NOTE
A New Development in the Jurisdiction of the Federal Court
Keith B. Farquhar*
The Federal Court Act stipulates that when
relief is sought for acts or omissions of Crown
servants the proper forum for the action is
the Federal Court. Until recently it appeared
to have been clearly established that a private
co-defendent could be joined in the action
only if the subject matter of the suit against
him, considered in isolation from the action
against the Crown, would also be within the
jurisdiction of the Federal Court. This “stand
alone” rule, which can have the effect of re-
:uiring the duplication of proceedings, has
aeen justified as necessary to maintain the
tntegrity of Canada’s dual court system. The
udgment of the Federal Court in the recent
ase of Marshall v. R. questions this ration-
lie, suggesting that judicial policy should
;eek to eliminate duplicate proceedings in or-
ler to reduce the burden on the plaintiff and
.o avoid contradictory judgements. In this
iote the author canvasses the authorities
)rior to Marshallto clarify the doctrinal basis
br the stand alone rule. He then examines
he Marshall decision, and a number of other
ecent Federal Court decisions. The author
Irgues that although the policy considera-
ions in Marshall have merit, the policy un-
lerlying the “stand alone” rule is even more
)ersuasive, and moreover is supported by
tuthority.
La Loi sur la Cour fed~rale stipule que la
Cour f:ed6rale est le tribunal appropri6 pour
obtenir r6paration pour des dommages
caus6s par le fait d’employ6s de Ia Couronne.
Jusqu’A tout r6cemment, il semblait clair
qu’un cod6fendeur priv6 ne pouvait 8tre mis
en cause dans une telle action que si la ma-
ti~re de la poursuite contre lui relevait aussi
de Ia juridiction de la Cour fed6rale, et cela
ind6pendamment du recours contre Ia Cou-
ronne. Ce critre dit ( stand alone test >>, qui
peut entrainer la duplication des procedures,
trouvait sa justification dans la n6cessit6 de
maintenir Ia dualit6 du systmejudiciaire ca-
nadien. La r~ente d6cision de la Cour fe-
d6rale dans l’affaire Marshall c. R. remet en
doute cette justification et sugg6re que la
Cour devrait 6liminer Ia duplication des pro-
cdures afin de faciliter la tfiche au deman-
deur et d’6viter des jugements contradic-
toires. L’auteur considre les autorit6s qui ont
pr&cd6 Marshall dans le but de clarifier Ia
base doctrinale du < stand alone test >. II ana-
lyse ensuite la d6cision Marshall de m~me
que d’autres dicisions rendues r6cemment
par la Cour fed6rale. Lauteur soutient que,
m~me si les motifs de la Cour dans Marshall
sont valables, les motifs invoqu6s pour le
maintien du ((stand alone test>> sont plus
convaincants et, qui plus est, jouissent de
l’appui des autorit6s sur Ia question.
‘Professor, Faculty of Law, University of British Columbia.
McGILL LAW JOURNAL
[Vol. 33
In International Terminal Operators v. Miida Electronics’ McIntyre J.,
surveying a considerable body of recent jurisprudence, held that there are
three essential requirements to support a finding of jurisdiction in the Fed-
eral Court. First, there must be a statutory grant ofjurisdiction by the federal
Parliament. Secondly, 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. Thirdly, the law on which the case is based must be
“a law of Canada” as the phrase is used in section 101 of the Constitution
Act, 1867. The purpose of this note is to point out and analyse recent de-
velopments concerning the first of these requirements,2 particularly as it
relates to suits between subject and subject as opposed to suits involving
the Crown.
It is axiomatic that the Federal Court may exercise only the jurisdiction
that is conferred on it by the Federal Court Act,3 and for present purposes
it is enough to contrast section 17 on the one hand, with sections 20, 22,
23 and 25 on the other. The latter sections specifically confer jurisdiction
“as well between subject and subject as otherwise” in a variety of specific
areas including industrial property, navigation and shipping, bills of ex-
change and promissory notes, aeronautics and interprovincial works. Sec-
tion 17, by contrast, conspicuously omits any reference to suits between
subject and subject. It provides in part as follows:
(1) The Trial Division has original jurisdiction in all cases where relief is
claimed against the Crown and, except where otherwise provided, the Trial
Division has exclusive original jurisdiction in all such cases.
(2) Without restricting the generality of subsection (1), the Trial Division has
exclusive jurisdiction except where otherwise provided, in all cases in which
the land, goods or money of any person are in the possession of the Crown or
in which the claim arises out of a contract entered into by or on behalf of the
Crown, and in all cases in which there is a claim against the Crown for injurious
affection.
(4) The Trial Division has concurrent original jurisdiction
‘International Terminal Operators v. Miida Electronics [1986] 1 S.C.R. 752 at 766, 28 D.L.R.
(4th) 641 at 650 [hereinafter LTO. cited to S.C.R.].
2Discussion of this topic is conventionally overshadowed by concern about the mystifying
nature of the second and third requirements, upon which there have been numerous com-
mentaries. See P.W. Hogg, Comment (1977) 55 Can. Bar Rev. 550; P.W. Hogg, “Federalism
and the Jurisdiction of Canadian Courts” (1981), 30 U.N.B.L.J. 9; J.B. Laskin & R.J. Sharpe,
“Constricting Federal Court Jurisdiction” (1980) 30 U.T.L.J. 283; J.M. Evans, Comment (1981)
59 Can. Bar Rev. 124; S.A. Scott, “Canadian Federal Courts and the Constitutional Limits of
Their Jurisdiction” (1982) 27 McGill L.J. 137.
3S.C. 1970-71-72 c. 1.
1988]
NOTE
(a) in proceedings of a civil nature in which the Crown or the Attorney
General of Canada claims relief; and
(b) in proceedings in which relief is sought against any person for anything
done or omitted to be done in the performance of his duties as an officer or
servant of the Crown.
The question has frequently arisen whether, when an action is begun
under section 17 against the Crown or its servants, a private defendant may
also be made a party to the action. Until recently it appeared to have been
clearly established that the private defendant could be joined only if the
subject matter of the action against him, considered in isolation from the
action against the Crown, would be within the jurisdiction of the Federal
Court. Two decisions of Madam Justice Reed of the Federal Court Trial
Division have brought this principle into question. In Marshall v. R. 4 and
Roy Little Chief v. R. and Youngman,5 she held that if the action against a
private individual is factually “intertwined” with the action against the
Crown the two actions should be joined and duplication of proceedings thus
avoided.
The Marshall decision has raised fundamental questions about the po-
licy underlying the allocation of judicial jurisdiction in Canada’s federal
system. The older authorities hold that duplication of proceedings is an
unavoidable hazard in a dual court system; Marshall advocates minimizing
the duplication of proceedings even if it means that the Federal Court’s
jurisdiction will be broadened. In the first part of this note, the jurisprudence
which preceded Marshall is presented. The Marshall and Little Chief de-
cisions are then examined, and the principles which emerge are contrasted
with those of the earlier cases. In the last part of this note, the reaction of
the Federal Court to Marshall is canvassed and criticized. Throughout, it
is argued that while the jurisdictional reforms advocated in Marshall have
some merit, the decision remains inconsistent with the authorities, and fails
to take full account of other equally persuasive policy considerations.
The Authorities Prior to Marshall
Very soon after the Federal Court was established, Collier J. decided
Anglophoto Ltd v. The Ikaros,6 in which the plaintiff consignee began an
action against a ship, its owners and a stevedoring company. The action,
brought both in contract and in tort, arose out of a carriage of goods by
sea, and short delivery was alleged. The stevedoring company moved to
dismiss the action against it for want of jurisdiction, and succeeded. After
4(1985), [1986] I EC. 437 (T.D.) [hereinafter Marshall].
5(11 June 1986) Vancouver T-2102-85 (FC.T.D.) [hereinafter Little Chief].
6[1973] EC. 483, 39 D.L.R. (3d) 446 (T.D.) [hereinafter Anglophoto cited to EC.].
REVUE DE DROIT DE McGILL
[Vol. 33
examining section 22 of the Federal Court Act at some length, Collier J.
concluded that there was no statutory authorization for the Court to hear
the action, and he propounded the following test:
I suggest a proper test to apply in approaching the question of jurisdiction is
to see whether this Court would have jurisdiction if the claim advanced against
one particular defendant stood alone and were not joined in an action against
other defendants over whom there properly was jurisdiction. 7
When the federal Crown is among several defendants, the actions
against the other defendants are to be notionally separated from the action
against the Crown, and examined as if the Crown were not involved. The
Federal Court has jurisdiction over these separate actions only if the subject
matter is within its competence. It is worth noting that in formulating this
test Collier J. fully recognized the possibility that the test would lead to the
duplication of proceedings, but accepted that possibility as “a fact of life in
a federal system such as we have in Canada.”‘8
The Anglophoto test was applied in a variety of subsequent cases9 and
the point reinforced that the mere presence of the federal Crown as a de-
fendant in an action was not sufficient “to give the Court jurisdiction, re-
gardless of the identity or character of the other defendants.”‘ 0 The issue
was faced directly in Lubicon Lake Band v. R.II in which the plaintiffs were
asserting various Aboriginal land claims, and brought an action in the Fed-
eral Court against the federal Crown and, inter alia, several oil companies.
Addy J., upon hearing a successful motion by the oil companies to strike
out the action against them, took the view that subsection 17(1) of the
Federal Court Act did not, on its face, authorize claims between subject and
subject, and held that it “merely refers to the party, namely, the Crown
against whom a claim may be made and remains silent as to the nature of
the claims which may be made.”‘ 2 This ruling was reinforced by a reference
to the principle that where a court is created by statute its jurisdiction ought
to be strictly interpreted. Because the words “between subject and subject”,
which appear in other jurisdictional sections of the Act, are omitted from
section 17, the section should be interpreted as affirmatively excluding such
actions.’ 3 At the same time Addy J. addressed the question of the duplication
7Ibid. at 498.
8lbid. at 497.
9E.g., Desbiens v. R. [1974] 2 EC. 20 (T.D.); Sunday v. St-Lawrence Seaiway Authority (1976),
[1977] 2 EC. 3, 72 D.L.R. (3d) 104 (T.D.) [hereinafter Sunday cited to EC.].
I0Sunday, ibid., per Marceau J. at 9.
“(1980), [1981] 2 EC. 317, 117 D.L.R. (3d) 247 (T.D.); aff’d (1981), 13 D.L.R. (4th) 159
[hereinafter Lubicon Lake Band cited to EC.].
‘2Ibid. at 321-22.
13Federal Court Act, supra, note 3, ss 20, 22, 23 and 25.
1988]
NOTE
of proceedings and held as had Collier J., that it is an inevitable phenomenon
in Canada’s federal system.
Marshall v. R.
In view of the previous authorities, the decision of Reed J. in Marshall
v. R.14 was surprising. The plaintiff had brought an action in the Federal
Court against the federal Crown and a federal iublic service union for
wrongful dismissal. The union, in reliance upon the earlier cases, applied
to have the action against it struck out for lack of jurisdiction. The appli-
cation was declined.
Madame Justice Reed first interpreted subsection 17(1) on the basis of
its plain meaning. She deduced that the section, because it referred to “cases
where relief is claimed against the Crown” rather than “claims against the
Crown”, must authorize actions against private defendants as long as the
Crown is being actively pursued as a co-defendant and the actions are “so
intertwined that findings of fact with respect to one defendant are intimately
bound up with those that would have to be made with respect to the other.”15
She based this principle on the belief that Parliament could not have in-
tended to encourage duplication of proceedings.
Reed J. then turned to the authorities. She ruled that they could all be
distinguished on the basis that in none of them had the causes of action
against the Crown and the private defendant been sufficiently “intertwined”.
Equally, she was of the opinion that in none of the earlier cases had the
meaning of subsection 17(1) been addressed in sufficient detail to be per-
suasive. This was as true of the Lubicon case as of any other.
Reed J. relied primarily on two cases. The first of these was The Ship
“Sparrows Point” v. Greater Vancouver Water District,16 in which an action
was brought in the Exchequer Court by the Water District against a ship
and the National Harbours Board, claiming for damage to some of its water
mains. The question was whether the Exchequer Court, in exercising its
admiralty jurisdiction over “damage by any ship”, could properly hear the
case against the Harbours Board. The Supreme Court of Canada held that
it could because of the responsibility borne by the Board for the ship’s
navigation. The issue was very different from that at stake in Marshall, as
Reed J. acknowledged; nevertheless Kellock J. (for the majority), did state
that one of the reasons for giving the Exchequer Court Act a broad reading
4Supra, note 4.
15Supra, note 4 at 449.
16 [1951] S.C.R. 396.
McGILL LAW JOURNAL
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was “to avoid the scandal of possible different results if more than one
action were tried separately.”‘ 17
The other decision mentioned by Reed J. in support of her position
was Davie Shipbuilding Ltd. v. R. and Morse.’8 In this case there was a
claim and counterclaim between Davie and the federal Crown, and Davie
sought to have a third party issue heard in the same proceedings in the
Federal Court. Gibson J., citing, inter alia, the Sparrows Point decision, held
that the Court’s admiralty jurisdiction was probably wide enough to support
the third party proceedings, but then went on to justify his decision further
by reference to “the ancillary jurisdiction concept.”‘ 9
At this point it is appropriate to mention the other, later, decision of
Reed J., namely, Roy Little Chief v. R. and Youngman.20 Here, members of
an Indian Band were alleging misappropriation of funds paid by the Crown
to a Band Council, and brought an action in the Federal Court against the
Crown and against members of the Council. The individual Council mem-
bers moved to strike out the claim on the basis of lack of jurisdiction, but
Reed J. applied the Marshall doctrine, asserting briefly that the facts in issue
were sufficiently “intertwined” and “closer to [those] in the Marshall case
than … in Lubicon.”‘2′ The Little Chief case, does not, therefore, appear
to add to the weight of the Marshall case, and demonstrates the highly
subjective nature of the “intertwined” test.
Criticisms of Marshall
There seems little doubt that the decision in Marshall, although rea-
soned at length, was the result of considerations of policy rather than of
precedent. While it might be difficult, taking the facts of Marshall in iso-
lation, to justify obliging the plaintiff to bring two sets of proceedings in
two sets of courts, the theme of duplication of proceedings is a recurrent
one in the cases, even at the level of the Supreme Court of Canada. In Bank
of Montreal v. Royal Bank of Canada22 the Bank of Montreal, having been
sued by the Crown in the Exchequer Court, sought an indemnity from the
Royal Bank by issuing a third party notice. The Bank of Montreal alleged
that the Exchequer Court could hear the third party proceedings by virtue
of section 30(d) of the Exchequer Court Act, which provided at the time
1’7 bid. at 404.
18(1978), [1979] 2 EC. 235, 90 D.L.R. (3d) 661 (T.D.) [hereinafter Davie Shipbuilding cited
to EC.].
19lbid. at 243.
20Supra, note 5.
21Ibid.
-[1933] S.C.R. 311.
1988]
NOTE
that the Court had jurisdiction “in all other actions and suits of a civil
nature at common law or equity in which the Crown is plaintiff or peti-
tioner.” It was held that this statutory provision ought to be construed
narrowly, and that because third party proceedings could be brought in a
provincial superior court, they should be brought there rather than in the
Exchequer Court.
The more recent decision of the Supreme Court of Canada in R. v.
Thomas Fuller Construction Co. confirmed this view.23 The case did not
involve statutory construction of the Federal Court Act; rather, the issue
was whether there was federal law to support a third party notice issued by
the Crown in Federal Court proceedings. The notice had been issued after
an action had been commenced against the Crown for breach of contract
and negligence. It had been argued that reason and convenience required
the Court to embrace a doctrine of “ancillary power” in order to avoid
duplication of proceedings, but Pigeon J., for the majority, dismissed the
argument:
It must be considered that the basic principle governing the Canadian system
of judicature is the jurisdiction of the superior courts of the provinces in all
matters federal and provincial … . Consequently I fail to see any basis for the
application of the ancillary power doctrine which is limited to what is truly
necessary for the effective exercise of Parliament’s legislative authority.24
It is submitted that, on the issue of principle, these two cases are more
compelling in their combined effect than those cited by Reed J. in Marshall.
Thus it is argued that, whatever the merits of Marshall taken in isolation,
the issue of policy has been addressed again and again, often at the highest
levels, and has almost always resulted in a finding that duplication of pro-
ceedings is an established, if not welcome, feature of a federal judicial land-
scape with two court systems.
A variety of other criticisms of varying degrees of technicality may be
levelled at the Marshall decision. First, an argument may be advanced that,
if the reasoning in the case is correct, there would follow the unusual con-
sequence that a number of private defendants could be sued only in the
Federal Court. Subsection 17(1) of the Federal Court Act stipulates that,
except where otherwise provided, the Trial Division has original and ex-
clusive jurisdiction where relief is claimed against the Crown. The broad
view of this subsection taken by Reed J. would seem to require that a plaintiff
who has a cause of action against the Crown would not be permitted to
bring an action against a private defendant, arising out of the same facts,
23(1979), [1980] 1 S.C.R. 695, 106 D.L.R. (3d) 193 [hereinafter Thomas Fuller Construction
cited to EC.].
24Ibid. at 713.
REVUE DE DROIT DE McGILL
[Vol. 33
in a provincial superior court. This surprising result would certainly be
contrary to a long line of authorities which have spoken of limiting, rather
than extending, the jurisdiction of both the Exchequer Court and the Federal
Court.
Secondly, although Reed J. distinguished some of the earlier decisions,
it is submitted that it is not self-evident that the facts in those cases were
intrinsically less “intertwined” than they were in Marshall. In any event,
the “stand alone” test formulated in Anglophoto25 is clearly incompatible
with the “intertwined” test. In a case in which the only justification for
suing a private defendant in the Federal Court is that (i) the Crown is also
a party, and (ii) the claim against the private defendant is intimately “in-
tertwined” with the case against the Crown, it is a logical impossibility for
the case against the private defendant to pass the Anglophoto test that the
Court would have jurisdiction only “if the claim against [the private de-
fendant] stood alone and were not joined in an action against [the Crown]
over whom there is properly jurisdiction. ’26
and therefore had not been rejected –
The third basis upon which Reed J. distinguished the earlier cases was
that her interpretation of subsection 17(1) had not been directly considered
–
in any of them. This, it is sub-
mitted, is not wholly supportable. The heart of the Marshall decision lies
in a broad construction of section 17, and this principle of construction has
been decisively rejected in a number of cases. This is particularly true of
Bank of Montreal v. Royal Bank of Canada,27 Sunday v. St. Lawrence Sea-
way Authority28 and Lubicon Lake Band v. R.29 In the latter case it is es-
pecially significant that Addy J. addressed himself directly to the meaning
of subsection 17(1) and that an appeal from his decision was dismissed. 30
Finally, in neither Marshall nor Little ChiefP did Reed J. mention the
decision of the Federal Court of Appeal in Stephens’ Estate v. Minister of
National Revenue.32 In Stephens the plaintiff began an action in the Federal
Court for damages for wrongful seizure and trespass said to have followed
an allegedly invalid notice of assessment issued by Revenue Canada. In
25Supra, note 6.
26Supra note 7.
27Supra, note 22.
28Supra, note 8.
29Supra, note 11.
31bid. It is fair to point out, however, that the appeal was dismissed without reasons and,
as Reed J. pointed out in Marshall, there may not have been detailed argument on the con-
struction to be placed on s. 17(1).
31Supra, note 5.
32(1982), 40 N.R. 620, (sub nom. Stephens v. R.) 26 C.PC. 1 (EC. A.D.) [hereinafter Stephens
cited to N.R.].
1988]
NOTE
addition to the Crown one of the defendants was a sheriff’s officer in Ontario.
He moved to strike out the action against him on the basis that he was not
an officer or servant of the Crown.33 LeDain J., for the Court, said:
The cause of action against the defendants other than the Crown, to the
extent that there is one, is in tort ….
The only head of Federal Court jurisdiction on which the claims against
the defendants other than the Crown can conceivably rest is para. 17(4)(b) of
the Federal Court Act ….
It was contended [on behalf of the sheriff’s officer] that he was not a servant
of the Crown in the right of Canada. I agree with that contention.34 [Emphasis
added]
The claim against the sheriff’s officer was struck out.
LeDain J. did not refer directly to subsection 17(1), nor of course, did
he refer to the “intertwining” doctrine. He, however, was of the opinion
that the case against the sheriff’s officer could be brought only pursuant to
paragraph 17(4)(b). In the light of the novel nature of the Marshall decision
it is regrettable that the Stephens case was not considered there.
Federal Court Decisions Following Marshall
The Marshall case, predictably, has not gone unnoticed and, although
it was decided recently, the point at issue has already been raised on a
number of subsequent occasions.35
In Roberts v. R. 36 one Indian band sued the Crown and another band
in the Federal Court over possession of land. The defendant band moved
to have the proceedings against it dismissed for want of jurisdiction, but
Joyal J., upon hearing the motion, declined to dismiss on the basis of Mar-
shall, Little Chief and the “intertwining doctrine”. On appeal, Hugessen J.
(Urie J. concurring) found that jurisdiction over the band could be taken
on other grounds, namely, by reference to paragraph 17(3)(c) of the Federal
Court Act. He was, however, carefully skeptical about the “intertwining”
doctrine. Having said that the Marshall approach gave him “some diffi-
culty”, and that it was “not an interpretation which [had] hitherto found
favour”, he said:
[It] remains that subsection 17(1) purports to grant exclusive jurisdiction; I
have difficulty accepting a proposition that would make so fundamental a
33See Federal Court Act, s. 17(4)(b).
34Supra, note 32 at 626-27.
35See, e.g., Little Chief, supra, note 5.
36[1987] 2 EC. 535, 36 D.L.R. (4th) 552 (A.D.) [hereinafter Roberts cited to EC.].
McGILL LAW JOURNAL
[Vol. 33
question, which must be determined at the time of the institution of the suit,
dependent upon so uncertain a base ….
I would prefer to leave the question of subsection 17(1) to another day
and to say no more on the matter.
Only MacGuigan J. adopted the Marshall interpretation, taking the view
that the cases against the Crown and the band were sufficiently intertwined.
Another recent case in which this issue arose in the Federal Court of
Appeal is Oag v. R.37 Here a tort claim was made against the Crown and
a variety of persons associated with the National Parole Board. It is sig-
nificant that a unanimous court (Thurlow C.J., Stone and Heald JJ.) dis-
posed of the question of statutory jurisdiction without any reference to the
“intertwining” doctrine, taking the view that the issue stood or fell with
exclusive reference to whether the defendants in question were “officers or
servants of the Crown” under paragraph 17(4)(b). For technical reasons it
was held that they were, and that jurisdiction was properly taken over them.
Most recently the issue has arisen in Wilder v. R. 38 In this case the
plaintiff alleged that there had been impropriety in the communication of
confidential tax information to American federal officials by Canadian of-
ficials. In the course of an action against the Crown and the Canadian
officials for breach of statutory duty and the tort of civil conspiracy, the
plaintiff sought leave, ex parte under Rule 307 of the Federal Court Rules,
to serve the American defendants exjuris. The claim against them amounted
to an allegation of participation in the civil conspiracy. Muldoon J. granted
leave and, despite the ex parte nature of the case, wrote a lengthy judgement
applying the criteria laid down in L TO.39 The significance of the judgment
for present purposes lies in the fact that Muldoon J. relied heavily on Mar-
shall and Little Chief He held that because jurisdiction properly lay against
the Crown under subsection 17(1) of the Federal Court Act, and against
Crown officials under paragraph 17(4)(b), it was appropriate to assert ju-
risdiction over the American officials. In other words, satisfying one or both
of those provisions was a condition precedent to jurisdiction over the private
defendants, provided that the case against them was sufficiently “inter-
twined” with the case against the Canadian defendants.
Despite the fact that Wilder v. R. was decided ex parte it has been
thought appropriate to refer to it at some length to indicate how attractive
the Marshall doctrine may be in some quarters, despite the authorities
against it. It need hardly be pointed out that the facts in Wilder could not
have justified the service ex juris from the Federal Court had the
37[1987] 2 EC. 511 (A.D.) [hereinafter Oag].
38[1987] 3 EC. 45, 9 ET.R. 140 (T.D.) [hereinafter Wilder cited to EC.].
39Supra, note 1.
19881
NOTE
Anglophoto4 test laid down by Collier J. been applied. There is nothing in
section 17, or indeed in any other section of the Federal Court Act, which
would support Federal Court jurisdiction if the claim against the American
officials “stood alone and were not joined in an action against other de-
fendants over whom there properly is jurisdiction. 41
The treatment by Muldoon J. of the earlier authorities was curious. He
recognised that the Stephens42 case is inconsistent with the Marshall view,
but in referring to Roberts43 he emphasised its dissimilarity on the facts
from Wilder, although acknowledging the overruled view of Joyal J. at trial,
and the minority view of MacGuigan J. on the appeal. The carefully ex-
pressed doubts of Urie and Hugessen JJ. about the Marshall case were not
referred to. In analysing the Oag44 decision, Muldoon J. appeared to hold
that the ruling was not inconsistent with asserting jurisdiction over persons
who were not “officers or servants of the Crown.”
Conclusion
If the avoidance of duplication of proceedings were the only issue in
Marshall, Little Chief and Wilder, it would be hard to adduce arguments
in principle against those decisions. Speaking of the obscure line dividing
the jurisdiction of the Federal Court and the provincial superior courts
drawn by the Supreme Court of Canada in Quebec North Shore Paper Co.
v. Canadian Pacific Ltd.,45 a leading Canadian constitutional authority com-
mented that “the burden of inadequate rules will be borne not by govern-
ments but by individual litigants who have no means of escape from the
uncertainties, expenses, delays, inconsistencies and injustices which are in-
herent in multiple lawsuits.” 46
It is submitted, however, that the problem of duplication of proceedings
is too complex for judicial intervention on a case by case basis. Recognition
that this is so, it is argued, underlies all of the earlier decisions in which
the courts have narrowly construed the Federal Court Act in spite of the
4Supra, note 7.
41Ibid.
42Supra, note 32.
43Supra, note 36.
44Supra, note 37.
4.(1976), [1977] 2 S.C.R. 1054.
“P.W. Hogg, ConstitutionalLaw of Canada, 2d ed. (Toronto: Carswell, 1985) at 148. Professor
Hogg’s criticism, however, is subject to his overriding view that Canada does not need a federal
court system at all. See Hogg, “Federalism and the Jurisdiction of Canadian Courts”, supra,
note 2.
REVUE DE DROIT DE McGILL
[Vol. 33
undesirability of multiple proceedings. 47 These decisions may also amount
to an acknowledgment that, even in the most carefully designed dual court
system, there will be some instances in which duplication is unavoidable,
simply because the two systems exist.
Two particular criticisms of the Marshall solution should be re-iterated.
The first is, as Hugessen J. pointed out in Roberts, 48 that the test of “in-
tertwining” is a very uncertain criterion upon which to base jurisdiction.
More often than not neither plaintiff nor defendant would, on this test, be
able to predict whether a cause of action against a private defendant properly
belongs in the Federal Court under section 17 of the Federal Court Act or
in a provincial superior court. Secondly, subsection 17(1) 49 provides for
exclusive original jurisdiction for the Trial Division. Thus, on the Marshall
reasoning, a plaintiff with a cause of action against the Crown may be forced
to litigate a related issue against a private defendant in the Federal Court,
even though preferring in reality to pursue the matter in a provincial superior
court. 50
These anomalies are, perhaps, the natural result of an attempt to bring
about substantial jurisdictional reform by judicial means, and it is suggested
that if the jurisdictional rules of the Federal Court are to be changed in the
interest of avoiding duplication of proceedings, the change should come
about by legislation. The relationship between the Federal Court and the
provincial superior courts is obviously a complex one, involving a consid-
eration of constitutional and political issues, as well as of less contentious
procedural matters like duplication of proceedings. A legislative approach
would permit all questions to be addressed comprehensively in a way not
available to the judiciary. It is suggested, therefore, that the Marshall case,
note 10; Sunday, supra, note 8; Anglophoto, supra, note 5.
47E.g. Bank ofMontreal v. Royal Bank of Canada, supra, note 15; Lubicon Lake Band, supra,
48Supra, note 36.
49This is not the case with s. 17(4)(b).
5The force of this criticism may be modified by Zutphen Bros. Construction v. Dywidag
Systems International (1987), 76 N.S.R. (2d) 398, 189 A.P.R. 398, 35 D.L.R. (4th) 433
(N.S.S.C.A.D.). Here the plaintiff had brought an action against the defendant in the Nova
Scotia Supreme Court. The defendant applied to add the federal Crown as a third party, but
was met with the objection by the Crown that s. 17 obliged the defendant to bring an action
against the Crown only in the Federal Court. The defendant challenged this position, submitting
that the application of s. 17 to this situation resulted in an infringement of the defendant’s
rights under, inter alia, s. 15(1) of the Canadian Charter of Rights and Freedoms. The Appeal
Division held that the exclusive nature of s. 17 did indeed infringe the defendant’s rights.
Crown privilege was an outdated concept and private plaintiffs should be placed in the same
position as the Crown, namely, able to choose whether to bring an action in either the Federal
Court or in the provincial superior courts. If the Zutphen view is maintained, the difficulty
occasioned by Marshall may diminish, as fewer plaintiffs may choose to bring their actions in
the Federal Court.
1988]
NOTE
inconsistent as it appears to be with earlier authorities, should for the time
being be treated as anomalous.
Author’s Note
Just before this article went to press, the Federal Court of Appeal gave
judgment in College of Physicians and Surgeons of British Columbia v.
Varnam and Minister of National Health. 51 In that decision, Hugessen J.
(Desjardins and Mahoney JJ. concurring) held that the “intertwining” doc-
trine was “too vague and elastic a standard upon which to found exclusive
jurisdiction in the Federal Court.” It was also held that Reed J. was mistaken
in her reading of subsection 17(1) of the Federal Court Act. In reaching this
conclusion Hugessen J. placed particular reliance on the references to juris-
diction as between subject and subject appearing in sections 20, 22, 23 and
25 of the Act. The decisions which precede Marshall cited in this article were
approved and said to represent “sound judicial policy. ”
51(22 February 1988) Ottawa A-245-87.
