T-3324-75
Warwick Shipping Limited (Plaintiff)
v.
The Queen (Defendant)
and
The Foundation Company of Canada Limited and
Joseph Fearon (Third Parties)
Trial Division, Dubé J.—Ottawa, February 15 and
18, 1977.
Jurisdiction — Application for leave to amend defence and
counterclaim — Whether Court had jurisdiction to decide
subject-matter raised by amendment — Whether jurisdiction
al matter should be decided on summary motion Availabil
ity of Rule 474 — Federal Court Rule 474.
Plaintiff objects to amendment of the counterclaim on the
ground that the Court has no jurisdiction to decide the matter
raised in the light of the decision of the Supreme Court in
McNamara Construction (Western) Limited v. The Queen
(1977) 13 N.R. 181.
Held, leave to amend the defence and counterclaim is grant
ed with leave to plaintiff to raise the question anew by an
application for determination of a question of law under Rule
474. The plaintiff's argument raises an important question
which should not be decided on a summary motion, i.e., wheth
er the McNamara decision affects a case where the Crown has
been sued under the Crown Liability Act and whether the
Crown is in effect seeking leave herein to plead as to the extent
of its liability in respect of the event giving rise to this claim.
APPLICATION for leave to amend pleadings.
COUNSEL:
Pierre G. Côté for plaintiff.
D. Aylen, Q.C., and R. Hynes for defendant.
John M. Coyne, Q.C., for administrator.
SOLICITORS:
Ogilvy, Cope, Porteous, Montgomery,
Renault, Clarke & Kirkpatrick, Montreal,
for plaintiff.
Deputy Attorney General of Canada for
defendant.
Herridge, Tolmie, Ottawa, for administrator.
The following are the reasons for order ren
dered in English by
DUBS J.: This is an application by the defendant
for leave to amend the defence and counterclaim
by adding certain paragraphs as set out in the
schedules annexed to the notice of motion.
Leave to amend the defence is granted.
Leave to amend the counterclaim by adding
inter alia the following paragraph
6. If the Defendant is liable to Golden Eagle Canada Ltd.
and the New Brunswick Electric Power Commission or either
of them for the loss alleged to have been sustained by them, the
Defendant is entitled to recover contribution from the Plaintiff
in the degree in which the Plaintiff, or persons for whose fault
or neglect the Plaintiff is in law responsible, are found to have
been at fault, pursuant to the Contributory Negligence Act,
R.S.N.B. 1973, chapter C-19, and the Tortfeasors Act,
R.S.N.B. 1973, chapter T-8.
was objected to by counsel for the plaintiff on the
ground that the Court has no jurisdiction to decide
the subject-matter so raised. In support of his
position, counsel referred to the recent decision of
the Supreme Court of Canada in McNamara Con
struction (Western) Limited v. The Queen'.
Leave to amend pleadings should be normally
allowed unless prejudice would be caused to the
other parties or unless it be plain and obvious that
it should be struck out.
Although the plaintiffs point may be sound, it
raises an important question which I do not think
should be decided on a summary motion of this
kind. Apart from the question of how the
McNamara decision affects a case where the
Crown has been sued under the Crown Liability
Act, the objection involves a question, which was
not argued before me, whether what the Crown
asks leave to plead is not in substance a plea
respecting the extent of the Crown liability to the
plaintiff under the Crown Liability Act in respect
of the event which gives rise to the claim. I shall
therefore grant leave as requested, leaving it to the
plaintiff to raise the question anew by an applica
tion under Rule 474, either before or after the plea
' (1977) 13 N.R. 181.
has been answered by the plaintiffs reply or at the
trial.
ORDER
1. Leave to amend defence granted;
2. Leave to amend counterclaim granted with
leave to plaintiff to raise the question anew by an
application for determination of a question of law
under Rule 474;
3. Leave to amend the prayer accordingly.
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