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.
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.