A-263-74
Union Oil Company of Canada Limited
(Appellant)
v.
The Queen in right of Canada (Respondent) (First
Defendant)
and
The Queen in right of the Province of British
Columbia, and as owner of the ships of the British
Columbia Ferry Fleet (Respondent) (Second
Defendant)
Court of Appeal, Thurlow and Urie JJ. and Smith
D.J.—Vancouver, June 3 and 4, 1975.
Jurisdiction—Excise tax on fuel—Vendor suing Crown in
right of Canada to recover tax—Vendor suing Crown in right
of British Columbia to recover payment of tax due from
purchaser—Exemption claimed by Provincial Crown—No
jurisdiction over action against Provincial Crown—Excise Tax
Act, R.S.C. 1970, c. E-13, s. 70(1)—Interpretation Act, R.S.C.
1970, c. I-23, s. 16—Federal Court Act, ss. 17, 19, 22.
Plaintiff sold fuel to the Provincial Crown of British
Columbia, pursuant to purchase orders "declaring" the Provin
cial Crown exempt under section 44 of the Excise Tax Act.
Plaintiff did not include the tax in its selling price, but on the
insistence of the Crown in right of Canada, paid tax and
penalty to the latter. Plaintiff sued for recovery, and the Trial
Division, on a motion to strike the Provincial Crown as defend
ant, held that there was no jurisdiction over it under the
Federal Court Act. Plaintiff appealed.
Held, dismissing the appeal, the Federal Court is not author
ized by any statute to entertain a proceeding against the Crown
in right of a province. The Federal Court Act was not intended
to abrogate the traditional immunity of the Crown in right of a
province.
In re Silver Brothers Limited [ 1932] A.C. 514, applied.
APPEAL.
COUNSEL:
R. W. V. Dickerson for appellant.
G. O. Eggertson for respondent, the Queen in
right of Canada.
H. L. Henderson and N. Prelypchan for
respondent, the Queen in right of the Province
of British Columbia.
SOLICITORS:
Farris, Vaughan, Wills and Murphy, Vancou-
ver, for appellant.
Deputy Attorney General of Canada for
respondent, the Queen in right of Canada.
Harman and Co., Victoria, for respondent,
the Queen in right of the Province of British
Columbia.
The following are the reasons for judgment of
the Court delivered orally in English by
THURLOW J.: We have decided not to call on
counsel for the respondents. At the same time our
taking this course should not be interpreted as
reflecting any disrespect for the very able and
comprehensive argument addressed to us by Mr.
Dickerson.
We do not necessarily adopt the reasons of the
learned Trial Judge and in particular we do not
adopt his view that fraud or deceit are necessary to
a claim founded on subsection 70(1) of the Excise
Tax Act. But we are not persuaded that he erred
in striking out the claim against the Crown in right
of the Province of British Columbia.
The jurisdiction of the Federal Court is entirely
statutory and, accepting that it lies within the
powers of the Parliament of Canada, when legis
lating in a field within its competence, to give the
Federal Court jurisdiction to implead the Crown in
right of a province, we do not think any of the
statutory provisions to which we were referred, or
any others of which we are aware, authorize the
Court to entertain a proceeding at the suit of a
subject against the Crown in right of a province.
The provisions of the Federal Court Act confer
ring jurisdiction on the Court by reference to
subject matter are, without doubt, broadly
expressed but we think that section 16 of the
Interpretation Act, though somewhat reworded
since the judgment of the Privy Council in In re
Silver Brothers Limited [1932] A.C. 514, and the
interpretation put upon that provision, as it then
was, by that judgment, coupled with the specific
[1974] 2 F.C. 452. _
definition and references in the Federal Court Act
to the Crown in right of Canada are sufficient to
show that the traditional immunity of the Crown
in right of the provinces from suit in its courts was
not intended to be abrogated by the general
descriptions of subject matter of jurisdiction in the
Federal Court Act.
It should not be taken that we are n'a sympa
thetic to the unfortunate position in which the
appellant finds itself but we are of the opinion that
the Court is without jurisdiction to entertain the
claim against the Crown in right of the Province of
British Columbia and that the appeal accordingly
fails and must be dismissed.
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.