A-762-76
Donald Jamieson and Marcel Lessard (Appel-
lants) (Defendants)
v.
Mario Carota (Respondent) (Plaintiff)
Court of Appeal, Jackett C.J., Urie and Ryan
JJ.—Ottawa, January 20, 1977.
Practice — Appeal from order rejecting appellants' applica
tion for determination of questions of law pursuant to Rule
474 — Purported "cross appeal" under Rule 1203 by respond
ent against that part of order refusing his application for an
interim injunction — Proper application of Rules 474 and
1203 Federal Court Rules 474 and 1203.
Appellants' motion for an order under Rule 4190) that the
statement of claim be struck out and the respondent's motion
under Rule 4690) for an interlocutory injunction were dis
missed by the Trial Judge. The appellants then gave notice of a
motion pursuant to Rule 474 for determination of two questions
of law, namely, whether the plaintiff lacks standing to bring the
present action and whether the plaintiff has any reasonable
cause of action, or, in the alternative for leave to file a
statement of defence. The respondent then gave notice of a
motion for a default judgment and for an interlocutory injunc
tion. These motions were also dismissed, with leave to the
appellants to file a defence, and the appeals herein are in
respect of the second dismissal.
Held, both appeals are dismissed. No reason has been
advanced for interfering with the Trial Division's exercise of
discretion under Rule 474 and the "cross appeal" was not a
proper proceeding under Rule 1203; the respondent should have
launched his proceedings by a separate appeal. In any event the
respondent conceded that the Court of Appeal would not be
justified in interfering with the decision of the Trial Division
concerning his application for an injunction.
APPEAL and purported cross-appeal.
COUNSEL:
G. W. Ainslie, Q.C., and R. P. Hynes for
appellants.
Mario Carota appearing on his own behalf.
SOLICITORS:
Deputy Attorney General of Canada for
appellants.
Mario Carota, North Bedeque, P.E.I., for
himself.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is an appeal by the appel
lants, who are the defendants in the Trial Division,
from an order of the Trial Division delivered on
October 28, 1976'. The appeal is apparently from
the part of the "order" made on that day whereby
the appellants' application under Rule 474 for
determination of certain questions of law was dis
missed. There is also what purports to be a "Cross
Appeal" by the respondent, who is the plaintiff in
the Trial Division, against the same "order". The
"Cross Appeal" will be discussed after consider
ation has been given to the appeal, as the "Cross
Appeal" concerns a completely separate part of
the Trial Division "order".
The main steps in the proceedings in the Trial
Division may be summarized as follows:
1. A statement of claim was filed March 10,
1976, whereby the defendants, who are alleged
to be the present and a previous Minister of
Regional Economic Expansion, are sued by the
respondent, as a resident of the Province of
Prince Edward Island, in respect of a certain
agreement alleged to have been unlawfully
entered into between the Government of Canada
and the Province of Prince Edward Island, for
(a) A declaration that the aforesaid agreement entered into
on the 23rd day of October, 1975 between the Government
of Canada and the Province of Prince Edward Island is void;
(b) An injunction and an interim injunction against the
expenditure of Federal funds for the purpose of implement
ing the aforesaid agreement until such time as provisions are
made by the Defendant, Marcel Lessard herein for the
participation of the Plaintiff and those persons, volunteer
groups, agencies and bodies in those special areas who wish
to participate in the formulation and implementation of a
new agreement for the second phase of the Comprehensive
Development Plan for the Province of Prince Edward Island;
(c) An order of mandamus directing the Defendant, Marcel
Lessard to make provision for the appropriate cooperation
with the Province of Prince Edward Island and for the
participation of the Plaintiff and the persons, volunteer
groups, agencies and bodies who wish to participate in the
formulation and carrying out of the new plan and agreement
and an injunction against further expenditure of funds or
any other actions whatsoever which are being expended or
taken purportedly in pursuance of such agreement and plan
until provision is made for participation as aforementioned;
' [1977] 1 F.C. 504.
(d) Punitive damages in the amount of $100,000.00;
(e) His costs of these proceedings;
(f) Such further and other relief as to this Honourable
Court may seem just.
2. The appellants gave notice on April 29, 1976,
of a motion for an order under Rule 419(1) that
the statement of claim be struck out on the
following grounds:
(a) that it disclosed no reasonable cause of
action,
(b) that the plaintiff had no standing to
maintain the action initiated by the said state
ment of claim,
(c) that it constituted a departure from a
previous pleading, and
(d) that it was otherwise an abuse of the
process of the Court, or
in the alternative, for an order granting leave to
the defendants to file their statement of defence.
3. The respondent gave notice, on May 10,
1976, of a motion under Rule 469(1), for an
interlocutory injunction against the expenditure
of public funds.
4. On May 31, 1976, the motion to strike and
the motion for an injunction were dismissed 2 .
5. On June 6, 1976, the appellants gave notice
of a motion, pursuant to Rule 474, for determi
nation 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 Attorney-General of Canada
and the Plaintiff had not approached the Attorney-Gener
al 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?
or, in the alternative, for leave for filing of a
statement of defence.
6. By motion filed July 22, 1976, the respondent
gave notice of a motion, inter alia,
(a) for default judgment, and
2 [1977] 1 F.C. 19.
(b) for an interlocutory injunction against the
expenditure of public funds.
7. By the "order" of October 28, 1976, which is
the subject of this appeal,
(a) "The Defendant's application for a deter
mination of law" was dismissed with leave to
file a statement of defence, and
(b) the respondent's application for, inter
alia, default judgment and an interlocutory
injunction was dismissed.
As already indicated, this appeal is against the
dismissal of the appellants' application for deter
mination of certain questions of law.
The appellants' application for determination of
questions of law was made under Rule 474, which
reads:
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
(I) shall be argued.
The reasons given by Dubé J., in so far as they
relate to the dismissal of the application to deter
mine questions of law, read [at pages 507-81:
It may be seen therefore that there is a discretion 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, speaking 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 determined 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 delibera
tion 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.
In my view, it is quite clear that Dubé J. has
adopted the reasons given by Collier J. for holding
that it was not "expedient" to determine the
"questions of law" on the then state of the record
as far as the facts were concerned, which, as Dubé
J. pointed out, had not changed between the time
that the matter was before Collier J. on the motion
to strike and the time that the Rule 474 motion
was before him. This is a matter of discretion and
no reason has been advanced for interfering with
the Trial Division's exercise of discretion in this
case.
In addition to what appears from the judgment
of Dubé J., there are some other comments that
might be made.
In so far as the question of law concerning the
"standing" of the respondent to bring the action is
concerned, I would refer to the decision of the
Supreme Court of Canada in Nova Scotia Board
of Censors v. McNeil 3 , where Laskin C.J.C.,
delivering the judgment of the Court, said [at page
267]:
In granting leave, this Court indicated that where, as here,
there is an arguable case for according standing, it is preferable
to have all the issues in the case, whether going to procedural
regularity or propriety or to the merits, decided at the same
time.
With reference to the second question proposed as
a question of law, viz:
2. Does the Plaintiff have any reasonable cause of action?
3 1I976] 2 S.C.R. 265.
I am of the view that it is not, by itself, a question
of law that can be decided on the record of this
matter as it now stands. It is to be contrasted with
the same question based on a "case" established
under Rule 474(2) or based upon an assumption
that all the allegations in the statement of claim
are correct. I do not wish to be taken as suggest
ing, however, that, even if the latter question had
been so stated, there is any reason to think that the
Trial Division should have come to any other
conclusion as to whether it was "expedient" to
decide the question before trial.
I deem it expedient, also, to add that, in my
opinion, Rule 474, in the ordinary case, contem
plates two stages, viz:
(a) an application for an order that certain
questions be determined and for directions as to
the time and place for argument of such ques
tions as well, possibly, as to the "case" contem
plated by Rule 474(2), and
(b) argument of the questions, after both par
ties have had an opportunity to prepare for such
argument at a time set aside by the Court for
such argument.'
The determination of a question of law under Rule
474 is to be contrasted with a motion to strike
under Rule 419 where the matter can be argued on
an ordinary motion day on the basis that it can be
clearly seen that the claim is on the face of it
"obviously unsustainable" unless the Court has
accorded parties who wish it an opportunity for "a
relatively long and elaborate instead of a short and
summary hearing." See The Queen v. Wilfrid
Nadeau Inc.'
With reference to the "Cross Appeal", I assume
that it was intended to be brought under Rule
1203, which reads:
Rule 1203. (1) If a party other than the appellant intends,
upon the hearing of an appeal, to contend that the decision that
° Ordinarily, in my view, no application should be made
under Rule 474 until a defence has been filed so that the
question of expediency can be decided having regard to the
matters that have been put in issue.
5 [1973] F.C. 1045.
is the subject of the appeal be varied, he shall within 10 days
from service of the notice of appeal on him, give notice of such
intention to every other party who may be affected by such
contention and shall forthwith file such notice with proof of
service.
(2) Failure to give a notice as required by paragraph (1) will
not diminish the power of the Court but may, in the discretion
of the Court, be ground for an adjournment of the hearing of
the appeal, or for a special order as to costs.
In my view, the "Cross Appeal" was not a proper
proceeding under that Rule.
There were before the Trial Division at the same
time two matters, the appellants' application and
the respondent's application. The Trial Division
made two orders, viz, one in regard to the appel
lants' application and one in regard to the respond
ent's application, but saw fit to put them in one
document. The appeal was brought only against
the order dismissing the appellants' application
and that was the only "decision" that was "the
subject of the appeal". The "Cross Appeal" did
not give notice that the respondent intended to
contend that that decision be varied and is not,
therefore, a "Cross Appeal" that is authorized by
Rule 1203. The respondent should have launched
his proceeding by a separate appeal.
We nevertheless heard the respondent with
regard to his appeal on the merits; and having
indicated that he did not wish to press his appeal
except with regard to the injunction he conceded,
after some discussion, that this Court would not be
justified in interfering with the decision of the
Trial Division concerning his application for an
injunction.
For the above reasons, I am of opinion that the
appeal and the cross appeal should be dismissed. I
would hear the parties on the question of costs.
* * *
URIE J. concurred.
* * *
RYAN J. concurred.
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.