Rudolph Wolff & Co. v. Canada, [1990] 1 S.C.R. 695

Rudolph Wolff & Co. Ltd. and Noranda Inc. Appellants

v.

Her Majesty The Queen Respondent

and

The Attorney General for Ontario, the

Attorney General of Quebec and the

Attorney General for Alberta Interveners

indexed as: rudolph wolff & co. v. canada

File No.: 20842.

1990: January 24; 1990: March 29.

Present: Dickson C.J. and Wilson, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.

on appeal from the court of appeal for ontario

Constitutional law ‑‑ Charter of Rights ‑‑ Equality before the law ‑‑ Action against Crown ‑‑ Federal legislation conferring exclusive jurisdiction on Federal Court in relation to all claims against Crown in right of Canada ‑‑ Whether federal legislation contravenes s. 15(1) of the Canadian Charter of Rights and Freedoms ‑‑ Whether the word "individual" in s. 15(1) includes the Crown ‑‑ Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 17(1), (2) ‑‑ Crown Liability Act, R.S.C. 1970, c. C‑38, s. 7(1).

Courts ‑‑ Federal Court ‑‑ Jurisdiction ‑‑ Action against Crown ‑‑ Federal legislation conferring exclusive jurisdiction on Federal Court in relation to all claims against Crown in right of Canada ‑‑ Whether federal legislation contravenes Charter right of equality before the law ‑‑ Canadian Charter of Rights and Freedoms, s. 15(1) ‑‑ Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 17(1), (2) ‑‑ Crown Liability Act, R.S.C. 1970, c. C‑38, s. 7(1).

The appellants brought an action in the Supreme Court of Ontario against the Crown in right of Canada. The Crown replied with a motion to have the action dismissed on the ground that the Supreme Court of Ontario did not have jurisdiction to entertain it. The motions court judge found that s. 17(1) and (2) of the Federal Court Act and s. 7(1) of the Crown Liability Act conferred exclusive jurisdiction on the Federal Court, rejected the appellants' argument that these provisions contravened s. 15 of the Canadian Charter of Rights and Freedoms, and dismissed the action. The Ontario Court of Appeal upheld the decision. This appeal is to determine whether s. 17(1) and (2) of the Federal Court Act and s. 7(1) of the Crown Liability Act contravene s. 15 of the Charter.

Held: The appeal should be dismissed.

The impugned provisions of the Federal Court Act and Crown Liability Act do not infringe s. 15(1) of the Charter. The appellants have not shown that they have received unequal treatment. The Crown cannot be equated with an individual. The Crown represents the State, and constitutes the means by which the federal aspect of our Canadian society functions. It must represent the interests of all members of Canadian society in court claims brought against the Crown in right of Canada. The interests and obligations of the Crown are vastly different from those of private litigants making claims against the Federal Government. In the circumstances of this case, the Crown is simply not an individual with whom a comparison can be made to determine whether a s. 15(1) violation has occurred. Further, the appellants did not demonstrate that if any inequality existed it was discriminatory. The impugned legislation granting the Federal Court exclusive jurisdiction over claims against the Crown in right of Canada does not distinguish between classes of individuals on the basis of any of the grounds enumerated in s. 15(1). Individuals claiming relief against the Federal Crown are not a disadvantaged group in Canadian society within the contemplation of s. 15. Rather, they are a disparate group with the sole common interest of seeking to bring a claim against the Crown before a court.

Cases Cited

Applied: R. v. Stoddart (1987), 1987 CanLII 168 (ON CA), 37 C.C.C. (3d) 351; referred to: Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143; R. v. Turpin, 1989 CanLII 98 (SCC), [1989] 1 S.C.R. 1296; Reference Re Workers' Compensation Act, 1983 (Nfld.), 1989 CanLII 86 (SCC), [1989] 1 S.C.R. 922; Law Society of Upper Canada v. Skapinker, 1984 CanLII 3 (SCC), [1984] 1 S.C.R. 357.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 15(1).

Crown Liability Act, R.S.C. 1970, c. C‑38, s. 7(1).

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 17(1), (2).

Petition of Right Act, 1876, S.C. 1876, c. 27.

Petition of Right Act, Canada, 1875, S.C. 1875, c. 12.

Petitions of Right Act, 1860 (U.K.), 23 & 24 Vict., c. 34.

APPEAL from a judgment of the Ontario Court of Appeal, rendered on March 7, 1988, affirming a decision of Henry J. (1987), 26 C.P.C. (2d) 166, granting a Crown motion to have the appellants' action dismissed. Appeal dismissed.

R. G. Slaght, Q.C., for the appellants.

T. B. Smith, Q.C., A. R. Pringle and Joseph de Pencier, for the respondent.

Robert E. Charney, for the intervener the Attorney General for Ontario.

Jean Bouchard and Madeleine Aubé, for the intervener the Attorney General of Quebec.

Richard F. Taylor, for the intervener the Attorney General for Alberta.

//Cory J.//

The judgment of the Court was delivered by

Cory J. -- The question raised on this appeal is whether the statutory provisions which confer exclusive jurisdiction on the Federal Court of Canada in all cases where claims are made against the Federal Government violate s. 15(1) of the Canadian Charter of Rights and Freedoms. Ironically, the problem may be resolved for future cases by the provision of pending legislation which has received second reading.

Factual Background

The appellant, Rudolf Wolff & Co. Ltd., is a subsidiary of Noranda Inc. It carries on business as a metal commodities and futures broker. The Federal Government, respondent, was a member of the International Tin Council (ITC). This was an unincorporated association made up of 22 member states and the European Economic Community. It was established in 1956 and has been continued by the provisions of successive five-year International Tin Agreements. The relevant one was that dated July 1, 1982, the Sixth International Tin Agreement (ITA-6). Pursuant to the provisions of the Agreement ITA-6, the ITC partners agreed to finance a buffer stock of tin which was to be used by the Buffer Stock Manager (BSM), an agent of the ITC members, to support the world market price for tin.

In the course of his work, the BSM frequently bought and sold tin through the appellant Wolff. During the first few years of the Agreement ITA-6, the world price of tin was very low. The markedly reduced price had a disastrous effect upon the ITC which became insolvent by October of 1985. The appellants allege that they have suffered severe losses as a result of the mismanagement of the buffer stock by the BSM for whom it is said the respondent, the Federal Government and the other members of the ITC were responsible.

The appellants commenced an action in the Supreme Court of Ontario against the respondent, claiming damages from the respondent flowing from alleged tortious conduct, breach of contractual obligations and breach of fiduciary duty. The appellants brought their action in that court to preserve their right to bring claims in the same action against other prospective defendants.

The Crown brought a motion to have the action dismissed on the ground that the Supreme Court of Ontario did not have jurisdiction to entertain the action. The respondent argued that in claims of this nature exclusive jurisdiction was conferred upon the Federal Court of Canada by virtue of s. 17(1) and (2) of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, as amended (now R.S.C., 1985, c. F-7), and s. 7(1) of the Crown Liability Act, R.S.C. 1970, c. C-38, as amended (now R.S.C., 1985, c. C-50, s. 15(1)). The appellants, on the other hand, contended that these sections of the Federal Court Act and the Crown Liability Act contravened s. 15(1) of the Charter.

The Courts Below

Henry J., the motions court judge, gave careful consideration to the motion. He ordered that the action be dismissed. In his view the provisions of the Federal Court Act and the Crown Liability Act conferred exclusive jurisdiction on the Federal Court. He dealt with the argument that provisions of those Acts contravened s. 15 of the Charter by stating that he was bound by the decision of the Ontario Court of Appeal in R. v. Stoddart (1987), 1987 CanLII 168 (ON CA), 37 C.C.C. (3d) 351. In his view, that case determined that s. 15(1) of the Charter had no application to statutes which govern the relationship between the Crown and the subject in civil and criminal proceedings on the ground that the Crown is not an individual who can be compared with the subject for the purposes of s. 15 of the Charter.

The Court of Appeal upheld the decision of Henry J. and approved the reasons that he had given for his decision.

Do the Impugned Sections of the Federal Court Act and the Crown Liability Act Infringe the Provisions of s. 15 of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

The answer which must be given to the first constitutional question stated by the Chief Justice is, in my view, dispositive of the appeal. That question was framed in this way:

1.Are section 17(1) and (2) of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, as amended, and s. 7(1) of the Crown Liability Act, R.S.C. 1970, c. C-38, as amended, consistent with s. 15 of the Canadian Charter of Rights and Freedoms in so far as they confer exclusive jurisdiction in the Federal Court in relation to all claims against the Crown?

Historical Background of Actions Against the Crown

At common law there was no jurisdiction in the courts to hear an action against the Crown. The ability to bring such an action was derived solely from statute. It is unnecessary to delve too deeply into the history of these actions. It is sufficient to observe that in the United Kingdom the Petitions of Right Act, 1860 (U.K.), 23 & 24 Vict., c. 34, provided a statutory basis for bringing actions against the Crown. In Canada, the Petition of Right Act, Canada, appears in the Statutes of Canada 1875, c. 12. That Act conferred jurisdiction on provincial superior courts to hear cases against the Federal Government subject to the enactment of enabling legislation in the province. The Petition of Right Act, Canada, 1875, was repealed the following year by the Petition of Right Act, 1876, S.C. 1876, c. 27, which granted exclusive jurisdiction to the Exchequer Court to hear petitions of right against the Crown in right of Canada. There can be no doubt that without the passage of these provisions, no jurisdiction existed in any court to entertain an action claiming damages against the Crown in right of Canada.

It is beyond question that only the Parliament of Canada could enact statutes to provide that actions could be brought against the Crown in right of Canada. It is only that body which can legislate as to the court in which those claims can be brought. The impugned sections of the Federal Court Act were enacted in 1970. They made provision for the bringing of such actions exclusively in the Federal Court rather than the provincial superior courts. The impugned provisions do not seek to limit or restrict rights in any way, rather they confer rights which did not exist at common law and designate the court in which these rights may be exercised. That is the historical context in which the impugned sections of the Acts must be considered.

Application of s. 15 of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

Section 15(1) of the Charter provides:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The manner in which a court must approach an alleged infringement of s. 15(1) was set forth by McIntyre J. in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143. He made it clear that one complaining of the violation of s. 15 must show "not only that he or she is not receiving equal treatment before and under the law or that the law has a differential impact on him or her in the protection or benefit accorded by law but, in addition, must show that the legislative impact of the law is discriminatory." The appellants have not been able to satisfy either of these requirements.

With respect to the issue of whether the appellants have received unequal treatment, it must be apparent that the Crown cannot be equated with an individual. The Crown represents the State. It constitutes the means by which the federal aspect of our Canadian society functions. It must represent the interests of all members of Canadian society in court claims brought against the Crown in right of Canada. The interests and obligations of the Crown are vastly different from those of private litigants making claims against the Federal Government.

Henry J., in my opinion, properly applied the decision in R. v. Stoddart, supra. I agree with the words of Tarnopolsky J.A., speaking for the court in that case, at pp. 362-63, where he stated:

The Crown is not an "individual" with whom a comparison can be made to determine a s. 15(1) violation.

. . . the Crown Attorney does not participate in a criminal trial as an "individual". He participates as a representative of the Crown, which in turn represents the state, i.e. organized society. It will be recalled that the Oxford English Dictionary defines an "individual" as "a single human being", in contra-distinction to "society". Therefore, the accused, as an "individual", cannot be compared with Crown counsel, as representative of our organized society, for the purpose of a s. 15(1) analysis.

This principle is equally applicable to the facts of this case and is sufficient to dispose of the issue. In the circumstances of the case at bar, the Crown is simply not an individual with whom a comparison can be made to determine whether a s. 15(1) violation has occurred.

It is not necessary for the purpose of this case to consider the further conclusions of Henry J. that the Crown can never be compared with individuals under s. 15(1) of the Charter in the context of any statute governing the relationship between the Crown and the subject in civil proceedings. There could conceivably be instances in which the Crown's activities are indistinguishable from those of any other litigant engaged in a commercial activity. It might be that in those circumstances a s. 15(1) comparison would be just and appropriate, but that is a matter for consideration on another occasion.

Nevertheless, I am satisfied that in this case the Crown was acting clearly and exclusively in its governmental capacity as a member of the International Tin Council. Indeed, it could not have been a member of that Council except as the Government of Canada. The purpose of the 22 States and the European Community in acting together was not simply to buy and sell tin, but rather "to support the market price of tin by buying tin on organized markets with the object of maintaining the price of tin above the defined floor price." The actions of the Crown in entering into this international agreement to support the price of an important Canadian export cannot be regarded as anything other than that of the Crown acting as the Government of Canada. In these circumstances there can be no question of inequality of treatment between the Crown and the appellants within the meaning of s. 15(1) of the Charter.

Nor did the appellants demonstrate that if any inequality existed it was discriminatory. The impugned legislation granting the Federal Court exclusive jurisdiction over claims against the Crown in right of Canada does not distinguish between classes of individuals on the basis of any of the grounds enumerated in s. 15(1) nor on any analogous grounds. Certainly, it cannot be said that individuals claiming relief against the Federal Crown are in the words of Wilson J. in R. v. Turpin, 1989 CanLII 98 (SCC), [1989] 1 S.C.R. 1296, at p. 1333, "a discrete and insular minority" or "a disadvantaged group in Canadian society within the contemplation of s. 15". Rather, they are a disparate group with the sole common interest of seeking to bring a claim against the Crown before a court. See also Reference Re Workers' Compensation Act, 1983 (Nfld.), 1989 CanLII 86 (SCC), [1989] 1 S.C.R. 922.

In my view, the impugned provisions of the Federal Court Act and Crown Liability Act do not infringe s. 15(1) of the Charter.

In light of that conclusion, it is neither necessary nor advisable to deal with the submission of the respondent that a corporation has no standing to invoke s. 15 of the Charter. This issue may properly be left for future consideration. The sage advice of caution set forth by Estey J. in Law Society of Upper Canada v. Skapinker, 1984 CanLII 3 (SCC), [1984] 1 S.C.R. 357, can well be applied on this issue. At page 383 he wrote:

The development of the Charter, as it takes its place in our constitutional law, must necessarily be a careful process. Where issues do not compel commentary on these new Charter provisions, none should be undertaken.

Before leaving this matter, I must observe that I sympathize with the appellants who found themselves in a difficult position through no fault of their own. There is no doubt that the impugned provisions of the Federal Court Act and Crown Liability Act can create unnecessary hardships, delays, and additional unnecessary expense for litigants. Indeed, this has been recognized by Parliament which, on November 1, 1989, gave second reading to Bill C-38. That Bill would grant concurrent jurisdiction over claims against the Federal Crown to both the Federal Court and the provincial superior courts.

Disposition

In the result, I would dismiss the appeal but without costs and answer the constitutional questions as follows:

1.Are section 17(1) and (2) of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, as amended, and s. 7(1) of the Crown Liability Act, R.S.C. 1970, c. C-38, as amended, consistent with s. 15 of the Canadian Charter of Rights and Freedoms in so far as they confer exclusive jurisdiction in the Federal Court in relation to all claims against the Crown?

Answer: Yes.

2.If s. 17(1) and (2) of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, as amended, and s. 7(1) of the Crown Liability Act, R.S.C. 1970, c. C-38, as amended, or both, are inconsistent with s. 15 of the Canadian Charter of Rights and Freedoms, are they a reasonable limit within the meaning of s. 1 of the Charter?

Answer: This question need not be answered.

Appeal dismissed.

Solicitors for the appellants: McCarthy & McCarthy, Toronto.

Solicitor for the respondent: The Department of Justice, Ottawa.

Solicitor for the intervener the Attorney General for Ontario: Robert E. Charney, Toronto.

Solicitor for the intervener the Attorney General of Quebec: The Department of Justice, Québec.

Solicitor for the intervener the Attorney General for Alberta: Richard F. Taylor, Edmonton.