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Where is the Admirality Court?
See: Marine
Liability Act 2001, c. 6 [Assented to May 10, 2001] An Act respecting
marine liability, and to validate certain by-laws and regulations.
Her Majesty, by and with the advice and consent of the Senate and
House of Commons of Canada, enacts as follows: SHORT TITLE 1. This
Act may be cited as the Marine Liability Act. INTERPRETATION Definitions
2. The definitions in this section apply in this Act.
"Admiralty Court" «Cour d'amirauté» "Admiralty Court" means
the Federal Court."
In The Federal Court Act, it describes the 'court' to be
an "Canadian maritime law"
jurisdiction. Therefore they are not courts of 'inherent jurisdiction',
nor are they a court of 'proper jurisdiction', in fact they are
not courts at all, they are a creature of statute, and are naught
but 'administrative tribunals.'
Federal and Provincial Administrative Tribunals
Known in Canada as simply "tribunals", these are
non-judicial adjudicative bodies, which means that they
adjudicate and render decisions like the courts do BUT are not presided
over by judges. Instead, the adjudicators are experts of the very
specific legal field handled by the tribunal, who hear arguments
and evidence provided by lawyers before making a written decision
on record. Its decisions can be reviewed by a court through an appeal
or a process called "judicial review". The reviewing court
may be required to show some deference to the tribunal if the tribunal
possesses some highly specialized legal knowledge that the court
does not have.
Appearing before an administrative tribunal may feel like
appearing in a court, but lawyer 'appreciate' the fact
that the tribunal's procedure is less formal than that of the court,
and more importantly, the rules of evidence are not as strictly
observed. In other words, evidence that would be inadmissible
in a court hearing would be allowed in a tribunal hearing.
What tribunals all have in common is that they are created by statute,
their adjudicators are appointed by government, and they focus on
very particular and specialized areas of law. Because some subject
matters fall within federal jurisdiction while others in provincial
jurisdiction, some tribunals are created by federal law while others
are created by provincial law. Yet, there are both federal and provincial
tribunals for some subject matters such as taxationand human rights.
The principle of -
stare decisis - does not apply to tribunals.[Common
law of the land is not on offer] In other words, a tribunal
adjudicative could legally make a decision that differs from a past
decision, on the same subject and issues, delivered by the highest
court in the land. Because a tribunal is not bound by legal precedent,
established by itself or by a reviewing court, an
administrative tribunal such as the federal court is not a court
even though it performs an important adjudicative function
and contribute to the development of law like a court would do.
Although stare decisis does not apply to tribunals, their adjudicators
will nonetheless find a prior court decision on a similar subject
to be highly persuasive and will likely follow the courts in order
to ensure consistency in the law and to prevent the embarrassment
of having their decisions overturned by the courts.
Courts of Inherent Jurisdiction
The Supreme Courts are the superior courts. The
words "inherent jurisdiction" refers to the idea that
the decision-making power of Canada's superior courts is inherited
from England's superior courts rather than granted by Canada's federal
parliament or provincial legislatures. Because
the supreme courts possess "inherent jurisdiction", they
can hear cases concerning any area of law except those which are
specifically reserved by legislation for the lower "provincial"
courts. The doctrine of "inherent jurisdiction" gives
superior courts greater freedom than statutory courts to be flexible
and creative in the delivering of legal remedies and relief.
The JURISTICTION of the
Federal Court is conferred by Federal Statutes:
Federal Court of Canada
a) Statutory authority
Constitution Act, 1867, s. 101
Federal Court Act (1985) (pp. 10-11, CPH, pp. 2-3)
b) Trial Division and Court of Appeal
Statutory court
Concurrent/exclusive original (Trial Division) and appellate (Court
of Appeal) jurisdiction
Main exception to the powers of provincial courts (Federal Court
Act, ss. 17-18)
Not a court of general/inherent jurisdiction
Exclusive/parallel powers to Federal Court, away from/concurrent
with Court of Queen's Bench
See Constitution Act, 1867, s. 101
Administrative Tribunals (p. 20)
a) Creatures of statute
b) Basically, developed as a result of the increased social and
economic legislation since Depression
Federal Court Act
CHAPTER F-7
An Act respecting the Federal Court of Canada
SHORT TITLE
Short title
1. This Act may be cited as the Federal Court Act.
R.S., c. 10(2nd Supp.), s. 1.
INTERPRETATION
Definitions
2. (1) In this Act,
"Canadian maritime law" means the
law that was administered by the Exchequer Court of Canada on its
Admiralty side by virtue of the Admiralty Act, chapter A-1
of the Revised Statutes of Canada, 1970, or any other statute, or
that would have been so administered if that Court had had, on its
Admiralty side, unlimited jurisdiction in relation to maritime and
admiralty matters, as that law has been altered by this Act or any
other Act of Parliament; "federal board, commission or other
tribunal" means any body or any person or persons having, exercising
or purporting to exercise jurisdiction or powers conferred by or
under an Act of Parliament or by or under an order made pursuant
to a prerogative of the Crown, 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 section 96 of the Constitution Act, 1867;
THE COURT
Original Court continued
3. The court of law, equity and admiralty in and for Canada now
existing under the name of the Federal Court of Canada is hereby
continued as an additional court for the better administration of
the laws of Canada and shall continue to be a superior court of
record having civil and criminal jurisdiction. [Note
that the court is a court of admiralty, and is hereby continued
as an **additional** court. additional mean just what it means:
in addition to. in addition to what? superior court of the provinces,
as well as the Supreme Court of Canada] R.S., 1985, c. F-7,
s. 3; 1993, c. 34, s. 68(F).
Court to consist of two divisions
4. The Court shall consist of two divisions, called the Federal
Court-Appeal Division (which may be referred to as the Court of
Appeal or Federal Court of Appeal) and the Federal Court-Trial Division.
R.S., c. 10(2nd Supp.), s. 4.
JURISDICTION OF TRIAL DIVISION
Relief against the Crown
17. (1) Except as otherwise provided in this Act or any other Act
of Parliament, the Trial Division has concurrent original jurisdiction
in all cases where relief is claimed against the Crown.
IN OTHER WORDS, A "TAXPAYER" HAS FILED A NOTICE OF OBJECTION.
Cases
(2) Without restricting the generality of subsection (1), the Trial
Division has concurrent original jurisdiction, except as otherwise
provided, in all cases in which
(a) the land, goods or money of any person is in the possession
of the Crown;
(b) the claim arises out of a contract **admiralty
is contract/commerce**entered into by or on behalf of the
Crown; [the TCA - tax collection agreements.
is the living soul a signatory to this contracts, the tax rental
agreements?]
(c) there is a claim against the Crown for injurious affection;
or Crown and subject: ****consent to jurisdiction****
[subject=Serf/Peon/slave - voluntary servitude
made with agreement to jurisdiction. invountary servitude is supposedly
outlawed. Voluntary compliance comes to mind and the ITA. Once you
have AGREED you have volunteered to SERVE. When your signature is
on their forms, to their mind, you have agreed to the terms of the
adhesion contract****
(3) The Trial Division has exclusive original jurisdiction to hear
and determine the following matters:
(a) the amount to be paid where the Crown and any ***[Juridical]
person*** have agreed in writing **given permission/consent
to be ABUSED by admiralty law** that the Crown or that person
shall pay an amount to be determined by the Federal Court, the Trial
Division or the Exchequer Court of Canada; and [Note
the words, "the crown or that person"]
(b) any question of law, fact or mixed laW**administrative-ADMIRALTY
law** and fact that the Crown and any ***[Juridical] person***
have agreed in
writing**given permission/consent ** shall be determined
by the Federal Court, the Trial Division or the Exchequer Court
of Canada.
Conflicting claims against Crown
(4) The Trial Division has concurrent original jurisdiction to hear
and determine proceedings to determine disputes where the Crown
is or may be under an obligation, in respect of which there are
or may be conflicting claims. when A JURIDICAL
'PERSON' disputeS the amount assessed, THE dispute qualifies as
"conflicting" against crown, PLUS THE LIVING SOUL HAS
GIVEN 'CONSENT' TO JURISDICTION. The only way it would not, would
be if CRA was not a party-of-interest to the crown, and we all know
CRA is. Point made.
Relief in favour of Crown or against officer
(5) The Trial Division has concurrent original jurisdiction
(a) in proceedings of a civil nature in which the Crown or the Attorney
General of Canada claims relief; and
(b) in proceedings in which relief is sought against any person
for anything done or omitted to be done in the performance of the
duties of that person as an officer, servant or agent of the Crown.
[The taxman! NOT you, but the tax farmers,
the CRA agents! Is not a judge of the federal court, *also* deemed
to be a servant, or agent of the crown?]
Extraprovincial jurisdiction
25. The Trial Division has original jurisdiction, between subject
and subject as well as otherwise, in any case in which a claim for
relief is made or a remedy is sought under or by virtue of the laws
of Canada if no other court constituted, established or continued
under any of the Constitution Acts, 1867 to 1982 has jurisdiction
in respect of that claim or remedy. R.S., c. 10(2nd Supp.), s. 25.
[Federal court claims original jurisdiction,
over PERSON-taxpayer, only by way of the TCA’s, mentioned
above. now, were the provinces to *cancel* those TCA's, then would
the federal court act apply?]
Judicial review
28. (1) The Court of Appeal has jurisdiction to hear and determine
applications for judicial review made in respect of any of the following
federal boards, commissions or other tribunals:
(l) the Tax Court of Canada established by the Tax Court of Canada
Act; [Notice that it states that the tax court
of Canada *established by*...]
42. Canadian maritime law as it was immediately before June 1, 1971
continues subject to such changes therein as may be made by this
Act or any other Act of Parliament.
R.S., c. 10(2nd Supp.), s. 42. [Implicitly
implies that law, held in federal court, is to be the same as that
which was immediately before June 1, 1971 and continue...]
Jurisdiction in personam
43. (1) Subject to subsection (4), the jurisdiction conferred on
the Court by section 22 may in all cases be exercised in personam.
[In personam. what does it mean? In personam,
remedies. a remedy in personam, is one where the proceedings are
against the person, in contradistinction to those which are against
specific things, or in rem. (q. v.) 3 bouv. inst. n. 2646. Say your
name is Jane-Ann Doe. If you refer to a T1, you will notice that
is made out to the name JANE A DOE. This is not a mistake, or a
convenience of data processing. Your Christian name, however, in
law, iS alleged to be your legal name. Perhaps this is the reason
why so many times you have heard, in court proceedings, "please
state for the record, your legal name”. The moment you say
anything, you have completely and irrevocably attorned to the jurisdiction
of the court under the legal name smith, JANE A DOE and your utterance
implies, and legally so, that JANE A DOE has agreed to accept whatever
judgment the court may mete out on JANE A DOE in other words, the
fact that you present your case to the federal court means that
you have agreed that whatever abuse against the person standing
before the court. and, just *who* is that "person"? Why
it is none other than he/she who has proudly announced to the court:
"I am here, therefore I am the person liable to pay".]
No juries
49. All causes or matters before the Court shall be heard and determined
without a jury. R.S., c. 10(2nd Supp.), s. 49. [Is
there such a thing as a *trial by common law jury* in a military
tribunal or military court? To deny a man his common law right to
such a judicial process, falls only within the jurisdiction of a
court having no allegiance to the constitution. it does not require
such allegiance, as the justice, in an admiralty court, *is* the
"captain of the ship". Once the matter has reached the
federal court of appeal, there is no appellate forum above, which
is in direct contradiction to the judicial system that is found
within the jurisdiction of the provinces; the very process which
the constitution is founded upon. therefore, is it any wonder that
cases, put forth for "this is the law" theories, especially
from the federal court, consistently state that [1951] s.c.r. 31
does not apply in matters before the federal court?]
Admissibility of evidence
(2) Evidence that would not otherwise be admissible shall be admissible,
in the discretion of the Court and subject to any rule that may
relate to the matter, if it would be admissible in a similar matter
in a superior court of a province in accordance with the law in
force in any province, notwithstanding that it is not admissible
by virtue of section 40 of the Canada Evidence Act.
R.S., c. 10(2nd Supp.), s. 53. [Note the words,
"evidence that would not otherwise be admissible shall be admissible,
in the discretion of the court..." note also that the federal
court has the right to compel evidence into its court, in accordance
with the law in force of *any* province, subject only to that evidence
which would be deemed inadmissible, *by virtue of* section 40 of
the Canada evidence act. In a court of common law, this does not
happen. Evidence which is tampered with, obtained unlawfully, etc.
is *not* tolerated by superior court judges. that is what voir dires
are for.]
GENERAL
Constitutional questions
57. (1) Where the constitutional validity, applicability or operability
of an Act of Parliament or of the legislature of any province, or
of regulations thereunder, is in question before the Court or a
federal board, commission or other tribunal, other than a service
tribunal within the meaning of the National Defence Act, the Act
or regulation shall not be adjudged to be invalid, inapplicable
or inoperable unless notice has been served on the Attorney General
of Canada and the attorney general of each province in accordance
with subsection (2). [The federal court has
no authority to hear constitutional matters. why? it is not, what
is referred to as, "a court of competent jurisdiction"
on constitutional issues. therefore, to bring forth a defense that
the income tax act is against the constitution, etc., is demanding
the court to rule on matters which it clearly has no authority to
adjudicate. in other words, your "plea for justice" is
falling upon deaf ears.]
Time of notice
(2) Except where otherwise ordered by the Court or the federal board,
commission or other tribunal, the notice referred to in subsection
(1) shall be served at least ten days before the day on which the
constitutional question described in that subsection is to be argued.
[This allows for the attorney general of Canada’s office to
prepare a motions. motions for what? perhaps, amongst the many available
to the crown, to strike or dismiss the claim?]
Law reports editor
Contents
(2) Only such of the decisions of the Court or such parts of such
decisions as, in the opinion of the editor, are of sufficient significance
or importance to warrant publication in the official
reports shall be included therein. [So, dare
we ask, what is *not* reported?]
Practice in Federal Court-Trial Division
29. All provisions of law and rules and orders regulating the practice
and procedure in the Trial Division of the Federal Court of Canada
that are not inconsistent with this Act or the Tax Court of Canada
Act and are in force on the day on which this section comes into
force shall apply, with such modifications as the circumstances
require, in respect of all appeals and other proceedings in the
Tax Court of Canada, other than appeals or proceedings referred
to in section 26, 28 or 30, until amended, varied or revoked by
the rules committee under section 20 of the Tax Court of Canada
Act. [It *does not* state, "... that are
not inconsistent with this act or the tax court of Canada act or
any other act of parliament..." it expressly leaves out "or
any other act of parliament". Therefore, the federal court
act is not subject to the British North America act, 1867, regardless
of whatever title you may know it by.]
Court
Jurisdiction and Proceedings Transfer Act
A court has territorial competence in a proceeding that is brought
against a person ONLY IF:
(a) that person is the plaintiff in another proceeding in the court
to which the proceeding in question is a counterclaim,
(b) during the course of the proceeding that
person SUBMITS to the court's jurisdiction
(c) there is an AGREEMENT between the plaintiff
and that person to the effect that the COURT HAS JURISDICTION IN
THE PROCEEDINGS
(d) that person is ordinarily resident in [enacting province or
territory] at the time of the commencement of the proceeding, or
(e) there is a real and substantial connection
[CONTRACT?] between [enacting province or territory] and
the facts on which the proceeding against that person is based.
0.2. To achieve the first three purposes, this Act would, for the
first time in common law Canada, give the substantive rules of jurisdiction
an express statutory form instead of leaving them implicit in each
province's rules for service of process. In the vast majority of
cases this Act would give the same result as existing law, but the
principles are expressed in different terms.
Jurisdiction is not established by the availability
of service of process, but by the existence of defined connections
between the territory or legal system of the enacting jurisdiction,
and a party to the proceeding or the facts on which the proceeding
is based. The term "territorial competence" has been chosen
to refer to this aspect of jurisdiction (section 1, "territorial
competence") and distinguish it from other jurisdictional rules
relating to subject-matter or other factors (section 1, "subject
matter competence"). Section 3 defines the five grounds on
which a court has territorial competence in a proceeding in personam.
Paragraphs (a), (b) and (c) include the three
ways in which the defendant may consent to the court's jurisdiction:
1) invoking the court's jurisdiction as plaintiff
2) SUBMITTING to the court's jurisdiction during
the proceedings
3) having AGREED that the court shall have
jurisdiction.
These reflect long-standing law. Paragraphs (d) and (e) CHANGE
CURRENT LAW, by replacing the criterion of service of process with
the criterion of substantive connection with the enacting
jurisdiction.
Paragraph (d) is effectively the replacement
for the existing rule that a court has jurisdiction over any person
that is served with process in the forum province or territory.
Replacing service in the territory of the forum court with ordinary
residence in that territory means that a person who is only temporarily
in the jurisdiction will not automatically be subject to the court's
jurisdiction. For a court to take jurisdiction over a person who
is not ordinarily resident in its territory and does not consent
to the court's jurisdiction, a real and substantial connection must
exist within paragraph (e). The current rule, which (subject to
arguments of forum non conveniens) permits a court to take jurisdiction
on the basis of the defendant's presence alone, without any other
connection between the forum and the litigation, will therefore
no longer apply. This change in the existing rule is proposed not
only on the ground of fairness, but also because the existing rule
is of doubtful constitutional validity, since a defendant's mere
presence in a province is probably not enough to support the constitutional
authority of a province to assert judicial jurisdiction over the
defendant.
Paragraph (e) replaces the existing rules, in the common law provinces,
relating to service ex juris. Territorial competence will depend,
not on whether a defendant can be served ex juris under rules of
court, but on whether there is, substantively, a real and substantial
connection between the enacting jurisdiction and the facts on which
the proceeding in question is based. This provision would bring
the law on jurisdiction into line with the concept of "properly
restrained jurisdiction" that the Supreme Court of Canada,
in Morguard Investments Ltd. v. De Savoye (1990), held was a precondition
for the recognition and enforcement of a default judgment throughout
Canada. The "real and substantial connection" criterion
is therefore an essential complement to the uniform Enforcement
of Canadian Judgments Act, which requires all Canadian judgments
to be enforced without recourse to any jurisdictional test. The
present Act, if adopted, will ensure that all judgments will satisfy
the Supreme Court's criterion of "properly restrained"
jurisdiction, which the court laid down as the indispensable requirement
for a judgment to be entitled to recognition at common law throughout
Canada.