Précis: The Federal Court of Appeal held that the Federal Court had no in personam jurisdiction over the Province of Alberta.
This was an in rem and in personam action against both the federal and provincial crowns and a vessel owned by the Alberta government. The action concerned a fatal accident that occurred on an Alberta lake. The plaintiffs alleged that the defendants were negligent in their performance of search and rescue duties. The Province of Alberta objected to the jurisdiction of the Federal Court over it and initially brought a motion to strike the statement of claim. That application was dismissed (see: Canada v Toney, 2011 FC 1440 and 2012 FCA 167). The parties then agreed that the issue of the in personam jurisdiction of the Federal Court over the Province of Alberta should be determined as a question of law and Alberta brought this application for such a determination. Alberta argued that the doctrine of Crown immunity applied and that it could not be bound by a federal statute. The motions Judge disagreed and held (at 2012 FC 1412) that the Federal Court did have in personam jurisdiction. In reaching this decision the motions Judge noted that the Federal Court had subject matter jurisdiction and further noted that s. 3 of the Marine Liability Act and s. 43(7) of the Federal Courts Act both permitted actions against a province. The Province of Alberta appealed.
Decision: Appeal allowed.
Held: The four basic principles are: first, the Crown (both federal and provincial) is prima facie immune from legislation; second, where Parliament (the federal Crown) has the authority to legislate in an area, a provincial Crown will be bound where Parliament so chooses; third, in order for a provincial Crown to be sued in the Federal Court, there must be some legislative provision permitting it; and fourth, the Federal Court must have jurisdiction over both the subject matter and the parties. The question is whether there is a legislative provision indicating a clear intent by Parliament to bind the province. The possibilities are ss. 22 and 19 of the Federal Courts Act and the Alberta Proceedings Against the Crown Act. Section 22 of the Federal Courts Act (granting jurisdiction “between subject and subject as well as otherwise”) does not contain a clear expression of intention to bind a Province. Section 19 of the Federal Courts Act (intergovernmental disputes) does not apply to claims by a private citizen and is therefore of no assistance. Finally, even though the Alberta Proceedings Against the Crown Act does not expressly reserve jurisdiction to the courts of Alberta, it also does not expressly grant jurisdiction to the Federal Court. In result, the appeal is allowed and the Federal Court has no in personam jurisdiction over the Province of Alberta.