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T-2213-74
John Harper Falls and Mary Falls (Plaintiffs)
v.
The Queen (Defendant)
Trial Division, Heald J.—Vancouver, March 3 and 5, 1975.
Practice Application by defendant to dismiss plaintiffs' actions—Whether plaintiffs failed to file and serve list of documents required—Expropriation—Offer of compensation made to plaintiffs—Whether defendant waiving time limit for appointment of negotiator—Plaintiffs bringing action for com- pensation—Defendant rejecting offer of settlement—Plaintiffs serving notice for appointment of negotiator—Whether service operates as stay of proceedings—Expropriation Act, R.S.C. 1970 (1st Supp.) c. 16, ss. 16 and 28(1), (3) and (4)—Federal Court Rules 447, 460.
Defendant applies under Rule 460 to dismiss plaintiffs' actions, citing plaintiffs' failure to file and serve a list of documents as required under Rule 447. Defendant made an offer of compensation for expropriation to plaintiffs on May 29, 1973, and plaintiffs maintain that defendant waived the time limit for appointment of a negotiator under section 28(1) of the Act. Plaintiffs commenced an action for compensation on May 29, 1974; their offer of settlement was rejected by defendant, and, on February 26, 1975, plaintiffs served notice for appoint ment of a negotiator, maintaining that such service operated to stay proceedings in the matter for 60 days, or until the negotia tor should report to the Minister under section 28(1).
Held, dismissing the motion, a notice to negotiate, under section 28(1), should have been served within 60 days of May 29, 1973. The notice herein is of no effect. Nowhere in the Act is there provision for extension of the 60 day period; it was not Parliament's intent that negotiation should unduly prolong adjudication. Both the 60 day period in subsection (1) and the use of the word "forthwith" in subsection (3) of section 28 demonstrate that the time limits are clear and unambiguous, and that only Parliament can extend them. As to the substan tive question, plaintiffs have not been unduly dilatory in filing their list of documents and should be given until May 25, 1975 to file and serve it.
MOTION. COUNSEL:
W. C. Johnstone for plaintiffs.
N. D. Mullins, Q.C., for defendant.
SOLICITORS:
W. Charles Johnstone & Co., Richmond, B.C., for plaintiffs.
Deputy Attorney General of Canada for defendant.
The following are the reasons for judgment rendered in English by
HEALD J.: These reasons will apply equally to the orders made in the following actions since the motions were heard together on common evidence and the parties in all of said actions were repre sented by the same counsel.
1. John Wesley Bolton v. The Queen—File No. T-2347-74
2. Alfred Edinger & Dorothy Edinger v. The Queen—File No. T-2346-74
3. David Gentles v. The Queen—File No. T-2212-74
4. Edgar J. Doucet v. The Queen—File No. T-2351-74
5. John M. Walker & Elizabeth L. Walker v. The Queen— File No. T-2215-74
6. Nichol Kolibas & Joyce Marjorie Kolibas v. The Queen— File No. T-2349-74
7. Herbert S. Hall & Gertrude A. Hall v. the Queen—File No. T-2238-74
8. Francis S. Hingston & Mildred C. Hingston v. The Queen—File No. T-2216-74
9. Barry Robert Hastings & Marilyn Hastings v. The Queen—File No. T-2221-74
10. George William Jones & Jessie Mary Jones v. The Queen—File No. T-2224-74
11. George William Jones & Jessie Mary Jones v. The Queen—File No. T-2237-74
12. Gordon K. Bicknell & Mary E. Bicknell v. The Queen— File No. T-2214-74
13. Peter Hoshowsky & Amerik Hoshowsky v. The Queen— File No. T-2227-74
14. Fong Mah & Yuk Chan Mah v. The Queen—File No. T-2353-74
There was some question about the Bolton and Edinger actions being in the same category as the other actions and I gave leave to counsel for the plaintiffs to file additional material in these two actions to establish that said two actions were in the same category as the other actions in so far as the alleged waiver hereinafter referred to is con cerned. In view of the conclusions I have reached as to the legal effect of said waiver, I am assum ing, for the purposes of these motions, that all of subject actions are in the same category in so far as the alleged waiver is concerned, even though the additional material above referred to has not yet been filed.
Subject motions are applications by the defend ant pursuant to Rule 460 for orders dismissing the within actions upon the ground that the plaintiffs
have failed without reasonable cause or excuse to file and serve a list of documents as required by Rule 447.
At the outset of the argument on the motions, plaintiffs' counsel made a preliminary objection based on the provisions of section 28(1) of the Expropriation Act, R.S.C. 1970 (1st Supp.) c. 16 and on the facts established by the affidavit of John Harper Falls, one of the plaintiffs herein, dated March 3, 1975. Said section 28(1) reads as follows:
28. (1) Where, after an offer of compensation in respect of an expropriated interest has been made under section 14 to any person (hereinafter in this section referred to as "the owner"), the owner and the Minister are unable to agree on the amount of compensation to which the owner is then entitled, either the owner or the Minister may, within sixty days after the making of the offer, serve on the other a notice to negotiate settlement of the compensation to which the owner is then entitled, and, where any such notice has been so served, no proceedings under section 29 shall be instituted, or if instituted shall be proceeded with, by or on behalf of either the owner or the Attorney General of Canada in respect of the expropriation until the expiration of sixty days from the serving of the notice, unless before the expiration of those sixty days the negotiator to whom the matter is referred under subsection (3) has made a report to the Minister that he has been unable to effect a settlement and has sent a copy of his report to the owner.
The Falls affidavit establishes that the offer of compensation under section 14, contemplated by said section 28 (1) was made to the plaintiffs on or about May 29, 1973. It also states that "the time limited for the appointment of a negotiator pursu ant to section 28(1) of the Expropriation Act was orally waived by the defendant through P. M. Troop, Q.C., Assistant Deputy Attorney General, on July 30, 1973, in a telephone conversation with my solicitor ...." and that said oral waiver (emphasis is mine) was confirmed by letter from the said Mr. Troop dated October 26, 1973. The affidavit goes on to state that since the matter of compensation had not been settled, the plaintiffs commenced this action for compensation on May 29, 1974; that a defence was duly filed; that an offer of settlement was made by the plaintiffs to the defendant which said offer was rejected on January 20, 1975, and it thus appears that agree ment between the parties as to compensation cannot be reached. On February 26, 1975, the plaintiffs, purporting to act under said section 28(1), quoted supra, served a notice for the
appointment of a negotiator under said subsection. It is the submission of counsel for the plaintiffs that the service of said notice operates as a stay of proceedings in these actions until the expiration of sixty days from the serving of said notice or at least until the negotiator so appointed has reported to the Minister that he has been unable to effect settlement.
I would agree with learned counsel for the plain tiffs as to the effect of service of the notice to negotiate if I were able to conclude that the notice of February 26, 1975, was a valid and effective notice under said section 28(1).
As I read said section 28(1), it seems to me clear that the notice to negotiate therein contem plated, must, on the facts of these cases, have been served on the Minister within sixty days of May 29, 1973. It follows that a notice served on Febru- ary 26, 1975, is null and void and of no effect.
What plaintiffs' counsel is arguing, in effect, is that the defendant, through her agent Troop, waived the statutory requirements set out in said section 28 (1) in so far as the sixty day period for service of the notice to negotiate is concerned. I am not able to find anywhere in subject statute, nor anywhere else for that matter, any provision for the extension of said sixty day period. A perus al of sections 28 to 32 of the statute, dealing as they do with payment of compensation, when viewed in the context of the statute as a whole, convinces me that Parliament clearly intended, in enacting section 28, to provide an additional pro cess of negotiation but, in so doing, also clearly intended that said process should be an expeditious one and one that should not unduly prolong final adjudication on the question of compensation. I say this because of the sixty day period stipulated in subsection (1) and also because of the stipula tion in subsection (3) of section 28 that the negotiator shall forthwith (emphasis is mine) be appointed and because of the stipulation in subsec tion (4) of section 28 that: "The negotiator shall, within sixty days from the service of the notice to negotiate, report to the Minister his success or failure in the matter of the negotiation, and shall thereupon send a copy of his report to the owner."
Parliament has prescribed, in clear and unam biguous terms, the time limits for the process of negotiation set out in section 28 and it is only Parliament that can amend so as to extend the said time period.
For the foregoing reasons, I have the view that the preliminary objection of counsel for the plain tiffs is not well founded in law.
On the substantive part of the motion, it is my opinion that plaintiffs have not been unduly dilato ry in filing their list of documents since negotia tions for settlement were continuing until at least January 20, 1975. It is also noted that the defend ant's list of documents was not served until Febru- ary 3, 1975. I therefore feel that the plaintiffs should be given until March 25, 1975, to file and serve their list of documents. Costs in the cause.
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