Motion challenging Federal Court's jurisdiction over cause of action

							FEDERAL COURT JURISDICTION
   Motion challenging Federal Court’s jurisdiction over cause of action asserted against Commissioner of Nunavut, Government
of Nunavut and Minister responsible for Civil Emergency Measures Act (Nunavut defendants)—Action for damages arising from
sinking of vessel Avataq in Hudson Bay while en route from Churchill, Manitoba to Arviat, Nunavut—All four crew members
perished—Action brought by estates, widows, children of deceased pursuant to Manitoba Fatal Accidents Act, Nunavut Fatal
Accidents Act, Canada Shipping Act, Marine Liability Act, Fisheries Act—Motion granted, action against Nunavut defendants
struck out—Basis for action sinking of ship with consequent loss of life— Plaintiffs basing claims against Nunavut defendants
upon Federal Courts Act, s. 22(2)(d), (g) (claim for loss of life caused by ship, or occurring in connection with operation of
ship)—Federal Courts Act, s. 22 meeting first test in ITO— International Terminal Operators Ltd. v. Miida Electronics Inc. et
al., [1986] 1 S.C.R. 752 (requirement of statutory grant of jurisdiction by federal Parliament)—However, Canadian maritime law
not essential to disposition of plaintiffs’ claims against Nunavut defendants—Negligence, not maritime law, essence of plaintiffs’
claim against Nunavut defendants—In Dreifelds v. Burton (1998), O.R. (3d) 393, Ontario Court of Appeal cautioned that not
every water-borne activity giving rise to claim under Canadian maritime law; only if activity sufficiently connected with
navigation, shipping will it fall to be resolved under Canadian maritime law—Plaintiffs alleging Nunavut defendants negligent in
responding to emergency situation on waters of Hudson Bay and in providing emergency services in accordance with Civil
Emergency Measures Act— However, nothing therein specifically addressing provision of emergency response services to
incidents on water—Even assuming authority therein to respond to such emergency, such ability not converting incident on
waters of Hudson Bay into matter of maritime law—Prevailing case law requiring integral connection between allegations raised
in statement of claim and Canadian maritime law—Herein, plaintiffs’ claims having nothing to do with subject of navigation,
shipping— defendants had nothing to do with ship Avataq; not engaged in operation of that ship in any of capacities defined in
Federal Courts Act, s. 22(2)(g)—Land-based activities of Nunavut defendants (provision of emergency aid) not constituting
integral link with maritime activities, Canadian maritime law—Primary role of Nunavut defendants administration of respective
duties in governance of Nunavut; involvement with maritime matters or shipping, navigation merely incidental, insufficient to
support finding claims herein arising from Canadian maritime law—Fact underlying incident involving operation of ship
insufficient to give rise to claim in Canadian maritime law in absence of any allegation any of Nunavut defendants had any
involvement with, or responsibility for, operation, control or possession of ship—As to Court’s jurisdiction over Nunavut
defendants as parties, plaintiffs seem to argue Federal Court most convenient forum—However, jurisdiction not depending upon
convenience—Well established that jurisdiction of Federal Court must exist over parties, as well as over asserted cause of action:
Greeley v. Tami Joan (The) (1996), 113 F.T.R. 66 (T.D.); Fédération Franco-ténoise v. Canada, [2001] 3 F.C. 641 (C.A.)—
Pleading based on Federal Courts Act, s. 22(1), addressing jurisdiction in actions between “subject and subject”— Nunavut
defendants not “subjects” within meaning of s. 22(1): Sjouwerman v. Valance (1990), 37 O.A.C. 294 (Ont. C.A.) (“what
Parliament intended with the reference to an action between subject and subject was an action between Persons or individuals”),
but rather public authorities: Canadian Olympic Association v. Registrar of Trade Marks, [1982] 2 F.C. 274 (T.D.)—Each of
Nunavut defendants playing role in governance, administration of Nunavut, discharging public functions, representing
institutions of government of Nunavut —Civil Emergency Measures Act, R.S.N.W.T. 1988, c. C-9— Fatal Accidents Act,
C.C.S.M., c. F50—Fatal Accidents Act, R.S.N.W.T. 1988, c. F-3—Canada Shipping Act, R.S.C., 1985, c. S-9—Marine Liability
Act, S.C. 2001, c. 6—Fisheries Act, R.S.C., 1985, c. F-14—Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002,
c. 8, s. 14), 22(2) (as am. idem, s. 31).

    KUSUGAK V. NORTHERN TRANSPORTATION CO. (T-1375-02, 2004 FC 1696, Heneghan J., order dated 3/12/04, 24 pp.)