T-2102-86
Dr. Kenneth D. Varnam (Plaintiff)
v.
Minister of National Health and Welfare, Direc
tor of the Bureau of Dangerous Drugs of the
Department of National Health and Welfare, and
College of Physicians and Surgeons of British
Columbia (Defendants)
INDEXED AS: VARNAM V. CANADA (MINISTER OF NATIONAL
HEALTH AND WELFARE)
Trial Division, Reed J.—Vancouver, October 27,
1986; Ottawa, April 14, 1987.
Federal Court jurisdiction — Trial Division — Notice
issued by Minister of Health and Welfare under s. 58 Narcotic
Control Regulations prohibiting pharmacists from dispensing
medication with narcotic content prescribed by plaintiff practi
tioner — Plaintiff suing Crown and College of Physicians and
Surgeons — Tests establishing Court's jurisdiction to enter
tain claim in negligence and conspiracy against College met
Existing and applicable federal law — S. 58 of Regulations
underpinning for Court's jurisdiction — Statutory jurisdic
tion based on s. 17(1) Federal Court Act — Claims against
Crown and College intertwined — Constitutional validity of
Narcotic Control Act clear — Motion to strike statement of
claim dismissed — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 17(1) — Narcotic Control Regulations,
C.R.C., c. 1041, s. 58(b) — Constitution Act, 1867, 30 & 31
Vict., c. 3 (U.K.) IR.S.C. 1970, Appendix II, No. 5J (as am. by
Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 1), ss. 91, 101 — Federal Court Rules,
C.R.C., c. 663, RR. 419(a), 464.
Criminal justice — Narcotics Narcotic Control Regula
tions s. 58 requiring Minister to consult with provincial licens
ing authority before notifying pharmacists not to fill prescrip
tions with narcotic content prescribed by doctor — Plaintiff
attacking validity of notice and suing College of Physicians
and Surgeons in negligence and conspiracy — Claim against
College "integrally connected" to federal law, i.e. s. 58 of
Regulations — Federal Court having jurisdiction to entertain
claim — Motion to strike statement of claim as against
College dismissed — Narcotic Control Act, R.S.C. 1970, c.
N-1 — Narcotic Control Regulations, C.R.C., c. 1041, ss.
52(2)(6), 53, 58(b), 60, 68(1)(d).
The Minister of National Health and Welfare issued a notice
under section 58 of the Narcotic Control Regulations prohibit-
ing licensed dealers and pharmacists from dispensing medica
tion with a narcotic content prescribed by the plaintiff practi
tioner. It is alleged that the plaintiff was prescribing narcotics
not necessary for the treatment of a patient. The Minister also
revoked the plaintiffs authorization to prescribe methadone.
The plaintiffs statement of claim attacks the validity of the
Minister's actions and seeks various reliefs. The College of
Physicians and Surgeons of British Columbia brought on this
motion to have the statement of claim struck out as against it
on the grounds that it discloses no reasonable cause of action
and that the Federal Court is without jurisdiction to entertain
the plaintiffs claim in negligence and conspiracy against the
College.
Held, the motion should be dismissed.
For Federal Court jurisdiction to exist there must be: (1) a
statutory grant of jurisdiction by the federal Parliament; (2) an
existing body of federal law essential to the disposition of the
case and which nourishes the statutory grant of jurisdiction;
and (3) the federal law on which the case is based must be
constitutionally valid: ITO—International Terminal Operators
Ltd. v. Miida Electronics et al., [ 1986] 1 S.C.R. 752.
The third test has been met. The constitutional validity of the
Narcotic Control Act has been established: R. v. Hauser,
[1979] 1 S.C.R. 984.
In order to pass the second test, that there be existing and
applicable federal law, it is necessary to determine whether the
plaintiffs claim in negligence and conspiracy against the Col
lege is "so integrally connected" or has a "close, practical
relationship" to the federal matter in issue as those phrases are
used in the Miida case. In the present case, the requirement in
Regulations section 58 that the Minister consult with the
licensing authority in the province in which the practitioner is
entitled to practice before issuing a notice to pharmacists, acts
as the underpinning of the claim against the College. The
advice given by the College to the Minister is the essence of the
plaintiff's claim; it is crucial to the decision that the Minister
ultimately makes. In the words of Oag v. Canada, [1987] 2
F.C. 511 (C.A.), the opportunity for the cause of action to arise
as between the plaintiff and the College was created by federal
law—in the case at bar, by the Narcotic Control Regulations.
Thus, the requirement of an integral relationship of the claim
against the College with federal law has been satisfied.
The requirement that there be statutory jurisdiction has also
been met. Reference was made to Marshall v. The Queen,
[1986] 1 F.C. 437 (T.D.), where subsection 17(1) of the
Federal Court Act was seen as being broad enough to confer
jurisdiction on the Court over the plaintiffs claims against both
the Crown and the Union. The claims were found to be
intimately intertwined. In the case at bar, the attack against
the Crown as to the validity of the section 58 notice and the
claim in negligence and conspiracy against the College are
intertwined. Should the claim against the College be substan
tiated, then the attack on the section 58 notice is likely to be
sustainable also. In any event, the motion had to be dismissed
as it had not been demonstrated beyond all doubt that no cause
of action existed as against the College.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Oagv. Canada, [1987] 2 F.C. 511 (C.A.).
APPLIED:
ITO—International Terminal Operators Ltd. v. Miida
Electronics et al., [1986] 1 S.C.R. 752.
DISTINGUISHED:
Anglophone Ltd. v. The "Ikaros", [1973] F.C. 483; 39
D.L.R. (3d) 446 (T.D.).
CONSIDERED:
Marshall v. The Queen, [1986] 1 F.C. 437 (T.D.); Rhine
v. The Queen; Prytula v. The Queen, [1980] 2 S.C.R.
442; R. v. Rhine, [1978] 1 F.C. 356 (T.D.); Bensol
Customs Brokers Ltd. v. Air Canada, [1979] 2 F.C. 575
(C.A.).
REFERRED TO:
Schmeichel v. Lane, Thatcher and Bernston (1984), 28
Sask. R. 311 (Q.B.); Thompson v. Coquitlam (1979), 15
B.C.L.R. 59 (S.C.); Roberts v. Canada, [1987] 2 F.C.
535 (C.A.), afflg [1987] 1 F.C. 155 (T.D.); R. v. Hauser,
[1979] 1 S.C.R. 984; Desbiens v. The Queen, [1974] 2
F.C. 20 (T.D.); R. v. Thomas Fuller Construction Co.
(1958) Ltd. et al., [1980] 1 S.C.R. 695; Tropwood A.G.
et al. v. Sivaco Wire & Nail Co. et al., [1979] 2 S.C.R.
157; Antares Shipping Corporation v. The Ship
"Capricorn" et al., [1980] 1 S.C.R. 553.
COUNSEL:
Daniel J. Barker for plaintiff.
M. R. Taylor for defendants Minister of Na
tional Health and Welfare, Director of the
Bureau of Dangerous Drugs of the Depart
ment of National Health and Welfare.
Douglas H. Clarke for defendant College of
Physicians and Surgeons of British Columbia.
SOLICITORS:
Kopelow & Barker, Vancouver, for plaintiff.
Deputy Attorney General of Canada for
defendants Minister of National Health and
Welfare, Director of the Bureau of Dangerous
Drugs of the Department of National Health
and Welfare.
Douglas, Symes & Brissenden, Vancouver,
for defendant College of Physicians and Sur
geons of British Columbia.
The following are the reasons for order ren
dered in English by
REED J.: The College of Physicians and Sur
geons of British Columbia brings a motion to have
the plaintiff's statement of claim struck out as
against it on the grounds that: (1) the statement of
claim discloses no reasonable cause of action—
refer: Rule 419(1) (a) of the Federal Court Rules
[C.R.C., c. 663]; (2) the Federal Court has no
jurisdiction over the action brought by the plaintiff
against the College as a defendant.
The plaintiff's action arose out of a notice issued
by the Minister of National Health and Welfare
pursuant to section 58 of the Narcotic Control
Regulations [C.R.C., c. 1041]. For the purpose of
these reasons, the Minister of National Health and
Welfare and the Director of the Bureau of Dan
gerous Drugs will be referred to collectively as the
"Minister" or sometimes as "the Crown".
Under the Narcotic Control Regulations, a
medical practitioner is allowed to prescribe narcot
ics to persons under his or her professional care
when required for treatment:
53....
(2) Subject to subsection (3), a practitioner may administer,
prescribe, give, sell or furnish a narcotic to a person ... if
(b) the narcotic is required for the condition for which the
person ... is receiving treatment.
Practitioners may also prescribe methadone (for
the treatment of drug addiction) when an authori
zation is held from the Minister:
68. (1) Where he deems it to be in the public interest, or in
the interests of science, the Minister may in writing authorize
(d) any practitioner to administer, prescribe, give, sell or
furnish methadone to a person ... who is a patient under his
professional treatment,
Regulation 58 authorizes the Minister to give
notice to licensed dealers and pharmacists requir
ing them not to dispense medication with a narcot
ic content in response to prescriptions written by a
particular practitioner. Such a notice can only be
issued "after consultation with the licensing au
thority of the province in which the practitioner is
registered and entitled to practice":
58. The Minister
(b) may, ... after consultation with the licensing authority of
the province in which the practitioner is registered and
entitled to practise
give notice to licensed dealers and pharmacists ....
The grounds on which such notice is given are
set out in Regulation 60 and one such ground is
that the practitioner has violated section 53 of the
Regulations. A notice respecting the plaintiff was
issued pursuant to this provision. The notice was
sent because it was alleged the plaintiff was pre
scribing narcotics when not necessary for the
treatment of the patient. The Minister subsequent
ly also revoked the plaintiff's authorization to pre
scribe methadone.
The plaintiffs statement of claim attacks the
validity of the Minister's actions on several
grounds; two of them are that the notice is: (1)
invalid for having been issued without due regard
to the principles of natural justice or fairness; (2)
invalid for having been made on unreasonable
grounds. The plaintiff alleges: that the College of
Physicians and Surgeons of British Columbia
made negligent or false representations to the
Minister; that it made such representations "in
bad faith and so as to intentionally interfere with
the ability and right of the plaintiff to carry on his
chosen profession"; that "the College and the Min
ister have conspired to interfere with the ability.
and right of the plaintiff to carry on his chosen
profession" (paragraph 12 of the statement of
claim).
The plaintiff seeks: a declaration, certiorari,
mandamus, an interim injunction, a permanent
injunction, an order that the information on which
the Minister and the College acted be made avail
able to him, an order that the Minister provide
him with a full hearing and the right to cross-
examine, and general and special damages (para-
graph 13 of the statement of claim).
Disclosure of Information on which Minister and
College Acted
Counsel for the College argues that the claim
for disclosure of the information on which the
Minister and the College acted is not supported by
any statutory, contractual or other allegation and,
therefore, establishes no cause of action and should
be struck out. I think this aspect of the plaintiff's
claim cannot be said to be so obviously insupport
able that it should be struck out at this stage. The
plaintiff alleges a lack of natural justice—that he
has not been given the opportunity to meet the
case against him. Mr. Justice Dubé found that a
prima facie case to this effect existed and granted
an interim order setting aside the section 58 notice
[(1987), 6 F.T.R. 83 (F.C.T.D.)]. The final relief
sought by the plaintiff is framed in a number of
alternate remedies, among which are: the perma
nent quashing of the section 58 notice; an opportu
nity to meet the case against him. The relief
claimed, in paragraph 13(g) of the statement of
claim seeking full disclosure of information is
clearly linked to these claims, and specifically to
his claim that he have an opportunity to meet the
case against him. I do not think the challenged
part of the statement of claim is so disconnected
from the cause of action in general and from the
other headings of relief sought that it should be
struck out.
Quite apart from any specific claim in the state
ment of claim, the plaintiff could require such
disclosure from the Minister as part of the discov
ery proceedings. Such could also be obtained from
the College as long as the College is a party to the
action. If the College were not a party, then,
although the discovery of documents might still be
had from it pursuant to Rule 464 of the Federal
Court Rules discovery in its usual sense would not
be available. It is of course the object of the
present proceedings to have the College struck out
as a party on the ground that the Federal Court's
jurisdiction does not extend to cover it. More will
be said with respect to this issue later.
Claim Respecting Conspiracy
Counsel for the College argues that the plain
tiff's claim respecting conspiracy should be struck
out. It is his contention that insufficient facts are
pleaded in the statement of claim to support such a
claim. Specifically, it is said no facts are pleaded
as to an agreement or joint action having been
carried out by the two defendants (the Minister
and the College). I think the pleading is clearly
deficient. See: Bullen and Leake and Jacob's
Precedents of Pleadings (12th ed.), at page 341;
Schmeichel v. Lane, Thatcher and Bernston
(1984), 28 Sask. R. 311 (Q.B.); Thompson v.
Coquitlam (1979), 15 B.C.L.R. 59 (S.C.). The
last section of paragraph 12 of the statement of
claim (the allegation of conspiracy) will be struck
out with leave to the plaintiff to amend that claim
and plead more specifically with respect thereto.
Jurisdiction—the Defendant College
This leaves for consideration the argument
whether there is any jurisdiction at all in this
Court to entertain the plaintiffs claim against the
defendant, the College of Physicians and Surgeons
of British Columbia. There has not developed in
our jurisprudence the concepts of pendant and
ancillary jurisdiction which have been used in the
United States to protect litigants from the ineffi
ciencies and costs involved in having to split
actions between federal and state courts. In that
jurisdiction it seems fairly clear that a claim such
as that brought by the plaintiff could proceed as
against both defendants in one court. However, the
situation is more restrained in our jurisprudence.
The jurisdictional argument before me focussed
on the decision in Marshall v. The Queen, [1986]
1 F.C. 437 (T.D.). In the Marshall case it was
found that on the facts of that case, jurisdiction
existed in the Federal Court to entertain a plain
tiff's claim, not only against the Crown as employ
er, but also against the Public Service Alliance, the
plaintiff's union. Counsel for the College argues
that: (1) the decision in the Marshall case is not
good law, or at best it is too broadly stated; and
(2) in any event, the facts in this case do not bring
it within the parameters of the Marshall decision.
Counsel quickly recognized that the first argu
ment was not likely to be an easy one to pursue
before me. The decision in the Marshall case was
not appealed but there was at the time this motion
was heard an appeal filed in Roberts v. Canada
(A-585-86), a decision of Joyal J. which raised the
same issues [[1987] 1 F.C. 155]. I decided, and
advised counsel that, I would reserve judgment on
this motion pending the outcome of that appeal.
The status quo between the parties is presently
being preserved by the interim injunction order of
Mr. Justice Dubé and I could see little prejudice to
either party in the delay thus imposed. It was clear
that a Court of Appeal decision on this issue was
likely to be rendered in the early part of 1987. In
any event not only has the Federal Court of
Appeal decision in the Roberts case now been
rendered [[1987]] 2 F.C. 535] but the relevant
issue has also been addressed in Oag v. Canada
[ [ 1987 2 F.C. 511] and by the Supreme Court in
ITO—International Terminal Operators Ltd. v.
Miida Electronics et al., [1986] 1 S.C.R. 752.
Counsel were asked and have presented written
argument on this recent jurisprudence. The start
ing point is then ITO v. Miida Electronics. In that
decision the Supreme Court held that for Federal
Court jurisdiction to exist: (1) there must be a
statutory grant of jurisdiction by the federal Par
liament; (2) there must be an existing body of
federal law which is essential to the disposition of
the case and which nourishes the statutory grant of
jurisdiction; (3) the law on which the case is based
must be "a law of Canada" as that phrase is used
in section 101 of the Constitution Act, 1867 [30
& 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II,
No. 5] (as am. by Canada Act 1982, 1982, c. 11
(U.K.), Schedule to the Constitution Act, 1982,
Item 1)]. In the Marshall case the first and second
categories referred to in Miida were described as
(1) a requirement that statutory jurisdiction exist
and (2) a requirement that constitutional jurisdic
tion exist (this last being labelled as such because
section 101 of the Constitution Act, 1867 was seen
as having been interpreted to require existing and
applicable federal law). The third requirement in
the Miida case, that the federal law on which the
case is based must be constitutionally valid as
within Parliament's legislative jurisdiction pursu
ant to section 91 of the Constitution Act, 1867,
was not referred to as such in the Marshall case,
although the legislation there in question, the
Public Service Employment Act, R.S.C. 1970, c.
P-32 and the Public Service Staff Relations Act,
R.S.C. 1970, c. P-35 clearly met that test. In this
case the constitutional validity of the underlying
federal law, Narcotic Control Act, R.S.C. 1970, c.
N-1 as amended, is clearly established: refer R. v.
Hauser, [1979] 1 S.C.R. 984. Thus there is no
need in the context of this case to consider further
the third requirement of the Miida decision. It is
clearly met.
(i) existing and applicable federal law
I will turn first to the requirement that there
must be existing and applicable federal law which
operates as an underpinning for the Court's juris
diction (the second requirement of Miida). The
defendant College claims that the test of jurisdic
tion which must be applied is that set out in
Anglophoto Ltd. v. The "Ikaros", [1973] F.C.
483, at page 498; 39 D.L.R. (3d) 446 (T.D.), at
page 459 and applied in other cases such as Desbi-
ens v. The Queen, [1974] 2 F.C. 20 (T.D.). That is
that one must ask whether:
... this Court would have jurisdiction if the claim advanced
against one particular defendant stood alone and were not
joined in an action against other defendants over whom there
properly was jurisdiction.
That may well be the correct test in cases such as
Anglophoto and Desbiens or R. v. Thomas Fuller
Construction Co. (1958) Ltd. et al., [ 1980] 1
S.C.R. 695 when there is no federal statutory
underpinnings or shelter on which to ground the
claim, for example when the claim is purely one of
contract or tort based on provincial law. But, my
understanding of the Miida case, the Rhine;
Prytula case and Bensol case, as well as those such
as Tropwood A.G. et al. v. Sivaco Wire & Nail
Co. et al., [1979] 2 S.C.R. 157 and Antares
Shipping Corporation v. The Ship "Capricorn" et
al., [1980] 1 S.C.R. 553 is that a prior or slightly
different question must be asked.
Prior to the more recent jurisprudence some
indication of what is required to fulfill the test that
there be existing and applicable federal law was
found in the Supreme Court decisions in Rhine v.
The Queen; Prytula v. The Queen, [ 1980] 2
S.C.R. 442. In Rhine v, The Queen the Crown
sought to recover an amount owed on a loan
pursuant to the Prairie Grain Advance Payments
Act [R.S.C. 1970, c. P-18]. This Court held [in R.
v. Rhine], [1978] 1 F.C. 356 (T.D.), at pages
363-364, that in order to have jurisdiction:
It is not enough that the liability arises in consequence of a
[federal] statute.
In the present instance while the Prairie Grain Advance
Payments Act authorizes the making of advances and pres
cribes the conditions on which these advances may be made by
the Board as an agency of Her Majesty the Queen in the right
of Canada, it does not, in itself, impose a liability and there is
no liability except that undertaken by the borrower which
liability flows not from the statute but from the borrower's
contractual promise to repay. [Underlining added.]
The Supreme Court found this to be too stringent
a requirement. Chief Justice Laskin, at pages 446-
447 said:
... it is contended that there is simply the enforcement of an
ordinary contractual obligation which owes nothing to federal
law other than its origin in the statutory authorization to make
the advance.
True, there is an undertaking or a contractual consequence of
the application of the Act [Prairie Grain Advance Payments
Act] but that does not mean that the Act is left behind once the
undertaking or contract is made. At every turn, the Act has its
impact on the undertaking so as to make it proper to say that
there is here existing and valid federal law to govern the
transaction which became the subject of litigation in the Feder
al Court. It should hardly be necessary to add that "contract"
or other legal institutions, such as "tort" cannot be invariably
attributed to sole provincial legislative regulation or be deemed
to be, as common law, solely matters of provincial law.
In the McNamara case, there was no such statutory shelter
within which the transactions there were contained as there is
in the present case. [Underlining added.]
Another articulation of the required test was set
out by Mr. Justice Le Damn in Bensol Customs
Brokers Ltd. v. Air Canada, [1979] 2 F.C. 575
(C.A.). He referred to the requirement as follows
[at page 5831:
It should be sufficient in my opinion if the rights and obliga
tions of the parties are to be determined to some material
extent by federal law. It should not be necessary that the cause
of action be one that is created by federal law so long as it is
one affected by it. [Underlining added.]
The Supreme Court expressed this requirement
in the Miida case in the following terms (at pages
774-775):
It is important, therefore, to establish that the subject-matter
under consideration in any case is so integrally connected to
maritime matters ....
... the stevedoring function "is an integral part of carrying on
the activity of shipping," ....
It is clear, in my view, that such incidental storage by the
carrier itself or by a third party under contract to the carrier is
also a matter of maritime concern by virtue of the "close,
practical relationship of the terminal operation to the perform
ance of the contract of carriage" .... [Underlining added.]
Thus in my view the question becomes whether
the plaintiff's claims in negligence and conspiracy
against the defendant College can be said "to be
determined to some material extent" by federal
law—the test Mr. Justice Le Dain described in the
Bensol case; or fall within a federal "statutory
shelter" in the sense that that concept is used in
the Rhine; Prytula cases, or to be "so integrally
connected" or have a "close, practical relation
ship" to the federal matter in issue as those
phrases are used in the Miida case.
On this point the recent decision of the Federal
Court of Appeal in Oag v. Canada is particularly
instructive. That case dealt with a claim for false
arrest and imprisonment against Her Majesty the
Queen, the National Parole Board and various
individuals. The claim arose out of a practice
called gating which the Supreme Court has
declared unconstitutional. That practice involved
the release and immediate re-arrest of a peniten
tiary inmate. A motion to strike out the action
against the individuals was brought on the ground
that that action was outside the jurisdiction of the
Federal Court. It was argued that the right to
bring a claim for false arrest or false imprisonment
was not one created by federal law. The Federal
Court of Appeal stated at pages 519-521 of its
decision:
The source of the freedom being enjoyed by him [the plaintiff]
at the time of his alleged false arrest and imprisonment is found
in federal law. The relevant statutory provisions are subsection
24(1) of the Penitentiary Act [R.S.C. 1970, c. P-6 (as am. by
S.C. 1976-77, c. 53, s. 41)], and subsection 10(1), section 12
and subsections 15(1) and (2) of the Parole Act [R.S.C. 1970,
c. P-2 (as am. by S.C. 1976-77, c. 53, s. 28)]:
If the torts of false arrest and imprisonment were committed as
alleged, they were committed because his [the plaintiffs] right
to freedom thus delineated [by the Parole Act and the Peniten
tiary Act] was interfered with. I do not think that law need
expressly provide a remedy for such interference for the claims
to be governed by it. These torts, in my view, depend for their
existence upon federal law .... [Emphasis added.]
This is obviously directly analogous to the situa
tion in the present case. The requirement in the
Narcotic Control Regulations (number 58) that
the Minister consult with the licensing authority in
the province before refusing to license a practition
er to prescribe narcotics, or methadone, is the
underpinning of the claim against the British
Columbia College of Physicians and Surgeons.
The claim against the defendant College is not
made merely because the Crown is already a party
to a contract or tort claim based solely on provin
cial law. The advice given by the College to the
Minister pursuant to section 58 is the very essence
of the plaintiff's claim. The Minister must consult
with the provincial licensing body before issuing a
section 58 notice. The advice given is obviously
crucial perhaps determinative of any decision the
Minister ultimately makes. Thus, the statutory
shelter, or the integral relationship, or the close
practical relationship of the claim against the Col
lege with the Narcotic Control Act exists. In the
words of the Oag decision the opportunity for the
cause of action to arise as between the plaintiff
and the defendant College was created by federal
law—by the Narcotic Control Regulations.
(ii) statutory jurisdiction
This leaves for consideration the question of
whether there is a statutory grant of authority
allowing the Federal Court to deal with a claim
such as that in issue in this case. If the reasoning
in the Marshall case is sound such a grant can be
found in subsection 17(1) of the Federal Court
Act [R.S.C. 1970 (2nd Supp.), c. 10].' I quote the
relevant passages from the Marshall decision,
[ 1986] 1 F.C. 437, at pages 447-449:
The question, then, is whether subsection 17(1) confers
jurisdiction on the Federal Court so as to allow a plaintiff to
sue both the Crown and a subject in that Court when the cause
of action against both of them is one that is as intertwined as is
the case here (eg: with respect to the alleged collusion). On a
plain reading of the section, such jurisdiction would appear to
have been intended since the grant given is over "cases where
relief is claimed against the Crown". The jurisdiction is not
merely over "claims against the Crown", as a narrower inter
pretation would seem to require.
That Parliament intended the broader scope not only would
seem to follow from the literal wording of the section but it is
also a reasonable inference from the fact that certain claims
against the federal Crown are to be brought exclusively in the
Federal Court. It seems unlikely that Parliament would have
The soundness of such reasoning was left open by the
decision of the Federal Court of Appeal in the Roberts case,
supra.
intended to disadvantage persons, in the position of the plain
tiff, by requiring them to split a unified cause of action and
bring part of in the Federal Court and part in the superior
courts of the provinces. The effect of such an intention would
be to subject a plaintiff, in a position similar to the plaintiff in
this case, to different and possibly contradictory findings in
different courts, and to place jurisdictional and cost impedi
ments in the path of such persons if they sue the federal Crown.
I do not think that such was the intention of Parliament. While
there is no doubt that the jurisdiction of statutory courts are
strictly interpreted in that they are not courts of inherent
jurisdiction, it is well to remember that section 11 of the
Interpretation Act, R.S.C. 1970, c. I-23 requires that all federal
statutes be interpreted with such a construction as best to
ensure the attainment of their purpose. This would seem to
require that subsection 17(1) be interpreted as conferring on
the Federal Court jurisdiction over the whole case, in a situa
tion such as the present, where the plaintiffs claim is against
both the employer (the Crown), and the Union (the P.S.A.).
Also, I would note that the scope which in my view subsec
tion 17(1) bears would not accord the Federal Court any
jurisdiction over cases between subject and subject, solely on
the ground that a federal claim might potentiallly be present
but is not being pursued. Without a claim being made directly
against the Crown there would be no foundation for Federal
Court jurisdiction, exclusive or concurrent, pursuant to subsec
tion 17(1). But when such a claim against the federal Crown is
made, in my view, subsection 17(1) is broadly enough drafted
to allow a co-defendant, in a case such as the present, to be
sued along with the Crown.
In the present case the claim against the Crown (employer)
and the Public Service Alliance (Union) are so intertwined that
findings of fact with respect to one defendant are intimately
bound up with those that would have to be made with respect to
the other.
Counsel for the defendant College argues that
the plaintiff's claim against the Crown in this case
and that against the College are not intimately
intertwined because one is an attack on the validi
ty of the section 58 notice on administrative law
grounds and the other is a tort claim in negligence
and conspiracy. It is argued that the two claims
are expressly alternative, i.e. if the plaintiff suc
ceeds against the Crown, he has no claim against
the College. It is argued that there is no particular
inconvenience to the plaintiff in being required to
pursue the two defendants in separate causes of
action in different courts.
I do not agree. If the plaintiff's claims respect
ing negligence and conspiracy are substantiated,
the attack on the section 58 notice is quite likely to
be sustainable also. If the claims against the Col
lege can be substantiated there is probably an
argument that the Minister's decision was based
on findings of fact made in a perverse and capri
cious manner, or based on irrelevant considera-
tions—these being valid grounds for challenging
the ministerial decision on an administrative law
basis. The two causes of action are not alternative
and mutually exclusive; they are intimately inter
twined. Also, if the conspiracy claim cannot be
brought against both defendants in the Federal
Court, the plaintiff will have to sue the Crown in
the Federal Court for conspiring with the College,
and sue the College in the Superior Court of the
province for conspiring with the Crown, its ser
vants and agents. Thus there is potential for
duplication and conflicting findings of fact, bur
dens in cost both for the parties and the Courts.
In addition, it is only appropriate to strike out a
statement of claim where it is beyond all doubt
that no cause of action exists as against the party
in question. I am not convinced that the test is met
in this case. In my view there is a very strong
argument that the Federal Court's jurisdiction
extends to allow it to deal with the claim against
the College in the context of the claim against the
Minister in this case. Accordingly, the College's
motion to have the plaintiff's claim struck out as
against it will be dismissed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.