The Robert Simpson Montreal Limited (Plaintiff)
v.
Hamburg-Amerika Linie Norddeutscher, Lloyd
Ernst Russ, and Montreal Shipping Company
Limited (Defendants)
Court of Appeal, Jackett C.J., Thurlow J. and
Hyde D.J—Montreal, December 17, 1973.
Maritime law—Jurisdiction—Parties—Action against ship
for loss of cargo—Ship claiming indemnity from wharfin-
ger—Jurisdiction—Federal Court Act, s. 22—The British
North America Act, 1867, s. 91(10).
Plaintiff brought action against a carrier and shipowner
alleging that upon the ship's arrival in Montreal, plaintiff's
cargo was found in a short and damaged condition. The
carrier and shipowner denied liability and alleged that the
damage occurred after the cargo was discharged into the
custody of terminal operators, and by third party notices
claimed indemnity from them.
Held, reversing Walsh J. ([1973] F.C. 304), the appeal is
allowed and the application to dismiss the Third Party
proceedings is dismissed. The operation of removing goods
from a ship after completion of the ocean voyage and
delivering them to the consignee, either immediately or after
a delay, whether carried out by the carrier or by someone
else under arrangement with the carrier are activities essen
tial to the carriage of goods by sea.
Per Jackett C.J. and Hyde DI: The performance of such
acts as are essential parts of "transportation by ship" fall
within the words "navigation and shipping" in section
91(10) of The British North America Act, 1867. The Trial
Division has jurisdiction in the matter by virtue of it coming
within the class of subject of "navigation and shipping" in
section 22(1) of the Federal Court Act without it being
necessary to consider whether any of the other branches of
section 21(1) apply.
Re Industrial Relations and Disputes Investigation Act
[1955] S.C.R. 529, followed; Consolidated Distilleries
Ltd. v. Consolidated Exporters Corp. Ltd. [1930] S.C.R.
531; Consolidated Distilleries Ltd. v. The King [1933]
A.C. 508, applied.
Per Thurlow J.: There is nothing in section 22(2) which
decreases the scope or extent of the jurisdiction which the
expressions used in section 22(1) would embrace but it is
necessary to read with it the definitions of "Canadian mari
time law" and "laws of Canada" in section 2 of the Act. The
"Canadian maritime law" which the Trial Division is given
authority to administer by section 22(1) means the whole of
the law which the Exchequer Court would have adminis
tered if it had had on its Admiralty side "unlimited jurisdic-
tion in relation to maritime and admiralty matters". The
words "as that law has been altered by this or any other Act
of the Parliament of Canada" do not limit the generality of
what precedes them.
Held also (per curiam): reversing Walsh J., the statement
of claim should not be interpreted as limiting the action to so
much of damages, if any, to the goods that occurred during
the voyage.
APPEAL.
COUNSEL:
Vincent Prager for The Robert Simpson
Montreal Ltd.
Edouard Baudry for Hamburg-Amerika
Linie Norddeutscher and Lloyd Ernst Russ.
David Marler for Montreal Shipping Co.
Ltd.
SOLICITORS:
Stikeman, Elliott, Tamaki, Mercier and
Robb, Montreal, for The Robert Simpson
Montreal Ltd.
Brisset, Reycraft, Bishop and Davidson,
Montreal, for Hamburg-Amerika Linie Nord-
deutscher and Lloyd Ernst Russ.
Chauvin, Marler, Dion and Saucier, Mont-
real, for Montreal Shipping Co. Ltd.
JACKETT C.J. (orally)—This is an appeal from
an order dismissing Third Party Notices issued
by two of the defendants in an action com
menced by Writ of Summons under the Admi
ralty Rules on March 1, 1971, for "Shortage to
Cargo".
The style of cause on the Writ of Summons
describes the defendants, "Hamburg-Amerika
Linie Norddeutscher" and "Lloyd Ernst Russ",
as "at all material times the owners and/or oper
ators and in any event the parties interested in
the ship `Buchenstein'. "
As nearly as can be determined from the
Statement of Claim, which was filed February
19, 1973, the action was for damages in the sum
of $815.75 resulting (although this is nowhere
expressly said) from delivery of goods which
had been shipped by the ship "Buchenstein"
from Belgium to Canada in "short, damaged and
deteriorated condition". There is an allegation in
the Statement of Claim that the plaintiff was
"holder" of a Bill of Lading under which the
goods were received upon board the "Buchen-
stein" but there is no allegation in it as to the
parties to the Bill of Lading. (It may be that one
is expected to imply that Hamburg-Amerika
Linie Norddeutscher or Lloyd Ernst Russ, or
both, is or were the carriers on whose behalf the
Bill of Lading was issued.')
On February 20, 1973, a Statement of
Defence was filed on behalf of Hamburg-
Amerika Linie Norddeutscher and Lloyd Ernst
Russ, which casts no light upon the relationship
of either defendant to the shipment in question.
That statement refers inter alia to the Bill of
Lading that is "referred to" in the Statement of
Claim and in particular to a clause therein
"relating to non-responsibility of loss and/or
damage occurring after discharge" and alleges
that the shipment was discharged and placed
into the Harbour transit shed ... "in the same
condition and order as when placed on board
the vessel ... at Antwerp".
On the same day as that Statement of
Defence was filed, Third Party Notices were
directed on behalf of the same two defendants
to Eastern Canada Stevedoring Division of War-
nock Hersey International Ltd. and Montreal
Shipping Company Limited. Each of these
notices states that the action was brought
against such defendants relating to the alleged
loss and damage from a shipment carried on the
aforesaid vessel "which shipment has been
alleged was delivered in a short, damaged and
deteriorated condition when plaintiff presented
itself for delivery of same at the Harbour Trans
it shed ...". Each of the Third Party Notices
states that the two defendants in question claim
to be indemnified by the Third Parties "as the
said shipment was discharged from the
vessel ... by you and placed in the Harbour
transit shed ... where the loss and/or damage
of the shipment occurred while it was in your
possession ... as terminal operators and
alleges that "At the material time" you per
formed a joint venture as terminal operators .. .
and by agreement with these Defendants, you
were in charge of all cargo ..., for reward, and
assumed responsibility for the providing of shed
facilities, receiving, delivering, watching, sorting
of the cargo and of insuring against loss."
A motion was thereupon made to the Trial
Division, upon behalf of the Third Parties, that
the Third Party Notices be dismissed on
grounds which are stated in the Notice of
Motion as follows:
WHEREAS the main action herein is in payment of a sum of
$815.75 representing allegedly the value of goods lost or
damaged after being received by Defendants herein for
carriage on board the vessel "BUCHENSTEIN" from Antwerp,
Belgium, to Montreal, P.Q.
WHEREAS Defendants herein have caused to be served on
Third Party Defendants Third Party Notices alleging that
should Defendants fail in their defence to the action they
claim to be indemnified by Third Party Defendants on the
ground that the alleged shortage and/or damage occurred
following discharge of the cargo at Montreal, "while it was
in your possession, care, custody and control as terminal
operators".
WHEREAS this Honourable Court does not have jurisdic
tion over such a claim in indemnity as appears from the
Federal Court Act.
That motion was granted by judgment of the
Trial Division dated March 26, 1973.
This appeal is from the judgment of the Trial
Division dismissing the Third Party proceedings.
While the Notice of Motion indicated that the
motion to dismiss was to be based on the
ground that the Trial Division did not have
jurisdiction, the learned trial judge, in addition
to holding that the Court had no jurisdiction in
the matter, appears to have based his judgment
on the ground that the plaintiff's claim was
restricted, by the Statement of Claim, to a loss
that occurred before the goods were discharged
and that any claim over against the Third Parties
for indemnity in respect of such a loss must fail.
Apart from any question as to whether this
ground was open to him having regard to the
wording of the Notice of Motion, I am of the
view that the Statement of Claim must be read
as disclosing a cause of action for damages for
failure to deliver in good order the goods that
were the subject matter of the Bill of Lading,
and I am not satisfied that the Statement of
Claim is worded so as to confine the action to
so much of such damages, if any, as may have
resulted from loss of, or damage to, the goods
that occurred during the voyage. If the State
ment of Claim is, as I conceive that it is, open to
the interpretation that the plaintiff is claiming
for any damages for failure to deliver the ship
ment in good order even though such failure
resulted from loss or damage arising while the
goods were in the hands of the Third Parties,
this was not a valid ground for dismissing the
Third Party Notices.
The jurisdictional question raised by this
appeal depends upon the effect of certain of the
jurisdictional provisions in the Federal Court
Act. In this connection, reference may be made
to the following provisions of that Act:
2. In this Act
(b) "Canadian maritime law" means the law that was
administered by the Exchequer Court of Canada on its
Admiralty side by virtue of the Admiralty Act or any
other statute, or that would have been so administered if
that Court had had, on its Admiralty side, unlimited
jurisdiction in relation to maritime and admiralty matters,
as that law has been altered by this or any other Act of
the Parliament of Canada;
(j) "laws of Canada" has the same meaning as those
words have in section 101 of The British North America
Act, 1867;
22. (1) The Trial Division has concurrent original jurisdic
tion as well between subject and subject as otherwise, in all
cases in which a claim for relief is made or a remedy is
sought under or by virtue of Canadian maritime law or any
other law of Canada relating to any matter coming within
the class of subject of navigation and shipping, except to the
extent that jurisdiction has been otherwise specially
assigned.'
42. Canadian maritime law as it was immediately before
the coming into force of this Act continues subject to such
changes therein as may be made by this or any other Act.
In the first instance, these provisions require
some examination to establish the overall
scheme of the legislation in this connection. By
virtue of section 22(1), the Trial Division has
jurisdiction in a case in which a claim for relief
is made or a remedy is sought under or by virtue
of
(a) Canadian maritime law, or
(b) any other law of Canada coming within
the class of subject of navigation and
shipping,
except to the extent that jurisdiction has been
otherwise specially assigned.
Canadian maritime law breaks into two head
ings (section 2(b)), viz:
(a) the law that was administered by the Ex
chequer Court of Canada on its Admiralty
side by virtue of the Admiralty Act or any
other statute, and
(b) the law that would have been administered
by the Exchequer Court on its Admiralty side
if the Court had had "unlimited jurisdiction in
relation to maritime and admiralty matters" . 3
The words "law of Canada relating to any
matter coming within the class of subject of
navigation and shipping" would certainly extend
to any statute enacted by the Parliament of
Canada under the powers vested in it by section
91(10) of The British North America Act,
1867. 4 Moreover, the expression "laws of Cana-
da" in this context has the same meaning (sec-
tion 2(j) of the Federal Court Act) as in section
101 of The British North America Act, 1867, 5
and those words in that section would seem to
embrace not only a statute actually enacted by
the Parliament of Canada but also a law "that it
would be competent for the Parliament of
Canada to enact, modify or amend." (Compare
Consolidated Distilleries Ltd. v. Consolidated
Exporters Corp. Ltd. [1930] S.C.R. 531 6 per
Anglin C.J.C. (giving the judgment of the
majority of the Court) at page 535.) Indeed, it
would seem to be the opinion expressed by the
Judicial Committee (as an essential part of the
reasoning by which it reached the conclusion
that the Exchequer Court had jurisdiction in the
subject matter of Consolidated Distilleries Ltd.
v. The King [1933] A.C. 508) that Parliament
can confer jurisdiction on a section 101 court to
entertain "actions and suits in relation to some
subject-matter legislation in regard to which is
within the legislative competence of the Domin
ion". (See Appendix)
To summarize, section 22(1) would seem to
confer jurisdiction on the Trial Division
(a) in an action or suit where a claim for relief
is made or a remedy is sought under or by
virtue of the law that was administered by the
Exchequer Court on its Admiralty side by
virtue of the Admiralty Act or any other
statute,
(b) in an action or suit where a claim for relief
is made or a remedy is sought under or by
virtue of the law that would have been admin
istered by the Exchequer Court on its Admi
ralty side if the Court had had "unlimited
jurisdiction in relation to maritime and admi
ralty matters",
(c) in an action or suit where a claim for relief
is made or a remedy is sought under or by
virtue of a statute of the Parliament of
Canada made in relation to a matter falling
within the class of subjects "Navigation and
Shipping", and
(d) in an action or suit where a claim for relief
is made or a remedy is sought under or by
virtue of a law relating to a matter falling
within the class of subject "Navigation and
Shipping" that it would be "competent for the
Parliament of Canada to enact, modify or
amend" or in an action or suit in relation to
some subject matter legislation in regard to
which is within the legislative competence of
the Canadian Parliament because that subject
matter falls within the class "Navigation and
Shipping".
In the light of this analysis, it becomes rele
vant to examine the nature of the Third Party
proceedings that have been, in effect, quashed
by the judgment that is the subject of this
appeal. In effect, the cause of action relied on is
a breach of a contract whereby the Third Parties
agreed to receive at the port of destination from
an ocean carrier goods being carried under
ocean bills of lading and to hold them safely for
delivery to the consignees in accordance with a
practice whereby the consignees receive deliv
ery of such goods in harbour transit sheds
rather than directly from the ship. In other
words, instead of making delivery directly to
consignees from the ship, the ocean carrier car
ries out his obligation to deliver goods to con-
signees at the port of destination by arranging
with an independent contractor to take the
goods from the ship and hold them in a transit
shed for delivery to consignees.
In my opinion, the operation of removing
goods from a ship after completion of the ocean
voyage and delivering them to the consignee,
either immediately or after holding them during
an incidental delay, whether carried out by the
carrier or by someone else under an arrange
ment with the carrier, is "part and parcel of the
activities essential to the carriage of goods by
sea" 7 and "the performance of such acts as are
essential parts of `transportation by ship' fall
within the words `Navigation and Shipping' in
section 91(10)."$ It follows that the laws upon
which the defendants as carriers base them
selves in their claim to be indemnified in respect
of a breach by the Third Parties of their con
tractual duty to care for and deliver goods in
good order to consignees are laws that it would
be "competent for the Parliament of Canada to
enact, modify or amend" and it also follows that
the subject matter of the Third Party proceed
ings is one "legislation in regard to which is
within the legislative competence of the Domin
ion" because the subject matter falls within the
class "Navigation and Shipping". That being so,
the Third Party proceedings are proceedings "in
which a claim for relief is made or a remedy is
sought under or by virtue of ... [a] law of
Canada relating to any matter coming within the
class of subject of navigation and shipping"
within the meaning of those words in section
22(1) and the Trial Division therefore has juris
diction in the matter by virtue of that provision.9
For the above reasons, I am of opinion that
the appeal should be allowed with costs, the
judgment of the Trial Division should be set
aside and the application to dismiss the Third
Party proceedings should be dismissed with
costs.
APPENDIX
While one view is that the decision on juris
diction in Consolidated Distilleries Ltd. v. The
King [1933] A.C. 508 is merely a decision
implying a limitation on the ambit of jurisdiction
conferred on the Exchequer Court of Canada by
section 30(d) of the Exchequer Court Act, in my
view, the Judicial Committee had to adopt a
position as to the meaning of the words "laws of
Canada" in section 101 of The British North
America Act as an essential step in reaching its
conclusion that the Court had jurisdiction in
that case.
In Consolidated Distilleries Ltd. v. The King
there was an attack on a judgment, given in the
first instance by the Exchequer Court of
Canada, in favour of the Crown on a bond
executed in favour of the Crown pursuant to a
revenue law enacted by the Parliament of
Canada. One of the attacks on the judgment was
based on the contention that the Exchequer
Court had no jurisdiction in the matter.
With reference to that attack, after referring
to the relevant provisions of The British North
America Act and, particularly, to section 101,
which provided that "The Parliament of Canada
may, notwithstanding anything in this Act, .. .
provide for the ... establishment of any addi
tional courts for the better administration of the
laws of Canada", Lord Russell said, at page
520, that it was rightly conceded by the appel
lants that the Parliament of Canada could, in
exercising the power conferred by section 101,
properly confer upon the Exchequer Court
jurisdiction to hear and determine actions to
enforce the liability on bonds executed in
favour of the Crown in pursuance of a revenue
law enacted by the Parliament of Canada, and
said that the point as to jurisdiction accordingly
resolved itself into the question whether the
Exchequer Court Act purported to confer the
necessary jurisdiction. Lord Russell then
reviewed section 30 of that Act. He put aside
section 30(a) which gave the Court jurisdiction
"in all cases relating to the revenue in which it
is sought to enforce any law of Canada" saying
that, while the actions were no doubt "cases
relating to the revenue", it might be said "that
no law of Canada is sought to be enforced in
them". With reference to section 30(d), he had
to deal with the argument that, if that provision
were read "literally, and without any limita
tion", it would entitle the Crown to sue in the
Exchequer Court "in respect of any cause of
action whatever", and "that such a provision
would be ultra vires the Parliament of Canada
as one not covered by the power conferred by
section 101." (The italics are mine.) Lord Rus-
sell seemed to accept that contention because
he said their Lordships did not think that sec
tion 30(d) could be read as free from limitations.
He said that section 30(d) must be confined "to
actions and suits in relation to some subject-
matter legislation in regard to which is within
the legislative competence of the Dominion"
and that "So read, that sub-section could not be
said to be ultra vires." (The italics are mine.)
As I understand the decision in that case, it is
a decision that section 30(d) in its context had
to be read subject to a certain limitation and
that, while it would have been ultra vires if free
of any such limitation, in which event, the Court
would not have had jurisdiction in the case,
when read subject to that limitation, it was a
valid exercise of the powers conferred by sec
tion 101 with the result that the Court did have
such jurisdiction. To that extent at least it is a
decision as to the ambit of section 101.
The interesting point is with reference to the
way in which Lord Russell framed the implied
limitation on section 30(d). If he had said that
section 30(d) must be confined to actions and
suits for the administration of some statute of
the Parliament of Canada (or, alternatively to
actions or suits for the administration of some
such statute or some law that it would have
been competent for Parliament to enact), he
would, as it seems to me, have been giving a
narrower scope to section 30(d) than when he
said that it must be confined "to actions or suits
in relation to some subject-matter legislation in
regard to which is within the legislative compe
tence of the Dominion".
Probably Lord Russell had in mind the dictum
of Anglin C.J.C., speaking for the majority of
the Supreme Court of Canada in Consolidated
Distilleries Ltd. v. Consolidated Exporters Corp.
Ltd. [1930] S.C.R. 531 at page 535 where he
indicated that to be a "law of Canada" within
the sense of section 101 a law must be one "that
it would be competent for the Parliament of
Canada to enact, modify or amend". These
words would seem to encompass
(a) an Act of Parliament,
(b) a pre-Confederation statute in relation to a
section 91 matter,
(c) common law introduced into Canada from
England in so far as it is subject "to be
repealed, abolished or altered" by Parliament
(compare section 129 of The British North
America Act, 1867), and
(d) general laws of a province in so far as they
operate in an area in relation to which Parlia
ment can make laws. (Compare The Queen v.
Murray [1965] 2 Ex.C.R. 663; [1967] S.C.R.
262.)
Lord Russell's test and the test enunciated by
Anglin C.J.C. would seem to come to the same
thing.
* * *
THURLOW J. (orally)—The principal question
raised in this appeal is whether the Trial Divi
sion of this Court has jurisdiction to entertain a
claim by an ocean carrier against terminal oper
ators for indemnity in respect of a loss of or
damage to cargo occurring in the course of
performance by the terminal operators, on
behalf of the carrier, of the carrier's obligations,
under the contract of carriage, to discharge,
care for and deliver the cargo.
The authority of Parliament to confer such
jurisdiction on the Court in the exercise of its
power to legislate in relation to navigation and
shipping was not, as I understood the respond
ent's position, contested; what was in issue was
whether the relevant provisions of the Federal
Court Act are broad enough to confer the juris
diction in question.
Section 22(1) of the Act provides:
22. (1) The Trial Division has concurrent original jurisdic
tion as well between subject and subject as otherwise, in all
cases in which a claim for relief is made or a remedy is
sought under or by virtue of Canadian maritime law or any
other law of Canada relating to any matter coming within
the class of subject of navigation and shipping, except to the
extent that jurisdiction has been otherwise specially
assigned.
There is no question of the jurisdiction in ques
tion having been otherwise specially assigned
and in my opinion there is nothing in section
22(2) which can have the effect of decreasing
the scope or extent of the jurisdiction which the
expressions used in section 22(1) would
embrace. It is necessary, however, to read with
section 22(1) the definitions of "Canadian mari
time law" and "laws of Canada" contained in
section 2(b) and 2(j) respectively. They read as
follows:
2...
(b) "Canadian maritime law" means the law that was
administered by the Exchequer Court of Canada on its
Admiralty side by virtue of the Admiralty Act or any
other statute, or that would have been so administered if
that Court had had, on its Admiralty side, unlimited
jurisdiction in relation to maritime and admiralty matters,
as that law has been altered by this or any other Act of
the Parliament of Canada.
(j) "laws of Canda" has the same meaning as those words
have in section 101 of The British North America Act,
1867;
The language of section 2(b) is new and the
second portion of the definition therein is, so far
as I am aware, entirely new. There is therefore,
in my opinion, no justification for looking at the
several paragraphs of section 22(2) and after
comparing them with corresponding or similar
provisions of the former Admiralty Act reaching
the conclusion that it was not intended to
expand the jurisdiction beyond what is specifi-
cally set out in section 22(2) and that the Court
therefore does not have jurisdiction in a case of
this kind. That, however, seems to me to be the
approach to the question adopted by the
respondents and it appears to me to be contrary
both to the express wording of section 22(2), i.e.
"Without restricting the generality of subsection
(1)" and to the principle that in construing a
statute it is necessary to look first to the natural
meaning of the words used in it and that it is
only in cases where the meaning is doubtful or
where it appears that words have not been used
in their ordinary sense that resort may be had to
other devices for interpreting the statute. It is
apparent from reading the several provisions of
the Federal Court Act dealing with the Court's
jurisdiction that the Act was not intended to be
any mere restatement of the existing jurisdiction
of the Exchequer Court. There are many
respects in which that jurisdiction has been
altered and expanded and it cannot be presumed
that any particular provision or group of provi
sions was intended to mean the same as some
similar or corresponding provision of the earlier
statutes. In this situation the language of Lord
Herschel] in Bank of England v. Vagliano
Brothers [1891] A.C. 107, though used in rela
tion to a codifying statute relating to bills of
exchange appears to me to be applicable.
Lord Herschell said [at page 1441: 1
My Lords, with sincere respect for the learned Judges
who have taken this view, I cannot bring myself to think
that this is the proper way to deal with such a statute as the
Bills of Exchange Act, which was intended to be a code of
the law relating to negotiable instruments. I think the proper
course is in the first instance to examine the language of the
statute and to ask what is its natural meaning, uninfluenced
by any considerations derived from the previous state of the
law, and not to start with inquiring how the law previously
stood, and then, assuming that it was probably intended to
leave it unaltered, to see if the words of the enactment will
bear an interpretation in conformity with this view.
Reading the definition of section 2(b) and
without presuming in advance anything as to
what was intended it appears to me to be per
fectly plain that the Canadian maritime law
which the Trial Division is given authority to
administer by section 22(1) means the whole of
the law which the Exchequer Court would have
administered if it had had on its Admiralty side
"unlimited jurisdiction in relation to maritime
and admiralty matters". I do not read the words
"as that law has been altered by this or any
other Act of the Parliament of Canada" as limit
ing the generality of what precedes them.
It seems to me, moreover, that if the Excheq
uer Court had had on its Admiralty side unlimit
ed jurisdiction in relation to maritime matters it
would plainly have had jurisdiction to adminis
ter the law which governed the rights inter se of
ocean carriers and terminal operators in respect
of the performance by terminal operators on
behalf of the ocean carriers of the obligations of
the ocean carriers to discharge, care for and
deliver cargo to the persons entitled thereto.
That seems to me to be as maritime a matter as
is the contract for the carriage of the cargo by
sea. The arrangements between these parties are
for the performance of a part of that contract
and the activities which the terminal operators
carry out under them are "part and parcel of the
activities essential to the carriage of goods by
sea". (Re Industrial Relations and Disputes
Investigation Act [1955] S.C.R. 529 per Locke
J. at page 578.)
In my opinion therefore the claim asserted by
the defendants against the third parties in the
present proceedings was within the jurisdiction
of the Court. I should add, however, that were I
not of the opinion that the claim of the carriers
was one for relief under or by virtue of Canadi-
an maritime law as defined by section 2(b) I
would have agreed with the reasons of the Chief
Justice for concluding that the claim fell within
the jurisdiction as being a claim for relief under
"any other law of Canada relating to any matter
coming within the class of subject of navigation
and shipping" within the meaning of section
22(1).
On the other point argued, that with respect
to the limitation of the plaintiff's claim by his
statement of claim to damage caused to the
cargo - before the terminal operators' activities in
relation thereto began I agree with the reasons
and the conclusion of the Chief Justice.
I would allow the appeal and dispose of the
matter as proposed by the Chief Justice.
* * *
HYDE D.J. (orally)—I agree with the Chief
Justice that the activities of the employees of
the third-party respondents within the limits he
indicates are "intimately connected with" (to
use the words of Kerwin C.J. in the Industrial
Relations and Disputes Investigation Act refer
ence ([1955] S.C.R. 529, at page 535) the car
riage of the goods in question by sea and not
"remote stages". This being so and following his
more extensive reasoning, the subject matter
falls within the class "Navigation and Shipping"
(section 91, head 10) and within the jurisdiction
of the Trial Division.
I likewise agree that the respondents cannot
rely on the limitation of the pleadings accepted
by the Trial Judge as one of his reasons for
dismissing the third-party proceedings against
them.
The appeal should accordingly be maintained
and the motion dismissed with costs in favour
of the defendant-appellants but without costs as
far as the plaintiff is concerned.
JACKETT C.J.:
' The Statement of Claim says that the "Defendants" are
liable to the plaintiff "in breach of contract" and "in delict
and in tort" for the plaintiff's damages. We are left to
imagine what the real character of the case against the first
two defendants is. There is not even a hint at what the case
against the defendant Montreal Shipping Company Limited
is. Such pleading would seem to be vulnerable to attack.
Even if the Statement of Claim discloses a cause of action
against one of the defendants, which is not evident on a first
reading, it is at least arguable that it is "vexatious" within
the sense of that word in Rule 419(1). One apparent error
which might be mentioned, although it is only of minor
importance in my present appreciation of the Statement of
Claim, is that the Style of Cause is not an acceptable place
in which to hide away an allegation of material fact that
should be in the Statement of Claim (Rule 408(12)). My
examination of the pleadings in this action also causes me to
make the comment (which is not in any way pertinent to this
appeal) that, as far as I know, the Style of Cause is a title or
means of identifying an action. In my view, in the ordinary
case, every document filed should bear the Style of Cause
of the initiating document (even though there has been a
change of parties) for otherwise the Style of Cause does not
serve its principal purpose of identifying the action. If, in a
particular case, it is thought that having a ready means in the
Style of Cause for ascertaining all the parties to the action
outweighs the advantage of having an action identified
throughout by the same Style of Cause, an application
should be made to the Court for an order changing the Style
of Cause. As far as I know, an order of the Court is required
to authorize the Registry to accept for filing in respect of a
particular action a document bearing a Style of Cause other
than that of the document by which that action was initiated.
If, as a matter of accommodating a party, a document with
some other Style of Cause, or no Style of Cause, is accepted
for filing, the Registry should, in my view, attach on the
front of the document, or endorse on the front page, a
certificate that, at the request of the party or solicitor by
whom the document was filed, the document was accepted
for filing in the action even though the document did not
bear such Style of Cause.
2 On this appeal, the appellant does not rely on any of the
heads of section 22(2). The Court is not, therefore, required,
on this appeal, to form any opinion as to the correctness of
the decision of the Trial Division that the Court has no
jurisdiction in the matter by virtue of that provision.
3 Both headings are subject, of course, to any alteration in
the law that has been made by the Federal Court Act or any
other Act of the Parliament of Canada. See concluding
words of section 2(b).
4 That provision reads as follows:
91. It shall be lawful for the Queen, by and with the
Advice and Consent of the Senate and House of Com
mons, to make Laws for the Peace, Order, and good
Government of Canada, in relation to all Matters not
coming within the Classes of Subjects by this Act
assigned exclusively to the Legislatures of the Provinces;
and for Greater Certainty, but not so as to restrict the
Generality of the foregoing Terms of this Section, it is
hereby declared that (notwithstanding anything in this
Act) the exclusive Legislative Authority of the Parliament
of Canada extends to all Matters coming within the
Classes of Subjects next hereinafter enumerated; that is
to say,-
10. Navigation and Shipping.
That provision reads as follows:
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.
6 Referred to in The Queen v. J. B. & Sons Co. Ltd. [1970]
S.C.R. 220, per Pigeon J. at pages 232-33.
7 Re Industrial Relations and Disputes Investigation Act
[1955] S.C.R. 529, per Locke J. at page 578.
Idem per Cartwright J. at page 583. It is to be noted that
the activities of Eastern Canada Stevedoring that were held
to be within the jurisdiction of Parliament in the 1955 case
embraced the same type of activities as those with which we
are concerned here. For a description of them, see per
Kerwin, C.J.C. at page 531:
The Company's business in Toronto consists in render
ing the following services. The Company on notification
of the pending arrival of ships makes such preparations as
are necessary for unloading and loading such ships,
including the taking on of necessary employees. It also
receives delivery of cargo from the tailboards of trucks or
from railway car doors and holds it in its sheds for
loading. With respect to unloading, when the ship has
arrived, and been secured by its crew alongside the Com-
pany's sheds, the Company opens the hatches (if this is
not done by the crew) and removes the cargo from the
hold to the dock and there delivers it to consignees at the
tailboards of trucks or at railway car doors or places the
cargo in the Company's sheds. The cargo placed in the
sheds is immediately, or during the next few days, deliv
ered by the Company as required to the tailboards of
trucks or to railway car doors. In these operations the
Company uses the ship's winches and booms for raising
and lowering the slings; it furnishes pallets necessary for
lifting and piling the cargo and machines for towing and
lifting cargo on the dock and in the sheds; and in cases of
cargo too heavy for the ship's winches and booms it uses
land cranes obtained by it. With respect to loading, the
operations are substantially similar except that they are
reversed, the last act of loading being the securing of the
hatch covers if this is not done by the crew of the ship.
9 Having reached that conclusion, it is unnecessary to
consider whether any of the other branches of section 22(1)
apply in the circumstances.
THURLOW J .:
' See also S & S Industries Ltd. v. Rowell [1966] S.C.R.
419 per Martland J. at page 425 and Wilkinson Sword
(Canada) Ltd. v. Juda [1968] 2 Ex.C.R. 137 per Jackett P. at
page 161.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.