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Crown Liability (fed) - Judges. Feeney v. Canada [Superior Court judges and crown liability]
In Feeney v. Canada (Fed CA, 2022) the Federal Court of Appeal, in the course upholding a dismissal of an action against the federal Crown for lack of jurisdiction, sets out the nature of the Federal Court system and it's judges. In this quote it explains basics of federal Crown tort liability:[10] Further, as was determined by the motion judge, it is plain and obvious that the Federal Court lacks jurisdiction to hear the appellant’s allegations against Alberta judges and other public officials. These judges and officials are simply not "“employees of Canada”" in the sense of being employees of the government of Canada. Their alleged tortious conduct therefore cannot be said to engage the liability of the Federal Crown in any way, shape, or form.
[11] As this Court said in Crowe v. Canada (Attorney General), 2008 FCA 298 at para. 16 (Crowe) – a case which similarly involved the striking of an action in damages filed in the Federal Court against a number of defendants, including federally appointed judges – the Federal Court "“is a statutory court and, as such, has only the jurisdiction conferred upon it by statute. It is not a court of inherent jurisdiction as are the provincial superior courts…” "(See also, Ordon Estate v. Grail, 1998 CanLII 771 (SCC), [1998] 3 S.C.R. 437 at para. 46.).
[12] In other words, jurisdiction in the Federal Court cannot be presumed. Rather, it must be positively demonstrated (Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585 at paras. 46-46). On the facts before me, such jurisdiction has not been demonstrated.
[13] As stated in Crowe, Parliament has not granted jurisdiction to the Federal Court over the alleged tortious conduct of judges (Crowe at para. 18). That the Federal Court has concurrent jurisdiction with the superior provincial courts to entertain claims in tort against the Federal Crown through the combined effect of subsection 17(1) of the Act and subsection 21(1) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 (CLPA), does not alter this.
[14] Indeed, the Federal Crown – which, until the enactment of the Crown Liability Act, S.C. 1952-53, c. 30 in 1953, could not be sued in tort as of right – can only be held liable for the fault of its servants, and not on its own account (Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621 at para. 58 ; Peter W. Hogg, Patrick J. Monahan and Wade K. Wright, Liability of the Crown, 4th ed (Toronto: Carswell, 2011)). Importantly, however, judges – including federally appointed judges – are not employees of the Federal Crown. They are also not "“servants”" or "“agents”" of the Crown within the meaning of the CLPA, as these terms refer to someone working under the control or direction of the Crown (Northern Pipeline Agency v. Perehinec, 1983 CanLII 167 (SCC), [1983] 2 S.C.R. 513 at 519-521 ; R. v. Eldorado Nuclear Ltd.; R. v. Uranium Canada Ltd., 1983 CanLII 34 (SCC), [1983] 2 S.C.R. 551 at 573-574).
[15] In Crowe, this Court explained why judges are not truly employees, servants, or agents of the Crown in the following paragraph:["24] The pleadings quoted above do not refer to servants of the Crown as such, though they do refer to judges and the Canadian judiciary. Judges are not servants of the Crown. They are not employees of the Federal Government. The principle of judicial independence is a constitutional principle: see Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, ""1997 CanLII 317 (SCC)"", ""[1997] 3 S.C.R. 3"", at para. ""106"". Its application requires that judges be, and be seen to be, free of interference from the government of the day. That independence is incompatible with the status of an employee. As a result, even if a judge behaves extra-judicially and without jurisdiction, his or her conduct would not engage the liability of the Federal Government. The motions judge correctly held that the claim against the Federal Government must fail for failure to disclose a reasonable cause of action because, assuming Mr. Crowe's allegations to be true, they do not engage the liability of the Crown." [16] The appellant urges the Court to consider this question anew. However, in the interests of the certainty, consistency and predictability of the law, the Court normally follows its prior decisions (Miller v. Canada (Attorney General), 2002 FCA 370 at para. 9 (Miller)). It is only in "“exceptional circumstances”" that it will overrule the decision of another panel. This will generally occur when "“the previous decision is manifestly wrong, in the sense that the Court overlooked a relevant statutory provision, or a case that ought to have been followed…”" (Miller at para. 10).
[17] The appellant has failed to establish the presence of any such "“exceptional circumstances”". Notably, there may be other avenues available to him for addressing what he considers to be "“persistent and cruel treatment at the hands of negligent and abusive Alberta Superior Court Justices”. However, "a claim in damages in the Federal Court is clearly not one such avenue. As the Federal Court lacks jurisdiction to entertain the appellant’s claim, the questions of judicial immunity raised by the appellant in his Statement of Claim and in his submissions in this appeal do not arise "“since there is no liability enforceable in the Federal Court to which that immunity could apply”". Such allegations simply "do “not create jurisdiction in the Federal Court”" (Crowe at para. 18).
[18] Finally, the appellant’s reference to the Office of the Commissioner for Federal Judicial Affairs Canada in his submissions before this Court is of no assistance to him for two reasons. First, there is no such reference in the impugned Statement of Claim, and as such this argument was not properly pled. Second, even if there was such a reference, that Office – contrary to the appellant’s submissions at the hearing – plays no role in the actual appointment of federally appointed judges. Such appointments, according to section 96 of the Constitution Act, 1867 (UK), 30 & 31 Vict, c. 3, s. 96, reprinted in R.S.C. 1985, Appendix II, No 5, are within the sole purview of the Governor General.
[19] Based on the foregoing, I see no reason to interfere with the motion judge’s finding that the appellant’s Statement of Claim is bereft of any chance of success. Nothing in the Statement of Claim ties the appellant’s allegations to the Federal Crown. Further – and crucially – "“the Federal Court lacks jurisdiction to entertain [the appellant’s] allegations against Alberta judges and other officials”" (Decision at para. 4), something which cannot be cured by amendments (Simon v. Canada, 2011 FCA 6, at paras. 8-10). I would therefore dismiss the appellant’s appeal on this point. This case bears on both federal and Ontario crown liability law.
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