In 1971, the Federal Court was created by the enactment of the Federal Court Act. Apart from continuing the jurisdiction of the old Exchequer Court and general jurisdiction over civil claims against the Crown, s18 of that Act gives the Trial Division of the Federal Court jurisdiction over the common law prerogative writs such as certiorari, prohibition, mandamus and quo warranto and with respect to injunctive and declaratory relief in relation to federal boards or tribunals. This involved a transfer of this jurisdiction in relation to federal boards or tribunals from the provincial superior courts. Jurisdiction over the writ of habeas corpus, except in relation to any member of the Canadian Forces serving outside Canada, remained with the provincial superior court. In addition, by s28, the Federal Court of Appeal was given the following jurisdiction:

    28. Review of decisions of federal board, commission or other tibunal - (1) Notwithstanding section 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a federal board, commission, or other tribunal, upon the ground that the board, commission or tribunal

(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

(b) erred in law in making its decision or order, whether or not the error appears on the face of the record; or

(c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

    (2) When application may be made - Any such application may be made by the Attorney General of Canada or any party directly affected by the decision or order by filing a notice of the application in the Court within ten days of the time the decision or order was first communicated to the office of the Deputy Attorney General of Canada or to that party by the board, commission or other tribunal, or within such further time as the Court of Appeal or a judge thereof may, either before or after the expiry of those ten days, fix or allow.

    (3) Trial Division deprived of jurisdiction - Where the Court of Appeal has jurisdiction under this section to hear and determine an application to review and set aside a decision or order, the Trial Division has no jurisdiction to entertain any proceeding in respect of that decision or order.

    (4) Reference to Court of Appeal - A federal board, commission or other tribunal to which subsection (1) applies may at any stage of its proceedings refer any question or issue of law, of jurisdiction or of practice and procedure to the Court of Appeal for hearing and determination.

    (5) Hearing in summary way - An application or reference to the Court of Appeal made under this section shall be heard and determined without delay and in a summary way.

    (6) Limitation on proceedings against certain decisions or orders - Notwithstanding subsection (1), no proceeding shall be taken thereunder in respect of a decision or order of the Governor in Council, the Treasury Board, a superior court or the Pension Appeals Board or in respect of a proceeding for a service offence under the National Defence Act.

    The enactment of these sections of the Federal Court Act led to a debate over the review jurisdiction between the Trial Division and the Court of Appeal. It was argued that s18 simply transferred jurisdiction from the provincial courts to the Trial Division of the Federal Court and that s28 removed that jurisdiction from the Trial Division giving it to the Court of Appeal, leaving s18 "sterile and without independent life".This debate was resolved by the decision of the Supreme Court in Martineau (No. 2) in which the Court held that the Trial Division has jurisdiction to grant an order in the nature of the writ of certiorari to quash the decision of a federal board or tribunal that was acting in a purely administrative capacity, or more accurately, that was "not required by law to act on a judicial or quasi-judicial basis" within the precise wording of s28. Notwithstanding this clarification of the jurisdiction of these courts, it is regrettably still necessary to classify or characterize the federal board or tribunal's power as either administrative, quasi-judicial or judicial, in order to determine whether to commence proceedings in the Court of Appeal under s28 or in the Trial Division under s18. Further, the decisions of the Supreme Court of Canada in Martineau (No. 1) and in Martineau (No. 2) appear to decide that the jurisdiction of the Federal Court of Appeal under s28 is limited to the situation where the federal board or tribunal is "required by law" to act on a judicial or quasi-judicial basis and these words "by law" appear to have been narrowly interpreted to mean a requirement to act on a judicial or quasi-judicial basis imposed by the statute or regulations or some other form of "black letter" law as opposed to rules not having statutory force. When in doubt, the wisest course will be to commence proceedings in both courts, and by virtue of s28(3) to proceed with the application to the Court of Appeal first.

    In addition, it must be remembered that the jurisdiction of the Trial Division under s18, and the Court of Appeal under s28, goes to a "federal board, commission or other tribunal" which is defined in s2(g) of the Federal Court Act to mean:

...any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of the Parliament of Canada, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under s96 of The British North America Act, 1867.

    Thus care will have to be exercised to ensure that the intended respondents fall within this definition before proceedings are commenced. For example, in McNamara v Caros and Mendes, an application for an order in the nature of mandamus under s18 to compel an institutional physician to provide a prisoner with the essential medical treatment he requires in accordance with the Penitentiary Service Regulations and Directives was dismissed as against the institutional physician because it was held that such a physician was not, when acting in his professional capacity in the treatment of inmates, a "federal board, commission or tribunal" as defined.

    As previously stated, jurisdiction over the writ of habeas corpus is still within the jurisdiction of the provincial superior courts. That jurisdiction includes the power to issue the writ of habeas corpus with certiorari in aid in circumstances where that writ is required to make the remedy of habeas corpus more effective. This is so, notwithstanding the jurisdiction of the Federal Court Trial Division under s18, in relation to certiorari to quash.

    Before proceeding to deal in detail with the specific remedies available under ss18 and 28 of the Federal Court Act and the remedies available in the provincial superior courts, the prospective litigant should also be aware of the further constitutional limits on the jurisdiction of the Federal Court in so far as it affects a claim for relief against the Crown or a Crown servant, for relief other than the kind of relief specified in ss18 and 28, such as a claim in tort for negligence or breach of statutory duty or a claim in breach of contract. By s101 of the British North America Act, the federal Parliament is empowered to establish a Federal Court "for the better administration of the laws of Canada". Consequently, Federal Courts are confined to issues arising under "laws of Canada" and do not have the broader general jurisdiction of the provincial superior courts. It is apparently well settled that the phrase "laws of Canada" does not mean all laws in force in Canada whatever their source, but means federal laws such as federal statute law including regulations made under a federal statute. The difficulty arises when the claim is based on the common law, such as a claim in tort for negligence or breach of statutory duty, or when the claim is based on provincial statute laws. For a detailed consideration of these issues one should refer to two decisions of the Supreme Court of Canada, Quebec North Shore Paper Co v Canadian Pacific Ltd et al, and McNamara Construction (Western) Ltd et al v The Queen et al, as well, to the decision of the Federal Court Trial Division in Pacific Western Airlines Ltd and Canadian Acceptance Corporation Limited v R et al. For a more detailed consideration of these cases and the issues involved, reference should be made to a comment on the matter by Professor P.W. Hogg, appearing in the Canadian Bar Review.

    At present, it appears that the proper procedure to follow is to commence an action in the provincial superior court against the Crown servants or others, and commence a separate action in the Federal Court Trial Division against the federal Crown alone. Both actions will have to be proceeded with simultaneously in the absence of an agreement to the contrary. In the action in the Federal Court Trial Division, the plaintiff will be seeking to establish the liability of the federal Crown as being vicarious in relation to the Crown servants named in the action in the provincial superior court, and the plaintiff will be relying on the Crown Liability Act as the federal statute law, giving the Federal Court jurisdiction. The alternative would be to simply proceed against the Crown servants directly in the provincial superior courts seeking to hold them personally liable for any judgment obtained; or to simply proceed against the federal Crown in the Federal Court Trial Division seeking to have the particular Crown servant that you are interested in, nominated in the appropriate party to examine for discovery in those proceedings. Examples of prison cases that have proceeded in the provincial superior courts are Dodge v Bridger et al, a civil suit by a prisoner against various prison guards for assault in which both general and exemplary damages were recovered; Toews et al v MacKenzie et al, a claim by a passenger in a vehicle driven by a prisoner while out on temporary absence, suing both the prisoner driver, the owner of the vehicle and the warden of the prison, alleging negligence on the part of the warden in releasing the prisoner on the pass. The action against the warden was dismissed. Examples of cases that have proceeded in the Federal Court against the Crown alone are Timm v R, a claim by a prisoner for compensation for injuries sustained when he fell from an open truck while being transported under guard as one of a work party from the penitentiary to a nearby quarry; the claim was dismissed. Daoust v R, a claim by a prisoner for medical malpractice on the part of the institutional physician; the claim succeeded. MacLean v R, a claim by a prisoner who sustained injuries while working under supervision in the prison; the Supreme Court of Canada allowed an appeal from the Exchequer Court which had dismissed the claim. The prisoner was totally and permanently crippled for life and was awarded damages in the amount of $75,000. In Howley v R, a prisoner claimed damages sustained as a result of an injury inflicted by another prisoner alleging that the prison authorities knew or ought to have known that his assailant was dangerous and should have taken precautions to prevent the assault: the claim was dismissed.