Date: 19990712
Docket: T-382-99
BETWEEN:
RADIL BROS. FISHING CO. LTD.,
Plaintiff,
- and -
HER MAJESTY THE QUEEN IN RIGHT OF
CANADA, as represented by THE REGIONAL
DIRECTOR GENERAL OF THE DEPARTMENT
OF FISHERIES AND OCEANS FOR THE PACIFIC
REGION, and BRITISH COLUMBIA PACKERS
LIMITED and TITAN FISHING LTD.,
Defendants.
REASONS FOR ORDER
JOHN A. HARGRAVE,
PROTHONOTARY
SUMMARY
[1] This action arises out of a fishing licence transaction, a transfer of trawl licence #008 (the "8 T. licence") from the Plaintiff"s fishing vessel SEACREST to the PACIFIC EAGLE, now owned by the Defendant, Titan Fishing Ltd. ("Titan") and a reciprocal transfer of a licence package consisting of an A salmon licence and trawl licence #0092 (the "92 T. licence") from the PACIFIC EAGLE to the SEACREST. At the material time British Columbia Packers Limited (B.C. Packers"), owned the PACIFIC EAGLE , but following the swap of licences sold the PACIFIC EAGLE with the 92 T. licence to Titan.
[2] At the time of the licence exchange those engaged in the trawl industry were aware of the likely imposition of fishing quotas based upon each fisherman"s catch history. Thus the Plaintiff, Radil Bros. Fishing Co. Ltd. ("Radil"), was careful to stipulate that its catch history not be alienated with the 8 T. licence, for the catch history of the PACIFIC EAGLE was not nearly as impressive as that of Radil and its SEACREST. B.C. Packers understood, apparently following discussions with the Department of Fisheries and Oceans ("DFO"), that the Radil organization would retain its own catch history.
[3] As it turned out the Radil catch history was subsequently used by the Minister of Fisheries (the "Minister") to calculate the quota to be allocated to the Defendant Titan, with Radil receiving a lesser quota not on the basis of its own catch history, but on the basis of the catch history of the PACIFIC EAGLE . Thus the present action seeking declaratory relief and damages. The motion of the Crown is to strike out the statement of claim, or for a stay, or for further and better particulars.
[4] Fishing licences are in finite supply. It is safe to say that, in a given established fishery, no additional licenses are ever created. Fishing licences have substantial market values, far beyond the fairly token yearly licence fee. Notwithstanding these factors, this Court, along with other courts, has accepted that a fishing licence is a pure licence. From that it follows that it passes no interest and is always revocable. Indeed, licences expire yearly and the ministry issues a new licence in each instance. Now from this it also follows, according to the DFO and again the courts have repeated it, that anyone, not just the past owner of a given licence, may walk in off the street, into a DFO office and, for a modest yearly licence fee, purchase at the beginning of each year, to the consternation of the fisherman formerly holding the licence, a new licence, which may then be immediately sold, in an open and ready market, complete with established fishing licence brokers, at a hundred-fold profit. All palpable absurdity, but one firmly planted, which the courts, for the present at least, have accepted.
[5] Were the only present issue the discretion of the Minister to issue fishing licences to whomever the Minister pleases and leaving aside the possible changing nature of fishing licences, the Crown might well properly contend that Radil has no control at law as to the licence dealt it and, thus, having no cause of action, ought to be struck out. Yet the test for striking out is stringent, in effect the case must be one which cannot succeed. Combine this test with the additional pertinent factor that the Minister has, in effect, transferred the work product of Radil, the tonnage of fish caught, to benefit someone else, and one has a case which has some possible chance of success. Thus the dismissal of the Crown"s motion to strike out.
[6] I will consider this in more detail, together with the Crown"s motions for a stay and for further and better particulars, both denied.
FACTS
[7] Radil has two proceedings in this Court. The first, T-192-98, for judicial review, which I will refer to as the "first proceeding", has now been transformed into an action. I will refer to the present action, T-382-99, as the "second proceeding".
[8] Radil is the owner of the fishing vessel SEACREST, an eighty-six foot fishing vessel used to fish for groundfish. To engage in groundfish fishing, a trawl fishery, the vessel must have what is known as a "T" licence. The licence is issued by the DFO. Once issued, the licence is valid for a year. The vessel owner or its representative must apply every year for re-issuance. In 1986, Radil purchased the vessel SEACREST , together with the 8 T. licence and had engaged in the groundfish fishery using that licence until 1993.
[9] In January of 1993, the Defendant B.C. Packers made an application for the 8 T. licence on behalf of Radil. The nature of the relationship between the B.C. Packers and the Plaintiff may be described as reciprocal. It was and is not uncommon for fish processing companies, such as B.C. Packers was at material times, to assist their fishermen in administrative and licensing matters, with a view to obtaining a secure supply of fish. In August of the same year, Radil made further arrangements with the B.C. Packers to purchase an "A" licence to use in the salmon fishery. B.C. Packers arranged the purchase of the "A" licence which at the time was issued to the vessel PACIFIC EAGLE . In effect B.C. Packers made an application in that respect and the "A" licence held by the PACIFIC EAGLE was duly transferred to the SEACREST, yet the matter was not quite that simple.
[10] The PACIFIC EAGLE initially had what is known as an "AT" licence, a combined or married form of "T" and "A" licences, the "T" licence portion issued to the PACIFIC EAGLE being the 92 T. licence. According to the DFO, it was and is contrary to its policy to allow such "married" form of licences to be "divorced" from each other and transferred individually. The DFO says that it so advised the B.C. Packers and further advised that the entire "AT" licence must be transferred.
[11] B.C. Packers contends that it raised a concern with the DFO regarding the transfer of catch history, but having assurance from the late Mr. Stephen Brownlee, then Director of Licensing for the DFO, that the transfer would not affect the catch history of each of the vessels, the parties ceased to discuss the issue. B.C. Packers say that it informed Radil of the problem as well as Mr. Brownlee's assurance, and went on to effect the transfer which acquired the "A" licence and swapped the T.8 and T.92 licences.
[12] In 1995, Titan purchased the PACIFIC EAGLE and the attached 8 T. licence. At the time of the purchase there was still a general prediction by those in the industry that Individual Vessel Quotas (IVQ) would be introduced and all the more so given a new Groundfish Trawl Management Plan. IVQ would in fact allocate the amount of groundfish each vessel would be allowed to catch. The IVQ, as eventually implemented, was based 70% on average catch history during the five year period between 1988 to 1992 and 30% on vessel length.
[13] The information used by the DFO to calculate the IVQ allocation for Radil"s vessel SEACREST was enclosed with the letter dated March 18, 1997. Radil says that it was the first time it realized that the "T" licence issued to the SEACREST was the 92 T. licence and someone else"s catch history and not the 8 T. licence with Radil"s own catch history. Radil then realized that the IVQ of the SEACREST was calculated according to the catch history of the PACIFIC EAGLE, and was substantially lower than it would otherwise have been.
[14] Radil immediately inquired of the DFO with respect to the IVQ calculation. The DFO confirmed that the transfer effected in 1993 was not only a swap of the licences, but also of the catch histories. Radil then wrote to the DFO requesting that the 8 T. licence be issued to it, and that the IVQ of SEACREST be adjusted accordingly, but to no avail.
[15] Receiving no response from the DFO, Radil initiated the first proceeding, an application for judicial review. In its application Radil sought an order of mandamus requiring the DFO to make a decision as to the issuance of the 8 T. licence to the Plaintiff for the 1998-99 year; a declaration that the transfer of the 8 T. licence was unauthorized, illegal, invalid or otherwise ineffective and that the Plaintiff was the rightful holder of the 8 T. licence; and a declaration that Radil was entitled to be issued the 8 T. licence for 1998-99 fishery together with an IVQ based on Radil"s catch history as owner and user of the SEACREST .
[16] On February 23, 1998, Titan brought a motion seeking an order striking out Radil"s application as an abuse of process or, in the alternative, to have the application treated and proceeded with as an action. Mr. Justice Campbell directed that the matter proceed as an action, but dismissed Titan"s motion to strike out, for the matter, in his opinion, contained a serious issue to be tried.
[17] Subsequently, pursuant to Mr. Justice Campbell"s order, Radil filed a Statement of Claim, seeking relief both similar and parallel to that initially sought through judicial review in the first proceeding. Radil sought not only the original declaratory relief, but also damages on various grounds. Titan then brought a motion for a summary judgment seeking an order dismissing Radil"s claims for declaratory relief against Titan and the Crown. Mr. Justice Rouleau dismissed Titan"s application for a summary judgment, but ordered that the damage-seeking part of the relief be struck out, for it was not part of the relief initially sought by judicial review. The portion of the reasons dealing with this aspect is instructive:
| A motion for summary judgment is not intended, and should not be treated, as a substitute for a trial. In determining whether a trial is unnecessary and would serve no purpose, a motions judge has a restricted function and must guard against assuming the role of a trial judge and deciding the issues between the parties. Provided a genuine issue exists with respect the material facts, it matters not how weak or strong the impugned claim or defence may be. The case should proceed to a trial in order that the issue may be resolved by the trial judge. Accordingly, summary judgment should only be granted in the clearest of cases. |
| [page 7] |
And subsequently:
| However, the conversion of a judicial review application into an action does not entitle the plaintiff to subsequently file a Statement of Claim wherein different relief is sought than that set out in the Originating Notice of Motion. The purpose of Rule 18.2(4) is to permit a judicial review application to be proceeded with as if it were an action; that is ,with discoveries, and the presentation of witnesses and their viva voce evidence. It does not create a new cause of action nor does it permit a party to seek new or additional relief than that originally sought. |
In effect, an applicant with a judicial review proceeding cannot, on becoming a plaintiff in the same proceeding, in the form of an action, seek new relief. Rather, as plaintiff, the claimant has the full advantage of trial procedure including discovery and witnesses, by which to obtain the original relief sought.
[18] Faced with this bar to relief by way of damages, Radil amended its Statement of Claim, removing the plea for damages. The story does not end there, however.
[19] On March 5, 1999, Radil initiated the second proceeding by filing a Statement of Claim based on same factual circumstances. This Statement of Claim is identical in its perimeter of fact and law except that it seeks damages in addition to the declaratory relief sought in the first proceeding.
[20] The DFO now brings a motion with respect to the second proceeding seeking various alternatives and here I paraphrase:
| 1. to strike out the Statement of Claim; or |
2. to stay the proceeding; or
| 3. for further and better particulars; and |
| 4. for an extension of time for the service and filing of a defence. |
[21] In seeking to strike out a pleading, here a statement of claim, the DFO must show it is plain, obvious and beyond doubt that the action will not succeed. The DFO moves to strike out for want of jurisdiction and various abuses under both Rule 221, the rule of striking out pleadings and Rule 208, governing preliminary objections. Want of jurisdiction is usually challenged under Rule 208, but has, from time to time, been dealt with by the Court under what is now Rule 221. In any event the same high, beyond doubt standard is to be applied. I now turn to the first argument made on behalf of the Crown, that declaratory relief is not available by way of a statement of claim.
ANALYSIS
| Jurisdiction of the Court |
[22] The DFO says that the Court lacks jurisdiction in an action, as opposed to an application, to grant declaratory relief against a "federal board, commission or tribunal". Such relief is governed by s.18 of the Federal Court Act, 1998 (the "Act") which reads in part:
| 18. (1) Extraordinary remedies, federal tribunals - Subject to section 28, the Trial Division has exclusive original jurisdiction |
| (a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and |
| (b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal. |
| (3) Remedies to be obtained on application - The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1. |
| [Emphasis added]. |
| [23] This section of the Act provides that the declaratory relief should only be granted on an application for judicial review. A "federal board" is defined in s. 2 of the Act as: |
| 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 definition of a "federal board" is broad. It includes any part of the government"s decision-making machinery established by the federal statutes. Ministers of the Crown will also fall under that definition if they exercise discretion in their decision-making, and if their actions can be categorized as "administrative" rather than "ministerial", the difference there being the minister"s discretionary capacity: see Halifax (County) v. Shunamon (1995), 39 C.P.C. (3d) 376, 144 N.S.R. (2d) 27, 416 A.P.R. 27 (N.S. S.C.) and S. A. DeSmith, Judicial review of Administrative Action in Canada, Brown and Evans, Canvasback Publishing, Toronto, 1998 at 1:1200. The gist of the DFO"s submission is that declaratory relief such as requested by Radil against the DFO is not available since the relief is sough by way of action rather than by an application for judicial review.
[24] Radil"s answer to this is Federal Court Rule 64:
| 64. Declaratory relief available - No proceeding is subject to challenge on the ground that only a declaratory order is sought, and the Court may make a binding declaration of right in a proceeding whether or not any consequential relief is or can be claimed. |
[25] During the course of the hearing Radil abandoned all reliefs of declaratory nature against the DFO and B.C. Packers, except for one requesting adjustment of IVQ of the SEACREST to be based on the vessel"s own catch history.
[26] I would have agreed with the analysis of counsel for the DFO, that declaratory relief against the Crown must be sought only by judicial review, had not counsel for Radil pointed to the use of declaratory relief by Mr. Justice Joyal to suggest to the minister how discretion might be exercised in a fishing licence matter. To begin Mr. Justice Dickson, as he then was, pointed out in Solosky v. Canada, [1980] 105 D.L.R. (3d) 745 (S.C.C.) 753, that
| Declaratory relief is a remedy neither constrained by form nor bounded by substantive context, which avails persons sharing a legal relationship, in respect of which a "real issue" concerning the relative interest of each has been raised and falls to be determined. |
In Solosky, Mr. Justice Dickson, writing for the Court, pointed out that declaratory relief was always available so long as the Court might be convinced that a declaration had some utility and might settle questions at issue between the parties.
[27] More recently Mr. Justice Joyal used the declaration, as a flexible tool, in an action involving a fishing licence. In Johnson v. Ramsay Fishing Co., [1989] 47 D.L.R. (4th) 544 (F.C.T.D.), at issue was the ownership of a fishing licence which the DFO had mistakenly renewed and issued, for several years, in the name of an individual, instead of in the name of the defendant company. The licence had originally been obtained by the defendant company, however the parties were in some financial difficulty. Thus Mr. Johnson brought the action for a declaration that the licence belonged to him and not to the company. Mr. Justice Joyal recognized that the Court could not order the Minister of Fisheries to issue the licence to any specific person, but might make a declaration to the effect that the Minister should consider exercising discretion in a certain way, referring to Veilleux v. Spinks, A-274-87, a 16 December 1987 decision of the Federal Court of Appeal summarized 8 A.C.W.S. (3d) 69, for the concept that legal rights may be declared even where they may not be ordered. Mr. Justice Joyal also referred to Kelso v. Canada, [1981] 1 S.C.R. 199, for the proposition that there may be situations in which the Court cannot order something done, but may declare respective legal rights:
| It is quite correct to state that the Court cannot actually appoint Mr. Kelso to the Public Service. The administrative act of appointment must be performed by the Commission. But the Court is entitled to "declare" the respective legal rights of the appellant and the respondent. |
| The Public Service is not above the law of the land. If it breaches a contract, or acts contrary to the statute, the courts are entitled to so declare. |
[28] While I agree it was perhaps sensible, on the part of Radil, to drop the pleas for declarations as to the transfer and issuance of licences, being items (a) and (b) of the relief sought against the Crown, I am not prepared to strike out the plea for a declaration that Radil is entitled to the IVQ based on the catch history of its vessel SEACREST. I am unable to say that this relief is plainly, obviously and beyond doubt forlorn. All the more so given both that the remedy applied for is discretionary (see Lower Similkameen Indian Band v. Allison (1996), 115 F.T.R. 247 (F.C.T.D.) at 250) and that where serious issues of law are involved they ought not to be struck out on an interlocutory motion, but are best left to be answered at trial (see Kiku Fisheries Ltd. v. Canadian North Pacific Ocean Corp. (1997), 137 F.T.R. 192 (F.C.T.D.) at 137 and McLellan v. Canada (Solicitor General) (1998), 155 F.T.R. 291 at 293). However the issue of striking out the Statement of Claim perhaps does not end here, with the consideration of jurisdiction, for the DFO also alleges various grounds, under Rule 221, by which the Statement of Claim ought to be struck out.
Striking out the Claim
[29] The DFO also seeks to strike out the Plaintiff"s claim because it is immaterial or redundant; scandalous, frivolous or vexatious; is different from the previous pleading; and is otherwise an abuse of process of the court as the Plaintiff has already brought a proceeding in T-192-98 which essentially seeks the same relief save for damages. The DFO relies primarily on Rule 221 of the Federal Court Rules .
[30] If a pleading contains no reasonable cause of action based on the facts as stated in the statement of claim or defence, the pleading will fail from the outset. One need not look further into other indicia in the Rule 221 (1). See Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, 49 B.C.L.R. (2d) 273. Conversely, if the Plaintiff demonstrates that the pleading contains a legitimate question to be argued that may well obviate having to examine the pleading in the light of the other tests under Rule 221. For example, a pleading containing a reasonable cause of action can hardly be said to be frivolous or an abuse of process of the court.
[31] Where the minister of the Crown exercised discretion in administrative capacity and the decision is challenged, the test to be met for a reasonable cause of action is whether the minister"s decision is reviewable. If the decision is not reviewable, the plaintiff has no reasonable cause of action. I now turn to the jurisprudence in that regard. There is ample authority establishing that the discretionary decision can be reviewed only when the minister erred in law, proceeded on wrong principle, acted in bad faith, failed to consider relevant factor or, conversely, acted on irrelevant consideration: see for example Thompson v. Canada (MCI) (1996), 37 Imm. L.R. (2d) 9 (F.C.T.D.) at 15-16 and Williams v. Canada (MCI) (1997), 212 N.R. 63 (C.A.) at 71.
[32] The DFO contends that it is in the absolute discretion of the minister to issue a fishing licence as he or she sees fit, and refers the Court to ss. 7 and 9 of the Fisheries Act:
| 7. (1) Subject to subsection (2),the Minister may, in his absolute discretion, wherever the exclusive right of fishing does not already exist by law, issue or authorize to be issued leases and licences for fisheries or fishing, wherever situated or carried on. |
| . . . |
| 9. The Minister may suspend or cancel any lease or licence issued under the authority of this Act, if |
| (a) the Minister has ascertained that the operations under the lease or licence were not conducted in conformity with its provision; and |
| (b) no proceeding under this Act have been commenced with respect to the operations under the lease or licences. |
The DFO emphasizes the word, "in his absolute discretion" and suggests that the Court should not "second-guess" the decision of Minister. Counsel for the DFO here refers to Barron v. MNR (1997), 209 N.R. 392 (F.C.A.) at 393-94:
| [T]he reviewing court is not called upon to exercise the discretion conferred on the person who made the decision. The court may intervene and set aside the discretionary decision under review only if that decision was made in bad faith, if its author clearly ignored some relevant facts or took into consideration irrelevant facts or if the decision is contrary to law. |
[33] To say that ss. 7 and 9 of the Fisheries Act, together with the law, including the Barron case, are a complete bar to a court looking at the issuance of a licence is perhaps going a little far. Rather the Barron decision is simply a warning to the court to take caution when considering reviewability of the minister"s decision. Furthermore, the decision of the Court of Appeal actually affirms the principles enunciated in the likes of Thompson and Williams that when it is clear that the minister acted in bad faith, or ignored relevant consideration, the court should intervene and review the minister"s decision. Hence, if the factual evidence leads to the possibility that the minister erred in law, acted in bad faith, or failed to take relevant consideration, then the minister"s decision is clearly reviewable. The same sort of test is a reasonable one to apply in an action seeking damages arising out of a fishing licence transaction.
[34] Earlier I pointed out that if the only issue were the discretion of the minister, as to issuance of a fishing licence to whomever the minister wished, the Crown might well be right in contending that Radil has no control, at law, as to the licence allocated to it and thus no cause of action. However I also went on to point out that the minister dealt not only with a fishing licence, but also with a fisherman"s work product, the tonnage of fish caught. More specifically, the DFO"s calculation of the IVQ is based on the catch history attributed to that fisherman"s vessel. The IVQ of the SEACREST , Radil"s vessel, was calculated using the catch history of the PACIFIC EAGLE . This calculation of the IVQ, accomplished by shifting Radil"s work product to someone else and saddling Radil with the work product of a lesser fisherman, thus giving a lower IVQ, may be a decision based upon an irrelevant or on a wrong consideration, for it well may be that the IVQ of the SEACREST should be derived from the catch history of the fisherman utilizing that vessel.
[35] The argument, that the minister was wrong and subject to censure by reason of the way in which he calculated the IVQ may not be at all an easy case upon which to succeed. However I am hesitant to strike it out as being, on its face, plainly and obviously incapable of succeeding. Moreover, a statement of claim ought not to be struck out, without an opportunity to amend, if there is a scintilla of a cause of action: Kiely v. The Queen (1987), 10 F.T.R. 10 (F.C.T.D.) at 11. For that reason I allowed the Plaintiff to file an amended Statement of Claim to more clearly plead grounds upon which the minister"s discretionary decision might be challenged, referring in a short endorsement on the order to grounds which might include malfeasance or grounds similar to those set out in Thompson v. MCI (supra) or in Williams v. Canada (supra). I now turn to that portion of the motion by which the DFO seeks a stay.
Stay
[36] The DFO moves, in the alternative, to have this proceeding stayed on the grounds of lis alibi pendens, pursuant to s. 50 of the Act:
| 50. (1) Stay of Proceedings - The Court may, in its discretion, stay proceedings in any cause or matter, |
| (a) on the ground that the claim is being proceeded with in another court or jurisdiction; or |
| (b) where for any other reason it is in the interest of justice that the proceeding be stayed. |
[37] Counsel for the DFO refers to the decision of Great Pacific Contracting Ltd. v. Harwyn Properties (1981), 29 B.C.L.R. 145 (B.C. S.C.) for the proposition that any second action seeking the same relief should be struck out for being vexatious and frivolous. The two Federal Court proceedings in the present instance, given the amendment to the Statement of Claim and the abandonment of a portion of the declaratory relief in the second proceeding, now seek completely different relief, albeit relief based on the same factual circumstances. Hence the first and second proceedings are not identical proceedings. To elaborate, in Figgie International Inc. v. Citywide Machine Wholesale Inc. (1993), 66 F.T.R. 7, 50 C.P.R. (3d) 89 (F.C.T.D.), this Court refused to stay the second proceeding even when there was a somewhat similar concurrent proceeding in a provincial superior court. The decision in Figgie was based on the difference in the relief sought. The applicant in that case was barred from seeking certain relief in the provincial court, relief which was available in the Federal Court. Thus, while there was overlap between the two actions, the court held it appropriate for the party to exhaust all avenues, which required companion proceedings.
[38] In the present instance, the first proceeding commenced by the Plaintiff is a judicial review proceeding. Although Mr. Justice Campbell ordered that it proceed as an action, it remains judicial review in pith and substance. Accordingly, the Plaintiff was barred from seeking damages in the first proceeding by the order of Mr. Justice Rouleau. Thereupon Radil commenced the second proceeding seeking damages that it could not obtain in the first proceeding. In effect Radil now seeks, through an action, different relief which otherwise would have not been available to the Plaintiff in the first proceeding which, as I say, is in pith and substance judicial review.
[39] There is also another proceeding filed at the Supreme Court of B.C., based on the identical factual circumstances. However, I am advised that while the statement of claim in the Supreme Court action has been filed, it has not been served on the Defendants, and there is nothing further being done to advance the matter. This is not atypical given the inherent uncertainty in some aspects of the Federal Court"s jurisdiction. The circumstance surrounding the B.C. Supreme Court action does not bring the parties within the ambit of s. 50 of the Act so as to require a stay.
Particulars
[40] The DFO seeks further and better particulars for pleading. Particulars for pleading are not in the nature of discovery, but may be required when such are necessary to enable a party to make an intelligent response: see for example Chingee et al. v. Chingee et al. (1998), 144 F.T.R. 156 at 159, Cremco Supply Ltd. et al. v. Canada Pipe Co. et al. (1998), 145 F.T.R. 48 at 52 and Huzar et al. v. Canada et al. (1998), 139 F.T.R. 81 at 89.
[41] There is a burden on the party requesting particulars to demonstrate that they are necessary. As touched upon in Huzar, (supra, 90), this burden may be discharged by affidavit subject, of course, to the need for particulars being apparent on the face of a pleading: neither is the situation here. Thus I denied the request for particulars, but extended the time for filing a defence.
CONCLUSION
[42] This motion was argued thoroughly and at length. Some aspects may not be without doubt. Yet a plaintiff who believes it has been unjustly dealt with and who has any semblance of a right ought not to be denied the opportunity of a day in court and a possible remedy. For that reason the test for striking out is set at a high standard, being an action which clearly and obviously cannot succeed, an action which even, by amendment, has not a scintilla of a chance of success. This action will not be an easy one for the Plaintiff, but neither is it a forlorn proceeding.
[43] Similarly, to stay the action would also be to deny Radil possible relief. Certainly it is unfortunate that the Rules and the statutory jurisdiction of this Court, from time to time, force parallel proceedings, but such parallel proceedings are a part of the high cost of litigation in both this Court and in other courts. A stay is neither called for nor is it indicated on a balance of convenience, for eventual closure will require that the issues in both the first and second proceedings be determined.
[44] This second proceeding and the first proceeding, the judicial review which is now in the form of an action, have been subject to a plethora of motions, some of which appear to be covering similar ground, but brought by a different applicant. Hopefully the parties will shortly get into the merits of the claim: the facts are interesting and the issues important. Moreover, even though the amount at stake is large, there are limits to what individual litigants and taxpayers, in support of the Crown, ought to be asked to pay in order to determine these matters.
[45] I thank counsel for thorough and interesting argument.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
12 July 1999
[46] FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DATED: June 14, 1999
COURT NO.: T-382-99
STYLE OF CAUSE: RADIL BROS. FISHING CO. LTD.
v.
HER MAJESTY THE QUEEN ET AL.
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF MR. JOHN A. HARGRAVE,
PROTHONOTARY
dated July 12, 1999
APPEARANCES:
Mr. Ray Pollard for Plaintiff
Mr. Paul Partridge for Defendant, HMQ
Mr. Murray Blok for Defendant, B.C. Packers
Mr. David Brown for Defendant, Titan Fishing
SOLICITORS OF RECORD:
Richards, Buell, Sutton
Vancouver, BC for Plaintiff
Morris Rosenberg for Defendant, HMQ
Deputy Attorney General
of Canada
Russell & DuMoulin
Vancouver, BC for Defendant, B.C. Packers
Stikeman, Elliott
Vancouver, BC for Defendant, Titan Fishing