Tuesday, June 18, 2013

Section 2.1 of the Act Gives the Federal Court Personal Jurisdiction over Provincial Crown Defendants

Safe Gaming Systems Inc v Atlantic Lottery Corporation 2013 FC 217 Proth Aronovitch

In Dableh v Ontario Hydro (1990) 33 C.P.R. (3d) 544, Dubé J held that the Federal Court lacked personal jurisdiction over Hydro-Québec and the New Brunswick Electric Power Commission, on the basis that as a statutory court, express legislation is required for Federal Court jurisdiction, and neither the Patent Act nor the provincial legislation of those provinces conferred such jurisdiction. The actions against those Crown Corporations was accordingly dismissed. The action was maintained against Ontario Hydro on the basis of the wording of the Ontario Proceedings Against the Crown Act.

In 1993 the Patent Act was amended to add s 2.1: “This Act is binding on Her Majesty in right of Canada or a province” (my emphasis).

In Safe Gaming Systems, Proth Aronovitch held that s 2.1 means what it says. Safe Gaming is the owner of patent 2,331,238 which it believes is infringed by Nova Scotia Gaming Corporation (NS Gaming), the Atlantic Lottery Corporation (Atlantic Lottery). Relying on Dableh, those defendants moved to strike the action against them on the basis that they are provincial Crown defendants and the Federal Court therefore lacks personal jurisdiction. Proth Aronovitch denied the motion to strike, primarily on the basis that s 2.1 of the Act has effectively reversed Dableh on this point.

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