Date: 20030124
Docket: T-192-98
Neutral citation: 2003 FCT 79
BETWEEN:
RADIL BROS. FISHING CO. LTD.
Plaintiff
and
HER MAJESTY THE QUEEN,
as represented by the DIRECTOR GENERAL
OF THE DEPARTMENT OF FISHERIES AND OCEANS, PACIFIC REGION,
and BRITISH COLUMBIA PACKERS LIMITED and TITAN FISHING LTD.
Defendants
[1] This action seeks declaratory relief arising out of a fishing licence transfer which is said to have gone amiss, resulting in the loss of the Plaintiff's groundfish quota.
[2] The Defendant Crown, as represented by the Department of Fisheries and Oceans, seeks to strike out the whole of the Statement of Claim on the basis that it fails to disclose a reasonable cause of action, is otherwise an abuse of the process of the Court, that the relief sought goes beyond the jurisdiction of the Court and that, in any event, the relief sought is moot. Titan Fishing Ltd., with a vested interest in the outcome, fully supported the Crown and made substantial additional submissions. This is complicated by the fact it is a third attack on the Plaintiff's originating document: some background is in order.
BACKGROUND
[3] This proceeding was begun 4 February 1998 as a judicial review application, seeking mandamus and declaratory relief, the Plaintiff having relatively recently become aware of the ramifications of the manner in which a licence transfer had been accomplished by the licensing department of the Department of Fisheries and Oceans, whom I shall call "DFO".
[4] Titan Fishing Ltd. ("Titan Fishing"), at an earlier stage, sought to strike out the judicial review proceeding as an abuse of process by reason of a characterization of the application as a collateral attack on a licence transfer by DFO. Despite the fact that the proceeding involved a 1993 transaction, Mr Justice Campbell declined to strike it out as an abuse of process, but did convert the application to an action. Here I would note that counsel for the Crown was present. The Registrar's minutes indicate that there was argument as to abuse of process, but with counsel for the Crown taking no position other than that should the proceeding not be struck out for abuse, he might have liberty to re-apply on the same issue. Certainly the abuse gambit failed. Also certainly, there was no express liberty to allow the Crown a later second try at convincing the Court that the proceeding was an abuse.
[5] Challenges to pleadings ought not to be brought on a piecemeal basis, thus subjecting a party to a number of essentially similar challenges over time. Rather, if with reasonable diligence the abuse point, or indeed any other attack the pleadings, might have been brought forward by the Crown during the hearing of February, 1998, which was clearly the situation here, the Crown ought to be shut out from raising it at a subsequent hearing: see generally the principle of estoppel by record set out in Borley v. Fraser River Harbour Commission (1995), 92 F.T.R. 275 at 279 and following, as well as the Ruby Trading and Windsurfing cases, to which I will refer shortly. Of course, this would not limit the Crown to abuse and want of a reasonable cause of action arguments as to any subsequent amendment to the Plaintiff's claim.
[6] The Statement of Claim, springing from the conversion to an action, was filed 24 March 1998. The Crown's defence of 1 May 1998 concludes by characterizing the action as one which "... discloses of no reasonable cause of action, is frivolous or vexations or otherwise an abuse of process of this Honourable Court and ought to be struck out.". Thus, we had a situation in which the Plaintiff's proceeding, having survived a motion for striking out as an abuse, is re-labelled an abuse by a Defendant.
[7] On 30 November 1998 Mr Justice Rouleau dealt with a motion by Titan Fishing for summary judgment dismissing those portions of the Plaintiff's claim against both Titan Fishing and the Crown which sought declaratory relief. This was not necessarily in violation of the principle that a party ought to have only one opportunity to strike out an opponent's pleadings, a principle referred to in Ruby Trading S.A. v. Parsons (2000), 194 F.T.R. 103 at 107, and see also Windsurfing International Inc. v. Novaction Sports Inc. (1987), 15 F.T.R. 302 at 305 - 306, in which Associate Chief Justice Jerome referred to the general rule that a party should be allowed only one opportunity to attack an opponent's pleadings, unless there were special circumstances, including an amendment. This second approach of Titan Fishing to attack the claim was quite different. In passing I would also observe in its pleading of the initial notice of application as a statement of claim the Plaintiff had added a claim for damages as against the Crown. In 1998 Titan Fishing was unsuccessful in obtaining summary judgment, but did succeed in having the entire prayer for relief struck out, with leave to amend.
[8] Pertinent to the present motion are the submissions made by the Crown in support of Titan Fishing's 1998 summary judgment motion, which included an absence of a right of renewal, fishing licences being valid for only a year; that the exercise of ministerial discretion could not be effected by a declaration from the Court; and that the relief sought by the Plaintiff, not being a declaration of right, but a declaratory order as to the lawfulness of past conduct, such declaratory relief was neither available nor appropriate. The Crown went on to sum things up by saying that the claim for declaratory relief was not arguable and thus there was no genuine issue for trial. In denying the bulk of the relief sought in the motion and finding a genuine issue for trial, Mr Justice Rouleau also said he did not agree that the relief sought was time-barred. The only remedy which he granted was to strike out the prayer for relief on the basis that conversion of judicial review into an action did not permit a party to seek new or additional relief. This view as to additional relief may have been overtaken by Shubenacadia Indian Band v. Canada (Minister of Fisheries and Oceans) (2001), 202 F.T.R. 30 (F.C.T.D.), however that is not at issue in the present instance. In the result the Amended Statement of Claim, filed subsequently, reverted to relief of a declaratory nature, relief which was clearly at issue, being relief which Mr Justice Rouleau was not prepared to strike out.
[9] By clear implication, Mr Justice Rouleau found that the Statement of Claim, as drafted, but without the claim for damages, contained a genuine issue for trial. Phrased another way, summary judgment will issue when a case is so doubtful that it serves no further consideration and here I would refer to Granville Shipping Co. v. Pegasus Lines Ltd. S.A. (1996), 111 F.T.R. 189 at 193 (F.C.T.D.), approved by the Federal Court of Appeal in ITV Technologies Inc. v. WIC Television Ltd. (2001), 199 F.T.R. 319. A claim which survives a summary judgement application is clearly not a claim which plainly, obviously and without doubt will not succeed. Such a claim is not a candidate for striking out and all the more so when the party moving to strike out can bring no more to bear against the claim than the argument and case law relied upon to support an earlier summary judgment application.
[10] As I say, a statement of claim, amended so as to be consistent with Mr Justice Rouleau's Order of 30 November 1998, was filed 18 December 1998. Two years later, 29 January 2000, the Crown moved to strike out the Amended Statement of Claim, a motion which was heard in March and April 2001.
CONSIDERATION
The Present Motion
[11] The Crown's motion, as set out in the Notice of Motion, is to strike out the original Notice of Application of 4 February 1998 and the Amended Statement of Claim filed 18 December 1998, the latter with the relief amended so as to be consistent with Mr Justice Rouleau's Order. However, counsel also dealt with a current crop of proposed amendments which, had they not been considered during the motion to strike out, would have been considered on a following motion to amend the statement of claim yet again. Thus, for practical purposes, both counsel and I deal with the draft further amended statement of claim presented to the Court through the Plaintiff's motion to amend of 21 February 2001.
Scope of the Present Motion
[12] The motion of the Crown to strike out is on the following grounds:
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the pleading is clearly improper and bereft of any possibility of success, fails to disclose a reasonable cause of action, and is otherwise an abuse of the process of the court as it would be inappropriate for the court to grant the relief sought by the plaintiff, for to do so would be tantamount to: the court improperly exercising a jurisdiction which it does not possess; the court improperly usurping jurisdiction vested in the Minister of Fisheries and Oceans by the Parliament of Canada; and the pleadings do not raise an issue of a justiciable nature. ... the relief sought is not a declaration of right but in relation to past conduct, which is neither available nor appropriate; and the relief sought is in any event moot. |
On reading the grounds set out in the Notice of Motion, I am struck immediately with their similarity to what is set out in the written submissions before Mr Justice Rouleau in 1998. There the Crown made various arguments leading to conclusions that the Minister of Fisheries and Oceans, having exercised a purely discretional jurisdiction, the Court could not substitute another decision by way of a declaration; that the declaratory relief sought by the Plaintiff raised issues which were not justiciable; that there was no declaratory relief available for past conduct; and that there could be no relief related to a fishing licence which has expired, the doctrine of mootness applying. Interestingly, the article and all of the case authorities except one, relied upon by the Crown in the 1998 motion, are again relied upon by the Crown in this motion heard in March and April 2001. However, to be fair, the present case list has been augmented, although the augmentations, again except for two cases, are cases which were available in 1998. The Crown also raises the issue of the death of its principal witness, the head of licencing in British Columbia for DFO, Mr Brownlee. However, not only did that individual die in 1993, well before this present action was commenced, but also his loss appears equally to have been a loss to the Plaintiff.
[13] The Crown makes no apology, in its written material, for re-visiting the striking out procedure on the same grounds as dismissed by Mr Justice Rouleau.
[14] The Crown concedes that generally, on the basis of heads 221(1)(b) through (f), dealing generally with abusive pleadings, no application to strike out lies, once there has been a responsive pleading: Proctor and Gamble Co. v. Nabisco Brands Ltd. (1985), 62 N.R. 364 (F.C.A.) at page 366. Nabisco, of course, leaves it open to move to strike out an amendment and to strike out a statement of claim which the defendant contends, in the defence, is an abuse or otherwise in violation of Rule 221.
Multiple Attacks on a Pleading
[15] The Crown submits that this is the first time that there has been an attack on the pleadings. This flies in the face of the motions presented by Titan Fishing and on which, at least in one instance, the Crown made on point argument which resulted in only the prayer for relief being struck out. I am not prepared to split hairs on the basis that Titan Fishing tried for summary judgment, albeit on similar grounds, perhaps only succeeded in having the relief struck out because that was the real substance of an appropriate motion. As I have pointed out, any claim which survives a summary judgement application is not a candidate for striking out and, a fortiori, not on the basis of similar case law and argument.
[16] Given the earlier attacks on the pleadings, fully participated in on one occasion by the Crown, the Crown now making a similar attack, the Orders of Mr Justice Campbell and Mr Justice Rouleau, and the law as set out in the Borley, Ruby Trading and Windsurfing cases (supra), I may properly only consider disallowing, in the context of striking out, the most recent amendments to the Statement of Claim as attached to the Plaintiff's motion of 20 February 2001, which I will call the 2001 Statement of Claim.
Amendments Reflected in the 2001 Statement of Claim
[17] The 2001 Statement of Claim adds the Minister of Fisheries and Oceans, as an authority responsible for issuing or authorizing the issuing of fishing licences. This is set out in paragraph 2 of the Statement of Claim, to which DFO takes no objection.
[18] Paragraph 10 refers to the role of BC Packers, as agent for the Plaintiff. BC Packers is already referred to in the Statement of Claim. In effect, paragraph 10 adds some particulars, a role for BC Packers, but nothing inconsistent either with has gone on before in this proceeding, including the outcome of the hearing before Mr Justice Campbell and Mr Justice Rouleau. Paragraph 10 will also remain.
[19] At one point the Plaintiff had an interest in the licence underlying this proceeding, being as holder of the licence. The Plaintiff says that the interest was stripped from the Plaintiff through the Minister's delegate saying one thing and doing something entirely different. Paragraph 16 through 20 are further amendments reflecting this allegation. They set out that BC Packers was told by DFO, including by the head of licencing, Mr Brownlee, that DFO would deviate from or modify its policy and allowed a swap of licences between the Seacrest, the Plaintiff's vessel, to the Pacific Eagle, a longer vessel; that all concerned were aware that a groundfish quota system based on catch history was in the offing; and that the licence swap would not have any impact upon the more substantial catch history of the Seacrest. Here I have no doubt that whatever Mr Brownlee said, he spoke for the Minister in the sense of delegation or devolution of ministerial powers to a responsible department official: see for example Comeau's Sea Foods v. Canada (Minister of Fisheries and Oceans, [1977] 1 S.C.R. 12 at 22. Paragraph 21 of the 2001 Statement of Claim goes on to conclude that the assurance of the continuation of the benefit of the catch history was relied upon by the Plaintiff's agent, BC Packers.
[20] Also related to this line of amendments, that is paragraphs 16 through 20, are paragraphs 42 and 43. They elaborate upon what is alleged to have happened following the submission of the licence transfer material on the basis of the representations of DFO. Paragraph 42 sets out that in May 1998 the Minister of Fisheries and Oceans was advised that the licence transfer had been submitted on the assurance of Mr Brownlee, of DFO, that the catch history of the Seacrest would stay with that vessel and not be transferred with the licence. Paragraph 43 sets out that the Minister of Fisheries and Oceans and the Director General of DFO, Pacific Region, were aware of the circumstances surrounding the 1993 transfer but continued, in 1998, 1999 and 2000, to calculate the quota on the catches of the Pacific Eagle, rather than on the catch history of the Seacrest.
[21] This plea of an agreed modification of the usual policy is a fresh approach. Earlier the Plaintiff had advanced, in its Statement of Claim, some type of a proprietary right or entitlement in or to a T-Licence, perhaps, an ill-fated concept but one which survived an earlier attack on the pleadings. This new approach is one which, on appropriate evidence, might well succeed for the plea does not depend upon a property right in the licence. It is not a plea to be summarily struck out.
[22] To elaborate on the plea of a licence swap going ahead because of assurances from DFO, it is not a plea which, as submitted by counsel for DFO, depends upon some form of a statutory duty or legal right to be issued a licence. Indeed, as pointed out by Crown counsel, one may look in vain for such a duty or a legal right to a licence in the fisheries legislation and related case law. Rather, the plea is based on a reasonably arguable negligent operational misrepresentation by Crown servant and, on that analysis, lies within Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. (1964), A.C. 465 (H.L.), as explained by Mr Justice Iacobucci of the Supreme Court in The Queen v. Cognos Inc. (1993), 99 D.L.R. (4th) 626 at 643:
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The required elements for a successful Hedley Byrne claim have been stated in many authorities, sometimes in varying forms. The decisions of this Court cited above suggest five general requirements: (1) there must be a duty of care based on a "special relationship" between the representor and the representee; (2) the representation in question must be untrue, inaccurate, or misleading; (3) the representor must have acted negligently in making said misrepresentations; (4) the representee must have relied, in a reasonable manner, on said negligent misrepresentation; and (5) the reliance must have been detrimental to the representee in the sense that damages resulted. |
Indeed, the Crown may be at fault and the Plaintiff entitled to a remedy, to reflect a right, on the basis of a licence transaction gone wrong by reason of a false representation and here I would refer to Keleher v. Canada (Minister of Fisheries and Oceans) (1989), 26 F.T.R. 161, a decision of Madam Justice Reed.
On the basis of what is set out in the new paragraphs, 2, 16 through 20, the amendment to paragraph 21 and new paragraphs 42 and 43, which I must take as if proven when testing for a reasonable cause of action, the way is certainly open, on the basis of Hedley Byrne (supra) to a finding of an operational negligent misrepresentation by a Crown servant, which could give rise to declaratory relief independent of statute. Thus, on this basis, these nine new and amended paragraphs should remain. However, DFO makes submissions having bearing on this conclusion.
The Crown's Position
[24] The main thrust of the Crown's argument is first that since the Statement of Claim seeks only declaratory relief, that usurps that role of the Minister for, in the Defendant's view, the Court is being asked to act as if it were the Minister; and second, that the whole matter is moot, for a new licence is issued yearly and thus, if a plaintiff cannot complete an action within the year of the licence issuance, or mis-issuance, there can be no claim, for the whole matter is of no practical importance, but is hypothetical and academic. This latter point, that of a new fishing licence being issued yearly, is well-established in this Court, but perhaps only by ignoring the real world in which fishing licences are, subject to nefarious conduct by a fisherman, always is re-issued to the former holder, are bought and sold on the open market at very substantial prices and apparently, depending on the type of licence, have a continuation of the quota based on the past catch history of the licence holder.
Consideration of the Crown's Basic Positions
[25] In dealing with the first point, that the Court may not order the Minister to issue a fishing licence, that is correct. However, the Court may issue declarations as to rights, which the Minister may or may not follow. Thus, the type of declaratory relief sought, on this basis, is perfectly arguable. However there is another aspect.
[26] For the purposes of striking out an action, I must take the facts as if proven. It may well be that Titan Fishing acquired the licence improperly and that the Minister and DFO not only ignored what happened, but ignored the representations made by Mr Brownlee, of DFO, thus granting the licence transfer improperly. This analysis leads to the concept that the Court can make declarations and that there can be a remedy for a mistaken issuance of a licence, a mistake then repeated for a number of years. This was the subject of Mr Justice Joyal's decision in Johnson v. Ramsay Fishing Co. Ltd. (1987), 47 D.L.R. (4th) 544 (F.C.T.D.). At page 565 Mr Justice Joyal relied on Kelso v. The Queen (1981), 1 S.C.R. 199 at 210, differentiating between encroachment by the court on a ministerial discretion and a declaration as to what might have been a proper exercise of that discretion, in effect an invitation to the minister to do the right thing. The amendments, from this point of view, should remain, for one cannot say that clearly, obviously and beyond doubt they will not succeed. And all the more so given that Mr Justice Rouleau was faced with a similar argument from the Crown, on summary judgement application and refused to grant summary judgement against the Plaintiff, clearly feeling that there was an issue for trial. The Defendants, the Crown and Titan Fishing Ltd., have both shot their bolts and cannot re-argue what was said before Mr Justice Rouleau.
[27] The submission that any right which the Plaintiff had, to a properly issued licence, expired at the end of the licence year, is again a point which, as I say, was dealt with by Mr Justice Joyal in the Johnson case. He noted that the same fishing licence had been issued yearly, but did not decide the issue of mootness, for there was another avenue open to the Court, that of making a declaration. Thus I must consider mootness.
[28] Mootness may also be approached from the point of view that it is the initial transfer, the transfer to Titian Fishing, said to be improper, for which the Plaintiff seeks a declaratory remedy. Such an initial invalid transfer cannot become moot by the passage of time and all the more so given that had there been no fishing licence transfer or had the transfer been on the basis of the alleged representations of DFO, the Plaintiff would have been assured of receiving the licence with the greater quota, subject to completely improper conduct on the part of the Plaintiff, from year to year, and, of course, subject to the possibility that no licences might be issued in a given year, for example, for conservation reasons. Even were the doctrine of mootness to apply and here I acknowledge that mootness is a ground for striking out an action, a court may exercise discretion to hear the matter.
[29] To elaborate, a concept of mootness, that of the lack of a live controversy between the parties, is set out in a passage from Shoulders v. Canada (1999), 165 F.T.R. 125:
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A proceeding becomes moot when circumstances have changed so that there is no longer a live controversy between the parties that can be resolved by a decision in that proceeding.
(Page 127) |
This is a concise conclusion reached by Madam Justice Sharlow, as she then was, after considering several leading cases, including Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342. A passage which is often quoted from Borowski is at page 353:
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The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter.
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The important point here is that the decision must have a practical effect on the rights of the parties, both when the proceeding is commenced and also when the Court hears the case.
[30] In Borowski Mr Justice Sopinka went on to consider cases where impugned legislation had been repealed during a proceeding, thus leading to mootness. That is perhaps analogous to what has happened in the present instance, with the initial licence in issue being replaced by new licences over the year. The analysis in Borowski consists of two steps. First there is the determination of mootness, second, a court then considers whether it ought to exercise discretion, hearing the case even though it is moot.
[31] In dealing with the exercise of discretion, Mr Justice Sopinka notes, in Borowski, that there is not a neat set of criteria as to when discretion ought to be exercised and indeed "... that more than a cogent generalization is probably undesirable because an exhaustive list would unduly fetter the court's discretion in future cases." (page 358). Leaving aside that there are no set criteria, there are some established principles. First, for a moot matter to be properly tried and determined, there must be an adversarial relationship, for often that adversarial relationship ceases to exist once an issue has become moot. Second, there may be special or unique circumstances which warrant the application of scarce judicial resources to a moot issue. Finally, there may be a need to show the court's proper law-making function. These criteria must be balanced, for the process of applying the principle is not mechanical:
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In exercising its discretion in an appeal which is moot, the Court should consider the extent to which each of the three basic rationalia for enforcement of the mootness doctrine is present. This is not to suggest that it is a mechanical process. The principles identified above may not all support the same conclusion. The presence of one or two of the factors may be overborne by the absence of the third, and vice versa.
(Borowski at 363) |
[32] In the present instance I have no doubt that the necessary adversarial relationship still exists, for not only does the initial allegedly faulty transfer of the licence still rankle and financially affect the Plaintiff, but the adversarial relationship is re-visited and re-enforced each year when the Plaintiff does not receive what it considers to be a proper quota of fish. Second, the usefulness to the Plaintiff of a declaration that the initial transfer of the licence was improper, given the representations of DFO, relied upon by the Plaintiff, may well be a special circumstance to warrant the use of scarce judicial resources to decide the matter. The third concept, that of the need of a court to demonstrate a proper law-making function, may be looked upon as a need for the court to demonstrate a certain awareness of its law-making function. Here the Court does not have a law-making function per se, but rather might well feel that its proper function, the function to be demonstrated, is that of a declaration suggesting to DFO and the Minister, that what happened disregarded a right based on Hedley Byrne, that is, an operational negligent misrepresentation by a Crown servant which was relied upon and which harmed the Plaintiff.
[33] As I have indicated, mootness may be a ground on which to strike out an action, however in this instance there are more than enough indicia to demonstrate that the Court might well hear the matter, even if moot. Thus, I decline to strike out the Plaintiff's amendments reflected in paragraphs 16 through 21, 42 and 43 on the basis of mootness.
Availability of Relief
[34] As we will see I have struck out paragraphs 39 through 41, being amendments. However, before turning to those paragraphs, the Crown does raise an interesting issue, whether any declaratory relief is available to the Plaintiff in this instance. Here the Defendants take the position that:
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Moreover, the declaratory relief the plaintiff seeks is (sic) not declarations of rights. The plaintiff seeks declaratory relief in relation to the lawfulness of past conduct connected to the previous issuance of a now expired licence. Therefore, the declaratory relief is neither available nor appropriate.
(Paragraph 31 of brief) |
Counsel refers to Rusche v. Insurance Corp. of British Columbia (1992), 4 C.P.C. (3d) 12, a decision of the BC Supreme Court for a somewhat bare proposition, in an action for trespass that:
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In the present case the jury found, in answering the first question put to them, that there had been a trespass. I had first thought that this might form the basis of some declaratory relief. Rule 5(22) allows the court to make binding declarations of right whether or not consequential relief is or could be claimed. The declaration must, however, be of a right and cannot be "that certain past conduct is wrong". (Architectural Institute of British Columbia v. Lee's Design and Engineering (1979), 96 D.L.R. (3d) 385 (B.C.S.C.) at p. 430.) This means, I think, that I could not convert the jury's finding that there had been a trespass into a judgment containing declaratory relief. (Page 16) |
More instructive is the Architectural Institute (British Columbia) case referred to as the authority for this proposition.
[35] In the Architectural Institute case, reported (1979), 96 D.L.R. (3d) 385, the statute at issue provided both for a summary conviction procedure and for civil relief by way of injunction. There Mr Justice Trainor observed where a statute provided for summary conviction procedure, the BC Supreme Court had no jurisdiction to make a declaratory order setting out rights, but conversely, where the statute also made provision for civil relief by way of injunction, there was jurisdiction to make a declaratory order as well (page 393). The issue subsequently became whether the court might issue a declaratory judgment, particularly in view of Rule 5(22) of the BC Supreme Court Rules, which provided that a court could make binding declarations of right. This rule is similar to Federal Court Rule 64, which also provides for binding declarations of right. Of course, declaratory relief may be sought in an action against the Crown pursuant to section 17 of the Federal Court Act and, applicable here in that this proceeding began as judicial review, but was converted to an action, declaratory relief may be had under section 18(1)(a), which grants the Court jurisdiction:
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18. (1) 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 |
18. (1) Sous réserve de l'article 28, la Section de première instance a compétence exclusive, en première instance, pour : a) décerner une injonction, un bref de certiorari, de mandamus, de prohibition ou de quo warranto, ou pour rendre un jugement déclaratoire contre tout office fédéral; |
Here I observe that declaratory relief pursuant to section 18 of the Federal Court Act is not limited to declarations involving a right. This, in itself, is enough to distinguish the principles set out in Rusche and in Architectural Institute from the present situation.
[36] In Architectural Institute Mr Justice Trainor also went on to point to the danger of making a declaratory order which might govern future actions:
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Counsel for the plaintiff has cited to me some of the passages to which I made reference when I dealt with the question of this being a "test case". He urged that because of that it was essential to have a declaratory order which would "be directed towards the establishment of effective guidelines for the governance of their future actions." The danger of pre-judging future cases, of course, demands the exercise of extreme caution. In so far as the defendant Lee's is concerned, an injunction is just as effective. The danger of pre-judging other cases demands that I exercise my discretion again st the making of a declaratory order ...
(Page 430) |
Again, this concept, of an exercise of discretion denying a declaration so as not to prejudice future decisions, is a basis on which to distinguish Rusche and Architectural Institute from the present case for Radil Bros. Fishing Co. Ltd. I would also observe that neither Rusche nor Architectural Institute is broad enough authority to deny declaratory relief, in judicial review proceedings, including a proceeding commenced as a judicial review, merely because the declaration sought is not a declaration of right. However, as I have also indicated, the plaintiff may well have a right, a right which is not moot, under Hedley Byrne.
Amendments to Paragraphs 39 through 41
[37] Paragraph 39 through 41, also amendments, set out that the licence transfer documents submitted to DFO were not signed by the Plaintiff, but that after investigation the Minister advised that all dealings by DFO had been with BC Packers and thus the Plaintiff should look to BC Packers.
[38] I do not see paragraphs 39 through 41 as leading to anything useful by way of relief against DFO. While they are irrelevant I have considered whether they form useful background information setting out the Plaintiff's actions between 18 March 1997, when the Plaintiff says it first became aware of the actual nature of the licence swap and the 11 December 1997 advice from DFO that the Plaintiff should look to its agent, BC Packers, for relief. Even accepting that the licence transfer form may have been signed by someone on behalf of the Plaintiff, both DFO and the Plaintiff carried on, for a number of years, as though there were a proper transfer in place and that the intention of both parties was that there be a transfer of licences. That the eventual result of the transfer was not that which one or more of the parties intended, it is a different issue. Here I would observe that, notwithstanding a possible question as to the signing of the transfer form submitted by BC Packers as the acknowledged agent of the Plaintiff, there was an objective intent to transfer the licence. Such an objective intent may be found a reasonable observer in looking at the actions of the parties. I would refer, by analogy, to a line of cases including Brogden v. Metropolitan Railway Co. (1877), 2 A.C. 666 (H.L.), Dr. T. Torfason Inc. v. 338058 BC Ltd. (1994), 1 B.C.L.R. (3d) 370 (B.C.C.A.) and Schiff Food Products Inc. v. Naber Seed & Grain Co. Ltd., [1997] 1 W.W.R. 124 (Sask. Q.B.) in which on an objective examination a contractual relationship and intent was, in each case, found on the basis of an incompletely executed document and the actions of the parties. While a court will not necessarily strike out surplus passage, I do not see any redeeming value in the three paragraphs. Given that they plainly and obviously will not succeed, they are struck out.
New Alternate Relief Sought
[39] By the final amendment the Plaintiff seeks, as alternative relief, a declaration that the Plaintiff is entitled to a vessel quota based upon the catch history of the Seacrest. This is relief which could reasonably follow if the Plaintiff were to be successful on the negligent misrepresentation aspect.
Striking Out on Other Grounds
[40] Having declined to strike out the key paragraphs of the proposed amendments, resulting in the 2001 Statement of Claim, for want of a reasonable cause of action, I will not strike them out under the balance of the heads of Rule 221(1).
CONCLUSION
[41] The argument and material presented on this motion, which consisted of submissions, written argument, documentary material and case material, on behalf of the Plaintiff, DFO and Titan Fishing Ltd. was of a very substantial length and volume. Much of it was interesting. However, considering it all in the context of striking out the Amended Statement of Claim and the proposed 2001 Statement of Claim, much of it was either irrelevant, or not persuasively on point, or of little weight in convincing me that all of the 2001 Statement of Claim, or even all of the proposed amendments resulting in the 2001 Statement of Claim, ought to be struck out. In the result, the Plaintiff may file a further amended statement of claim, that is the 2001 Statement of Claim, edited so as to remove paragraphs 39, 40 and 41.
[42] The preponderance of success being that of the Plaintiff, the Plaintiff is entitled to costs from the Crown. While Titan Fishing Ltd. participated vigorously in what was a losing cause, nothing would be served by the award of an additional set of costs, as between Titan Fishing Ltd. and the Plaintiff.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
24 January 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-192-98
STYLE OF CAUSE: Radil Bros. Fishing Co. Ltd. v. Her Majesty the Queen, as represented by the Director General of the Department of Fisheries and Oceans, Pacific Region, and British Columbia Packers Limited and Titan Fishing Ltd.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: 5 April 2001
REASONS FOR ORDER: Hargrave P.
DATED: 24 January 2003
APPEARANCES:
J Raymond Pollard FOR PLAINTIFF
Paul F Partridge FOR DEFENDANT HMTQ
R S Whittaker
David Brown FOR DEFENDANT Titan Fishing
Ltd.
SOLICITORS OF RECORD:
Richard Buell Sutton FOR PLAINTIFF
Barristers & Solicitors
Vancouver, British Columbia
Morris Rosenberg FOR DEFENDANT HMTQ
Deputy Attorney General of Canada
Department of Justice
Vancouver, British Columbia
David Brown FOR DEFENDANTTitan Fishing
Stikeman Elliott Ltd.
Barristers & Solicitors
Vancouver, British Columbia