T-948-76
Mario Carota (Plaintiff)
v.
Donald Jamieson and Marcel Lessard (Defend-
ants)
Trial Division, Dubé J.—Charlottetown, October
15; Ottawa, October 19, 1976.
Practice Interlocutory motions by plaintiff and defend-
ants—Application by defendants to seek determination of
points of law pursuant to Rule 474 Whether plaintiff lacks
standing to bring action—Whether plaintiff has reasonable
cause of action Application by plaintiff to strike out defend
ants' motion, for judgment by default, for interlocutory
injunction and for order for early trial—Federal Court Rules
419, 474, 483.
Defendants, pursuant to Rule 474, are seeking .a determina
tion of two points of law: whether the plaintiff has standing to
bring the present action and whether he has any reasonable
cause of action. A prior motion, pursuant to Rule 419, to strike
out the statement of claim was dismissed by Collier J., but
defendants chose not to file a defence and seek an early trial
date and filed this second application instead. Plaintiff, appear
ing on his own behalf, drafted an application that purports to
seek: to have the defendants' motion struck out; judgment by
default; an interlocutory injunction to prevent the defendants
from spending any more federal funds to implement Phase II of
the Prince Edward Island Comprehensive Plan; and an order
for an early trial.
Held, both applications are dismissed. As to the defendants'
application, Rule 474 is discretionary and is intended to afford
an avenue for shortening or even eliminating trials. It works
only when there is no dispute as to the facts and it works best
when both parties agree as to the questions of law to be
determined. There being no such agreement and all the relevant
facts not yet having been established, the application must be
dismissed. Defendants have leave to file a statement of defence
within thirty days. As to the plaintiffs application, the Rules of
the Federal Court do not provide for an order to strike out an
application for an order; the defendants have leave to file a
defence; there is no reason to believe that the plaintiff will
suffer irreparable damage if an injunction is denied; and
application for an early trial date should be made under Rule
483 when the matter is ready for trial.
APPLICATIONS for interlocutory orders.
COUNSEL:
Mario Carota, plaintiff, appearing on his own
behalf.
Robert Hynes for defendants.
SOLICITORS:
Mario Carota, plaintiff, appearing on his own
behalf.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
DUBS J.: There are two motions for decision.
The first one, on behalf of defendants, pursuant to
Rule 474, seeks a determination of the following
questions of law:
1. Does the plaintiff lack standing to bring this
present action because:
(a) It was not brought on the relation of the
Attorney General of Canada or by the Attor
ney General of Canada and the plaintiff has
not approached the Attorney General of
Canada concerning this matter; or,
(b) Because the plaintiff is an individual who
on the face of the pleadings has suffered no
special damage beyond that of any other
member of the public?
2. Does the plaintiff have any reasonable cause
of action?
A prior motion, pursuant to Rule 419, to strike
out the statement of claim herein was dismissed by
my brother Collier'. In his reasons for judgment,
Collier J. said [at page 23]:
I shall deal with the first contention on behalf of the defend
ants that the statement of claim discloses no reasonable cause
of action. It is said there is no legal remedy in anyone in respect
of the matters asserted in the statement of claim; assuming the
defendants did not make provision for the participation of
persons such as the plaintiff, or groups or agencies in the
formulation and carrying out of the plan, that was merely a
failure to perform administrative acts; the remedy is therefore
in Parliament, or by political persuasion on the part of the
plaintiff and other interested parties. I cannot accept that
contention. This Court might ultimately find the plaintiff is, in
the particular circumstances of this case, without a remedy.
' [1977] 1 F.C. 19.
But, in my opinion, the issue is a very arguable one and ought
not to be disposed of in an interlocutory proceeding at this
stage. As I see it, this is not a plain and obvious case of an
action that is unsustainable or cannot succeed. This suit
deserves, to my mind, a full hearing at trial.
He then dealt with the assertion of defendants
that plaintiff has no standing to bring this action
[at page 24]:
The second ground asserted on behalf of the defendants is
that the plaintiff has no standing to bring this action. That
argument is put forward as part of the contention that the
statement of claim discloses no reasonable cause of action. I am
not convinced the issue of lack of standing is one that should be
brought pursuant to Rule 419. It is perhaps more properly
brought under Rule 474. The procedural point was not raised
before me. Because of that I propose to deal with the conten
tion on its merits rather than dismiss it on the grounds it is not
properly part of a motion under Rule 419. The defendants'
submission is that the proper person to bring this action is the
Attorney General of Canada: what is termed the ex relatione
type of action.
He added [at page 25]:
I am of the view, in the circumstances here, the plaintiff has
standing to bring this action. In any event, that is a question
which should not be determined on a procedural preliminary
motion of this kind. It should be the subject of full evidence,
argument and deliberation at trial. At the very least it should
be the subject of a formal hearing on a point of law, after all
relevant facts for determination of that point have been estab
lished. [The underlining is mine.]
He then concluded [at page 27]:
I add this further comment (I made similar remarks at the
hearing of these motions). I think it very likely an early trial
date of this action can be obtained. The fixing of an early date
requires, of course, the prompt carrying out of (or waiver of)
the customary pre-trial procedures. 1 commend to the parties
that course.
Counsel for defendants, however, chose not to
file a defence and seek an early trial date, but to
file this application for a determination of ques
tions of law. In his oral submission he raised
substantially the same arguments and authorities
relied on in his motion to strike out.
Rule 474 under which this application is made
reads as follows:
Rule 474. (1) The Court may, upon application, if it deems it
expedient so to do,
(a) determine any question of law that may be relevant to
the decision of a matter, or
(b) determine any question as to the admissibility of any
evidence (including any document or other exhibit),
and any such determination shall be final and conclusive for the
purposes of the action subject to being varied upon appeal.
(2) Upon application, the Court may give directions as to
the case upon which a question to be decided under paragraph
(1) shall be argued.
It may be seen therefore that there is a discre
tion in the Court to deal with such application as it
"deems it expedient so to do". The general purpose
of the Rule is to afford an avenue for solving
matters in dispute and thus shorten, and possibly
eliminate, trials. The Rule works when there is no
dispute of fact, or an agreement to the facts, and
the determination sought deals with pure law. It
works best when there is an agreement between
counsel for both parties as to the exact questions of
law to be determined by the Court.
There was no such agreement here, counsel for
defendants stating that such an agreement would
have been difficult to secure from plaintiff, he not
being represented by counsel. The plaintiff, speak
ing on his own behalf, made it quite clear he was
not seeking a pre-trial determination of law, but an
early trial as recommended by Mr. Justice Collier.
In his reasons for judgment, Collier J. touched
upon all the questions of law sought to be deter
mined and held that he was not convinced there
was no cause of action and that the plaintiff had
no standing to bring this action. He said that "it
should be the subject of full evidence, argument
and deliberation at trial". He concluded that "at
the very least it should be the subject of a formal
hearing on a point of law, after all relevant facts
for determination of that point have been
established".
If all relevant facts were not established then,
they are not established now, there being nothing
more before the Court now than there was at the
time the first application was heard, except for the
fresh application itself which establishes no fact
but merely lists certain questions to be determined.
Under the circumstances, I have no alternative
but to dismiss the application. Defendants will
have leave to file a statement of defence within
thirty days from the receipt of this judgment.
I now turn to the other motion, an application
drafted by the plaintiff which purports to seek:
firstly, that defendants' motion for determination
dealt with supra be struck out; secondly, a judg
ment by default; thirdly, an interlocutory injunc
tion against the further expenditure of federal
funds to implement Phase II of the Prince Edward
Island Comprehensive Plan; and fourthly, an order
for an early trial.
As to the first order sought, the Rules of the
Federal Court do not provide for an order to strike
out an application for an order; Rule 419 invoked
by plaintiff merely provides for an order to strike
out a pleading. The application plaintiff sought to
strike out is being dismissed by this judgment.
As to the second order sought, defendants have
by this judgment been granted leave to file a
defence within thirty days.
The injunction sought by plaintiff has already
been denied by this Court and reasons therefor
given by Collier J., in his judgment above referred
to. The only additional argument advanced by
plaintiff is that funds still continue to be expended
and may run out. I am not at all convinced that
the plaintiff will suffer irreparable damage if the
implementation of Phase II of the Plan is allowed
to continue. The injunction is again denied.
Finally, as to an early trial date, application
should be made under Rule 483 when the matter is
ready for trial.
Both parties having failed in their respective
applications, each party will bear its own 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.