T-1780-77
William and Tabitha Smith (Plaintiffs)
v.
The Queen and the Attorney General of Canada
(Defendants)
Trial Division, Mahoney J.—Vancouver, October
24, 25 and 27; Ottawa, November 4, 1977.
Jurisdiction — Prerogative writs — Writ of quo warranto
sought re Yukon magistrate's authority — Magistrate
appointed pursuant to territorial ordinance — Ordinance's
legislative competence in turn due to Yukon Act — Whether or
not territorial magistrate's court a federal tribunal and there
fore within Federal Court's jurisdiction — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 18 Magistrate's Court
Ordinance, O.Y.T. 1971 (1st), c. 10 — Yukon Act, R.S.C.
1970, c. Y-2, as amended by R.S.C. 1970 (1st Supp.), c. 48, ss.
6 and 12, and SOR/71-130 — Interpretation Act, R.S.C. 1970,
c. 1-23.
APPLICATION.
COUNSEL:
W. Smith for himself and Tabitha Smith.
J. R. Haig for defendants.
SOLICITORS:
W. Smith, Old Crow, for himself and Tabitha
Smith.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: The plaintiffs seek a writ of quo
warranto in respect of the authority of one Wil-
liam Pierce and others generally to act, in Her
Majesty's name, as magistrates of the Magistrate's
Court of the Yukon Territory. The defendants
have, by leave, entered a conditional appearance
for the purpose of questioning this Court's jurisdic
tion to entertain the action.
The magistrates in issue are appointed by the
Commissioner of the Yukon Territory pursuant to
the Magistrate's Court Ordinance' which, in turn,
I O.Y.T. 1971 (1st), c. 10.
would appear to be within the legislative compe
tence of the Territorial Council only by virtue of
paragraph 16(i) of the Yukon Act 2 .
Under section 18 of the Federal Court Act 3 , this
Court has exclusive jurisdiction to grant the relief
sought if these magistrates fall within the defini
tion of "federal board, commission or other tribu
nal" in the Federal Court Act, which is:
2. In this Act
"federal board, commission or other tribunal" means any body
or any person or persons having, exercising or purporting to
exercise jurisdiction or powers conferred by or under an Act
of the Parliament of Canada, other than any such body
constituted or established by or under a law of a province or
any such person or persons appointed under or in accordance
with a law of a province or under section 96 of The British
North America Act, 1867;
The powers and jurisdiction of these magistrates
may be conferred under an Act of the Parliament
of Canada, the Yukon Act, but their court is
constituted and they are appointed under an Ordi
nance of the Council of the Yukon Territory.
The Interpretation Act 4 provides:
28. In every enactment
"province" means a province of Canada, and includes the
Yukon Territory and the Northwest Territories;
That, of course, applies to the Federal Court Act.
The magistrates of the Magistrate's Court of the
Yukon Territory, in general, and William Pierce,
in particular, are not, by definition, a "federal
board, commission or other tribunal" by reason of
the express exclusion from that term of a body
constituted and persons appointed under the law of
a province. This Court has no jurisdiction to enter
tain the action.
JUDGMENT
The action is dismissed with costs.
a R.S.C. 1970, c. Y-2, as amended by R.S.C. 1970 (1st
Supp.), c. 48, ss. 6 and 12 and SOR/71-130.
3 R.S.C. 1970 (2nd Supp.), c. 10.
4 R.S.C. 1970, c. I-23.
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.