Federal Court Cour fédérale

THE HONOURABLE SEAN J. HARRINGTON

THE FEDERAL COURTS JURISDICTION CONFERENCE STEERING COMMITTEE

PERSONAL REMINISCENCES

At our Jurisdiction Conference Steering Committee meeting, held on Thursday, 22 July

2010, it was agreed that we should focus on the present and the future. However, it was also thought that some mention should be made of the original raison d’être of our courts and their history.

As Chief Justice Lutfy is fond of pointing out, Mr. Justice Hughes and I are probably the only two sitting judges who not only appeared in the courts from day one, but also appeared in the Exchequer Court! This got me to thinking how important the Federal Courts were in my practice, and gave me a bad case of nostalgia.

Maritime law has always been my speciality (although my first appearance in the

Exchequer Court was before President Jackett on an Anti-Combines matter). The Federal Court had many advantages over provincial courts. Its writ ran nationwide. Cargo might be discharged in one province and delivered in another. Provincial courts were less prone at that time to take jurisdiction over defendants who could not be personally served within the jurisdiction.

Provincial bars were very parochial, and in the days before inter-provincial law firms, if it were not for the Federal Court, maritime players and their underwriters sometimes had to hire two or more different law firms to pursue what was essentially one cause of action.

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The Crown was a much bigger player in maritime matters in the 1970s. Privatization of ports had not taken place. The Federal Court also had exclusive jurisdiction in actions against the

Crown.

The Federal Court had another great advantage over provincial courts, the action in rem and the right to arrest. British Columbia now has its own action in rem. Query – is the action in rem a matter of procedure or a matter pertaining to navigation and shipping, and thus beyond provincial jurisdiction?

The fact that there were relatively few navigation and shipping statutes on the books did not give rise to concern. It was assumed that if the matter was such that Parliament could legislate, as long as jurisdiction was confided to the Federal Court, there had to be some law to be applied, although it was not certain whether that law was federal or provincial.

Thus, the decision of the Supreme Court in Quebec North Shore, followed by McNamara and Thomas Fuller, gave rise to great concerns within the admiralty bar. For instance, the life line of most admiralty practioners were cargo claims with respect to goods imported into

Canada. The Hague Rules, which formed part of the Carriage of Goods by Water Act, only applied to bills of lading for cargo shipped from Canadian ports. Thus there was no federal statute applicable. It was not simply a matter of inconvenience in going to one or more provincial courts, those courts might not have had jurisdiction in personam. A broad spectrum of underwriters agreed that jurisdictional doubts could not be allowed to fester. Marc Nadon and I

Doc: Federal Courts_Personal Reminiscences_SJH_18-Aug-10.doc Page: 2 were instructed to test jurisdiction in Tropwood (Tropwood A.G. v. Sivaco Wire & Nail Co.,

[1979] 2 S.C.R. 157). The claim was for sea-water damage to the shipment of steel from France to Montréal, covered by a bill of lading issued in France, and subject to the Hague Rules, as enacted in France.

The Quebec Superior Court probably did not have jurisdiction as the shipowner could likely prove that if the cargo was damaged by sea water during the voyage, the damage arose in international waters. The contract was not made in Quebec. The whole cause of action did not arise in Quebec, and the defendants could not be served in Quebec, as the ship had long gone. To keep the business in Canada, a protective writ was taken out in the Quebec Superior Court. A declaratory exception had to be raised promptly. By agreement, no such exception was taken so that if it were to be held, unfortunately, that the Federal Court did not have jurisdiction, the claim was not time barred and would be heard in the Quebec Superior Court on the merits.

Fortunately, the Federal Court, the Federal Court of Appeal and the Supreme Court held that there was a body of federal law upon which jurisdiction could be exercised. Canadian maritime law has been defined as including the law that the Exchequer Court would have administered on its admiralty side had it had unlimited jurisdiction in maritime matters; i.e. a law which may never have been.

Although the key case, which sets out the jurisdiction of the Federal Court in maritime law and in other areas, is ITO – International Terminal Operators Ltd. v. Miida Electronics Inc.,

Doc: Federal Courts_Personal Reminiscences_SJH_18-Aug-10.doc Page: 3 [1986] 1 S.C.R. 752, there are a few other decisions rendered in the interval between Quebec

North Shore and ITO which should not be forgotten.

A key to the Federal Court’s survival, apart from judicial review, was the recognition that common law is not necessarily provincial law and that Canadian maritime law included the principles of English common law as administered by the English admiralty courts. See R. v.

Rhine, [1980] 2 S.C.R. 442 and Chief Justice Jackett’s detailed analysis of s. 129 of the

Constitution in [1978] 2 F.C. 710, affirmed [1980] 2 S.C.R. 322, and commented upon most favourably by the Supreme Court in ITO.

Canadian maritime law has been used by the Supreme Court to introduce incremental changes to the common law at large:

 Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R.

1021, claims in tort for pure economic loss.

 Bow Valley Husky (Bermuda) v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R.

1210, contributory negligence.

 Fraser River Pile & Dredge v. Can-Dive Services Ltd., [1999] 3 S.C.R. 108,

privity of contract and stipulations for the benefit of third parties.

Canadian maritime law has also been used as a vehicle for comparisons between the common law and the civil law, as maritime law is a combination of both. (Q.N.S. Paper Co. v.

Chartwell Shipping Ltd., [1989] 2 S.C.R. 683.

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