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T-96-81
David Baird, Elizabeth Baird, George A. Bayley, Neil Baylor, Frederick Field, Marion Field, Ron Forbes, Edward Kuta, Mira Kuta, Alexander Leblovic, Carlo Lemma, Brian Moar, Marianne Moar, Frances Salvo, Mark Smith, Jr., Pauline Smith, Bruce Wilson and John Gatecliff (Plain- tiffs)
v.
The Queen in right of Canada as represented by the Attorney General of Canada (Defendant)
Trial Division, Marceau J.—Toronto, February 9; Ottawa, February 16, 1981.
Practice — Application by defendant (a) to strike plaintiffs' statement of claim, (b) to have a question of law determined and (c) for particulars — Monies invested by plaintiffs in a trust company duly licensed by Federal Department of Insur ance, lost — Plaintiffs pleading a duty owed by the Queen and her representatives to them and to the public to administer faithfully the laws of Canada — Application (a) to strike and (b) re question of law, dismissed; (c) for particulars, granted in order to make allegations understandable — Federal Court Rules 419, 474.
APPLICATION. COUNSEL:
W. Dunlop for plaintiffs. P. A. Vita for defendant.
SOLICITORS:
Martin Dunlop Hillyer & Associates, Bur- lington, for plaintiffs.
Deputy Attorney General of Canada for defendant.
The following are the reasons for order ren dered in English by
MARCEAU J.: The application before the Court is made on behalf of the defendant. It seeks:
(a) an order pursuant to Rule 419 striking out the statement of claim and dismissing the action;
(b) in the alternative, an order pursuant to the provisions of Rule 474 that a question of law is to be determined;
(c) in the further alternative, an order for par ticulars with respect to paragraphs 2, 3, 5, 6, 7 and 8 of the statement of claim.
The statement of claim is a lengthy one; I do not think it is necessary that it be reproduced here verbatim: a brief summary should suffice. The plaintiffs state, in substance, that monies they had invested in a trust company duly licensed by the Federal Department of Insurance were lost as a result of the failure of the defendant and her servants to adequately supervise and regulate the said trust company. Giving some indications as to the practices of the trust company following which the loss occurred, they plead in various paragraphs that a duty was owed by Her Majesty and her appointed and elected representatives, or servants, to the plaintiffs and the public in general, to faithfully administer the laws of Canada, including the Trust Companies Act, R.S.C. 1970, c. T-16, in order to prevent such deceptive, fraudulent and unethical practices. They conclude therefrom that they are entitled to damages for monetary losses and mental anguish as well as punitive damages.
It is well established—in fact so well established that it hardly needs be repeated—that an order striking out a statement of claim under Rule 419 of the General Rules of this Court can only be made where the statement of claim under attack is clearly futile and does not reveal any arguable cause of action. This is certainly not the case here. It is true that some of the allegations made by the plaintiffs are so vague that it is hard to see what they imply. But if all of them had to be taken as admitted, the action no doubt would have to be sustained. Nothing more is needed to compel the view that a cause of action is satisfactorily revealed.
It may well appear, in the course of the proceed ings, that the action in fact raises a precise ques tion of law which could be set down on a case to be argued before trial pursuant to the provisions of Rule 474 of the General Rules of this Court. It is not possible, however, to come to such a conclusion at this early stage and on the sole basis of the allegations made in the declaration. The applica-
tion for an order pursuant to the provisions of Rule 474 is no doubt premature.
That leaves us with the request for particulars. Surprisingly, it is not supported by affidavit as required by Rule 419. Counsel for the applicant, somewhat taken by surprise, indicated his readi ness to correct forthwith, with leave of the Court, the technical impropriety, but he explained that he did not believe an affidavit was here necessary since his application was not based on facts that did not appear from the record. Indeed, he argued, a mere reading of the statement of claim was enough to convince that the particulars sought were necessary simply to make the allegations understandable and properly answerable. It is only inasmuch as I can agree with that contention that I am prepared to deal with the motion. The par ticulars requested in subparagraphs (a),(b),(c),(d) and (i) of the notice of motion indeed appear to me to be necessary in order to make the allegations referred to merely understandable. The plaintiffs will be ordered to deliver them.
ORDER
The application for an order striking out the statement of claim and dismissing the action is denied. The application for an order that a ques tion of law be determined is also denied but with out prejudice to the right of the defendant to renew her application at a later stage if she still sees fit to do so.
The plaintiffs are, however, ordered to deliver to the defendant within thirty days the following particulars:
(a) particulars with respect to the phrase "Her Majesty's ... elected representatives . .." set out in paragraph 2 of the statement of claim herein;
(b) particulars of the duty owed by Her Majes- ty's appointed representatives to the plaintiffs, alleged in paragraph 2 of the statement of claim herein;
(c) particulars of the duty owed by Her Majes- ty's elected representatives to the plaintiffs, alleged in paragraph 2 of the statement of claim herein;
(d) particulars of the fiduciary duty owed by Her Majesty's servants to the public, alleged in paragraph 3 of the statement of claim herein;
(i) particulars of the phrase "... they failed to discover and report to the Minister of Finance ... other matters requiring his attention ..." alleged in paragraph 8 of the statement of claim herein.
Until delivery of such particulars the proceed ings will be stayed.
The costs of this application shall be in the cause.
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