T-5608-81
The Queen (Plaintiff)
v.
Air Canada (Defendant)
Trial Division, Cattanach J. Toronto, March 2,
1982.
Practice — Motion to strike pleadings — Motion to strike
out third party notice — Plaintiff sued defendant under nisi .
toms Act as sufferance warehouseman for customs duties on
goods released without duties being paid — Defendant seeks
to join customs broker as third party, seeking relief over on
grounds of negligence in failing to ensure payment of duties or
unlawful inducement of defendant to release goods — Third
party action therefore based on provincial laws No jurisdic
tion in Court under s. 17(4)(a) of Federal Court Act to hear
third party action between subject and subject based upon
provincial laws although principal action based upon Customs
Act, a federal law — Motion allowed — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 17(4)(a) Customs Act,
R.S.C. 1970, c. C-40, s. 278(4).
MOTION.
COUNSEL:
No one appearing for plaintiff.
C. B. Black for defendant.
R. Gasparotto for third party.
SOLICITORS:
Deputy Attorney General of Canada for
plaintiff.
Giard,iGagnon, Montreal, for defendant.
Ivey & Dowler, London, for third party.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: This is a motion by a third
party to strike out the third party notice.
In my view, the matter in issue between the
defendant and the third party is one over which
this Court has no jurisdiction as being between
subject and subject and jurisdiction is not
bestowed on this Court under paragraph 17(4)(a)
of the Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10.
Under the Customs Act, R.S.C. 1970, c. C-40,
Her Majesty may recover customs duties as a debt
from the importer or the exporter, the customs
broker or the sufferance warehouseman. Air
Canada operates a sufferance warehouse and
released goods without the duties being paid. By
virtue of the obligation imposed on Air Canada
under subsection 278(4) of the Customs Act, Air
Canada may be liable therefor, subject to the
defence provided in the subsection.
Her Majesty sued Air Canada. It is the privilege
of a plaintiff to decide whom shall be sued as a
defendant.
Air Canada seeks to join the customs broker,
International Import Customs Brokers Inc., as a
third party in order to recover over against the
third party in the event of it being held liable in
the principal action and so seeks relief from the
third party on the grounds of negligence by it in
failing to ensure payment of the duties, and induc
ing the defendant to release the goods upon modi
fied or falsified documents.
Thus the right sought to be enforced in the third
party action is a right resulting from negligence or
unlawful inducement which, in either instance, is
conferred by provincial laws and, in my view, the
jurisdiction of this Court is not extended by para
graph 17(4)(a) of the Federal Court Act to cover
this circumstance as ancillary to the principal
action. The actions are separate and distinct, the
principal action being based upon a precise federal
law, i.e. the Customs Act and the third party
action upon provincial laws.
Accordingly, the third party notice is struck out
and the third party is entitled to recover its costs
from the defendant, Air Canada.
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.