A-245-80
Nisshin Kisen Kaisha Ltd. (Plaintiff) (Respond-
ent)
v.
Canadian National Railway Company and all
other persons having claims against the plaintiff,
its ship Japan Erica or the fund hereby to be
created (Defendants) (Appellants)
Court of Appeal, Thurlow C.J., Heald and Urie
JJ.—Vancouver, January 28, 1981.
Maritime law — Jurisdiction — Appeal from order of Trial
Division granting inter alia stay of proceedings in B.C.
Supreme Court pursuant to s. 648 of the Canada Shipping Act
— Objection raised by appellant to effect that s. 648 is ultra
vires the Parliament of Canada — Applications for leave to
intervene made by Attorney General of B.C. and Attorney
General of Canada pursuant to Constitutional Question Act —
Preliminary point raised by respondent that appellant's objec
tion is unfounded — Preliminary point upheld and applica
tions for leave to intervene dismissed — Neither the appellant
nor the other parties appealing had any proceedings pending in
the Supreme Court of B.C. when the order was made
Canada Shipping Act, R.S.C. 1970, c. S-9, s. 648 as amended
by R.S.C. 1970 (2nd Supp.), c. 10.
APPEAL.
COUNSEL:
E. Chiasson and C. J. O'Connor for defend
ants (appellants).
P. D. Lowry and J. Marquardt for plaintiff
(respondent).
W. B. Scarth, Q.C. for Attorney General of
Canada.
C. Lace for Attorney General of British
Columbia.
SOLICITORS:
Ladner Downs, Vancouver, for defendants
(appellants).
Campney & Murphy, Vancouver, for plaintiff
(respondent).
The following are the reasons for judgment of
the Court delivered orally in English by
THURLOW C.J.: In his memorandum of argu
ment on this appeal the appellant has raised as an
objection to the order appealed from that:
Insofar as Section 648 of the Canada Shipping Act purports to
grant to the Federal Court of Canada power to stay proceed
ings in the British Columbia Supreme Court, the section is
ultra vires the Parliament of Canada.
Notice that this constitutional point had been
raised was given by the appellant to the Attorney
General of British Columbia and the Attorney
General of Canada pursuant to the Constitutional
Question Act of British Columbia [R.S.B.C. 1979,
c. 63] and both Attorneys General have applied for
leave to intervene and have filed memoranda of
argument, the former supporting the objection and
the latter supporting the validity of section 648.
On the hearing of the appeal counsel for the
respondent raised as a preliminary point that on
the case before the Court the objection does not
arise. The Court heard argument on this from both
the respondent and the appellant and from the
proposed intervenors on their applications for leave
to intervene.
As paragraph 5(a) of the order appealed from,
which is the only paragraph which grants a stay of
proceedings, purports to stay only "proceedings
then pending in relation to this event" and as it
was conceded that the appellant did not have any
such proceeding pending in the British Columbia
Supreme Court when the order was made, we are
of the opinion that the appellant has no basis for
raising the objection and that it is academic and
should not be entertained in its appeal. Moreover,
it has not been shown that any of the other parties
who appealed the order—none of whom appeared
or were represented by counsel at the hearing—
had any proceeding pending in the Supreme Court
of British Columbia when the order was made or
any basis for raising such an objection.
The point raised is undoubtedly an important
one and one that it would be desirable to have
authoritatively resolved. But that, in our view, is
not a sufficient reason for this Court to embark on
the hearing and determination of a serious consti
tutional issue when any view the Court might
eventually express on it would be mere obiter,
obiter that could conceivably form a nuisance if
not an obstruction in the future to consideration of
the point in proceedings in which it does arise.
Accordingly we uphold the respondent's prelim
inary point and decline to hear argument on the
appellant's objections. For the same reasons the
applications for leave to intervene will be
dismissed.
* * *
HEALD J. concurred.
* * *
URIE J. concurred.
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