Hydro (1990), 33 C.P.R.(3d) 544 (F.C.T.D.), refd to. [para. 70].

Statutes Noticed:

Federal Courts Act, R.S.C. 1985, c. F-7, sect. 19 [para. 19]; sect. 22 [para. 12].

Proceedings Against the Crown Act, R.S.A. 2000, c. P-25, sect. 8 [para. 28].

Authors and Works Noticed:

Horsman and Morley, Government Liability: Law and Practice (2011) (Looseleaf), generally [para. 11].

Counsel:

Marta Burns and Bruce Hughson, for the appellant;

Darren Williams, for the respondents.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant;

Member of the Interprovincial Merchant Law Group LLP, Victoria, British Columbia, for the respondents.

This appeal was heard at Vancouver, B.C., on June 3, 2013, before Sharlow, Webb and Near, JJ.A., of the Federal Court of Appeal. Judgment was delivered at Ottawa, Ontario, on September 18, 2013, and included the following opinions:

Near, J.A. (Webb, J.A., concurring) - see paragraphs 1 to 42;

Sharlow, J.A., dissenting - see paragraphs 43 to 76.