T-956-75
CAE Industries Ltd. and CAE Aircraft Ltd.
(Plaintiffs)
v.
The Queen (Defendant)
Trial Division, Smith D.J.—Winnipeg, April 20
and May 6, 1976.
Practice—Examination for discovery—Whether Minister of
National Defence proper officer of defendant to be examined—
Defendant claiming Minister not within Rule 465(1)(c) made
pursuant to s. 46(1)(a)(i) of the Federal Court Act—Federal
Court Act, s. 46(1)(a)(i) and Rule 465(1)(c).
In an action for damages, plaintiffs sought an order that the
Minister of National Defence be designated as the proper
officer of the Crown to be examined for discovery. Plaintiffs
claimed that from the time the Minister first joined the Gov
ernment, he had been involved in the area of concern in the
main action. Defendant argued that a Minister of the Crown is
not a "departmental officer" within Rule 465(1)(c) which was
made pursuant to section 46(1)(a)(i) of the Federal Court Act.
Held, the application is dismissed. The right to examine an
opposing party for discovery is purely a matter of statute. The
words in section 46(1)(a)(i) and in Rule 465(1)(c) are "depart-
mental or other officer of the Crown". The Act offers no
definition, and, while "officer of the Crown" should be held to
include a minister of the Crown, this does not necessarily mean
that the words as used in the Act and Rules have the same
meaning. The word "departmental" is one of limitation, and
the change may well have been designed to protect a minister
against examination in a multiplicity of lawsuits. A minister
may not be involved in any department, and thus, in no sense is
he a departmental officer. With or without portfolio he is a
member of the Queen's Privy Council, whose function is to
tender advice to the head of state. Thus, although he may be
the political head of a particular department, he is not a
departmental officer within the meaning of section 46(1)(a)(i)
and Rule 465(1)(c). Nor do the words "or other" bring him
within the meaning. More likely the purpose of these words is
to bring within the meaning of "officer" those employed in the
various Crown organizations not falling within any department,
whose functions entitle them to be called officers of the Crown.
As to the officer nominated on behalf of the Crown, it is the
duty of the judge to make up his own mind as to the proper
officer. The mere nomination by the Attorney General or his
Deputy is not sufficient.
Dick v. Attorney General [1956] N.Z.L.R. 121, agreed
with. The Queen in the Right of Newfoundland v. The
Queen in the Right of Canada (1960, Exchequer Court,
unreported); McArthur v. The King [1943] Ex.C.R. 77;
McHugh v. The Queen (1900) 6 Ex.C.R. 374; Mayor v.
The King (1919) 19 Ex.C.R. 304; Pouliot v. Minister of
Transport [1965] 1 Ex.C.R. 330 and Belleau v. Minister
of National Health and Welfare [1948] Ex.C.R. 288,
applied.
APPLICATION.
COUNSEL:
L. Mercury and D. Hill for plaintiffs.
J. Scollin, Q.C., and G. St. John for
defendant.
SOLICITORS:
Aikins, MacAulay & Thorvaldson, Win-
nipeg, for plaintiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
SMITH D.J.: This is an application for an order
that the Honourable James A. Richardson, pres
ently Minister of National Defence in the Govern
ment of Canada, be designated as the proper
officer of the defendant to be examined for discov
ery touching upon the matters in question in this
action, pursuant to Rule 465(1)(c) of this Court.
The action is for damages in an amount to be
ascertained for breaches said to have been commit
ted by the defendant, of an agreement said to have
been made in February and March, 1969, between
the plaintiff CAE Industries Ltd., and the Canadi-
an Government (technically Her Majesty The
Queen in Right of Canada). By this agreement it
is alleged that the plaintiff CAE Industries Ltd.,
agreed to purchase from Air Canada a major air
base facility owned and operated by Air Canada in
the City of Winnipeg and that the Government of
Canada agreed, inter alia, to employ its best
efforts to provide work from various sources to
enable the plaintiff to reach a target of 700,000
direct labour manhours per annum during the
years 1971 to 1976, inclusive. The plaintiff was to
provide as much work as it could from its own
sources and efforts, but, according to the state
ment of claim was unwilling to purchase the air
base facility unless the Government undertook to
provide it with sufficient work to maintain the
facility in operation.
On this motion the Court is not concerned with
the merits of the action, but has only to decide
whether the Honourable James A. Richardson is
the proper officer of the defendant to be examined
for discovery on behalf of the plaintiffs.
The approach of the parties to the issue in this
motion differed markedly. The applicant plaintiffs
filed two lengthy affidavits, one by Charles Doug-
las Reekie, President of the plaintiff CAE Indus
tries Ltd., and Chairman of the Board of the
second plaintiff, CAE Aircraft Ltd., the other by
David Humphrey Race, President of CAE Air
craft Ltd. The plaintiff CAE Aircraft Ltd., is a
company incorporated by the plaintiff CAE Indus
tries Ltd., to take over and operate the air base
facility in Winnipeg. The two affidavits contain
many statements related to the history of discus
sions and negotiations concerning the air base
facility from as far back as 1966 and continuing
down to the beginning of 1976. These statements,
supported by copies of numerous letters and news
paper clippings, indicate that the Honourable
James A. Richardson, from the time when he first
joined the Government of Canada in 1968, as
Minister without portfolio, through the years when
he was Minister of Supply and Services and since
then as Minister of National Defence, has played a
very active part in arranging and taking part in
meetings where developments and problems at the
air base facility were under discussion and negotia
tion. They indicate further that Mr. Richardson
was involved in at least some Government deci
sions related to the implementation of the said
1969 agreement between the Government of
Canada and CAE Industries Ltd.
On the other hand the defendant did not file or
tender any evidence, but is relying on three points
of legal argument.
1. A minister of the Crown is not within Rule
465(1)(c), which was made pursuant to section
46(1)(a)(i) of the Federal Court Act, R.S.C.
1970 (2nd Supp.) c. 10.
2. Rule 465(1)(c) sets out alternative methods
of determining who shall be examined for dis-
covert'. If one has been set in motion it cannot
be supplanted by the other.
3. The approach to the problem by Collier J., in
Irish Shipping Ltd. v. The Queen [ 1974] 1 F.C.
445 is not the correct approach.
Section 46(1)(a)(i) of the Federal Court Act
provides that the judges of the Court, subject to
the approval of the Governor in Council may make
general rules for regulating the practice and proce
dure in the Trial Division and Court of Appeal,
including:
(i) rules providing, in a proceeding to which the Crown is a
party, for examination for discovery of a departmental or
other officer of the Crown,
Rule 465 provides, in part, as follows:
Rule 465. (1) For the purpose of this Rule, a party may be
examined for discovery, as hereinafter in this Rule provided,
(c) if the party is the Crown, by questioning any departmen
tal or other officer of the Crown nominated by the Attorney-
General of Canada or Deputy Attorney-General of Canada
or by order of the Court, and
(d) in any case, by questioning a person who has been
agreed upon by the examining party and the party to be
examined with the consent of such person ...
If the Crown is entitled to succeed on the basis
of its first proposition, that Rule 465(1)(c) does
not apply to a Minister of the Crown, the plain
tiffs' motion must fail.
The right to examine an opposing party for
discovery is purely a matter of statute. In fact, in
the case of the Federal Court of Canada, as in that
of its predecessor the Exchequer Court of Canada,
the Court has no inherent jurisdiction but derives
all of its powers from statute. Therefore, in the
present case, the question whether a Minister of
the Crown can be ordered to present himself for
examination for discovery, in a case in which he is
not a party, resolves itself into one of determining
the proper meaning to be ascribed to the words
used in the relevant enactment. The only statutory
provision dealing specifically with the matter is
section 46(1)(a)(i) of the Federal Court Act,
quoted supra. The words there used, as is also the
case in Rule 465(1)(c), are "a departmental or
other officer of the Crown". The Act contains no
definition of these words.
In the New Zealand case of Dick v, Attorney
General [1956] N.Z.L.R. 121 the plaintiffs moved
for an order for discovery, submitting that the
affidavit on discovery should be made by the Min
ister of Railways. The relevant statutory words
were simply "officer of the Crown". It was held by
Barrowclough C.J. at pages 123 and 124, on two
grounds, that these words included a minister of
the Crown. These grounds were: (1) "a Minister of
the Crown is, by definition in the Crown Proceed
ings Act, 1950, included in those servants of Her
Majesty who are declared to be `officers' of the
Crown". (2) "In the second place and apart
altogether from the definition contained in the
Crown Proceedings Act 1950, I cannot possibly
entertain the notion that a Minister is not an
`officer of the Crown'. He is constantly referred to
as a high officer of State, and that is equivalent to
a high officer of the Crown".
I have no difficulty in holding that, taken by
themselves and apart from the context in which
they are used and the history of judicial interpreta
tion of them in that context, the words "officer of
the Crown" should be held to include a "Minister
of the Crown". This does not mean necessarily
that the words "departmental or other officer of
the Crown", as found in our Federal Court Act
and Rules, have the same meaning.
Canadian jurisprudence on the precise point is
very limited. Two cases are directly in point. The
first I will refer to is unreported. It is The Govern
ment of the Province of Newfoundland v. The
Government of Canada. More properly it should
be entitled Her Majesty the Queen in the Right of
Newfoundland v. Her Majesty the Queen in the
Right of Canada. This is a 1960 Exchequer Court
case, heard by the Honourable Mr. Justice Thor-
son, President of the Court. The case was one of an
application under Rule 130, then the applicable
rule, of the Exchequer Court for an order for the
examination for discovery of a departmental or
other officer of the Crown. Thorson P. said:
The first request of counsel for the claimant was that the
person to be examined should be the Attorney-General of
Canada, who is also the Minister of Justice. I rejected this
request on the ground that this person, being a minister of the
Crown, is not an officer of the Crown, within the meaning of
Rule 130. As a minister of the Crown he is a member of the
Cabinet that advises Her Majesty.
Thorson P. gave no further reasons for rejecting
the request. Counsel for the plaintiff on the
present motion submitted that a decision contain
ing so little reasoning should not be regarded as
being decisive of the law. There is however, an
earlier case, decided by Thorson P. which clears up
any question about the grounds for his decision.
That case is McArthur v. The King [1943]
Ex.C.R. 77. In the course of a lengthy judgment,
Thorson P. traced exhaustively the development of
liability of the Crown for damages, particularly in
respect of injuries resulting from negligence of its
officers or servants. From the many judgments
cited by him I deem it to be abundantly clear that
in interpreting the words used in a statute which
creates a Crown liability where none previously
existed, or which modifies a Crown liability creat
ed by an earlier statute, the duty of the Court is to
give those words their exact intended meaning, and
not to seek either to expand or restrict their mean
ing and thus either enlarge or limit their intended
effect upon the Royal Prerogative.
The case, brought by Petition of Right, involved
a decision as to whether an enlisted soldier, driver
of a station wagon belonging to the Department of
National Defence, which vehicle had been involved
in an accident causing injuries to the suppliant,
was an "officer or servant of the Crown", within
the meaning of section 19(c) of the Exchequer
Court Act, R.S.C. 1927, c. 34, as amended in
1938.
At pages 96 and 97 the learned President said:
... it seems clear that it would not be a correct approach to the
problem to assume that every person is included in the term
"officer or servant of the Crown", within the meaning of
section 19(c) of the Exchequer Court Act, merely because he is
performing some national or public duty or service and is in
receipt of an emolument or pay from the Crown.
That such an assumption is unwarranted seems obvious. It
was contended, for example, in McHugh v. The Queen, (1900)
6 Ex.C.R. 374, that the Minister of Public Works was an
"officer or servant of the Crown", within the meaning of
section 16(c) of the Exchequer Court Act of 1887, but this view
was negatived by Burbidge J. This case was later approved and
followed by Audette J. in Mayor v. The King (1919) 19
Ex.C.R. 304. These two cases can be considered as authorities
for the statement that the term "officer or servant of the
Crown" in section 19(c) of the Exchequer Court Act does not
include a minister of the Crown even although he is in receipt
of an emolument from the Crown. The minister although
appointed by the Crown is an adviser to the Crown and
responsible to Parliament. There are also many other persons,
who, although their appointments and emoluments come from
the Crown, are clearly not in any sense "officers or servants of
the Crown" within the meaning of the statute under discussion
such as, for example, the Lieutenant-Governors of the provinces
who, although appointed and paid by the Crown, are His
Majesty's representatives, and likewise the Judges of the
Dominion or Provincial Courts, who, although appointed and
paid by the Crown, are independent of it.
A little lower on page 97, he said:
... the meaning of the general term "officers and servants of
the Crown" must, since it is nowhere defined by the statute, be
fixed according to rules of construction, similar in principle to
those that have governed the court in its decisions on this
statute in the past.
It is true that in McArthur v. The King, as also
in McHugh v. The Queen and Mayor v. The King,
the question was whether the person whose action
caused injury or loss to the suppliant or plaintiff
was an officer or servant of the Crown whose
negligence would, under the statutory provisions in
force at the relevant times, render the Crown
liable in damages for injuries or loss resulting
therefrom. They were not cases in which the plain
tiff was seeking to examine for discovery an officer
or servant of the Crown. However I see no reason
why the approach to the proper interpretation of
the words under consideration in the present case
should be different, merely because the question is
that of who should be examined for discovery
instead of the liability of the Crown to an action
for damages. Nor do I think the opinion of Thor-
son P. in the Newfoundland case (supra) is in
error.
In Pouliot v. Minister of Transport [1965] 1
Ex.C.R. 330 the Honourable Mr. Justice Jackett,
then President of the Exchequer Court of Canada,
now Chief Justice of the Federal Court of Canada,
held, following a judgment of Angers J. in Belleau
y. Minister of National Health and Welfare
[1948] Ex.C.R. 288 and an unreported order of
President Thorson of the Exchequgr Court, that a
Minister of the Crown is not an "officer of the
Crown" within the meaning of section 29(c) of the
Exchequer Court Act.
I think the wording of the Federal Court Act
and Rules, quoted supra, is significant. As we have
seen the words are not "officer or servant of the
Crown", but "departmental or other officer of the
Crown". To my mind the use of the word "depart-
mental" seems to involve some limitation of the
meaning to be ascribed to the word "officer", and
the change may well have been designed to afford
protection to a minister against being examined for
discovery in a multiplicity of lawsuits. Be that as it
may, what is the proper meaning of "departmental
officer"? A person may be a minister without
portfolio, not involved in any department of gov
ernment, in which case he is not in any sense a
"departmental officer". With or without portfolio
a minister is a member of Her Majesty's Canadian
Privy Council and thus one of a special group of
persons whose function it is to tender advice to
Her Majesty, advice which she or her representa
tive, the Governor General, must normally accept.
In this sense, although he may be the political
head of a particular department of government he
is not, in my view, a departmental officer within
the meaning of section 46(1)(a)(i) of the Federal
Court Act and Rule 465(1)(c) of this Court.
The further question remains, viz: Is a minister
brought within section 46(1)(a)(i) of the Act and
Rule 465(1)(c) by the words "or other"? With
some doubt, I have corne to the conclusion that he
is not. If the word "officer" is intended to embrace
every kind of officer of the Crown there is no need
for the word "departmental". The same is true if
the words "or other" are intended to expand the
meaning of "officer" not simply beyond "depart-
mental" but to make it all inclusive. In my view
the more likely purpose of the words "or other" is
to bring within the meaning of the word "officer"
persons who are employed or engaged in one or
other of various Crown organizations that do not
fall within any department, and whose functions
entitle them to be called officers of the Crown.
In view of what I have said above and after a
careful examination of all the cases cited to the
Court by counsel for the parties my conclusion is
that the Honourable James A. Richardson, Minis
ter of National Defence in the Government of
Canada, is not a "departmental or other officer of
the Crown" within the meaning of those words in
section 46(1)(a)(i) of the Federal Court Act. The
application is therefore dismissed.
The parties are in agreement that the Deputy
Attorney General of Canada has nominated Brian
Thomas Boyd, Chief of Operations, Division of
Project Management Centre, Department of
Supply and Services as the officer to be examined
for discovery. As no information has been given to
the Court other than the title of the position held
by Mr. Boyd, I am unable to say whether he is the
proper officer, or even a proper officer of the
Crown to be questioned on discovery on the facts
of this particular case. In a matter of this kind the
duty of the judge is to make up his own mind as to
who is the officer who should be ordered to present
himself to be questioned on discovery. The mere
nomination of the Attorney-General or his Deputy
is not sufficient. I therefore make no order as to
Mr. Boyd.
In view of the uncertainty which has existed on
the main legal point dealt with herein, there will
be no order as to costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.