JPD-6-76
Edgar Lloyd Fisher and Anita Inis Fisher
(Applicants)
v.
The Queen (Respondent)
Trial Division, Walsh J.—Ottawa, April 28 and
May 6, 1977.
Jurisdiction — Warrant for eviction by Federal Court Judge
as persona designata under Expropriation Act — Section 28
application before Court of Appeal — Judge who issued
warrant is functus — Whether or not the Court has jurisdic
tion to grant interim relief pending resolution of s. 28 applica
tion — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss.
28 and 30(1)— Federal Court Rules 1904 and 1909.
A Federal Court Judge, as persona designata under the
Expropriation Act, issued an eviction warrant in accordance
with the Federal Court Rules. The Court of Appeal, for want
of jurisdiction, refused applicants' section 28 application for a
stay of execution and the Judge who issued the warrant is
functus. Applicants now seek remedies pending the final deter
mination of the section 28 application, namely: (1) an order
that the sheriff not execute the warrant, (2) a stay of execution,
and (3) an order for custody of the property.
Held, the application is dismissed. The Court has no jurisdic
tion to entertain the motion and the applicants, therefore, have
no recourse to prevent the execution of the writ of possession.
Section 50(1) of the Federal Court Act is to be applied by the
Trial Division if a stay of proceedings is justified by the same
claim being proceeded with in an entirely different court. The
Appeal Court cannot be considered another court. Then, too,
the proceedings must be within the Trial Division's jurisdiction
in the first place. The Court has no inherent jurisdiction and
cannot assume it by analogy to grant an order merely because
the order for the warrants of possession was made pursuant to
the Court's Rules. Rules 1904 and 1909 cannot be used simply
because there is a proceeding in the Court. This application
relates to the decision of Mahoney J. which is not before this
Court, and not to the section 28 application. The Trial Division
cannot issue an injunction concerning a matter before the
Court of Appeal on a section 28 application.
Communications Workers of Canada v. Bell Canada and
Canadian Telephone Employees Association 11976] 1
F.C. 282, followed; B. Keith Penner, Norman Cafik,
Harry Assad and the Northwestern Ontario Municipal
Association v. The Representation Commissioner for
Canada 11977] 1 F.C. 147, followed.
APPLICATION.
COUNSEL:
David Estrin for applicants.
Thomas Dunne for respondent.
SOLICITORS:
David Estrin, Toronto, for applicants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
WALSH J.: This motion came on for hearing in
Ottawa on April 28, 1977, and was heard jointly
with identical motions in the cases of Presutti v.
The Queen, JPD-19-76, and Leach v. The Queen,
JPD-12-76. The decision on this motion will be
applicable to the said two other motions. The
motion seeks the following:
1. An Order pursuant to Rule 1904 of the Federal Court
Rules, requiring that the Sheriff of the Region in which the
Applicants' lands are located not execute the warrant issued by
Mr. Justice Mahoney on the 18th day of April 1977 until the
final determination of the Section 28 Application commenced
in the Federal Court of Appeal by the Applicants dated April
5, 1977, to review and set aside the Order of Mr. Justice
Mahoney dated the 30th day of March 1977.
2. A stay of execution, pursuant to Rule 1909 of The Federal
Court Rules, or a stay pursuant to Section 50(1)(b) of The
Federal Court Act, or both, staying the said Order of Mr.
Justice Mahoney dated the 30th day of March 1977 directing a
warrant issue to the said Sheriff and staying the execution of
the warrant issued on April 18th to the said Sheriff, pending
the final determination of the said Section 28 Application.
3. An Order that the custody of the property of the Applicants
being the subject matter of the said Order and Warrant issued
by Mr. Justice Mahoney remain in and be preserved to the
Applicants pending the final determination of the said Section
28 Application.
4. Such further and other Order or relief as may seem just.
The warrant in question was issued by Mr.
Justice Mahoney pursuant to the provisions of
section 35 of the Expropriation Act' which reads
as follows:
35. (1) When the Minister, or a person acting for him, is
prevented from entering upon or taking physical possession or
making use of any land to the extent of any interest expropriat
ed under this Part, a judge of the Court or any judge of a
superior court of a province may, on proof of the expropriation
' R.S.C. 1970 (1st Supp.), c. 16.
and, when required, of the right of the Crown to take physical
possession or make use thereof, and after notice to show cause
given in such manner and to such persons who shall be parties
to the proceedings as the judge prescribes, issue his warrant in
accordance with the form set out in Schedule I to this Act to
the appropriate sheriff directing him to put the Minister, or a
person authorized to act for him, in physical possession of the
land to the extent of the interest expropriated.
(2) The sheriff shall forthwith execute a warrant issued to
him under this section and shall make return of the warrant to
the court to which the judge who issued it belongs, and of the
manner in which it was executed.
It is not disputed that in making the order issuing
the warrant Mr. Justice Mahoney was acting as
persona designata by virtue of the said Act so that
the order was not an order of this Court and it is
on this basis that the section 28 application against
same was brought. While applicants' counsel con
tends that in the absence of specific direction as to
procedure to give effect to section 35 of the
Expropriation Act Mr. Justice Mahoney applied
the Rules of this Court, this does not have the
effect of making the decision and order a judgment
of the Court. In the last paragraph of his decision
dated March 30, 1977, he states:
In order to avoid execution of the warrant prior to the
Respondents having an opportunity to take any appeal that
they may wish in respect of this decision, I will defer issue of
the warrant until April 18, 1977 and, on that date, will issue it
unless stayed from doing so by order of the appellate tribunal.
The section 28 application was initiated in the
Federal Court of Appeal by the applicants on
April 5, 1977, and in due course an application
was made to the said Court of Appeal for stay of
the execution of the warrant which application was
refused by the Court of Appeal allegedly for lack
of jurisdiction although no written reasons were
given. It is of some interest to note that in the
section of the Rules dealing with appeals from the
Trial Division, Rule 1213 provides for stay of
execution of a judgment appealed from but there is
no similar Rule in the division dealing with appeals
from tribunals or authorities other than the Trial
Division, and in any event the proceeding before
the Court of Appeal is not an appeal strictly
speaking but a section 28 application.
Mr. Justice Mahoney having rendered his deci
sion pursuant to section 35 of the Expropriation
Act is functus so that no application could be
made to him to suspend the execution of the
warrant of possession issued pursuant to his order.
The present applications were therefore brought to
the Trial Division of this Court.
On the question of jurisdiction applicants' coun
sel invokes section 50(1) of the Federal Court Act 2
which reads as follows:
50. (1) The Court may, in its discretion, stay proceedings in
any cause or matter,
(a) on the ground that the claim is being proceeded with in
another court or jurisdiction; or
(b) where for any other reason it is in the interest of justice
that the proceedings be stayed.
There would seem to be considerable doubt, how
ever, as to whether this section can be applied in
the present circumstances. Section 4 of the Act
reads as follows:
4. The Federal Court of Canada shall hereafter consist of
two divisions, called the Federal Court—Appeal Division
(which may be referred to as the Court of Appeal or Federal
Court of Appeal) and the Federal Court—Trial Division.
and I do not think that the Appeal Division can be
considered as "another Court". It might perhaps
be argued that it constitutes "another jurisdiction"
although this question was not raised in argument
before me. I am inclined to believe, however, that
if this section is intended to be applied by the Trial
Division it would only justify the stay of proceed
ings in that Division on the ground that the same
claim is being proceeded with in an entirely differ
ent Court. It may well be that the broad wording
of paragraph (b) permitting the stay "where for
any other reason it is in the interest of justice"
might be applicable, but again it would appear
that in order to stay the proceedings they must be
within the jurisdiction of the Trial Division in the
first instance. Section 46 of the Act provides for
the making of Rules not inconsistent with the Act
and applicants' counsel invokes two Rules, namely
1904(1) and 1909 which read respectively as
follows:
Rule 1904. (1) Notwithstanding that a judgment or order
requiring a person to do an act specifies a time within which the
act is to be done, the Court may make an order requiring the
act to be done within another time, being such time after
2 R.S.C. 1970 (2nd Supp.), c. 10.
service of that order, or such other time, as may be specified
therein.
Rule 1909. A party against whom a judgment has been given
or an order made may apply to the Court for a stay of
execution of the judgment or order or other relief against such
judgment or order, and the Court may by order grant such
relief, and on such terms, as it thinks just.
These Rules appear in a section of the Rules
entitled ENFORCEMENT OF JUDGMENTS AND
ORDERS—GENERAL and are evidently intended to
apply to judgments and orders of the Court. Coun
sel for applicants argues that since Mr. Justice
Mahoney relied on Rules of the Court in making
his order for the warrants of possession, the Rules
of the Court can also be relied on to grant a stay of
execution of such order. I have already indicated
that I do not believe that this argument can be
accepted. This Court is a statutory court with no
inherent jurisdiction and it cannot acquire jurisdic
tion on the basis that some of its Rules might be
applicable by analogy to proceedings dealt with by
one of its judges sitting as persona designata and
' not by the Court itself.
Applicants' counsel further argues that since
there is a proceeding in the Court, namely, the
section 28 application, Rules 1904 or 1909 could
be applied. I cannot accept this argument. The
present application does not relate to the section
28 proceedings before the Court of Appeal, but to
the order of Mr. Justice Mahoney which is not a
proceeding before the Trial Division of this Court.
In this connection reference might be made to the
case of Communications Workers of Canada v.
Bell Canada and Canadian Telephone Employees
Association 3 in which the Canada Labour Rela
tions Board had ordered the employer to desist
from prohibiting union membership solicitation on
company premises during non-working hours and
the employer Bell Canada applied for a stay of
execution of this order pending the judgment of
the Court of Appeal on its section 28 application.
In that judgment of Mr. Justice Dubé it was
pointed out that section 123 of the Canada Labour
3 [1976] 1 F.C. 282.
Code 4 provides for the registration with the Feder
al Court of orders of the Board. Reference was
made by Mr. Justice Dubé at page 288 to a
judgment of Chief Justice Jackett in the case of
Central Broadcasting Company Limited v.
Canada Labour Relations Board, Court No.
T-803-75, in which, sitting as an ex officio judge
of the Trial Division he stayed the operation of an
order of the Labour Relations Board which he
"regarded as a judgment of this Court by virtue of
section 123 of the Canada Labour Code", holding
that "the relevant powers of the Trial Division
with reference to a judgment of that Court are
contained in Rule 1909". [Underlining mine.] It
was on this basis that Mr. Justice Dubé decided
that the Court had jurisdiction to grant a stay of
execution of the order of the Board, although he
subsequently refused, after considering the balance
of convenience, to grant the stay. In the present
case there is of course no similar provision for
registration of Mr. Justice Mahoney's order made
pursuant to section 35 of the Expropriation Act in
the Trial Division of this Court.
Reference might also be made to the recent
decision of Associate Chief Justice Thurlow in the
case of B. Keith Penner, Norman Cafik, Harry
Assad and the Northwestern Ontario Municipal
Association v. The Representation Commissioner
for Canada 5 in which he found that an injunction
could not be issued by the Trial Division in con
nection with a matter before the Court of Appeal
on a section 28 application, referring to section
28(3) which reads as follows:
28. (3) Where the Court of Appeal has jurisdiction under
this section to hear and determine an application to review and
set aside a decision or order, the Trial Division has no jurisdic
tion to entertain any proceeding in respect of that decision or
order.
While the present proceedings do not seek an
injunction but merely a stay of proceedings some
° R.S.C. 1970, c. L-1 as amended by S.C. 1972, c. 18.
5 [1977] 1 F.C. 147.
of the reasoning of that decision is equally appli
cable. On page 150 he states:
On its face however the present application is not directed
against the report. It is directed against an act to be done by
the respondent. But the question whether that act must be
carried out, and, indeed, the whole case of the applicants as
well, are entirely dependent on the legal effect or validity of the
decision of the Commission which is the subject of the applica
tion under section 28. In the circumstances the application for
an order enjoining the Commission from carrying out the duty
to follow or act upon the Commission's decision, if it is to
succeed, appears to me to involve at least some consideration of
the validity of the Commission's decision and to involve as well
interference with the decision's effect. It seems to me, there
fore, that the present application is in substance and in fact a
proceeding "in respect of" the Commission's decision within the
meaning of subsection 28(3) and that this division has no
jurisdiction to entertain it.
and again on the same page:
But even if this view of the effect of subsection 28(3) is broader
than the provision warrants the subsection seems to me to apply
where, as in the present instance, the only basis put forward for
such interlocutory relief is the alleged invalidity of the order
which is the subject of the section 28 application.
I therefore must conclude that this Court has no
jurisdiction to entertain the present motion.
Admittedly this places the applicants in a difficult
position. If Mr. Justice Mahoney cannot vary or
suspend the execution of his order, having become
functus as a persona designata after having ini
tiated it, and the Court of Appeal has decided that
it has no jurisdiction to grant a stay pending the
decision of the section 28 application before it to
have the said order set aside, and the Trial Divi
sion also has no jurisdiction to grant the stay of an
order which is not an order of the Court, or is
before the Court of Appeal on a section 28
application then applicants are presumably in a
position where they have no recourse to prevent
the execution of the writ of possession if respond
ent wishes to do so before awaiting the decision of
the Court of Appeal on the section 28 application.
The Court cannot change the law and Rules of this
Court relating to its rights to order a stay of
proceedings or suspend the execution of the war
rant of possession pending the outcome of the
section 28 application even if these Rules appear
to be somewhat unsatisfactory and to lead to
considerable uncertainty in their application, but
must apply the existing law at the date of the
application and be guided by the relevant jurispru-
deuce. In the case of Wardair Canada Limited v.
Canadian Transport Commission 6 at page 603,
referred to in the case of Communications Work
ers of Canada v. Bell Canada (supra) at page 290,
I had occasion in commenting on the attempt of
the applicant to use a writ of prohibition to stay
the execution of a judgment under review as
follows:
What the applicant is seeking to do is to use a writ of
prohibition to obtain a stay of execution of a judgment which is
under review and appeal because there is no procedure in the
Rules of this Court for such a stay. The absence of such Rule
would not be sufficient ground for abusing the use of a preroga
tive writ whether it be prohibition or injunction. [Underlining
mine.]
Applicants' counsel also invoked Rule 470 of the
Rules of this Court which provides in general that
before or after the commencement of an action,
the Court may, on the application of any party,
make an order for the detention, custody or preser
vation of any property that is the subject matter of
the action. Reference was made to Rule 2 which
defines action as follows:
"action" means a proceeding in the Trial Division other than an
appeal, an application or an originating motion, and includes
such a proceeding by or against the Crown or any person acting
for or on behalf of the Crown;
Although the definition is a broad one it appears
clear to me that it refers to actions in the Trial
Division of the Court and that Rule 470 would not
be applicable in the present case. In fact any
attempt to apply it would be in direct contraven
tion of the provisions of the Expropriation Act and
in particular section 35 thereof, and certainly even
if the Court had jurisdiction a Rule of the Court
could not be used to defeat the express provision of
a statute.
While the conclusions I have reached as to lack
of jurisdiction dispose of the application and it is
therefore unnecessary to go into its merits, consid
erable argument was devoted to this and, in the
event that it should be found on appeal from this
judgment that in fact the Trial Division does have
6 [1973] F.C. 597.
jurisdiction to order the stay sought, I will deal
briefly with the merits. Reference was made to
considerable jurisprudence dealing with stay of
proceedings pending an appeal. One of the best
expressions of the principles is found in the case of
Empire-Universal Films Limited v. Rank' adopt
ed by Heald J. in Weight Watchers International
Inc. v. Weight Watchers of Ontario Ltd.B and
again referred to by Dubé J. in the case of Com
munications Workers of Canada v. Bell Canada
(supra) at page 289. This finding is to the effect
that:
In order to justify a stay two conditions must be satisfied, one
positive and the other negative: (a) the defendant must satisfy
the Court that the continuance of the action would work an
injustice because it would be oppressive or vexatious to him or
would be an abuse of the process of the Court in some other
way; and (b) the stay must not cause an injustice to the
plaintiff. On both the burden of proof is on the defendant.
Reference was also made to the British case of
Polini v. Gray 9 in which Jessel, Master of Rolls,
stated at page 443:
The question before us is this: An action is brought to
determine the rights of claimants to a fund. The Plaintiffs fail
in the Court of first instance and in the Court of second
instance, but are about, bonâ fide, to prosecute an appeal to the
Court of ultimate resort. The Plaintiffs allege that that appeal
will be nugatory if the fund is paid out to the Defendants, and
that if the Plaintiffs should ultimately succeed in the House of
Lords, that success will be useless to them unless an interim
order is made for preserving the fund. I say they so contend,
and, assuming that contention to be correct in fact, the question
is, whether this Court has jurisdiction to prevent such a conse
quence. It appears to me on principle that the Court ought to
possess that jurisdiction, because the principle which underlies
all orders for the preservation of property pending litigation is
this, that the successful party in the litigation, that is, the
ultimately successful party, is to reap the fruits of that litiga
tion, and not obtain merely a barren success.
Again at page 445 he states:
The Court having arrived at the conclusion that the appeal is
bonâ fide, that she intends to prosecute it with a view to
determine her rights and to get a final decision on those rights;
and the Court, I assume (for I do not know the facts), being
satisfied that there would be danger, if it were not to interfere
for the interim protection of the fund, of its not being forthcom
ing if she succeeded in the House of Lords, the question is, is it
not the duty of this Court to say that the fund ought to be
preserved for the successful party? Looking at the facts of this
[1947] O.R. 775.
B [1972] 25 D.L.R. (3d) 419 at page 426.
9 (1879) 12 Ch. D. 438.
case, not forgetting the amount in dispute, and remembering
the peculiar circumstances under which the fund was obtained,
I think it would be right so to mould the order of the Court of
Appeal as to keep the fund safe until the decision of the House
of Lords is obtained. It must not be supposed from what I have
said that I consider such an order to be by any means of course,
or one that ought to be made except under very special or
peculiar circumstances; but I think that when those special and
peculiar circumstances exist the jurisdiction ought to be
exercised.
In the same case Cotton L.J. stated at page 446:
The only question we have to consider is, whether or no the
Court has jurisdiction in a proper case to stay all dealings with
a fund pending an appeal to the House of Lords although the
Court has decided against the title of the Plaintiff and dis
missed the action. I see no difference in principle between
staying the distribution of a fund to which the Court has held
the Plaintiff not to be entitled, and staying the execution of an
order by which the Court has decided that a Plaintiff is entitled
to a fund. In that case, as in this case, the Court, pending an
appeal to the House of Lords, suspends what it has declared to
be the right of one of the litigant parties. On what principle
does it do so? It does so on this ground, that when there is an
appeal about to be prosecuted the litigation is to be considered
as not at an end, and that being so, if there is a reasonable
ground of appeal, and if not making the order to stay the
execution of the decree or the distribution of the fund would
make the appeal nugatory, that is to say, would deprive the
Appellant, if successful, of the results of the appeal, then it is
the duty of the Court to interfere and suspend the right of the
party who, so far as the litigation has gone, has established his
rights. That applies, in my opinion, just as much to the case
where the action has been dismissed, as to the case where a
decree has been made establishing the Plaintiff's title.
In the case of Battle Creek Toasted Corn Flake
Co. Ltd. v. Kellogg Toasted Corn Flake Co. 10 at
page 132 referred to in the case of Talsky v.
Talsky (No. 2)" at page 154 and also referred in
Communications Workers of Canada v. Bell
Canada (supra) at page 289, Middleton J. stated:
In all cases in which the stay will impose little suffering upon
the respondent, and this can be compensated by payment of
actual damages which admit of easy and substantially accurate
computation, and in which on the other hand grievous loss and
irremediable harm will be done the appellant if the stay is
refused, the operation of the judgment ought to be stayed. The
principle then is the same as that applied in the case of an
application for an interim injunction—the balance of conveni
ence, with an added factor of the greatest weight, the actual
adjudication that has taken place, and which must be regarded
as prima facie right.
10 (1923-24) 55 O.L.R. 127.
11 (1974) 1 O.R. (2d) 148.
From these cases it is apparent that the balance
of convenience must be taken into consideration.
Unfortunately on the facts in the present case,
while on the one hand it appears unlikely that
respondent would suffer any serious inconvenience
if the execution of the writ of possession is delayed
since it has no immediate need for possession of
the land in question, it is equally true on the other
hand that from a realistic point of view it is
unlikely that applicants would suffer immediate
eviction from the premises if the stay is not grant
ed. It is true that they would be placed in jeopardy
and in a sense at the mercy of respondent who
could immediately direct the warrant for posses
sion to be executed without awaiting the outcome
of the section 28 application, but in practice this is
highly unlikely. Applicants have taken the position
that respondent is not entitled to possession of the
property having indicated that there is no longer
any immediate need for it for the building of an
airport for which purpose it was expropriated.
They have therefore refused to accept the indemni
ty offered or to enter into any lease for their
Continued occupancy of the premises. On the other
hand they have been allowed to have undisturbed
use and enjoyment of the premises up to the
present and in practice it appeared unlikely that
respondent would wish to alter this status quo
pending the decision of the Court of Appeal on the
section 28 application, which applicants' counsel
indicates, and respondent's counsel does not dis
pute, can be disposed of at a relatively early date.
Accordingly the Court suggested to respondent's
counsel that it might be helpful, and pertinent to a
decision of whether, on balance of convenience, a
stay should be granted or not in the event the
Court concluded that it had jurisdiction, if he
would seek instructions as to whether the Crown
would insist on immediate execution of the writ of
possession in the event the stay was refused. I have
now been advised in writing by respondent's coun
sel with copy sent to applicants' counsel that his
instructions are as follows:
(1) the Crown hereby undertakes to not issue execution upon
the Warrants for Possession or take any steps to enforce same
pending the decision of the Federal Court of Appeal in respect
of the Section 28 Applications presently before it.
(2) the above undertaking is given upon the express conditions
that:
(a) the appeal be expedited;
(b) the stay last only so long as it takes the Federal Court of
Appeal to dispose of this matter.
(3) the Crown does not insist upon any other terms such as the
payment of back rent.
Without expressing any doubt as to the bona
fides of the section 28 application or of the inten
tion of applicants to proceed with same it would
appear that, to say the least, it is highly unlikely
the decision will have the effect of setting aside the
order of Mr. Justice Mahoney in view of the
previous decision of the Court of Appeal in the
case The Queen v. Bolton 12 in which the right to
possession by virtue of section 35(1) of the Expro
priation Act was very clearly upheld. In rendering
the judgment of the Court Chief Justice Jackett
stated at page 235:
The right to take physical possession of, or make use of,
expropriated land under section 17(1)(c) does not, in my
opinion depend upon the fact that such possession or use is, in
fact, needed at that time.
Leave to appeal this case to the Supreme Court
was refused by that Court.
Applicants' counsel states that he proposes to
raise a new argument which was not considered by
the Court of Appeal in the Bolton case, namely a
constitutional one that the Crown cannot expropri
ate property for a certain purpose and later change
the purpose for which it is to be used. He has a
right to raise this argument and it will be for the
Court of Appeal to decide whether this distin
guishes the present section 28 application from the
Bolton case.
What the Crown was really seeking before Mr.
Justice Mahoney in the present case was a deter
mination that it now has the right to take posses
sion. The commitment now made overcomes appli
cants' apprehensions as to the legal danger of their
position if the stay was refused. I would not grant
the present application therefore even if I had
concluded that it was within the jurisdiction of this
Court to do so. The applications in all three cases
will therefore be dismissed with costs, one-third of
the fees being attributable to each case and the
same reasons for judgment will apply in each case.
12 [1 976j 1 F.C. 232.
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.