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Seaspan International Ltd. and Seaboard Lumber Sales Co. Ltd. (Appellants)
v.
The "Kostis Prois" and Aegean CIA. Naviera S.A. (Respondents)
Court of Appeal, Jackett C.J., Thurlow and Heald JJ.—Vancouver, July 21, 1971.
Appeal—Jurisdiction—Judgment of Exchequer Court— No appeal to Court of Appeal.
There is no right of appeal to the Federal Court of Appeal from a judgment of the Exchequer Court rendered before the Federal Court Act came into force but, semble, any right of appeal from such judgment to the Supreme Court of Canada that existed at the time it was delivered is unaffect ed by the coming into force of the Federal Court Act.
APPEAL from judgment of Exchequer Court.
W. O. M. Forbes, for appellants.
V. R. Hill, Q.C., for respondents.
The judgment of the Court was delivered by
JACKETT C. J. —In this matter the Court has, pursuant to Rule 1100(2), given the parties an opportunity to be heard on the question wheth er this appeal should be quashed as being out side the jurisdiction of the Court.
On June 11, 1971, there was filed in the Registry a document purporting to be a notice of an appeal from a judgment of the Exchequer Court of Canada rendered on May 31, 1971.
At the time that the judgment appealed from was rendered, the Exchequer Court of Canada was a court constituted and operating under the Exchequer Court Act and the Admiralty Act and there was a right of appeal (with immaterial exceptions) from any judgment rendered by it to the Supreme Court of Canada.
A short time after the judgment appealed from was rendered—on June 1, 1971—there came into force the Federal Court Act, by virtue of which
(a) The Exchequer Court of Canada was re named the Federal Court of Canada,
(b) that Court was divided into two courts, viz
(i) the Trial Division', and
(ii) the Federal Court of Appeal,
(c) the Trial Division took over some, but not all, of the jurisdiction of the Court as it existed before June 1, 1971,
(d) the Federal Court of Appeal took over a small part of the jurisdiction of the Court as it existed before June 1, 1971, and acquired jurisdiction, inter alia, in appeals from deci sions of the Trial Division.
There is, however, no provision in the Federal Court Act that expressly confers on the Federal Court of Appeal any jurisdiction in appeal in respect of decisions rendered by the Exchequer Court of Canada before the Federal Court of Appeal came into existence; and we have not been able to imply any such jurisdiction from secs. 3, 4 and 27 of the Federal Court Act as suggested to us by Mr. Forbes, counsel for the appellant.
As a right of appeal to a court such as the Federal Court of Appeal must be created by statute and as there is no statutory provision to which our attention has been drawn that expressly or impliedly, authorizes the present appeal, it is our conclusion that this appeal must be quashed.
I should also say that, even if there was a jurisdiction provision that was otherwise broad enough to embrace this appeal, we should have had to consider whether the Court's jurisdiction was not restricted by virtue of the general rule that a new right of appeal applies only in respect of decisions in proceedings commenced after the right of appeal was created read in the light of s. 61 of the Federal Court Act. In this connection I have to refer to my discussion of the problem that arose in the Canadian Associa tion of Broadcasters application. [See Re Copy right Appeal Board reported in this volume.]
It goes without saying that, if we are correct, any right of appeal to the Supreme Court of Canada that existed at the time that the judg ment under appeal was delivered is unaffected by the coming into force of the Federal Court Act.
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