The order of the Federal Court of Appeal is set aside and the order of the Federal Court striking the Canadian Transit Company’s notice of application is reinstated.
Costs are awarded to the Corporation of the City of Windsor in this Court and in the courts below.
The Canadian Transit Company is not seeking relief “under an Act of Parliament or otherwise” (I.e., under federal law) as required by s. 23 (c) of the Federal Courts Act . Section 23 (c) therefore does not grant jurisdiction over this application to the Federal Court and the first part of the ITO test is not met.
There is no statutory grant of jurisdiction.
This finding is dispositive: the Federal Court lacks jurisdiction in this case. There is therefore no need to consider whether the second and third parts of the ITO test are met in this case.
It is plain and obvious that the Federal Court lacks jurisdiction to hear the application. Shore J. did not err in striking the notice of application and the Federal Court of Appeal ought not to have intervened.
Of the nine member court, four justices Abella, Moldaver, Côté, and Brown JJ, dissented with the decision.