Ontario (Attorney General) v. Pembina Exploration Canada Ltd., 1989 CanLII 112 (SCC), [1989] 1 SCR 206
The Attorney General for Ontario Appellant
v.
Pembina Exploration Canada Limited Respondent
and
The Attorney General of Canada Intervener
indexed as: ontario (attorney general) v. pembina exploration canada ltd.
File No.: 19374.
1987: June 12; 1989: February 23.
Present: Dickson C.J. and McIntyre, Le Dain*, La Forest and L'Heureux‑Dubé JJ.
*Le Dain J. took no part in the judgment.
on appeal from the court of appeal for ontario
Constitutional law‑‑Division of powers‑‑Jurisdiction of superior and inferior courts‑‑Admiralty law‑‑Fishing net damaged when entangled in unmarked gas well in Lake Erie‑‑Action seeking damages brought in Small Claims Court‑‑Whether or not province's general grant of power to small claims court including admiralty law‑‑Constitution Act, 1867, ss. 92(14), 96, 100, 101‑‑Small Claims Court Act, R.S.O. 1980, c. 476, s. 55‑‑Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10 , s. 22.
William Siddall & Sons Fisheries brought an action in negligence in Small Claims Court and sought damages after one of its nets was damaged when it became entangled with an unmarked gas well in Lake Erie owned by Pembina Exploration Canada Limited. The trial judge dismissed Pembina's motion that the action be dismissed for want of jurisdiction in that court over matters involving the law of the sea and admiralty. The Attorney General for Ontario intervened in support of Siddall in an appeal to the Divisional Court on the issue of jurisdiction. Siddall was not represented in that or any subsequent proceedings but an affidavit on behalf of his executor indicated that the action would be continued on resolution of the jurisdictional issue. The Divisional Court allowed the appeal and dismissed the plaintiff's action. The application for leave to appeal brought by the Attorney General for Ontario was refused by the Ontario Court of Appeal but granted by this Court. The constitutional questions queried (1) whether the Small Claims Court has jurisdiction, pursuant to s. 92 of the Constitution Act, 1867, with respect to a claim for damages sustained by a ship's nets in provincial inland waters, and (2) if so, whether s. 55 of the Small Claims Court Act granting that jurisdiction conflicted with s. 22 of the Federal Court Act and was therefore inoperative to the extent that it grants such jurisdiction to the Small Claims Court.
Held: The appeal should be allowed; the first constitutional question should be answered in the affirmative and the second in the negative.
A provincial legislature has the power, by virtue of s. 92(14) of the Constitution Act, 1867, to grant jurisdiction to an inferior court to hear a matter falling within federal legislative jurisdiction. This power is limited, however, by s. 96 of that Act and the federal government's power to expressly grant exclusive jurisdiction to a court established by it under s. 101 of the Act. Neither of these exceptions applied here.
The court system in Canada is generally unitary; provincially constituted inferior and superior courts of original and appellate jurisdiction apply federal as well as provincial laws. The system dates from Confederation times. The major exception to this unitary system is the Federal Court of Canada to which Parliament has assigned jurisdiction, sometimes exclusive, sometimes concurrent, in respect of matters within its legislative competence.
The unitary structure of the Canadian judicial system suggests that the province has the right under s. 92(14) to confer general jurisdiction on its courts, whether superior or inferior. Section 55 of the Small Claims Courts Act should therefore be interpreted so as to include federal matters and s. 22 of the Federal Court Act should be read as permitting this. To hold otherwise would diminish the essentially unitary judicial system established by the Constitution and unduly tax the resources of the superior courts.
Section 96 of the Constitution Act, 1867 does not operate to preclude the exercise of maritime law jurisdiction by provincial inferior courts. At the time of Confederation, admiralty courts were not seen as analogous to superior courts; the primary jurisdiction in admiralty was exercised by special courts distinct from those contemplated by s. 96.
Cases Cited
Applied: Quebec North Shore Paper Co. v. Canadian Pacific Ltd., 1976 CanLII 10 (SCC), [1977] 2 S.C.R. 1054; McNamara Construction (Western) Ltd. v. The Queen, 1977 CanLII 13 (SCC), [1977] 2 S.C.R. 654; considered: Balfour Guthrie (Canada) Ltd. v. Far Eastern Steamship Co. (1977), 1977 CanLII 402 (BC CA), 82 D.L.R. (3d) 414; overruled: Heath v. Kane (1975), 1975 CanLII 763 (ON CA), 10 O.R. (2d) 716; distinguished: Cull v. Rose (1982), 1982 CanLII 3068 (NL SC), 29 C.P.C. 246; referred to: Underwater Gas Developers Ltd. v. Ontario Labour Relations Board (1960), 1960 CanLII 145 (ON CA), 24 D.L.R. (2d) 673; Multiple Access Ltd. v. McCutcheon, 1982 CanLII 55 (SCC), [1982] 2 S.C.R. 161; ITO‑‑International Terminal Operators Ltd. v. Miida Electronics, 1986 CanLII 91 (SCC), [1986] 1 S.C.R. 752; Tropwood A.G. v. Sivaco Wire & Nail Co., 1979 CanLII 217 (SCC), [1979] 2 S.C.R. 157; The Queen v. Canadian Vickers Ltd., 1977 CanLII 3171 (FC), [1978] 2 F.C. 675; The Queen v. Southend County Court (Judge of) (1884), 13 Q.B.D. 142; Scovell v. Bevan (1887), 19 Q.B.D. 428; Shipman v. Phinn (1914), 1914 CanLII 513 (ON SC), 19 D.L.R. 305, aff'd (1914), 1914 CanLII 502 (ON CA), 20 D.L.R. 596; Smith v. Fecampois, 1929 CanLII 345 (NS SC), [1929] 2 D.L.R. 925; Horne v. Krezan, Shamlock and Young (1955), 1955 CanLII 506 (AB SCTD), 14 W.W.R. 625; Pile Foundations Ltd. v. Selkirk Silica Co. and Perry (1967), 1967 CanLII 796 (MB QB), 59 W.W.R. 622; Scott v. Scott (1891), 4 B.C.R. 316; Tytler v. Jamieson, 1935 CanLII 243 (BC CA), [1935] 3 W.W.R. 510; Bilsland v. Bilsland, 1922 CanLII 421 (MB CA), [1922] 1 W.W.R. 718; Mitchell v. Mitchell and Croome, 1936 CanLII 234 (MB CA), [1936] 1 W.W.R. 553; Reference on Divorce Jurisdiction (1951‑52), 1951 CanLII 369 (PE SCAD), 29 M.P.R. 120; Hellens v. Densmore, 1957 CanLII 50 (SCC), [1957] S.C.R. 768; Triglav v. Terrasses Jewellers Inc., 1983 CanLII 138 (SCC), [1983] 1 S.C.R. 283; Peacock v. Bell and Kendal (1667), 1 Wms. Saund. 73, 85 E.R. 84; Board v. Board, 1919 CanLII 546 (UK JCPC), [1919] A.C. 956; General Traders Ltd. v. Saguenay Shipping Ltd., [1983] C.A. 536; R. v. Thomas Fuller Construction Co. (1958) Ltd., 1979 CanLII 187 (SCC), [1980] 1 S.C.R. 695.
Statutes and Regulations Cited
Act for the more easy Recovery of Small Debts and Demands in England [County Courts Act] (U.K.), 9 & 10 Vict., c. 95.
Act respecting the Division Courts, C.S.U.C. 1859, c. 19, s. 5.
Admiralty Act, 1934, S.C. 1934, c. 31, s. 3.
Colonial Courts of Admiralty Act, 1890 (U.K.), 53 & 54 Vict., c. 27.
Constitution Act, 1867, ss. 92(14), 96, 100, 101.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 22(1), (2)(e), (3)(c).
Small Claims Courts Act, R.S.O. 1980, c. 476, s. 55.
Statute of Westminster, 1931, R.S.C. 1970, App. II, No. 26.
Vice Admiralty Courts Act, 1863 (U.K.), 26 & 27 Vict., c. 24.
Authors Cited
Burchell, Charles. "Canadian Admiralty Jurisdiction and Shipping Laws" (1929), 45 L.Q.R. 370.
Hogg, Peter W. "Federalism and the Jurisdiction of Canadian Courts" (1981), 30 U.N.B.L.J. 9
Jones, P. F. M. Comment (1976), 54 Can. Bar Rev. 744.
Laskin, Bora. The British Tradition in Canadian Law. London: Stevens, 1969.
Laskin, Bora. Laskin's Canadian Constitutional Law, vol. 1, 5th ed. By Neil Finkelstein. Toronto: Carswells, 1986.
Pitt‑Lewis, George. A Complete Practice of the County Courts, vol. 1. Assisted by H. A. De Colyar. London: Stevens, 1880.
APPEAL from a judgment of the Divisional Court‑‑leave to appeal to the Ontario Court of Appeal was refused‑‑allowing an appeal from a decision of Leach S.C.Ct.J. Appeal allowed; the first constitutional question should be answered in the affirmative and the second in the negative.
John Cavarzan, Q.C., for the appellant.
D. Ceri Hugill, for the respondent.
James M. Mabbutt, for the intervener.
The judgment of the Court was delivered by
- La Forest J.‑‑This appeal raises the question whether a province may grant jurisdiction to a small claims court to hear a case involving an admiralty or maritime matter.
Background
Background
The plaintiff, William Siddall & Sons Fisheries, claims that a trawling net towed by one of its vessels was damaged when it became entangled with an unmarked gas well in Lake Erie owned by the defendant, Pembina Exploration Canada Limited. In December 1982, Siddall brought action in negligence against Pembina seeking damages of $442.80 in an Ontario Small Claims Court. In disputing the claim, the defendant moved that the action be dismissed on the ground that the Small Claims Court lacked jurisdiction over matters involving the law of the sea and admiralty.
Leach J., who heard the case, held that he had jurisdiction. Section 55(a) of the Small Claims Courts Act, R.S.O. 1980, c. 476, he noted, provides that a small claims court has jurisdiction in "any action where the amount claimed does not exceed $1,000 exclusive of interest", and added that none of the provisions of the Act excluding jurisdiction applied to this case. He declined to follow the Ontario Court of Appeal decision in Heath v. Kane (1975), 1975 CanLII 763 (ON CA), 10 O.R. (2d) 716, which held that County Courts have no admiralty jurisdiction because the province cannot constitutionally confer such jurisdiction upon them. In doing so, he relied on the decision of the British Columbia Court of Appeal in Balfour Guthrie (Canada) Ltd. v. Far Eastern Steamship Co. (1977), 1977 CanLII 402 (BC CA), 82 D.L.R. (3d) 414, which held that Heath v. Kane was no longer good law in light of the Supreme Court of Canada decisions in Quebec North Shore Paper Co. v. Canadian Pacific Ltd., 1976 CanLII 10 (SCC), [1977] 2 S.C.R. 1054, and McNamara Construction (Western) Ltd. v. The Queen, 1977 CanLII 13 (SCC), [1977] 2 S.C.R. 654.
The defendant, Pembina, then appealed to the Ontario Divisional Court. That court (White, Fitzpatrick and Sirois JJ.) agreed that the decisions of this Court relied on by Leach J. had represented a change in the law. That change, however, was not so clear so as to allow the Small Claims Court judge to depart from the reasoning in Heath v. Kane. In the result, the appeal was allowed, the Small Claims Court was found lacking in jurisdiction, and the plaintiff's action was dismissed. The Attorney General for Ontario then applied for leave to appeal against this judgment to the Ontario Court of Appeal, but the application was denied. The Attorney General for Ontario then sought and was granted leave to appeal to this Court. The following constitutional questions were later stated by the Chief Justice:
Is the grant of jurisdiction to the Small Claims Court, pursuant to s. 55 of the Small Claims Courts Act, R.S.O. 1980, c. 476, to hear and determine an action in respect of a claim for damages sustained by a ship's trawling nets in the inland waters of Ontario, intra vires the Province pursuant to s. 92 of the Constitution Act, 1867?
If so, is s. 55 of the Small Claims Courts Act, R.S.O. 1980, c. 476, in conflict with s. 22 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, and therefore inoperative to the extent that it grants such jurisdiction to the Small Claims Court?
The Attorney General of Canada intervened in the appeal in support of the Attorney General for Ontario. So did the Attorney General of Quebec, but he subsequently withdrew his intervention.
The original plaintiff, Siddall, was not represented in any of the appeals, but an affidavit was filed by the solicitor of the late Charles William Siddall, who had owned the fishing business, stating that the latter's wife and executor now owned and operated the business and proposed to pursue the claim in the event that the resolution of the jurisdictional issue under consideration so permits.
Admiralty Jurisdiction
Admiralty Jurisdiction
It is not contested that the incident that gave rise to the action falls within the domain of admiralty law. The issue was argued only at trial where Leach J. concluded that it clearly was. The sole question, then, was whether the Small Claims Court had jurisdiction to try admiralty law matters. As to this, I should perhaps say that even if I were to conclude that questions of admiralty law as such did not come within the jurisdiction of small claims courts, there would be room on the facts of this case to argue that the court had jurisdiction. In Underwater Gas Developers Ltd. v. Ontario Labour Relations Board (1960), 1960 CanLII 145 (ON CA), 24 D.L.R. (2d) 673 (Ont. C.A.), it was held that the labour relations of a company whose operations consisted in the establishment and servicing of sites for drilling gas under water were governed by the Ontario Labour Relations Act. It could be argued that the negligence of the company could from one aspect be looked upon as relating to navigation, and so a matter of maritime or admiralty law, and from another aspect, as a local or private matter or as a matter of property and civil rights which could be dealt with in whatever provincial court had the appropriate monetary jurisdiction, here the Small Claims Courts; see Multiple Access Ltd. v. McCutcheon, 1982 CanLII 55 (SCC), [1982] 2 S.C.R. 161. This argument was not raised, however, and I do not propose to enter into the matter further at this point.
That the incident here falls under the broad purview of admiralty law, I have no doubt. It is well settled that admiralty law includes an extensive jurisdiction over maritime causes including laws regarding liability for loss or delay of a ship's cargo, liability for loss of life or personal injury caused by ship, and marine insurance, to name a few. The Federal Court Act, in setting out that court's admiralty jurisdiction, provides for a very extensive jurisdiction. Subsection 22(1) provides:
(1) The Trial Division has concurrent original jurisdiction as well between subject and subject as otherwise, in all cases in which a claim for relief is made or a remedy is sought under or by virtue of Canadian maritime law or any other law of Canada relating to any matter coming within the class of subject of navigation and shipping, except to the extent that jurisdiction has been otherwise specially assigned.
It is clear from the judgment of this Court in ITO‑‑International Terminal Operators Ltd. v. Miida Electronics, 1986 CanLII 91 (SCC), [1986] 1 S.C.R. 752, that "the term `Canadian maritime law' includes all that body of law which was administered in England by the High Court on its Admiralty side in 1934 as such law may, from time to time, have been amended by the federal Parliament, and as it has developed through judicial precedent to date," per McIntyre J. at p. 771. Subsection 22(2)(e) of the Act makes it clear that the Trial Division's jurisdiction covers a claim such as the one that arises in this case by expressly giving the trial division jurisdiction over
- ...
(2) ...
(e) any claim for damage sustained by, or for loss of, a ship including, without restricting the generality of the foregoing, damage to or loss of the cargo or equipment of or any property in or on or being loaded on or off a ship;
Finally, s. 22(3)(c) underlines that the jurisdiction extends not only to the high seas, but to all Canadian waters, including internal waters like Lake Erie. It reads:
- ...
(3) For greater certainty it is hereby declared that the jurisdiction conferred on the Court by this section is applicable
(c) in relation to all claims whether arising on the high seas or within the limits of the territorial, internal or other waters of Canada . . . .
- It is also not contested, indeed there can be no doubt, that the federal Parliament has power to enact s. 22. This falls within its power to legislate in relation to navigation and shipping; see Tropwood A.G. v. Sivaco Wire & Nail Co, 1979 CanLII 217 (SCC), [1979] 2 S.C.R. 157. Jurisdiction over admiralty matters had been exercised by the Federal Court's predecessor, the Exchequer Court of Canada, since 1891, first under the Colonial Courts of Admiralty Act, 1890 (U.K.), 53 & 54 Vict., c. 27, and following the Statute of Westminster, 1931, R.S.C. 1970, App. II, No. 26, by virtue of The Admiralty Act, 1934, S.C. 1934, c. 31, s. 3; see The Queen v. Canadian Vickers Ltd., 1977 CanLII 3171 (FC), [1978] 2 F.C. 675 (T.D.), at p. 682; see also Charles Burchell, "Canadian Admiralty Jurisdiction and Shipping Laws" (1929), 45 L.Q.R. 370.
Section 55 of the Small Claims Court Act
Section 55 of the Small Claims Court Act
Not contested either is that the province has power to enact s. 55 of the Small Claims Courts Act. Whether, however, the provision extends, or can constitutionally be read to extend, to cover claims falling within the ambit of admiralty law is very much in contention.
Section 55 expressly confers jurisdiction on Small Claims Courts in "any action" within the monetary limit therein set out. The Legislature could scarcely have used words of wider import. Within this monetary limit, the expression was obviously intended to confer a broad jurisdiction. It is at least as wide as the original jurisdiction assigned these courts‑‑"personal actions" within a monetary limit; see An Act respecting the Division Courts, C.S.U.C. 1859, c. 19, s. 5. Speaking of the latter expression, in the English County Courts Act (U.K.), 9 & 10 Vict., c. 95, Pitt‑Lewis, A Complete Practice of the County Courts (1880), vol. 1, p. 185, states that this expression "obviously includes all those personal actions which were within the jurisdiction of the Courts of Common Law" and adds that it "would be almost impossible to name all the actions which the County Courts under this enactment have power to entertain". This jurisdiction clearly extended to admiralty matters within their monetary limits; see The Queen v. Southend County Court (Judge of) (1884), 13 Q.B.D. 142; Scovell v. Bevan (1887), 19 Q.B.D. 428.
In Heath v. Kane, supra, the Ontario Court of Appeal attributed the holdings in these cases to the fact that the English County Courts possessed a residual common law jurisdiction. A reading of these cases shows, however, that these judgments do not rely on any such residual jurisdiction. They make it clear, rather, that the general words conferring jurisdiction clearly covered admiralty matters. The only question was whether the vesting by a later statute of admiralty jurisdiction in specific County Courts took away the jurisdiction granted by these general words, and it was held that it did not; see a comment by Jones (1976), 54 Can. Bar Rev. 744. The only residual jurisdiction retained by the County Courts Act of 1846 appears to have been a non‑contentious jurisdiction of the ancient County Courts of no relevance to the present matter; see Pitt‑Lewis, supra, p. 187.
Barring constitutional or other institutional considerations or a valid statutory provision to the contrary, then, there is no reason why, as a matter of statutory interpretation, Small Claims Courts should not hear cases involving admiralty matters. Prima facie the words conferring jurisdiction on them in any action extend to cases involving admiralty matters.
The Principal Constitutional Issues
The Principal Constitutional Issues
In assessing the constitutional issues, it is well to remember that the court system in Canada is, in general, a unitary one under which provincially constituted inferior and superior courts of original and appellate jurisdiction apply federal as well as provincial laws under a hierarchical arrangement culminating in the Supreme Court of Canada established by Parliament under s. 101 of the Constitution Act, 1867. This goes back to the time of Confederation when previously constituted superior, county and small claims courts continued to be charged with the administration of justice in Canada. The major exception to this unitary system is the Federal Court of Canada (the predecessor of which was created in 1875 along with the Supreme Court of Canada under s. 101 of the Constitution Act, 1867) to which Parliament has assigned jurisdiction, sometimes exclusive, sometimes concurrent, in respect of matters within its legislative competence.
In admiralty matters, we saw, s. 22 of the Federal Court Act assigns "concurrent original jurisdiction" to that court. The issue, then, is what courts may exercise this concurrent jurisdiction. There is no question that such original jurisdiction may be exercised by the superior courts in the provinces. In Shipman v. Phinn (1914), 1914 CanLII 513 (ON SC), 19 D.L.R. 305 (Ont. S.C.); aff'd (1914), 1914 CanLII 502 (ON CA), 20 D.L.R. 596 (C.A.), an action for damages resulting from a collision between two ships on inland waters, it was held that the Ontario Supreme Court had concurrent jurisdiction with the Exchequer Court over admiralty cases on the basis that the jurisdiction possessed by the courts of common law in England on December 5, 1859 was vested in the provincial superior court by statute. That jurisdiction was then concurrent and has never been displaced. A similar position has been taken by other provincial superior courts; see Smith v. Fecampois, 1929 CanLII 345 (NS SC), [1929] 2 D.L.R. 925 (N.S.S.C.); Horne v. Krezan, Shamlock and Young (1955), 1955 CanLII 506 (AB SCTD), 14 W.W.R. 625 (Alta. S.C.); Pile Foundations Ltd. v. Selkirk Silica Co. and Perry (1967), 1967 CanLII 796 (MB QB), 59 W.W.R. 622 (Man. Q.B. Ch.) Laskin C.J. appears to have agreed with this in Tropwood A.G. v. Sivaco Wire & Nail Co., supra, when he stated, at p. 160, that it was open to Parliament "to establish a federal Court ... to administer its maritime law concurrently with provincial superior courts".
I am aware that the reasoning in Cull v. Rose (1982), 1982 CanLII 3068 (NL SC), 29 C.P.C. 246 (Nfld. S.C.T.D.), appears to differ from that in these cases. The court there was of the view that when the admiralty jurisdiction expressly vested in the Supreme Court of Newfoundland pursuant to the Colonial Courts of Admiralty Act, 1890, was removed under the Terms of Union, the court lost all its admiralty jurisdiction. What this appears to overlook, however, is the concurrent jurisdiction of the common law courts in admiralty matters (see Shipman v. Phinn, supra). The Cull case may, however, conceivably be explicable on the basis that the matter there involved was a collision at sea (p. 248), which, for all we know, may have been outside the territorial or other jurisdictional limits of a common law court.
I do not in any event think the jurisdiction of a superior court in admiralty matters arising in a province is dependent on historical considerations. In my view, such jurisdiction is suggested by the essentially unitary nature of the Canadian court system. Section 92(14) of the Constitution Act, 1867 grants the provinces the power to make laws in relation to "The Administration of Justice in the Province" and expressly includes "the Constitution, Maintenance and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction". It is clear to me that the provincial power over the administration of justice in the province enables a province to invest its superior courts with jurisdiction over the full range of cases, whether the applicable law is federal, provincial or constitutional; see, in this context, Hogg, "Federalism and the Jurisdiction of Canadian Courts" (1981), 30 U.N.B.L.J. 9, at p. 15; see also Laskin's Canadian Constitutional Law (5th ed. by Neil Finkelstein), vol. 1, pp. 179‑81, esp. at p. 181. In The British Tradition in Canadian Law (1969), Justice Laskin (as he then was) states at p. 114:
The case law on the subject has in recent years gone as far as to support provincial legislative power to vest its courts with jurisdiction in federal matters if there is no federal legislation to the contrary. This view of the omnicompetence of provincial superior courts was fed by a decision of the Privy Council, suggestive of inherent superior court jurisdiction, that (to use its words) "if the right exists, the presumption is that there is a Court which can enforce it, for if no other mode of enforcing it is prescribed, that alone is sufficient to give jurisdiction to the (Queen's) Courts of justice".
As Laskin J.A. notes, if federal law calls for the exercise of adjudication but is silent as to forum, the provincial courts are clearly competent to adjudicate. In a word, judicial jurisdiction is not tied to provincial legislative jurisdiction in other areas. In the present case, the fact that the federal Parliament may legislate in relation to the matter does not, in the absence of legislation, affect the jurisdiction of these courts.
- A number of provincial Court of Appeal cases have dealt with the issue in the context of divorce law jurisdiction, prior to the enactment of the Divorce Act. For a time, it is true, the British Columbia courts took the view that a province is without authority to confer jurisdiction on its courts in respect of federal matters; see Scott v. Scott (1891), 4 B.C.R. 316; Tytler v. Jamieson, 1935 CanLII 243 (BC CA), [1935] 3 W.W.R. 510 (B.C.C.A.); but see now Balfour Guthrie (Canada) Ltd. v. Far Eastern Steamship Co., supra, to be examined later. In Bilsland v. Bilsland, 1922 CanLII 421 (MB CA), [1922] 1 W.W.R. 718, and Mitchell v. Mitchell and Croome, 1936 CanLII 234 (MB CA), [1936] 1 W.W.R. 553, however, the Manitoba Court of Appeal concluded that in the absence of federal specification of jurisdiction, a province may authorize its courts to enforce substantive federal law. In distinguishing a line of British Columbia cases, Perdue C.J., in Bilsland, wrote at pp. 720‑21:
It appears to me that the learned Judges who decided Scott v. Scott and Brown v. Brown did not pay sufficient regard to sub‑head No. 14 of sec. 92 of The B.N.A. Act, which confers upon the Legislature in each province jurisdiction to make laws in relation to
the administration of justice in the province, including the constitution, maintenance and organization of provincial Courts, both of civil and criminal jurisdiction, and including procedure in civil matters in those Courts.
Under sec. 101 of the same Act the Parliament of Canada may provide for the establishment of additional Courts for the better administration of the laws of Canada. Parliament has not created a divorce Court. The administration of the law of divorce where it is in force in a province is therefore left to the provincial Court having jurisdiction to apply that law: Board v. Board 1919 CanLII 546 (UK JCPC), [1919] A.C. 956, at p. 962, 88 L.J.P.C. 165, [1919] 2 W.W.R. 940.
A similar conclusion was reached by the Supreme Court of Prince Edward Island‑‑in banco in Reference on Divorce Jurisdiction (1951‑52), 1951 CanLII 369 (PE SCAD), 29 M.P.R. 120. In the course of his reasons, Campbell C.J. (at p. 131) was at pains to point out the unfortunate practical results of limiting provincial authority in this area. Disputes involving banking and commercial paper, although governed by federal law, are routinely disposed of by provincial courts because the federal law fails to address the question of adjudication. Indeed, unless such courts have general jurisdiction over all justiciable disputes arising in the province, it is difficult to see in what forum certain disputes arising out of federal administration could be determined, since a court established by Parliament under s. 101 of the Constitution Act, 1867 can only have jurisdiction where (a) Parliament has legislative authority over the subject‑matter of the case; (b) the empowering statute confers jurisdiction over the case; and (c) the case is governed by "existing and applicable federal law": see McNamara Construction (Western) Ltd. v. The Queen, supra, at p. 659, and Quebec North Shore Paper Co. v. Canadian Pacific Ltd., supra.
The foregoing position is supported by the following statement of Rand J. in Hellens v. Densmore, 1957 CanLII 50 (SCC), [1957] S.C.R. 768, at p. 783:
That after Confederation a right of appeal could be given by provincial law [in respect of divorce] appears to me to be unquestionable although the opposite opinion seems to have been held in the provincial Courts: the administration of justice by the Province surely extends to the final determination within the Province of the judgments of its own Courts.
Indeed, unlike the cases already discussed, Rand J.'s holding cannot be explained on the basis of the historical inherent jurisdiction of a superior court. Appellate jurisdiction must be conferred by statute.
- As already noted, Tropwood A.G. v. Sivaco Wire & Nail Co., supra, and other cases, make it clear that the provincial superior courts have concurrent original jurisdiction with the Federal Court in admiralty matters. Whether inferior provincial courts can exercise this concurrent jurisdiction was, however, left open by this Court in Triglav v. Terrasses Jewellers Inc., 1983 CanLII 138 (SCC), [1983] 1 S.C.R. 283, where Chouinard J., speaking for the Court, stated at p. 298:
I am of the opinion that marine insurance is part of the maritime law over which s. 22 of the Federal Court Act confers concurrent jurisdiction on that Court. It is not necessary to determine what other courts may have jurisdiction concurrent with the Federal Court, nor to determine the scope of their jurisdiction.
It seems to me, however, that such jurisdiction is inherent in the essentially unitary character of the Canadian court system. If, as indicated by the divorce cases above cited, one accepts that jurisdiction in the provincial superior courts is not solely derived from the specific character of superior courts, but that s. 92(14) of the Constitution Act, 1867 empowers the provinces to grant them general jurisdiction, whether originally or on appeal as in Hellens v. Densmore, supra, there is no reason why this should not apply to provincial courts of inferior jurisdiction as well. There are considerations of a historical and practical nature that militate in favour of this solution as well to which I shall advert later. I turn first, however, to a discussion of the cases that have dealt directly with the issue.
- The first of these is Heath v. Kane, supra, which the Divisional Court in the present case found determinative of the issue here. That case was a negligence action for personal injuries resulting from a collision between two small pleasure craft on navigable inland waters originally brought in the County Court of Ontario. The action was dismissed on a preliminary motion, the trial judge holding the County Court had no jurisdiction in admiralty matters. The decision was affirmed by the Ontario Court of Appeal. Lacourcière J.A., speaking for the Court, recognized the concurrent jurisdiction of the High Court, which as a superior court had inherited the admiralty jurisdiction of the superior courts at Westminster. He then cited the following passage from Peacock v. Bell and Kendal (1667), 1 Wms. Saund. 73, 85 E.R. 84, at pp. 74 and 87‑88 respectively, which he noted had been adopted by the Privy Council in Board v. Board, 1919 CanLII 546 (UK JCPC), [1919] A.C. 956:
And the rule for jurisdiction is, that nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly alleged.
He then went on to say that the grant to the County Courts of jurisdiction over "personal actions" within certain monetary limits was incapable of granting them jurisdiction in claims for damages caused by a ship collision in navigable waters because this was a matter in relation to navigation and shipping, and the fact that these courts had in the past assumed such jurisdiction could not change the matter. Section 22 of the Federal Court Act had been judicially interpreted to mean that an admiralty action could be brought either in the Federal Court or a superior court of a province. The reference in the County Courts Act to "personal actions" could not confer jurisdiction in matters such as navigation and shipping where Parliament has already assigned jurisdiction. He admitted the cases dealing with the English County Courts, The Queen v. Southend County Court (Judge of) and Scovell v. Bevan, already discussed, caused difficulty, but as already seen, he distinguished these on the supposed basis of a residual common law jurisdiction in these courts. He added at p. 720 that "the grant of jurisdiction by the Parliament of the United Kingdom is not subject to constitutional limits which restrict the Legislatures of Canadian Provinces".
- In Balfour Guthrie (Canada) Ltd. v. Far Eastern Steamship Co., supra, the British Columbia Court of Appeal refused to follow Heath v. Kane and rebutted, in my view successfully, several of the arguments made in that case. Guthrie was a claim brought in the County Court of Vancouver claiming breach of a contract of carriage and negligence resulting in damages to goods transported under the contract. The County Court judge declined to hear the case on the ground that it related to navigation and shipping from which decision an appeal was taken to the Court of Appeal. Farris C.J.B.C., who gave the judgment, first traced the history of the County Courts of British Columbia which, he held, were at their inception given the same jurisdiction as were possessed by the English County Courts, which, we saw, had jurisdiction in admiralty in personal actions within their monetary limits. He then turned to and rejected the contention discussed in the Heath case, that "concurrent original jurisdiction" in s. 22(1) of the Federal Court Act meant concurrent only with the provincial superior courts. He observed, first of all, that the jurisdiction of the County Court was, under its constituent Act, within its monetary limits, concurrent and similar to that of the Supreme Court. There was nothing in the Federal Court Act to confine the concurrent original jurisdiction to concurrency with a superior court. The term "original", he thought, was used in contrast to appellate. Finally, he could not see the logic in Parliament's removing the concurrent jurisdiction of the County Courts for claims under $15,000 while leaving concurrent jurisdiction with the Supreme Court of British Columbia for claims exceeding that amount. Finally, he rejected the trial judge's holding that he lacked jurisdiction on the ground that the claim constituted an aspect of "navigation and shipping" in the following passage, at p. 418:
I do not agree with the trial Judge's views for two reasons:
(1) The claim here asserted does not ``constitute an aspect of `navigation and shipping' ''. It is a claim for breach of contract for the carriage of goods. The fact that the carriage took place by sea does not alter its essential nature. If the reasoning of the trial Judge were adopted it would preclude the County Court from hearing an action on a bill of exchange.
(2) The trial Judge equated legislative jurisdiction with judicial jurisdiction. This is contrary to the decisions of the Supreme Court of Canada in Quebec North Shore Paper Co. et al. v. Canadian Pacific Ltd. et al. (1976), 1976 CanLII 10 (SCC), 71 D.L.R. (3d) 111, [1977] 2 S.C.R. 1054, 9 N.R. 471, and McNamara Construction (Western) Ltd. et al. v. The Queen (1977), 1977 CanLII 13 (SCC), 75 D.L.R. (3d) 273, [1977] 2 S.C.R. 654, 13 N.R. 181 sub nom. Gov't of Canada v. McNamara Construction (Western) Ltd. et al. At p. 277 D.L.R., p. 185 N.R., of the latter case the Chief Justice of Canada said:
As this Court indicated in the Quebec North Shore Paper Co. case, judicial jurisdiction contemplated by s. 101 [the B.N.A. Act, 1867] is not co‑extensive with federal legislative jurisdiction.
I find it unnecessary to say anything about the first point beyond remarking that it would seem odd if, in the present case, the province could not deal with the claim as a local and private matter or as one of property and civil rights. It is, however, sufficient to confine myself to the second point. As to this, it will be obvious that this approach is completely in accord with the cases discussed earlier where it was held that under s. 92(14) of the Constitution Act, 1867 the provinces had legislative jurisdiction to grant their courts jurisdiction to hear judicial disputes arising in the province even when those disputes included matters falling within federal legislative jurisdiction subject, of course, to federal legislation validly enacted pursuant to such jurisdiction. This has become more obvious since the decisions of this Court cited by Farris C.J.B.C., and he was in my view quite correct in holding that the Heath case, which had been decided before these decisions, was inconsistent with them.
The Balfour Guthrie case could, of course, be distinguished from the Heath case on the basis of the historical evolution of the British Columbia County Courts. That, however, cannot be said of General Traders Ltd. v. Saguenay Shipping Ltd., [1983] C.A. 536, where the Quebec Court of Appeal (per Malouf J.A., Kaufman and L'Heureux‑Dubé (now of this Court) JJ.A. concurring), for reasons similar to those in Balfour Guthrie (Canada) Ltd. v. Far Eastern Steamship Co., held that the Quebec Provincial Court had jurisdiction in admiralty matters within its monetary limits. At all events, as I earlier explained, the historical jurisdiction attributed to the English County Courts in Heath v. Kane is irrelevant. Nor do I think the principle against conferring jurisdiction on an inferior court mentioned in Peacock v. Bell and Kendal, supra, applies here. As earlier indicated, the grant of jurisdiction in any action below a certain monetary limit is sufficiently clear as is evident from the interpretation of the similar legislation regarding the English County Courts Act already discussed. And while I agree with Lacourcière J.A.'s view in Heath v. Kane that the exercise of admiralty jurisdiction by the Ontario County Courts in the past did not confer jurisdiction on them, it affords some evidence that it is not unreasonable to hold that any action includes any common law action.
There remain some further questions inherent in Lacourcière J.A.'s reference to the constitutional limits of the province. I have already referred to my view that a province may, in the exercise of its powers under s. 92(14), confer general jurisdiction on its courts, and that I saw no reason why this power did not extend to courts of inferior jurisdiction. Indeed, it seems to me that the essentially unitary structure of the Canadian judicial system invites this conclusion. From Confederation to this day, the courts in the provinces, barring inconsistent federal laws, have decided every type of dispute imaginable. As Hogg, supra, p. 15, has put it: "It did not matter whether a dispute raised a question of constitutional law, federal law, provincial law, or a mixture of the three, the provincial courts still had jurisdiction." They may not, in strictness, be national courts, but they are the ordinary courts of the land to which the citizen customarily turns when he has need to resort to the administration of justice.
I have already mentioned the unfortunate practical results that would follow from limiting provincial authority in this area. Disputes involving banking and commercial paper, to name a few, although governed by federal law, are routinely disposed of by provincial courts. In addition, the resources of the superior courts would be sorely taxed if, regardless of the amount in dispute, only the superior courts could hear any action arising out of any matter falling within the federal legislative competence. Small Claims Courts were established to lessen the burden on superior courts in cases involving relatively small amounts of money and to give greater access to justice to the public. In this context, I might add that while I have no difficulty accepting the first proposition in Peacock v. Bell and Kendal, supra, that the jurisdiction of superior courts must be read generously (see R. v. Thomas Fuller Construction Co. (1958) Ltd., 1979 CanLII 187 (SCC), [1980] 1 S.C.R. 695, at pp. 712‑13), the strict approach to inferior courts suggested in the second proposition must in this country be approached with an eye to our essentially unitary court system.
I have no difficulty, therefore, in concluding that, pursuant to s. 92(14) of the Constitution Act, 1867, the provinces may confer to their inferior courts general jurisdiction including actions arising out of federal matters. This power is, of course, exercisable only in the absence of federal legislation specifying a particular forum.
These considerations go some considerable way towards replying to two related subsidiary questions involved in weighing the federal implications in the area. First, should a general grant of judicial power, such as exists in s. 55 of the Small Claims Courts Act be interpreted so as to include federal matters, and, conversely, should s. 22 of the Federal Court Act be read as permitting this? I have no difficulty in replying affirmatively to both questions. To do otherwise would offend rather than foster our federal constitutional structure. It would involve diminishing rather than enhancing the essentially unitary nature of the court system established by the Constitution. A negative answer to these questions would, in my view, be inconsistent with the reasoning of this Court in the McNamara Construction and Quebec North Shore cases. Those cases laid down stringent requirements for Parliament in exercising its power to grant jurisdiction to a court established under s. 101 of the Constitution Act, 1867. In so doing, the Court strongly asserted the primarily unitary nature of our judicial system. To require Parliament to meet strict tests in conferring jurisdiction on federal courts but to then require specific words in a provincial grant of jurisdiction to inferior courts makes little sense.
The practical considerations mentioned by Farris C.J.B.C. in Balfour Guthrie (Canada) Ltd. v. Far Eastern Steamship Co. in relation to s. 22 may be adverted to here. Does it make sense to read Parliament as having by that provision permitted concurrent jurisdiction to the Federal Court and provincial superior courts in actions involving large sums of money while denying that convenience to persons seeking satisfaction of small claims? Similar practical considerations are involved in a narrow reading of the provincial statute. The inferior courts have over the years sensibly responded to these imperatives. They have routinely dealt with problems involving bills of exchange and commercial papers generally, as well as other relevant federal matters, in dealing with the claims before them.
I, therefore, conclude that Leach J. was correct in concluding that he had jurisdiction to hear the action. Heath v. Kane, supra, should be overruled.
Section 96 of the Constitution Act, 1867
Section 96 of the Constitution Act, 1867
- A final issue requires consideration: the application of s. 96 of the Constitution Act, 1867. While not directly referred to in the constitutional questions before this Court, it was raised by the Attorney General of Canada and, in my view, it is necessary to determine whether s. 96 operates to preclude the exercise of maritime law jurisdiction by provincial inferior courts. I find it unnecessary to enter into any detail about the sometimes intricate history of admiralty jurisdiction in Canada; for a discussion, see Burchell, supra. Suffice it to say that at the time of Confederation, this jurisdiction was exercised primarily by Vice‑Admiralty Courts established under the Vice Admiralty Courts Act, 1863 (U.K.), 26 & 27 Vict., c. 24; see The Queen v. Canadian Vickers Ltd., supra. These courts were established under the Great Seal of the United Kingdom, with judges appointed by the admiralty. Sections 96 to 99 of the Constitution Act, 1867 do not refer to these provisions or to admiralty judges, indicating that these courts were not intended to fall within the classification of superior, district or county courts of the provinces dealt with in those sections. Section 100 of the Constitution Act, 1867, which provides for the salary and expenses of judges, however, refers specifically to admiralty courts, which also suggests that admiralty courts were not viewed as falling within s. 96. In fact, on the eve of Confederation, the primary jurisdiction in admiralty was exercised by special courts distinct from those contemplated by s. 96. Clearly, this precludes any claim for s. 96 protection of admiralty jurisdiction.
Conclusion and Disposition
Conclusion and Disposition
I conclude that a provincial legislature has the power by virtue of s. 92(14) of the Constitution Act, 1867 to grant jurisdiction to an inferior court to hear a matter falling within federal legislative jurisdiction. This power is limited, however, by s. 96 of that Act and the federal government's power to expressly grant exclusive jurisdiction to a court established by it under s. 101 of the Act. Since neither of these exceptions applies in the present case, the grant of jurisdiction in s. 55 of the Small Claims Courts Act authorizes the Small Claims Court to hear the action in the present appeal.
I would, therefore, allow the appeal and restore the decision of Leach J. I would answer the first constitutional question in the affirmative and the second in the negative. The matter should be remitted to the Small Claims Court for a decision on the merits.
Appeal allowed; the first constitutional question should be answered in the affirmative and the second in the negative.
Solicitor for the appellant: Archie Campbell, Toronto.
Solicitors for the respondent: Partington, Hugill & Wormald, St. Catharines.
Solicitor for the intervener: Frank Iacobucci, Ottawa.