IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Oak Island International Group Ltd. v. Canada (Attorney General), 2003 NSSC 47
Date: 20030228
Docket: S.H. No. 142279
Registry: Halifax
Between:
Oak Island International Group Limited
Respondent
(Plaintiff)
v.
The Attorney General of Canada
Applicant
(Defendant)
Judge: The Honourable Justice Frank Edwards
Heard: February 24, 2003, in Halifax, Nova Scotia
Written Decision: February 28, 2003
Counsel: Reinhold M. Endres, Q.C., for the Applicant (Defendant)
Douglas A. Caldwell, Q.C., for the Respondent (Plaintiff)
By the Court:
[1] This is an application pursuant to Civil Procedure Rule 14.25(1)(d) to strike out the Respondent’s Statement of Claim on the ground that the proceeding constitutes an abuse of process of the court. Essentially, the application asserts that the Supreme Court of Nova Scotia does not have jurisdiction to entertain the Respondent’s claim for damages prior to successful conclusion of judicial review proceedings in the Federal Court of Canada.
[2] For the purposes of this application the facts are set out in the averments in the Statement of Claim.
[3] The allegations in the Statement of Claim derive from the issuance of 2 distinct fishing licenses and their stock allocations, which are authorized by sections 3, 4, 5 and 6 of the Coastal Fisheries Protection Act, R.S.C. 1985, c. C-21, as amended, and section 5 of the corresponding regulations.
[4] License I, a license permitting foreign vessels to fish, is referred to in paragraphs 8, 9, 11, 12, 13, 15, 17(a), (b), (d), (e), (f), (h) and (i), 18 (a), (d), (g), (h), (i) and (j), 19 (a), (c) and (d) of the Statement of Claim.
[5] License 2, a license permitting a foreign vessel to trans-ship, is referenced in paragraphs 9, 14, 17 (c) and 18 (a) of the Statement of Claim.
[6] The impugned decisions concerning licenses and fish allocations were made by the Minister of Fisheries and Oceans and under Coastal Fisheries Protection Act and/or the Fisheries Act.
[7] The Respondent is a body corporate, incorporated under the laws of Nova Scotia who was involved in the commercial pursuit of foreign markets for silver hake caught in Canadian waters.
[8] The Respondent contracted with the Cuban Fleet, Flota Cubana de Pesca, to fish silver hake in Canadian waters. The Respondent further contracted with Ocean Reefer Transport to transport the silver hake to their market in Egypt.
[9] There was a change in eligibility criteria for license 1 in 1995.
[10] The claim alleges that in 1995 there was a delay in the Respondent’s approval for a fishing license and a delay in granting the fish allocation or quota.
[11] The Respondent received a fish allocation for 1995 that was less than it had requested and which it viewed as insufficient.
[12] The respondent alleges that in 1996 the Respondent was denied a license to fish because it did not meet the 15% Canadian processing requirements from the previous year.
[13] The causes of action and damages alleged by the Respondent in the Statement of Claim all arise in relation to licensing decisions of the Minister of Fisheries and Oceans.
[14] In essence, according to the Applicant, the Respondent claims that the Minister acted in bad faith in exercising his discretion in respect to the issuance of the Respondent’s allocations and licenses.
[15] For its part, the Respondent says that its claim is based on three well established torts;
(1) abuse of public office (Statement of Claim, para. 17);
(2) interference with the respondent’s economic interests (Statement of Claim, para. 18); and
(3) interference with the Respondent’s economic relations (Statement of Claim, para. 19).
[16] Accordingly, the respondent claims that this court has concurrent jurisdiction with the Federal Court as the latter does not have exclusive jurisdiction over actions in tort. (See s. 21, Federal Crown Liability and Proceedings Act).
Does Section 18.1 of the Federal Court Act limit Oak Island’s ability to bring its action in the Supreme Court of Nova Scotia?
[17] Federal legislation can give the Federal Court exclusive jurisdiction over some matters through the scope of Section 101 of the Constitution Act, 1967. However, in the present circumstances, Section 18.1 of the Act does not prohibit Oak Island from bringing an action in tort against DFO in the Supreme Court of Nova Scotia.
[18] Section 18.1(1) of the Federal Court Act provides:
An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.
[19] Section 18.1 of the Federal Court Act would apply only if Oak Island was seeking to have DFO’s decision to change the licensing requirements reviewed or if it was seeking declaratory relief. Oak Island, however, is not asking for this type of relief. Rather, the causes of action pleaded by Oak Island, are independent torts for which it claims damages. Judicial review as provided for in 18.1 of the Federal Court Act is a wholly inadequate remedy since it cannot include an award of damages.
[20] In Horseman v. Horse Lake First Nation, [2002] A.J. No. 1020 (QB), the court needed to determine whether to strike the Plaintiff’s statement of claim on the basis that the Plaintiff should have brought her claim before the Federal Court, Trial Division. In particular, Watson, J. needed to determine the scope of judicial review under Section 18.1 of the Federal Court Act. The Applicant alleged that because the subject matter of the claim related to membership status within a First Nation Reserve, it should have come before the Federal Court, Trial Division for judicial review. The Plaintiff argued its subject matter related to tort, breach of contract, breach of statutory duty and fiduciary duty and was therefore properly before the superior court of the province.
[21] Given that this was an application to strike, Watson, J. determined that the Plaintiff needed only to show that it was not plain and obvious at this stage that her action was not based on a breach of contract, tort, breach of statutory duty or breach of fiduciary relationship. Watson, J. concluded that the Plaintiff’s action could not be so classified and determined that Section 18.1 of the Federal Court Act does not limit an individual’s right to bring a civil tort action against the government in the superior court of the province. At paragraph 80, Watson, J. stated:
I do not find those positions to make it plain and obvious that the proper interpretation of ss. 18 and 18.1 - bearing in mind the concepts of Rizzo Shoes – is to entirely exclude the potential scope of tort, contract or breach of statutory or fiduciary duty in this case from Court. I also do not find that the enactment of accessory jurisdiction of the Federal Court Trial Division related to judicial review motions forces such a conclusion either.
[22] Oak Island now seeks to recover damages from DFO on the basis that its officials abused their role in public office, interfered with Oak Island’s economic interests and interfered with its contractual relationships. Oak Island claims that DFO is at law responsible for the consequential economic loss that Oak Island has suffered as a result of the actions of its officials.
[23] The cause of actions that are raised in Oak Island’s pleadings are clearly issues of tort and not within the scope of judicial review. The Federal Court Act does not remove its right to have these claims brought before the superior court of this province or limit the jurisdiction of this court to hear them.
[24] The crux of the Applicant’s argument is that, when properly characterized, the Plaintiff/Respondent’s action is nothing more than a request for judicial review. The Applicant suggests that “tort” is no more than a label in the particular circumstances of this case. The Applicant argues that what the Respondent is really doing is impugning the decisions made by the Minister (and his officials) in the execution of his statutory powers. As such, he argues, the principles of judicial review of administrative decisions come into play. That being said, the exclusive jurisdiction to review such decisions rests with the Federal Court.
[25] As I have noted earlier, I am of the view that the alleged torts are well established. I am satisfied that they are not merely a facade to mask what in reality is a request for judicial review. At paragraph (71) of Horseman (supra), the Court crystallized the test:
There is no clear issue of vires that should be discussed at this stage of the process. What may arise at a trial is a different matter. The core issue at this stage is whether it is plain and obvious from the pleadings that the issues raised by the Amended Statement of Claim are not issues of contract, tort, statutory breach or fiduciary relationship law within the vires of the province and are excluded from this Court by operation of the Federal Court Act under the propositions in Miida Electronics. Are these issues shown to be exclusively given to federal jurisdiction and thereunder to the Federal Court?
[26] Likewise here, it is not plain and obvious that the issues raised by the Statement of Claim are not issues of torts within the vires of the province. The Court, in Horseman (supra) had earlier set out the Miida Electronics test in paragraph (68) as follows:
The test for determining if a subject matter is given to the Federal Court by operation of ss. 18 and 18.1 of the Federal Court Act was set out in Miida Electronics [see footnote 50]. In that case, the Supreme Court expressed a three part test as follows:
(A) There must be a statutory grant of jurisdiction by the federal Parliament to the Federal Court;
(B) 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; and
(C) 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.
[27] Applying that test here, there was no grant of jurisdiction over torts by Parliament to the Federal Court. Similarly, there is no existing body of federal tort law under the exclusive jurisdiction of Parliament. And finally, tort law is not a “law of Canada” (like the Coastal Fisheries Protection Act), as the phrase is used in s. 101 of the Constitution Act, 1967.
[28] The Applicant cites Mousseau v. Canada [1993] 107 D.L.R. (4th) 727 (N.S.C.A.) as the “backbone” of its argument. In its brief, the applicant sets out its argument relating to Mousseau:
The powers of the Minister to issue, cancel, deny, authorize or administer licenses, conditions and or quota allocations, are conferred by or under the Costal Fisheries Protection Act sections 3, 4, 5, 6 and specifically 6(b), and bring the decisions of the Minister within the definition of “federal board, commission, or other tribunal” in s. 2 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended:
federal board, commission or other tribunal” means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1967; s. 2 Federal Court Act,
The Federal Court Act provides exclusive and original jurisdiction for the judicial review of decisions of Ministers of the Crown in Right of Canada. Section 18 of the Federal Court Act provides that:
18.(1) Subject to section 28, the Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ or certiorari, writ of prohibition, writs of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.
(3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1.
Sections 18.1(3) and 18.1(4) of the Federal Court Act provide the grounds for review and the power of the court to make orders:
(3) On an application for judicial review, the Trial Division may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order or act proceeding of a federal board, commission or other tribunal.
4) The Trial Division may grant relief under subsection(3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.
Pursuant to the foregoing sections of the Federal Court Act, it is clear that Parliament has determined that the Federal Court shall exclusively superintend over the exercise of federal power by federal decision-makers. The jurisdiction of the Nova Scotia Supreme Court to do the same, directly or indirectly, is therefore ousted.
The Nova Scotia Court of Appeal, in a unanimous decision, reviewed the jurisdiction of the Nova Scotia Courts in the context of federal board or tribunal functions. The Court held that there is a distinction between the jurisdiction to determine the constitutional validity or applicability of legislation and the jurisdiction to examine the manner in which a board or tribunal functions under such legislation. The latter does not amount to a constitutional issue over which the provincial superior court has jurisdiction in the face of s. 18 of the Federal Court Act. Activities of federal agencies pursuant to federal laws are matters which can be scrutinized under the Charter only by a court which is otherwise one of competent jurisdiction within the meaning of section 24(1) of the Charter, which in this case would mean the Federal Court.
By the enactment of s. 18 of the Federal Court Act Parliament exercised this constitutional power to effectively divest provincial superior courts of the jurisdiction they had previously had over federal agencies and conferred this jurisdiction exclusively upon the Trial Division of the Federal Court.
The Statement of Claim does not raise a constitutional challenge to federal legislation over which the nova Scotia Supreme Court has jurisdiction. The Statement of Claim impugns the exercise of the Minister’s discretionary powers. In the face section 18 and 189.1 of the Federal Court Act, the Nova Scotia Supreme Court has no jurisdiction to superintend on the exercise of discretion by a federal Minister.
The Statement of Claim constitutes a series of allegations relating fundamentally to the exercise of the Minister’s discretion in the issuance of licences and allocations under the Coastal Fisheries Protection Act. Further, the alleged damages all result ultimately from these decisions and nothing else. The Applicant submits that the scrutiny of the Minister’s decision and the Minster’s exercise of federal statutory power is a matter for the Federal Court.
[29] It is clear that the Applicant’s argument is premised upon the acceptance of the proposition that this action is really judicial review dressed up as a tort action. As I explained earlier, I do not accept that premise. Further, In Mousseau, supra, the Respondents were not alleging torts committed by federal decision makers.
[30] In Mousseau, supra, the Respondents were status Indians who had lost their status after marrying non-natives. After federal legislation had restored their status, they had returned to the reserve and sought the housing assistance that other band members were entitled to. The Respondents claimed they were not provided with the same benefits and brought a Charter application in the Nova Scotia Supreme Court.
[31] Clearly, Mousseau, supra, is of no assistance to the applicant in this case. In Mousseau, supra, the jurisdiction to superintend the activity of the band council in a non-tort fact situation rested with the Federal Court. The facts in Mousseau, supra, lent themselves to judicial review. The reviewing Court could order the requested remedy. That being the case, the Federal Court was the court of competent jurisdiction and thus the proper Court to exercise Charter scrutiny.
[32] I am dismissing the application. The Respondent will have costs of o$1,500.00 in any event payable forthwith.
J.