T-340-76
The Clarkson Company Limited, the Receiver and
Manager of the property and undertaking of
Rapid Data Systems & Equipment Limited
(Plaintiff)
v.
The Queen (Defendant)
Trial Division, Mahoney J. Toronto, August 17;
Ottawa, August 22, 1977.
Practice — Application for directions Agreed statement
of facts and issues — Trial about to be set down pursuant to
Rule 483 — Whether or not order necessary per Rule 474 or
475 Federal Court Rules 474, 475, 483.
Plaintiff, with defendant's concurrence, applied for an order
giving directions as to the case upon which a question of law is
to be argued. The supporting affidavit exhibited an agreed
statement of facts and issues. It was agreed not to call witnesses
or adduce evidence other than in the agreed statement. The
parties were not clear whether the order sought was within the
contemplation of Rule 474 or 475, but felt an order for
directions was necessary prior to making application to set
down the trial or hearing, under Rule 483.
Held, the parties have leave to apply under Rule 483 to set a
special case down for hearing in lieu of trial, said special case to
consist of the agreed statement of facts and issues. Alternative
ly, if they wish the action tried, the parties may simply apply
under Rule 483 to set the matter down for trial.
Emma Silver Mining Co. v. Grant (1879) II Ch. D. 918,
applied.
APPLICATION.
COUNSEL:
A. Di Zio for plaintiff.
Katharine P. Braid for defendant.
SOLICITORS:
Harries, Houser, Toronto, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
MAHONEY J.: This is a motion on behalf of the
plaintiff, with the defendant's concurrence,
... for an order giving directions as to the case upon which the
following question of law shall be argued:
(a) Whether the defendant can set off against the plaintiff's
daim for drawbacks the unrelated indebtedness of Rapid Data
Systems & Equipment Limited for Income Tax and Excise Tax
which arose prior to the appointment of the plaintiff;
Or for such further and other order as may seem just.
Exhibited to the affidavit filed in support of the
motion is an agreed statement of facts and issues
which fully sets out the material facts and defines
the aforementioned issue of law. The parties
intend to call no witnesses and to adduce no
evidence other than the agreed statement.
The parties were not clear as to whether the
order sought is within the contemplation of Rule
474 or 475 but felt that an order for directions as
sought was necessary prior to the submission of an
application to fix the time and place of trial or
hearing under Rule 483.
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.
Rule 475. (1) The ”: rties to any action or proposed action
may concur in stating questions arising therein in the form of a
special case for adjudication before trial or in lieu of trial.
- -
(5) No special case stated by the parties shall be set down
for argument without leave of the Court granted after the
Court has satisfied itself that the decision of the special case is
calculated to facilitate the determination of the matters in
issue.
It is not necessary in the circumstances to recite
subsections (2),(3) and (4) of Rule 475.
At the hearing of the motion, I expressed my
reservations as to the necessity of this application
while indicating, of course, my accord with the
desirability of proceeding to the hearing on the
agreed basis. On reflection, I am confirmed in my
initial reaction.
The situation contemplated by Rule 474 is one
where, while there are a number of issues in an
action, the disposition of one of them will likely
have the effect of putting an end to the action'.
The directions which the Court may give under
subsection (2) of that Rule must be aimed at that
sort of disposition. Here, the situation is quite
different. Indeed, the parties are agreed that there
is only one issue and on all the evidence to be
admitted.
Rule 475 contemplates a special case being
stated to be adjudicated before trial or in lieu of
trial of an action. Here, it appears that the parties
desire to go to trial on an agreed basis. If that is
so, then subsection (5) of Rule 475 does not
require the concurrence of the Court in the parties'
agreement to go to trial on no evidence other than
that comprised in an agreed statement of facts nor
their agreement to ask the Court to determine only
a certain issue of law provided that the parties are
also agreed that the determination of that issue is
the final judgment sought. On the other hand, if I
am mistaken in my impression of the parties'
intention and they do indeed wish to have the
defined issue of law determined by way of stating
a special case rather than a trial of the action, I
see no particular reason for standing in their way.
Accordingly, if the parties wish to proceed as
contemplated by Rule 475, they may do so on the
basis that the agreed statement of facts and issues
submitted in support of this application shall be
the special case. They must apply to set the special
' Emma Silver Mining Company v. Grant (1879) 11 Ch. D.
918 at p. 927.
case down for hearing as prescribed by Rule 483.
On the other hand, if the parties wish to have the
action tried, the order sought is unnecessary and
they are in a position to apply under Rule 483
without it. In either case, in the interest of elimi
nating unnecessary costs, the parties might consid
er, in the Rule 483 application, indicating whether
they deem the services of a court reporter
desirable.
ORDER
The parties have leave to apply under Rule 483
to set a special case down for hearing in lieu of
trial, said special case to consist of the agreed
statement of facts and issues dated August 1, 1977
which appears as Exhibit "A" to the affidavit of
R. D. Walker filed herein. Alternatively, if they
wish the action tried, the parties may simply apply
under Rule 483 to set the matter down for trial.
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.