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"Papering Over the Cracks". by the Honourable Justice R.E. Cooper

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"PAPERING OVER THE CRACKS". BY THE HONOURABLE JUSTICE R.E. COOPER An introduction and commentary by Sean J. Harrington Mr. Justice Cooper is a good friend of the Federal Court of Canada, and is well known to many members of the Canadian Marit~e Law Association, having spoken at our 1995 Seminar. Unfortunately, I missed that Seminar and so did not have the pleasure of meeting him and his wife, Penny, until the CMI Conference in Antwerp this past June. I ftrst heard the Honourable Mr. Justice Michael Black, Chief Justice· of the Federal Court of Australia, use the term "cross-vesting" during the festivities marking the 25Cb Anniversary of our Federal Court in 1996. The Federal Court of Canada has two great advantages over the provincial courts which have concurrent jurisdiction to administer Canadian Maritime lAw. 'The Federal Court's writ runs nation-wide and the action in rem provides far better pre-judgment security than the Mareva Injunction or the Quebec Seizure before Judgment. Unfortunately, however, the brief history of the Federal Court has been plagued with uncertainty. What are the statutory limits on its jurisdiction? .What, exactly is the content of Canadian Maritime lAw? What do we do if the Court has jurisdiction over one defendant, or over part of a cause of action, but its overall jurisdiction is in jeopardy? In order to avoid accusations of negligence, practitioners sometimes must fragment a cause of action into its component parts, and me suit in several jurisdictions. This leads to the risk of conflicting judgments, and to an overall rise in the cost of the administration of justice. 2 I recently had the honour of serving as Chairman of the Association of Average Adjusters of Canada. As a result, for a while I was part of an incredible banquet circuit, and had the opportunity of meeting a number of times with Jim Moseley, President of The Maritime Law Association ofthe United States. In passing, I mentioned some of these problems to him. He replied that in the United States the concept of "pendant jurisdiction It had developed. I reported back to Mr. Justice Stone that it might be interesting to take a look at how other federal states. have dealt with admiralty jurisdiction. He agreed. Mr. Moseley has been kind enough to come to Ottawa to present a paper, notwithstanding this is the United States Thanksgiving weekend. Mr. Justice Stone and I then set our eyes on Australia, and had the opportunity of discussing "cross-vesting It with Mr. Justice Cooper in Antwerp. He was kind enough to send us a huge package of background material As circumstances would have it, Mr. Justice Cooper's wife, Penny, who is an accomplished lawyer in her own right, was presenting a paper at the Universit6 de Montr6al shortly after the CMI Conference, and Mr. Justice Cooper acted as moderator during one of the other sessions. This gave the members of the Montreal Admiralty Bar who had not been at the CMI Conference, and the Batonnier of the Barreau de Montr6al, to meet the Coopers, and to discuss cross-vesting a little more. Another benefit of that meeting is that the B!tonnier,Pierre Fournier, and I serve on a Barreau de Montr6al committee dealing with Access to Justice. a subject very dear to the hearts of the Coopers. The Barreau is currently considering the Australian experience; all of which goes to show how important it is to avoid parochialism, and to embrace goods ideas wherever they may be found. Cross-vesting is a good idea. Although the specific language of the Australian statutes differ somewhat from oUrs, the admiralty experience was quite similar to ours. It is to be hoped that the national cross-vesting scheme introduced in 1987 by means of parallel federal and state legislation will reduce, if not entirely eliminate, jurisdictional issues. As Mr. Justice Cooper says: 3 "The scheme involves Complimentary State and Common Law of legislation which provides for the mutual cross-vesting of original and appellate jurisdiction between The Federal Court of Australia -- and the Supreme Courts of the States and Territories. No proceeding which comes within the scheme can fail because the court in which the proceeding is commenced does not have jurisdiction over the subject matter of the suit. " The cost of litigating claims on the merits has become so high that parties are looking for alternate means of dispute resolution. That cost has been exacerbated in· Canada by waste of time and money on jurisdictional points, as a review of the jurisprudence under Section 101 of the Constitution Act readily shows. In August I explained our problems to Mr. Justice Cooper as follows: " By way of background, the following is a very brief summary of the current Constitutional and judicial limits placed on the .Federal Court of Canada's Admiralty jurisdiction. Sections 91 and 92 of the Constitution Act distribute legislative powers between the federal Parliament and provincial legislatures. The federal Parliament may enact legislation, inter alia, ill respect of the regulation of trade and commerce; beacons, buoys, lighthouses and Sable Island, navigation and shil)l)ing, quarantine and the establishment and maintenance of marine hospitals; seacoast and inland fIsheries; and ferries between a province and any British or foreign country or between two provinces. (Emphasis added.) Under Section 92, each province may legislate with respect to, inter alia, local works and undertakings, property and civil rights in the province and ~ administration of justice in the province. including the constitution. maintenance and organization of l)rovincial Courts. both of civil and criminal jurisdiction. and including l)rocedure in civil matters in those Courts, and generally all matters of a merely local or private nature in the province. (Emphasis added.) Thus, the general rule is that the provincial Courts administer all applicable law, be it federal or provincial in origin. However, Section 101 of the Act goes on to provide: "The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court·of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada." 4 The Supreme Court of Canada is the general Court of appeal, while the Federal Court of Canada, which replaced the Exchequer Court in 1971. is an additional Court for the better administration of the laws of Canada. The Federal Court Act conferred a wider jurisdiction on the Court than the Exchequer Court enjoyed. particularly in non-maritime areas. The key maritime section of the Federal Court Act is Section 22, which confers jurisdiction: "in all cases in which a claim for relief is made or a remedy is sought under or by virtue of Canadian maritime law or any other law of Canada relating to any matter coming within the class of subject of navigation and shipping. except to the extent that jurisdiction has been otherwise specially assigned. " Canadian maritime law is defmed in Section 2 as meaning: liThe law that was administered by the Exchequer Court of Canada on its· Admiralty side by virtue of the Admiralty Act, chapter A-I of the Revised Statutes of Canada, 1970, or any other statute, or that would have been so administered if that Court had had. on· its Admiralty side, unlimited jurisdiction in relation to maritime and admiralty ,matters, as that law has been altered by its Actor any other Act of Parliament. " Section 23 of the Act gives the Court jurisdiction over "works and undertakings connecting a province with any other province or extending beyond the limits of a lf province • . It had been widely thought that ifthe dispute fell within a federal legislative class of subject, and ifjurisdiction was conferred on the Federal Court by either Section 22 or 23, that Court had jurisdiction even if there was no federal law in place. It was assumed that the general law otherwise applicable, usually being provincial law as being a matter of property and civil rights, would be applied. However, in Quebec North Shore Paper Co. v. C.P. Ltd. (1977), a case which was characterized as one relating to an inter-provincial work or undertaking, the Supreme Court held that, in addition to the above two mentioned tests, there must be actual existing pertinent federal law to administer. There. was said to be no relevant federal law relating to inter-provincial works or undertakings and so the action was dismissed on the grounds of lack of jurisdiction. This caused a: great commotion within the admiralty bar. Federal legislation such as the Carriage of Goods By Sea Act, the Canada Shipping Act, the Bills ofLading Act, the Navigable Waters Protection Act, and others, are certainly not all­ encompassing. For instance, the Carriage of Goods By Sea Act which then gave force to the Hague Rules, and now the Hague-Visby Rules, only applies to bills of lading covering shipments from a Canadian port. However, the Supreme Court in short order held in TropwoodA.C v. Sivaco Wire and Nail Co. (1979) and Antares 5 Shipping Corp. v. The CAPRICORN (1980) that Canadian maritime law is a body of statutorily recognized law coextensive with the federal Parliament's legislative authority over navigation and shipping. However, the Court did not find it necessary in either of those cases to say what that law was. For instance. there was quite a debate in The TROPWOOD as to whether the lex non scripta portion of Canadian maritime law drew from the laws of the province with the closest contact with the case, or from English admiralty and English common law.
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