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Constitutional Law - CONSTITUTIONAL PROCEEDINGS - Practice and procedure - Courts - Jurisdiction

Thursday, December 22, 2016 @ 7:00 PM  


Appeal by the City of Windsor (City) from a judgment of the Federal Court of Appeal, setting aside a decision of the Federal Court striking the Canadian Transit Company’s notice of application for want of jurisdiction. The Canadian Transit Company owned and operated the Canadian half of the Ambassador Bridge connecting Windsor, Ontario and Detroit, Michigan. Over the past decade the Company had purchased more than 100 residential properties in Windsor with the intention of eventually demolishing the homes and using the land to facilitate maintenance and expansion of the bridge and its facilities. Most of the homes were now vacant and, according to the City, in varying states of disrepair. The City, pursuant to its bylaws, had issued more than 100 repair orders against the properties. The Company had not complied with the repair orders, claiming that the Ambassador Bridge was a federal undertaking and the City’s bylaws and repair orders could not constitutionally apply to it. The parties had been engaged in proceedings relating to those repair orders in the Ontario Superior Court of Justice. This appeal dealt only with the preliminary issue of whether the Federal Court had jurisdiction to decide whether the Company was required to comply with the City’s bylaws and repair orders. The City asserted only the Ontario Superior Court of Justice had jurisdiction to settle the issue. The Company applied to the Federal Court, with notice to the City, for declarations to the effect that the Company had certain rights under the Act to incorporate The Canadian Transit Company (CTC Act) which superseded the Property Standards By-law and any repair orders issued under it. The Company relied upon s. 23(c) of the Federal Courts Act to establish the jurisdiction of the Federal Court. The City moved to strike the Company’s notice of application on the ground that the Federal Court lacked jurisdiction to hear the application. The Federal Court struck the Company’s notice of application for want of jurisdiction. However, the Federal Court of Appeal concluded that the CTC Act was constitutionally valid, that all three parts of the ITO test were met, and that the Federal Court had jurisdiction. It ultimately concluded that the Federal Court had the power to make constitutional declarations about the validity, applicability and operability of legislation. The issue on appeal was whether the Federal Court had jurisdiction to decide a claim that a municipal bylaw was constitutionally inapplicable or inoperative in relation to a federal undertaking.

HELD: Appeal allowed. In order to decide whether the Federal Court had jurisdiction over a claim, it was necessary to determine the essential nature or character of that claim. The Court held in the ITO case that a statutory grant of jurisdiction was necessary, but not alone sufficient, for the Federal Court to have jurisdiction in a given case. The first part of the three-part ITO test required that a federal statute grant jurisdiction to the Federal Court. The Federal Court of Appeal in this case did not consider whether the Company was seeking relief under federal law. Requiring the right to seek relief to arise directly from federal law brought clarity to the scope of the Federal Court’s concurrent jurisdiction. A person could not seek relief under s. 23 of the Federal Courts Act itself. It did not create any right of action. It merely conferred on the Federal Court jurisdiction to provide relief that a person could otherwise seek “under an Act of Parliament or otherwise”. The Company was seeking relief under constitutional law, because it was constitutional law which conferred on parties the right to seek a declaration that a law was inapplicable or inoperative. However, a party seeking relief under constitutional law was not seeking relief “under an Act of Parliament or otherwise” within the meaning of s. 23. Constitutional law could not be said to be federal law for the purposes of s. 23. Accordingly, there was no statutory grant of jurisdiction and the first part of the ITO test had not been met. The Federal Court did not have jurisdiction to decide whether the City’s bylaws applied to the Company’s residential properties. Rather, the issue had to be decided by the Ontario Superior Court of Justice.