T-3203-76
The Queen (Plaintiff)
v.
Saskatchewan Wheat Pool (Defendant)
Trial Division, Smith D.J.—Winnipeg, December
6 and 30, 1977.
Jurisdiction — Action under Canada Grain Act for damages
for delivery of infested wheat — Motion brought to ascertain
Court's jurisdiction — Canada Grain Act, S.C. 1970-71-72, c.
7, ss. 2(11),(20), 61(1), 86, 89(1),(2), 93(1), 100(d) — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 17(4)(a).
In an action to determine whether the delivery by the
operator of a terminal elevator, into a vessel, of infested wheat,
upon surrender of an elevator receipt issued by that operator
and requiring a certain grade of wheat, constitutes fulfilment of
the operator's obligation under the Canada Grain Act to deliver
wheat of that grade, the plaintiff brings this motion to ascertain
whether or not this Court has jurisdiction to hear and deter
mine the issue.
Held, this Court has jurisdiction to hear and determine the
question at issue: the statutory liability of the elevator operator
under the Canada Grain Act. This case falls squarely within the
Privy Council's decision in Consolidated Distilleries, as modi
fied in the Quebec North Shore and McNamara cases. The
Supreme Court did not mean in those cases that circumstances
and statutory provisions such as exist here would leave this case
outside the jurisdiction of this Court. Section 17(4)(a) of the
Federal Court Act as it was validly interpreted in those cases, is
effective to confer jurisdiction on this Court. A contrary view
would come close to holding that this subsection has no valid
effect, a position not taken by the Supreme Court.
Consolidated Distilleries Ltd. v. The King [1932] S.C.R.
419; [1933] A.C. 508, applied. Quebec North Shore Paper
Co. v. Canadian Pacific Ltd. [1977] 2 S.C.R. 1054,
applied. McNamara Construction (Western) Ltd. v. The
Queen [1977] 2 S.C.R. 654, applied. London Passenger
Transport Board v. Upson [1949] 1 All E.R. 6, considered.
APPLICATION.
COUNSEL:
Henry B. Monk, Q.C., Edythe I. MacDonald,
Q. C., and Deedar Singh Sagoo for plaintiff.
No one appearing for defendant.
SOLICITORS:
Deputy Attorney General of Canada for
plaintiff.
Balfour, Moss, Milliken, Laschuk, Kyle,
Vancise & Cameron, Regina, for defendant.
The following are the reasons for judgment
rendered in English by
SMITH D.J.: The claim in this action is made
under the Canada Grain Act, S.C. 1970-71-72,
c. 7, for damages for delivery of wheat infested
with rusty grain beetle larvae. The question to be
determined in the action is whether the delivery,
by the operator of a terminal elevator, into a vessel
of wheat (593,978.4 bushels) infested with such
larvae, upon surrender of an elevator receipt issued
by that operator requiring wheat of the Grade No.
3 Canada Utility, constitutes fulfilment of the
obligation of the operator under the Canada Grain
Act to deliver to the holder of the elevator receipt,
upon surrender of that receipt, wheat of the grade
mentioned therein.
Questions having been raised in this Court as to
its jurisdiction over issues arising in somewhat
similar circumstances, the plaintiff has brought
this motion (at the instance of the Court) to
ascertain whether this Court has jurisdiction to
hear and determine the question stated in the
foregoing paragraph.
The jurisdiction of the Federal Court of
Canada, like that of its predecessor, the Exchequer
Court of Canada, is derived from statute. The
Court has no inherent jurisdiction. It was created
under the power given by section 101 of the Brit-
ish North America Act, 1867, by the Federal
Court Act, chapter 1 of the Statutes of Canada
1970-71-72, which is chapter 10 in the 2nd Sup
plement to the Revised Statutes of Canada 1970.
The Court may be given jurisdiction by other Acts
of Parliament but in general its jurisdiction is
found in sections 17 to 30 of the Federal Court
Act, and the provision with which we are here
concerned is subsection (4)(a) of section 17, which
enacts:
17. ...
(4) The Trial Division has concurrent original jurisdiction
(a) in proceedings of a civil nature in which the Crown or
the Attorney General of Canada claims relief; ..
The present motion is brought under Rule 474
of the Federal Court Rules, which authorizes the
Court, upon application, if it deems it expedient so
to do, to determine any question of law that may
be relevant to the decision of a matter. The motion
is not objected to by the defendant. In fact counsel
for the defendant, by letter to counsel for the
plaintiff, indicated that he agreed with the plain
tiff's position that the Court had jurisdiction in the
case and that he would not be appearing at the
hearing of this motion. He did not appear. There is
thus no dispute between the parties on the question
of jurisdiction.
The true position appears to be that the Court
itself wishes to have its jurisdiction determined.
The plaintiff also desires a decision on this matter,
mainly because of the wide-spread repercussions a
negative decision as to jurisdiction would have on
litigation carried on by the Canadian Wheat
Board. A decision on this purely legal point should
shorten the trial in this case and afford guidance to
the Board concerning what steps it should take in
other cases now under consideration as well as
others that may arise in the future. For these
reasons I have deemed it expedient to hear the
application, even though it is doubtful that the
total proceedings in this action will be shortened.
The facts, in so far as related to this motion may
be stated briefly. The Canadian Wheat Board,
which is for all purposes an agent of the plaintiff,
was the holder of terminal elevator receipts issued
by the defendant and other operators of terminal
elevators at Thunder Bay. On September 19, 1975
it gave written loading instructions to its agent, the
Lake Shippers' Clearance Association, to cause to
be loaded on the vessel Frankeliffe Hall at Thun
der Bay for shipment to the Board at Mont-
real or some other port on the St. Lawrence River,
for export, 935,000 bushels of wheat, of which
594,000 bushels, of grade No. 3 Canada Utility
Wheat, is the subject of this action. The Board
authorized its said agent to surrender to the
defendant and other terminal elevators at Thunder
Bay, duly endorsed terminal elevator receipts for
the grades and quantities of wheat specified there
in, including the above amount of No. 3 Canada
Utility Wheat.
These instructions were carried out. The defend
ant and two other terminal elevator operators
loaded a total of 593,978.4 bushels of purported
No. 3 Canada Utility Wheat into 4 holds of the
vessel. The wheat delivered from the defendant's
terminal elevator No. 8 into holds 5 and 6, was
found, on inspection of samples taken during load
ing, to be infested by rusty grain beetle larvae. It
was infested wheat as defined in the Canada Grain
Act (section 2(20)).
The Canadian Grain Commission ordered the
Board to have the wheat in holds Nos. 5 and 6
unloaded and fumigated and to have those holds
cleaned and fumigated. The costs of carrying out
this order, including the costs of nearly seven days
delay to the vessel while the work was being done,
amounting to $98,261.55, were paid by the Board.
This action is brought to recover this sum as
damages, the only basis of the claim being under
the Canada Grain Act. No claim is made as to
negligence.
Questions related to the extent of the power of
Parliament to confer jurisdiction upon a Court
created by it under section 101 of the B.N.A. Act
have come before the courts in several cases, par
ticularly in recent years. Before discussing some of
these cases it will be useful to quote said section
101.
101. The Parliament of Canada may, notwithstanding any
thing in this Act, from Time to Time provide for the Constitu
tion, Maintenance, and Organization of a General Court of
Appeal for Canada, and for the Establishment of any addition
al Courts for the better Administration of the Laws of Canada.
The first case I turn to is Consolidated Distil
leries Limited v. The King [1932] S.C.R. 419;
[ 1933] A.C. 508. In that case the statutory provi
sion in question was what was at that time section
30(d) of the Exchequer Court Act, which was
similar in effect to the present section 17(4)(a) of
the Federal Court Act. It reads as follows [R.S.C.
1970, c. E-11, s. 29(d)]:
29. The Court has and possesses concurrent original jurisdic
tion in Canada
(d) in all other actions and suits of a civil nature at common
law or equity in which the Crown is plaintiff or petitioner.
In the Consolidated Distilleries case the claim
was to recover the amounts of bonds given by the
appellants to the Crown in respect of liquors being
exported. In the Supreme Court decision Anglin
C.J.C. said at p. 421:
If authority to hear and determine such claims as these is not
something which it is competent for the Dominion, under s. 101
of the British North America Act, to confer upon a court
created by it for "the better administration of the law of
Canada," I would find it very difficult to conceive what that
clause in the B.N.A. Act was intended to convey.
That the Dominion Parliament intended to confersuch juris
diction on the Exchequer Court, in my opinion, is clear beyond
argument, the case probably falling within clause (a); but, if
not, it certainly is clearly within clause (d) of s. 30 of the
Exchequer Court Act.
And Duff J. said, at p. 422:
I find no difficulty in holding that the Parliament of Canada
is capable, in virtue of the powers vested in it by section 101 of
the British North America Act, of endowing the Exchequer
Court with authority to entertain such actions as these. I do not
doubt that "the better administration of the laws of Canada,"
embraces, upon a fair construction of the words, such a matter
as the enforcement of an obligation contracted pursuant to the
provisions of a statute of that Parliament or of a regulation
having the force of statute. I do not think the point is suscept
ible of elaborate argument, and I leave it there.
As to the jurisdiction of the Exchequer Court, in so far as
that depends upon the construction of the Exchequer Court
Act, something might be said for the view that these cases are
not within the class of cases contemplated by subsection A of
section 30; but that is immaterial because they are plainly
within subsection D.
The judgment of the Privy Council, to which the
decision of the Supreme Court was appealed, was
delivered by Lord Russell of Killowen. At p. 520,
after referring to the power of Parliament to estab
lish courts given by section 101 of the B.N.A. Act,
he said:
The Exchequer Court of Canada was constituted in the year
1875 in exercise of this power. It was conceded by the appel
lants (and rightly, as their Lordships think) in the argument
before the Board, that the Parliament of Canada could, in
exercising the power conferred by s. 101, properly confer upon
the Exchequer Court jurisdiction to hear and determine actions
to enforce the liability on bonds executed in favour of the
Crown in pursuance of a revenue law enacted by the Parlia
ment of Canada. The point as to jurisdiction accordingly
resolves itself into the question whether the language of the
Exchequer Court Act upon its true interpretation purports to
confer the necessary jurisdiction.
And on pages 521 and 522 he said:
Their Lordships are anxious to avoid expressing any general
views upon the extent of the jurisdiction conferred by s. 30,
beyond what is necessary for the decision of this particular
case. Each case as it arises must be determined in relation to its
own facts and circumstances. In regard to the present case their
Lordships appreciate that a difficulty may exist in regard to
sub-s. (a). While these actions are no doubt "cases relating to
the revenue," it might perhaps be said that no law of Canada is
sought to be enforced in them. Their Lordships, however, have
come to the conclusion that these actions do fall within sub-s.
(d). It was suggested that if read literally, and without any
limitation, that sub-section would entitle the Crown to sue in
the Exchequer Court and subject defendants to the jurisdiction
of that Court, in respect of any cause of action whatever, and
that such a provision would be ultra vires the Parliament of
Canada as one not covered by the power conferred by s. 101 of
the British North America Act. Their Lordships, however, do
not think that subs-s. (d), in the context in which it is found,
can properly be read as free from all limitations. They think
that in view of the provisions of the three preceding sub-sec
tions the actions and suits in sub-s. (d) must be confined to
actions and suits in relation to some subject-matter, legislation
in regard to which is within the legislative competence of the
Dominion. So read, the sub-section could not be said to be ultra
vires, and the present actions appear to their Lordships to fall
within its scope. The Exchequer Court accordingly had juris
diction in the matter of these actions.
The effect of the Privy Council's judgment in
that case was that if the jurisdiction granted by
Parliament to a court established under section
101 was related to a subject matter over which
Parliament had legislative competence, it was a
valid grant of jurisdiction. This judgment was
never overruled while appeals to the Privy Council
continued to be possible. However, appeals to that
body were abolished many years ago and in recent
years decisions of the Supreme Court of Canada
(the final court of appeal in Canada) have inter
preted the effect of section 101 of the B.N.A. Act
and the jurisdiction granted under it by sections
17(4)(a) and 23 of the Federal Court Act more
narrowly.
The first of these recent cases is Quebec North
Shore Paper Co. v. Canadian Pacific Ltd. [1977]
2 S.C.R. 1054.
In this case the question was whether section 23
of the Federal Court Act validly gave jurisdiction
to hear an action between subject and subject for
breach of contract, the contract being in relation
to matters within works and undertakings extend-
ing beyond the limits of a province. The appeal to
the Supreme Court was heard by the full Court of
nine judges. The unanimous decision was given by
Laskin C.J.C. At page 1063 the learned Chief
Justice said, referring to the Consolidated Distil
leries case:
Stress is laid, however, on what the Privy Council said in
discussing the application of s. 30(d) of the Exchequer Court
Act, the provision giving jurisdiction to the Exchequer Court in
civil actions where the Crown is plaintiff or petitioner. I do not'
take its statement that "sub-s. (d) must be confined to actions
... in relation to some subject matter legislation in regard to
which is within the legislative competence of the Dominion" as
doing anything more than expressing a limitation on the range
of matters in respect of which the Crown in right of Canada
may, as plaintiff, bring persons into the Exchequer Court as
defendants. It would still be necessary for the Crown to found
its action on some law that would be federal law under that
limitation.
The final paragraph of the judgment, at pages
1065-66, is as follows:
It is also well to note that s. 101 does not speak of the
establishment of Courts in respect of matters within federal
legislative competence but of Courts "for the better administra
tion of the laws of Canada". The word "administration" is as
telling as the plural words "laws", and they carry, in my
opinion, the requirement that there be applicable and existing
federal law, whether under statute or regulation or common
law, as in the case of the Crown, upon which the jurisdiction of
the Federal Court can be exercised. Section 23 requires that the
claim for relief be one sought under such law. This requirement
has not been met in the present case and I would, accordingly,
allow the appeal, set aside the judgments below and declare
that the Federal Court is without jurisdiction to entertain the
claims of respondents. The appellants are entitled to their costs
throughout.
The next case is McNamara Construction
(Western) Ltd. v. The Queen [1977] 2 S.C.R. 654.
This action arose out of a contract between the
Crown in right of Canada and a construction
company for the construction of a Young Offend
ers Institution in Alberta. The Crown sued for
damages for breach of contract, both the construc
tion company and the architects and engineers. A
preliminary question was whether there was juris
diction in the Federal Court to hear the cases
under section 17(4)(a) of the Federal Court Act.
The appeal to the Supreme Court was heard by
the same full court as was the Quebec North Shore
case, and again the judgment was unanimous and
delivered by Laskin C.J.C.
On pages 658-59 there is the following
statement:
It is not enough that the Parliament of Canada have legislative
jurisdiction in respect of some matter which is the subject of
litigation in the Federal Court. As this Court indicated in the
Quebec North Shore Paper Company case, judicial jurisdiction
contemplated by s. 101 is not co-extensive with federal legisla
tive jurisdiction. It follows that the mere fact that Parliament
has exclusive legislative authority in relation to "the public debt
and property" under s. 91(1A) of the British North America
Act and in relation to "the establishment, maintenance and
management of penitentiaries" under s. 91(28), and that the
subject matter of the construction contract may fall within
either or both of these grants of power, is not enough to support
a grant of jurisdiction to the Federal Court to entertain the
claim for damages made in these cases.
At the bottom of page 659 and continuing on
page 660 the learned Chief Justice said:
In the Quebec North Shore Paper Company case, this Court
observed, referring to this provision, that the Crown in right of
Canada in seeking to bring persons into the Exchequer Court as
defendants must have founded its action on some existing
federal law, whether statute or regulation or common law.
What must be decided in the present appeals, therefore, is
not whether the Crown's action is in respect of matters that are
within federal legislative jurisdiction but whether it is founded
on existing federal law. I do not think that s. 17(4), read
literally, is valid federal legislation under s. 101 of the British
North America Act in purporting to give jurisdiction to the
Federal Court to entertain any type of civil action simply
because the Crown in right of Canada asserts a claim as
plaintiff. The common law rule that the Crown may sue in any
Court having jurisdiction in the particular matter, developed in
unitary England, has no unlimited application to federal
Canada where legislative and executive powers are distributed
between the central and provincial levels of legislature and
government and where, moreover, there is a constitutional
limitation on the power of Parliament to establish Courts.
At page 662 he said:
What remains for consideration here on the question of
jurisdiction is whether there is applicable federal law involved
in the cases in appeal to support the competence of the Federal
Court to entertain the Crown's action, both with respect to the
claim for damages and the claim on the surety bond.
Laskin C.J.C. then stated that the fact that the
Crown is a party to a contract on which it is suing
as a plaintiff, is not enough to satisfy the require-
ment of applicable federal law, and proceeded to
say [at page 662]:
The situation is different if Crown liability is involved because
in that respect there were existing common law rules respecting
Crown liability in contract and immunity in tort, rules which
have been considerably modified by legislation. Where it is not
the Crown's liability that is involved but that of the other party
to a bilateral contract, a different situation prevails as to the
right of the Crown to compel that person to answer process
issued out of the Federal Court.
In the McNamara case there was also an alter
native claim by the Crown against an insurance
company on a surety bond issued by that company
to the Crown in respect of the construction compa-
ny's obligation under the construction contract. In
respect of this claim the judgment of the Supreme
Court states, at page 663:
I take the same view of the Crown's claim on the bond as I
do of its claim against McNamara for damages. It was urged
that a difference existed because (1) s. 16(1) of the Public
Works Act, now R.S.C. 1970, c. P-38 obliges the responsible
Minister to obtain sufficient security for the due performance
of a contract for a public work and (2) Consolidated Distiller
ies v. The King, supra, stands as an authority in support of the
Crown's right to invoke the jurisdiction of the Federal Court
where it sues on a bond. Neither of these contentions improves
the Crown's position. Section 16(1) of the Public Works Act
stipulates an executive or administrative requirement that a
bond be taken but prescribes nothing as to the law governing
the enforcement of the bond. The Consolidated Distilleries
case involved an action on a bond given pursuant to the federal
Inland Revenue Act and, as the Privy Council noted "the
subject matter of the actions directly arose from legislation of
Parliament in respect of excise": see [1933] A.C. 508 at p. 521.
The Court held that there was no existing feder
al law that could form a basis for the Crown's suit
in the Federal Court. The appeal was allowed.
Two other cases came before the Trial Division
of this Court in the spring of 1977 and were
decided by Cattanach J. in May of that year.
These cases are:
The Queen v. Rhine [1978] 1 F.C. 356 and The
Queen v. Prytula [1978] 1 F.C. 198.
In both of these cases Cattanach J. came to the
conclusion that there was no federal law on which
jurisdiction in the Federal Court could be based.
Both actions were dismissed. Counsel for the
Crown in the present case stated that both cases
were under appeal. In Cattanach J.'s view, in both
cases the elements to be considered were the same
as those in the McNamara case. With respect to
the effect of the McNamara case, he said, at page
203 of the Prytula case:
My appreciation of the decision in the McNamara case is
that for the Federal Court to have jurisdiction there must be an
existing and applicable federal law which can be invoked to
support the proceedings and that the proceedings must be
"founded" upon that law. It is not enough that the Crown is a
party to a contract on which it sues as plaintiff.
The solicitor for the plaintiff in his letter dated April 13,
1977 submits that the plaintiff's action is founded upon the
Canada Student Loans Act and Regulation 21(1) thereunder.
While I accept without question that this is federal legislation, I
do not accept the contention that the action is "founded" upon
this legislation in the sense that the word "founded" is used by
the Chief Justice in the McNamara case.
He continued [at pages 203-204]:
It is true that the Minister is subrogated to the rights of the
bank on an unrepaid loan for which loss the Minister holds the
bank harmless but that does not bestow upon the Minister any
rights different from those of the bank in whose stead he
stands.
It is clear from the statement of claim that what the plaintiff
is suing upon is a breach of the agreement between the bank
and the student to which agreement the plaintiff is subrogated.
It is not enough that the liability arises in consequence of the
statute and regulations thereunder.
While the statute authorizes a bank to make a loan to a
student and prescribes the conditions of that loan and that the
bank is guaranteed against any loss by the Minister who, if he
makes good any loss by the bank, is then subrogated to the
rights of the bank, the statute does not, in itself, impose a
liability and there is no liability except that of the borrower
which flows not from the statute but from the borrower's
contractual promise to repay the loan. The liability is based on
the agreement and the action is founded upon a breach of the
agreement, not upon a liability imposed by the statute as is the
case under the Income Tax Act, customs and excise legislation
and like federal legislation.
It is arguable that in these decisions Cattanach
J. has gone further in interpreting the effect of
section 101 of the B.N.A. Act and section 17(4)(a)
of the Federal Court Act than the Supreme Court
of Canada did in the Quebec North Shore Paper
case and the McNamara case, and in so doing has
accorded to the Federal Court a more restricted
jurisdiction than was expressed by Laskin C.J.C.
in those cases. In my discussion of the law as
applied to the case before me I shall be guided by
the Supreme Court judgments in those two cases.
In those judgments the Supreme Court held that
the provisions of section 101 of the B.N.A. Act
make it a prerequisite to the exercise of jurisdic
tion by the Federal Court that there be existing
and applicable federal law, whether under statute
or regulation or common law which can be invoked
to support the competence of the Court in any
proceedings before it.
The question to be answered is therefore wheth
er there is such existing and applicable federal law.
The source in which such law is to be sought is the
Canada Grain Act, S.C. 1970-71-72, c. 7 and
Regulations made in accordance therewith. The
issue in this case is the liability of an elevator
operator. Section 61(1) describes the duty of an
operator in delivering grain from his elevator. It
reads:
61. (1) Where the holder of an elevator receipt for grain
issued by the operator of a licensed terminal elevator or a
licensed transfer elevator who may lawfully deliver grain
referred to in the receipt to another elevator or to a consignee
at a destination other than an elevator
(a) requests that the grain be shipped,
(b) causes to be placed at the elevator to transport the grain
a conveyance that is capable of receiving grain discharged
out of the elevator and to which the grain may lawfully be
delivered, and
(c) surrenders the elevator receipt and pays the charges
accrued under this Act in respect of the grain referred to in
the receipt,
the operator of the elevator shall, subject to subsection (7) of
section 70, forthwith discharge into the conveyance the identi
cal grain or grain of the same kind, grade and quantity as the
grain referred to in the surrendered receipt, as the receipt
requires.
I note that on surrender of the elevator receipt
and payment of charges the elevator operator is
required to deliver into the conveyance (in this
case a particular ship) grain of the same kind,
grade and quantity as the grain referred to in the
receipt.
I note also that the elevator receipt, which is on
a form prescribed by Regulations made under the
Act is defined by subsection (11) of section 2, the
interpretation section, as meaning
2....
... a document in prescribed form issued in respect of grain
delivered to an elevator ... and, subject to any conditions
contained therein or in this Act, entitling the holder of the
document
(a) to the delivery of grain of the same kind, grade and
quantity as the grain referred to in the document, or
One additional point about the elevator receipt
is noted. By section 93 (1) the receipt and the
rights arising under it, may be transferred from
holder to holder by the endorsement and delivery
thereof to the transferee. Thus it is a negotiable
instrument.
The wheat actually delivered onto the Frank-
cliffe Hall in this case, about which this action is
brought was infested with rusty grain beetle
larvae.
By subsection (20) of section 2 "infested" means
containing any injurious, noxious or troublesome
insect or animal pest.
Next, I turn to section 86, which provides in
part:
86. No operator of a licensed elevator shall
(c) except under the regulations or an order of the Commis
sion, receive into or discharge from the elevator any grain,
grain product or screenings that is infested or contaminated
or that may reasonably be regarded as being infested or
contaminated; or
And section 100 provides, in part:
100. The Commission may make orders
(d) seizing infested or contaminated grain or requiring the
operator of an elevator to treat or dispose of infested or
contaminated grain in a manner approved by the
Commission.
Finally, the order requiring the Canadian
Wheat Board to have the wheat in holds Nos. 5
and 6 unloaded and fumigated and to have those
holds cleaned and fumigated, compliance with
which order occasioned the costs of $98,261.55
that are claimed in this action, was an order of the
Canadian Grain Commission under authority
vested in it by or under the Act.
The result of the foregoing provisions of the
Canada Grain Act is that practically everything
concerning the rights of the holder of an elevator
receipt, the obligations of the elevator operator,
the prohibition on delivery from the elevator of
infested grain and what is to be done with infested
grain when found in an elevator or vessel, is deter
mined by specific provisions of the Canada Grain
Act. Further under section 89(2), the general
penalty section of the Act, penalties of fine and/or
imprisonment may be invoked for discharging
infested grain from an elevator, at least where the
discharging is done with knowledge. The opening
words of that subsection are:
89....
(2) Every person who violates or fails to comply with any
provision of this Act, other than section 59 [for breach of which
section heavier penalties are provided], or of the regulations or
any order of the Commission, other than an order for the
payment of any ... loss, is guilty of an offence and ... .
The balance of the subsection sets out the penal
ties that may be invoked.
The only relevant matter not covered by the Act
is that of civil remedies for a person who suffers
loss or damage from a breach of the statutory
obligations and duties of the elevator operator
under the Canada Grain Act. A person claiming to
be injured thereby, in this case the plaintiff
through its agent the Canadian Wheat Board, is
left to seek the common law remedy of damages.
I emphasize that the issue in this case is the
statutory liability of an elevator operator under the
Canada Grain Act. It is not to be confused with a
case where the issue is negligence (not claimed in
this case), nor, in my opinion, for the purpose of
determining the jurisdiction of the Federal Court,
with one where the issue is simply one of breach of
contract between persons. On the distinctive
nature of statutory rights it will be useful to quote
the words of Lord Wright in the House of Lords in
London Passenger Transport Board v. Upson
[1949] 1 All E.R. 60 at p. 67:
I think that the authorities such as Caswell's case (Caswell v.
Powell Duffryn Associated Collieries, Ltd. [1939] 3 All E.R.
722), Lewis v. Denye ([1940] 3 All E.R. 299) and Sparks' case
(Sparks v. Edward Ash, Ltd. [1943] 1 All E.R. 1) show clearly
that a claim for damages for breach of a statutory duty
intended to protect a person in the position of the particular
plaintiff is a specific common law right which is not to be
confused in essence with a claim for negligence. The statutory
right has its origin in the statute, but the particular remedy of
an action for damages is given by the common law in order to
make effective for the benefit of the injured plaintiff his right
to the performance by the defendant of the defendant's statu
tory duty. It is an effective sanction. It is not a claim in
negligence in the strict or ordinary sense.
In my opinion this case falls squarely within the
decision of the Privy Council in the Consolidated
Distilleries case (supra), as interpreted and modi
fied by the Supreme Court in the Quebec North
Shore Paper and McNamara cases. I do not think
the Supreme Court meant by what was said by the
Chief Justice in those cases that circumstances and
statutory provisions such as exist here would leave
this case outside the jurisdiction of the Federal
Court of Canada. In my view section 17(4)(a) of
the Federal Court Act as its validity was interpret
ed in those cases, is effective to confer jurisdiction
on this Court. A contrary view would come close
to holding that this subsection has no valid effect,
a position not taken by the Supreme Court.
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.