Windsor (City) v. Canadian Transit Co., 2016 SCC 54, [2016] 2 S.C.R. 617

SUPREME COURT OF CANADA

Appeal heard: April 21, 2016 Judgment rendered: December 8, 2016 Docket: 36465

Between:

Corporation of the City of Windsor

Appellant

and

Canadian Transit Company

Respondent

• and -

Attorney General of Canada and

Federation of Canadian Municipalities

Interveners

Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.

Reasons for Judgment: (paras. 1 to 72) Joint Dissenting Reasons: (paras. 73 to 121) Dissenting Reasons: (paras. 122 to 131)

Karakatsanis J. (McLachlin C.J. and Cromwell, Wagner and Gascon JJ. concurring) Moldaver and Brown JJ. (Côté J. concurring) Abella J.

Windsor (City) v. Canadian Transit Co., 2016 SCC 54, [2016] 2 S.C.R. 617

The Corporation of the City of Windsor Appellant

v.

The Canadian Transit Company Respondent

and

Attorney General of Canada and

Federation of Canadian Municipalities Interveners

Indexed as: Windsor (City) v. Canadian Transit Co.

2016 SCC 54

File No.: 36465.

2016: April 21; 2016: December 8.

Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.

on appeal from the federal court of appeal

Courts — Jurisdiction — Federal Court — Relief sought under constitutional law — Company incorporated by federal legislation owning and operating Canadian half of bridge between Canada and United States — Company purchasing residential properties near bridge to facilitate maintenance and expansion — City issuing repair orders against properties pursuant to municipal by-law — Company applying to Federal Court for declarations that it has rights under its incorporating legislation which supersede municipal by-law — Whether Federal Court has jurisdiction to decide whether Company must comply with by-law and repair orders — Federal Courts Act, R.S.C. 1985, c. F-7, s. 23 — An Act to incorporate The Canadian Transit Company, S.C. 1921, c. 57.

The Canadian Transit Company owns and operates the Canadian half of the Ambassador Bridge connecting Windsor, Ontario, and Detroit, Michigan. The Company was incorporated in 1921 by An Act to incorporate The Canadian Transit Company (the “ CTC Act ”). The CTC Act empowered the Company to construct, maintain and operate a general traffic bridge across the Detroit River, to purchase, lease or otherwise acquire and hold lands for the bridge, and to construct, erect and maintain buildings and other structures required for the convenient working of traffic to, from and over the bridge. The CTC Act also declared the works and undertaking of the Company to be for the general advantage of Canada, triggering federal jurisdiction under the Constitution Act, 1867 .

The Company has purchased more than 100 residential properties in Windsor with the intention of eventually demolishing the homes and using the land to facilitate maintenance and expansion of the bridge and its facilities. Most of the homes are now vacant and in varying states of disrepair. The City of Windsor issued repair orders against the properties pursuant to a municipal by‑law. The Company has not complied with the repair orders. The parties have been engaged in proceedings relating to these repair orders in the Ontario Superior Court of Justice. In addition, the Company applied to the Federal Court for declarations to the effect that it has certain rights under the CTC Act which supersede the by‑law and the repair orders issued under it. The City moved to strike the Company’s notice of application on the ground that the Federal Court lacks jurisdiction to hear the application. The Federal Court struck the Company’s notice of application for want of jurisdiction. The Federal Court of Appeal set aside that decision. This appeal deals only with the preliminary issue of whether the Federal Court has jurisdiction to decide whether the Company must comply with the City’s by‑law and repair orders.

Held (Abella, Moldaver, Côté and Brown JJ. dissenting): The appeal should be allowed, the order of the Federal Court of Appeal set aside and the order of the Federal Court striking the Company’s notice of application reinstated.

Per McLachlin C.J. and Cromwell, Karakatsanis, Wagner and Gascon JJ.: The Federal Court does not have the jurisdiction to decide whether the City’s by‑law applies to the Company’s residential properties. The issue should be decided by the Ontario Superior Court of Justice.

To decide whether the Federal Court has jurisdiction over a claim, it is necessary to determine the essential nature or character of that claim. Determining the claim’s essential nature allows the court to assess whether it falls within the scope of s. 23 (c) of the Federal Courts Act , which grants jurisdiction to the Federal Court only when a claim for relief has been made, or a remedy has been sought, “under an Act of Parliament or otherwise”. In this case, it is clear that what the Company ultimately seeks is immunity from the requirements of the by‑law. The issue is therefore whether the Federal Court has the jurisdiction to decide a claim that a municipal by‑law is constitutionally inapplicable or inoperative in relation to a federal undertaking.

The Federal Court has only the jurisdiction it has been conferred by statute: it is a statutory court, without inherent jurisdiction. Accordingly, the language of the Federal Courts Act is completely determinative of the scope of the court’s jurisdiction. Parliament established the Federal Court pursuant to its competence, under s. 101 of the Constitution Act, 1867 , to establish “additional Courts for the better Administration of the Laws of Canada”. The role of the Federal Court is therefore constitutionally limited to administering federal law. The three‑part test for jurisdiction, set out by this Court in ITO —International Terminal Operators Ltd. v. Miida Electronics Inc. , 1986 91 (SCC) , [1986] 1 S.C.R. 752, is designed to ensure the Federal Court does not overstep this limited role. The first part of the test requires that a federal statute grant jurisdiction to the Federal Court. Section 23(c) grants jurisdiction to the Federal Court when “a claim for relief is made or a remedy is sought under an Act of Parliament or otherwise”, that is, when the claimant is seeking relief under federal law. The claimant’s cause of action, or the right to seek relief, must be created or recognized by a federal statute, a federal regulation or a rule of the common law dealing with a subject matter of federal legislative competence. The explicit language of s. 23 of the Federal Courts Act requires that the relief be sought under — and not merely in relation to — federal law. Requiring the right to seek relief to arise directly from federal law brings clarity to the scope of the Federal Court’s concurrent jurisdiction. Giving effect to the explicit wording of s. 23 minimizes jurisdictional disputes by ensuring that litigants know the scope of the Federal Court’s jurisdiction in advance. This will avoid unnecessary litigation, including disputes about whether the court should decline to exercise jurisdiction even if it has jurisdiction to hear the matter.

In this case, the Company is not seeking relief “under an Act of Parliament or otherwise”, as required by s. 23 (c). The Company is seeking relief under s. 23 (c) itself, or alternatively under the CTC Act . However, s. 23 is not itself a federal law under which the Company can seek relief. It confers on the Federal Court jurisdiction over certain claims, but does not confer on parties the right to make those claims in the first place. For that right, parties must look to other federal law. Further, although the CTC Act confers certain rights and powers (and imposes certain responsibilities) on the Company, it also does not give the Company any kind of right of action or right to seek the relief sought. The Company is in fact seeking relief under constitutional law, because constitutional law confers on parties the right to seek a declaration that a law is inapplicable or inoperative. A party seeking relief under constitutional law is not seeking relief “under an Act of Parliament or otherwise” within the meaning of s. 23; constitutional law cannot be said to be federal law for the purposes of s. 23. Therefore, s. 23(c) does not grant jurisdiction over the Company’s application to the Federal Court and t he first part of the ITO test for jurisdiction is not met. There is therefore no need to consider whether the second and third parts of the ITO test are met. Because the test is not met, it is plain and obvious that the Federal Court lacks jurisdiction to hear the application. The motion to strike the Company’s notice of application in the Federal Court must succeed.

Per Moldaver, Côté and Brown JJ. (dissenting): The Federal Court has jurisdiction to hear the Company’s application and the appeal should accordingly be dismissed.

The Federal Court’s jurisdiction should be construed broadly. The Federal Court was designed to achieve two objectives: ensuring that members of the public would have resort to a national court exercising a national jurisdiction when enforcing a claim involving matters which frequently involve national elements, and making it possible for litigants who live in different parts of the country to have a common and convenient forum in which to enforce their legal rights. These purposes are better served by a broad construction of its jurisdiction.

There is no need to characterize the essential nature of the case as a preliminary step in the analysis of jurisdiction. The test established in ITO —International Terminal Operators Ltd. v. Miida Electronics Inc. , 1986 91 (SCC) , [1986] 1 S.C.R. 752, provides a comprehensive framework of analysis for determining whether the Federal Court has jurisdiction. What matters is only whether there is a statutory grant of jurisdiction, whether federal law is essential to the disposition of the case, and whether the law is validly federal. The essential nature of the case is not relevant to whether the Federal Court has jurisdiction, but to whether it should exercise it. There may be cases in which — despite the ITO test being met — the Federal Court should consider declining jurisdiction.

The three branches of the ITO test are met in this case. First, s. 23(c) of the Federal Courts Act provides the necessary statutory grant of jurisdiction. The three crucial elements for s. 23(c) to amount to the required statutory grant of jurisdiction under the first branch of the ITO test are present here: the Company has claimed relief, its claim is in relation to a work or undertaking extending beyond the limits of a province, and the claim was made “under an Act of Parliament or otherwise in relation to” this international work or undertaking.

Requiring a federal statute to expressly create a cause of action before jurisdiction may be founded “under an Act of Parliament” within the meaning of s. 23 is unduly narrow and inconsistent with Parliament’s intent in creating the Federal Court. Section 23 should be construed broadly to ensure that, if the claim for relief is related to a federal work or undertaking and the rights being enforced arise from an Act of Parliament, the claimants may approach the Federal Court. In this case, the rights the Company seeks to enforce are sourced in two separate Acts of Parliament, both of which are essential to the ultimate relief sought by the Company: the CTC Act and the International Bridges and Tunnels Act . As such, since the claim for relief is related to a federal work or undertaking and the rights that the claimant seeks to enforce arise from Acts of Parliament, s. 23(c) confers a statutory grant of jurisdiction on the Federal Court.

The CTC Act also satisfies the second branch of the ITO test: it is essential to the disposition of this case and it nourishes the statutory grant of the Federal Court’s jurisdiction, because it is central to the constitutional claim. The declarations sought by the Company in the Federal Court make it clear that the dispute is generally concerned with the CTC Act and federal jurisdiction over federal works and undertakings, pursuant to the Constitution Act, 1867 . Two interrelated questions are at the heart of this dispute, both of which are intimately tied to the CTC Act : whether the properties purchased by the Company form part of the “federal work or undertaking” of the Ambassador Bridge, and, if so, whether those properties are immune from the municipal by‑law based on the doctrine of interjurisdictional immunity. Resolving these constitutional questions primarily entails interpreting the CTC Act . The CTC Act thus plays an essential role in the outcome of this case. As for the third branch of the ITO test, it is also satisfied since there is no dispute in this case that the CTC Act is valid federal law.

As all three branches of the ITO test are met in this case, the Federal Court has jurisdiction to hear the Company’s application. It remains for the Federal Court to decide whether it should exercise its jurisdiction to hear the Company’s application, or decline to do so in favour of the Superior Court of Justice. In deciding whether to exercise its jurisdiction, the Federal Court should consider whether the Company has an adequate and effective recourse in a forum in which litigation is already taking place, expeditiousness, and the economical use of judicial resources. In the present circumstances, there may be good reason for the Federal Court to decline to hear the Company’s application.

Per Abella J. (dissenting): The appeal should be dismissed in part and a stay of the Federal Court proceedings should be entered. This Court’s test in ITO —International Terminal Operators Ltd. v. Miida Electronics Inc. , 1986 91 (SCC) , [1986] 1 S.C.R. 752, has been met. However, notwithstanding that the Federal Court has concurrent jurisdiction with the Ontario Superior Court of Justice, it should not exercise it in this case. Both the Canadian Transit Company and the City appealed orders of the Property Standards Committee to the Ontario Superior Court. Rather than wait for the outcome of the appeals before the Superior Court, the Company sought to activate the Federal Court’s intervention.

It cannot be seriously contested that the issues raised by the Company in its Federal Court application can be resolved in the context of the parties’ ongoing litigation before the Superior Court. The result of the Company diverting the course of the proceedings into a jurisdictional side‑show is obvious — additional expense and delay in aid of nothing except avoiding a determination of the merits for as long as possible. To date, that jurisdictional diversion has cost the public a delay of three years. There is no basis for further delaying the Superior Court proceedings. In the words of the Federal Court’s rules, it is neither “just” nor “expeditious” for it to weigh in on these proceedings, needlessly complicating and extending them. Remitting the matter to the Federal Court to reach the irresistible conclusion that a stay is warranted adds needlessly to the expense and delay.

Cases Cited

By Karakatsanis J.

Applied: ITO —International Terminal Operators Ltd. v. Miida Electronics Inc. , 1986 91 (SCC) , [1986] 1 S.C.R. 752; Quebec North Shore Paper Co. v. Canadian Pacific Ltd. , 1976 10 (SCC) , [1977] 2 S.C.R. 1054; distinguished : Strickland v. Canada (Attorney General) , 2015 SCC 37 , [2015] 2 S.C.R. 713; referred to: Hodgson v. Ermineskin Indian Band (2000), 2000 15066 (FC) , 180 F.T.R. 285; JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue) , 2013 FCA 250 , [2014] 2 F.C.R. 557; Sifto Canada Corp. v. Minister of National Revenue , 2014 FCA 140 , 461 N.R. 184; Domtar Inc. v. Canada (Attorney General) , 2009 FCA 218 , 392 N.R. 200; Roitman v. Canada , 2006 FCA 266 , 353 N.R. 75; Canadian Pacific Railway v. R. , 2013 FC 161 , [2014] 1 C.T.C. 223; Verdicchio v. R. , 2010 FC 117 , [2010] 3 C.T.C. 80; R. v. Thomas Fuller Construction Co. (1958) Ltd. , 1979 187 (SCC) , [1980] 1 S.C.R. 695; Consolidated Distilleries, Ltd. v. The King , 1933 316 (UK JCPC) , [1933] A.C. 508; Attorney General of Canada v. Law Society of British Columbia , 1982 29 (SCC) , [1982] 2 S.C.R. 307; Québec Téléphone v. Bell Telephone Co. of Canada , 1971 160 (SCC) , [1972] S.C.R. 182; Ontario v. Criminal Lawyers’ Association of Ontario , 2013 SCC 43 , [2013] 3 S.C.R. 3; MacMillan Bloedel Ltd. v. Simpson , 1995 57 (SCC) , [1995] 4 S.C.R. 725; R. v. Cunningham , 2010 SCC 10 , [2010] 1 S.C.R. 331; Commonwealth of Puerto Rico v. Hernandez , 1973 184 (SCC) , [1975] 1 S.C.R. 228; Roberts v. Canada , 1989 122 (SCC) , [1989] 1 S.C.R. 322; Norrail Transport Inc. v. Canadian Pacific Ltd. (1998), 1998 7641 (FC) , 154 F.T.R. 161; Prudential Assurance Co. v. Canada , 1993 2948 (FCA) , [1993] 2 F.C. 293; Bensol Customs Brokers Ltd. v. Air Canada , 1979 4235 (FCA) , [1979] 2 F.C. 575; Northern Telecom Canada Ltd. v. Communication Workers of Canada , 1983 25 (SCC) , [1983] 1 S.C.R. 733; R. v. Henry , 2005 SCC 76 , [2005] 3 S.C.R. 609; The Queen v. Montreal Urban Community Transit Commission , 1980 4268 (FCA) , [1980] 2 F.C. 151; R. v. Lloyd , 2016 SCC 13 , [2016] 1 S.C.R. 130; Douglas/Kwantlen Faculty Assn. v. Douglas College , 1990 63 (SCC) , [1990] 3 S.C.R. 570; R. v. Big M Drug Mart Ltd. , 1985 69 (SCC) , [1985] 1 S.C.R. 295; David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. , 1994 3529 (FCA) , [1995] 1 F.C. 588.

By Moldaver and Brown JJ. (dissenting)

ITO —International Terminal Operators Ltd. v. Miida Electronics Inc. , 1986 91 (SCC) , [1986] 1 S.C.R. 752; Canada (Human Rights Commission) v. Canadian Liberty Net , 1998 818 (SCC) , [1998] 1 S.C.R. 626; Canada (Attorney General) v. TeleZone Inc. , 2010 SCC 62 , [2010] 3 S.C.R. 585; Bensol Customs Brokers Ltd. v. Air Canada , 1979 4235 (FCA) , [1979] 2 F.C. 575; Canadian Pacific Ltd. v. United Transportation Union , 1978 3597 (FCA) , [1979] 1 F.C. 609; Federal Liberal Agency of Canada v. CTV Television Network Ltd. , 1988 9409 (FC) , [1989] 1 F.C. 319; Pacific Western Airlines Ltd. v. The Queen , 1979 4191 (FCA) , [1979] 2 F.C. 476; Quebec North Shore Paper Co. v. Canadian Pacific Ltd. , 1976 10 (SCC) , [1977] 2 S.C.R. 1054; Canadian Western Bank v. Alberta , 2007 SCC 22 , [2007] 2 S.C.R. 3; Commission de transport de la Communauté urbaine de Québec v. Canada (National Battlefields Commission) , 1990 87 (SCC) , [1990] 2 S.C.R. 838; Rhine v. The Queen , 1980 220 (SCC) , [1980] 2 S.C.R. 442; Strickland v. Canada (Attorney General) , 2015 SCC 37 , [2015] 2 S.C.R. 713.

By Abella J. (dissenting)

ITO —International Terminal Operators Ltd. v. Miida Electronics Inc. , 1986 91 (SCC) , [1986] 1 S.C.R. 752; Coote v. Lawyers’ Professional Indemnity Co. , 2013 FCA 143 ; Strickland v. Canada (Attorney General) , 2015 SCC 37 , [2015] 2 S.C.R. 713.

Statutes and Regulations Cited

Act to incorporate The Canadian Transit Company , S.C. 1921, c. 57, ss. 2, 8.

Canada Act 1982 (U.K.), 1982, c. 11, s. 1.

Canada Transportation Act , S.C. 1996, c. 10, s. 116(5).

Carriage by Air Act , R.S.C. 1985, c. C‑26.

Constitution Act, 1867 , ss. 91, 92(10) ( a ), ( c ), (14) , 96 , 100 , 101 .

Constitution Act, 1982 , ss. 38 to 49 , 52 .

Exchequer Court Act , R.S.C. 1970, c. E‑11, ss. 17 to 30.

Federal Court Act , S.C. 1970‑71‑72, c. 1 [reproduced in R.S.C. 1970, c. 10 (2nd Supp.)].

Federal Courts Act , R.S.C. 1985, c. F‑7, ss. 2 “relief”, 3, 4, 18, 23, 50(1).

Federal Courts Rules , SOR/98‑106, rr. 3, 221(1)(a).

Highway Traffic Act , R.S.O. 1990, c. H.8.

International Bridges and Tunnels Act , S.C. 2007, c. 1, s. 5.

Property Standards By‑law , City of Windsor By‑law No. 147‑2011, September 6, 2011.

Radiocommunication Act , R.S.C. 1985, c. R‑2, s. 18(1).

Supreme and Exchequer Court Act , S.C. 1875, c. 11.

Authors Cited

Canada. House of Commons. House of Commons Debates , vol. V, 2nd Sess., 28th Parl., March 25, 1970, p. 5473.

Hogg, Peter W. Constitutional Law of Canada , 5th ed. Supp. Toronto: Carswell, 2007 (updated 2015, release 1).

Saunders, Brian J., Donald J. Rennie and Graham Garton. Federal Courts Practice 2014 . Toronto: Carswell, 2013.

Scott, Stephen A. “Canadian Federal Courts and the Constitutional Limits of Their Jurisdiction” (1982), 27 McGill L.J. 137.

APPEAL from a judgment of the Federal Court of Appeal (Dawson, Stratas and Scott JJ.A.), 2015 FCA 88 , [2016] 1 F.C.R. 265, 384 D.L.R. (4th) 547, 472 N.R. 361, 98 Admin. L.R. (5th) 181, [2015] F.C.J. No. 383 (QL), 2015 CarswellNat 816 (WL Can.), setting aside a decision of Shore J., 2014 FC 461 , 455 F.T.R. 154, [2014] F.C.J. No. 495 (QL), 2014 CarswellNat 1598 (WL Can.). Appeal allowed, Abella, Moldaver, Côté and Brown JJ. dissenting.

Christopher J. Williams , Courtney V. Raphael and Jody E. Johnson , for the appellant.

John B. Laskin and James Gotowiec , for the respondent.

Sean Gaudet and Marc Ribeiro , for the intervener the Attorney General of Canada.

Stéphane Émard‑Chabot and Marie‑France Major , for the intervener the Federation of Canadian Municipalities.

The judgment of McLachlin C.J. and Cromwell, Karakatsanis, Wagner and Gascon JJ. was delivered by

Karakatsanis J. —

I. Introduction

II. Facts

III. Statutory Provisions

101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.

23 Except to the extent that jurisdiction has been otherwise specially assigned, the Federal Court has concurrent original jurisdiction, between subject and subject as well as otherwise, in all cases in which a claim for relief is made or a remedy is sought under an Act of Parliament or otherwise in relation to any matter coming within any of the following classes of subjects:

(c) works and undertakings connecting a province with any other province or extending beyond the limits of a province.

IV. Decisions Below

A. Federal Court, 2014 FC 461 , 455 F.T.R. 154 — Shore J.

B. Federal Court of Appeal, 2015 FCA 88 , [2016] 1 F.C.R. 265 — Dawson, Stratas and Scott JJ.A.

V. Analysis

A. Essential Nature of the Company’s Claim

1. A declaration that the Ambassador Bridge, including its approaches, terminal facilities, machinery and appurtenances, is a federal undertaking;

2. A declaration that the applicant The Canadian Transit Company (“CTC”) has, pursuant to its enabling legislation, An Act to incorporate The Canadian Transit Company , 11-12 George V., 1921, c. 57, as amended (the “CTC Act”):

(a) the right to purchase, lease or otherwise acquire and hold lands for the Ambassador Bridge and its terminal yards, including its accommodation works and facilities, as CTC thinks necessary in its discretion;

(b) the right to expropriate and take an easement in, over, under or through any lands without the necessity of acquiring a title in fee simple thereto; and

(c) an obligation, as set out in By-Law Number 1606 of The Town of Sandwich (“Sandwich By-Law”), to keep and maintain the Ambassador Bridge and all works connected therewith in good order and condition and of sufficient strength and capacity at all times to sustain and protect such machinery and structures and also the vehicles and traffic that may be carried or allowed thereon;

3. A declaration that, pursuant to paragraphs 1 and 2 above, the Corporation of the City of Windsor By-Law Number 147-2011, titled a By-Law to Establish Standards for the Maintenance and Occupancy of All Property in the City of Windsor and to Repeal By-Law 156-2005 (the “By- Law”), does not apply to properties purchased, leased or otherwise acquired and held by CTC pursuant to its enabling legislation;

4. A declaration that certain properties purchased by CTC which are immediately west of and/or adjacent to the Ambassador Bridge (the “Properties”) are necessary for the continued operation and maintenance of the Ambassador Bridge;

(A.R., vol. I, at pp. 47-48)

B. Overview of the Role and Jurisdiction of the Federal Court

C. The ITO Test for Jurisdiction

1. There must be a statutory grant of jurisdiction by the federal Parliament.

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 the phrase is used in s. 101 of the Constitution Act, 1867 .

D. ITO Part 1: Statutory Grant of Jurisdiction

23 Except to the extent that jurisdiction has been otherwise specially assigned, the Federal Court has concurrent original jurisdiction, between subject and subject as well as otherwise, in all cases in which a claim for relief is made or a remedy is sought under an Act of Parliament or otherwise in relation to any matter coming within any of the following classes of subjects:

(c) works and undertakings connecting a province with any other province or extending beyond the limits of a province.

(1) jurisdiction must not have been “specially assigned” to another court;

(2) the claim for relief must be made, or the remedy must be sought, “under an Act of Parliament or otherwise”; and,

(3) the claim for relief must be made, or the remedy must be sought, “in relation to” a work or undertaking connecting a province with any other province or extending beyond the limits of a province.

The Constitution Act, 1867 , as amended, is not of course a “law of Canada” in the sense of the foregoing cases because it was not enacted by the Parliament of Canada. The inherent limitation placed by s. 101 , supra , on the jurisdiction which may be granted to the Federal Court by Parliament therefore might exclude a proceeding founded on the Constitution Act .

This passage is not equivocal on the issue of whether the Constitution Act, 1867 is one of the “Laws of Canada” denoted by s. 101 . Although obiter , the comments were intended to provide guidance and should be accepted as authoritative (see R. v. Henry , 2005 SCC 76 , [2005] 3 S.C.R. 609, at para. 57 ).

E. ITO Part 2: Federal Law Essential to Disposition

F. Power to Make Constitutional Declarations

VI. Disposition

The reasons of Moldaver, Côté and Brown JJ. were delivered by

I. The Federal Court’s Jurisdiction Should Be Construed Broadly

II. Identifying the Essential Nature of the Case Is Not Necessary

There is always a residual discretion in the inherent jurisdiction of the provincial superior court (as well as in the Federal Court under s. 50(1) of its Act), to stay the damages claim because in its essential character, it is a claim for judicial review with only a thin pretence to a private wrong. [para. 78]

Significantly, this statement went not to whether the Federal Court has jurisdiction, but to whether it should exercise it.

III. The ITO Test Is Met

A. Section 23 (c) of the Federal Courts Act Grants Jurisdiction

The plaintiffs, if they wish to continue against all defendants, must pursue their remedy in more than one court. Multiplication of proceedings raises the spectre of different results in different courts. The plaintiffs then face the question, in respect of the defendants, other than the Crown: the court of which province, or perhaps more than one province? . . .

The situation is lamentable. There are probably many other persons who have claims arising out of this air disaster. The jurisdictional perils must be, to all those potential litigants, mystifying and frightening. [p. 490]

Therefore, s. 23 should be construed broadly to ensure that, if the claim for relief is related to a federal work or undertaking and the rights being enforced arise from an Act of Parliament, the claimants may approach the Federal Court.

8. Subject to the provisions of The Railway Act, 1919 , and of the Navigable Waters’ Protection Act , the Company may, —

( e )_ and the Company may purchase, lease or otherwise acquire and hold lands for the bridge, tracks, terminal yards, accommodation works and facilities, and construct and erect and maintain buildings and other structures required for the convenient working of traffic to, from and over the said bridge, and for said lines of railway as the Company thinks necessary for any of the said purposes;

B. The CTC Act Plays an Essential Role in the Outcome of the Case

Different cases use different words and approaches to describe the degree of federal law that is sufficient. ITO —International Terminal Operators , above, inquires into whether provincial law is only “incidentally necessary” to the federal law in the case (at pages 781-782). Other authorities start with the federal law and ask whether it bears upon the case. For example, one formulation is whether “the rights and obligations of the parties are to be determined to some material extent by federal law” or whether the cause of action “is one affected” by federal law: Bensol Customs Brokers Ltd. v. Air Canada , 1979 4235 (FCA) , [1979] 2 F.C. 575 (C.A.), at page 583. Yet another formulation is whether “the federal statute has an important part to play in determining the rights of the parties”: R. v. Montreal Urban Community Transit Commission , 1980 4268 (FCA) , [1980] 2 F.C. 151, (C.A.), at page 153.

At bottom, the court must determine whether federal law will play a primary role in the outcome of the case. Where federal law provides an essential framework for the application of provincial law, the Federal Court “may apply provincial law incidentally necessary to resolve the issues” ( ITO , at p. 781; F.C.A. reasons, at paras. 37 and 40).

C. The CTC Act Is Valid Federal Law

IV. Conclusion

The following are the reasons delivered by

Appeal allowed with costs, Abella , Moldaver , Côté and Brown JJ. dissenting.

Solicitors for the appellant: Aird & Berlis, Toronto.

Solicitors for the respondent: Torys, Toronto.

Solicitor for the intervener the Attorney General of Canada: Attorney General of Canada, Toronto.

Solicitors for the intervener the Federation of Canadian Municipalities: Federation of Canadian Municipalities, Ottawa; Supreme Advocacy, Ottawa.

[1] This includes powers which, although not expressly conferred by statute, are “necessarily implied in the [statutory] grant of power to function as a court of law”, such as the power to control the court’s processes ( R. v. Cunningham , 2010 SCC 10 , [2010] 1 S.C.R. 331, at para. 19 , per Rothstein J.).

[2] Although the Federal Courts Act describes the Federal Court as a “superior court” ( ss. 3 and 4), this description means only that its jurisdiction is “supervisory” ( Commonwealth of Puerto Rico v. Hernandez , 1973 184 (SCC) , [1975] 1 S.C.R. 228, at p. 233, per Pigeon J.). The Federal Court is not a superior court in the true sense of possessing inherent jurisdiction.

[3] see Erratum to be published at [2017] 1 S.C.R. iv

[4] An Act to incorporate The Canadian Transit Company , S.C. 1921, c. 57 (“ CTC Act ”).

[5] Before this Court and the Federal Court of Appeal, the Company also raised the constitutional doctrine of paramountcy. However, the Company’s notice of application before the Federal Court does not clearly raise paramountcy concerns. Accordingly, we have limited our analysis here to interjurisdictional immunity. That said, our conclusions would not change if a paramountcy argument formed part of the Company’s application.