Judgments

[1997] 2 F.C. 84

T-1602-95

Jose Pereira E Hijos, S.A. and Enrique Davila Gonzalez (Plaintiffs)

v.

The Attorney General of Canada (Defendant)

Indexed as: Jose Pereira E Hijos, S.A. v. Canada (Attorney General) (T.D.)

Trial Division, MacKay J.—St. John’s, May 15; Ottawa, December 13, 1996.

International law — Action for damages following boarding, seizure on high seas, subsequent arrest, detention of Spanish fishing trawler, arrest of master by Canadian authorities — Plaintiffs seeking to establish at trial amended Coastal Fisheries Protection Regulations ultra vires — Issue may be raised without reference in pleadings, particulars to specific international treaties, conventions, which will be applied only if incorporated in Canadian domestic law by legislation specifically so providing — To extent international conventions, treaties considered authority for international law principles, unnecessary to plead them specifically as not pleading facts, but law.

Crown — Torts — Action for damages following boarding, seizure on high seas, arrest, detention of Spanish fishing trawler, arrest of master by Canadian authorities — Allegations of malicious prosecution struck as not all elements of tort established — No evidence corporate plaintiff charged with offence — As to master, absence of reasonable, probable cause — Plaintiffs’ pleadings established those acting on behalf of defendants acted with reasonable, probable cause under Act, Regulations — Actions supported by presumption of validity of legislation — Applies until contrary finding at trial — References to piracy, other criminal activity struck as having legal significance only in regard to criminal activity.

Crown — Practice — Parties — Action for damages following boarding, seizure on high seas, arrest, detention of Spanish fishing trawler, arrest of master by Canadian authorities — Action initiated against Attorney General, Minister of Fisheries and Oceans (MFO) — Ministers should not be named as defendants where no claim against them in personal capacities — Federal Court Act, s. 48(1) directing, except where otherwise authorized, proceeding against Crown to be instituted in form set out in Schedule — Form 2(2) naming Her Majesty as sole defendant — Crown Liability and Proceedings Act, s. 23(1) providing proceedings against Crown may be taken in name of Attorney General — Optional whether Crown named as Attorney General of Canada or Her Majesty the Queen — Since alleged abuse of office struck, MFO struck from style of cause, statement of claim.

Constitutional law — Charter of Rights — Life, liberty and security — Action for damages following boarding, seizure on high seas, arrest, detention of Spanish fishing trawler, arrest of master by Canadian authorities — Allegation violation of Charter, s. 7 struck as disclosing no reasonable cause of action — Corporate plaintiff cannot claim rights under s. 7 — Complaint master of vessel treated differently than others based on nationality, within scope of s. 15.

Constitutional law — Charter of Rights — Criminal process — Action for damages following boarding, seizure on high seas, arrest, detention of Spanish fishing trawler, arrest of master by Canadian authorities — Claim Coastal Fisheries Protection Regulations, by applying only to Spanish, Portuguese vessels authorizing unreasonable search, seizure, struck as disclosing no reasonable cause of action — Provisions governing search, seizure, use of reasonable force to detain vessels at sea not specifying nationality — Contravention of s. 10(b) right to retain, instruct counsel allowed to stand, provided amendment pleading facts underlying claim filed.

Constitutional law — Charter of Rights — Equality rights — Action for damages following boarding, seizure on high seas, arrest, detention of Spanish fishing trawler, arrest of master by Canadian authorities — Statement of claim alleging Coastal Fisheries Protection Regulations, by prescribing measures applicable only to vessels of Spain, Portugal violated plaintiffs’ s. 15 rights — While Regulations apply only to vessels, would ignore substantive effect of Regulations to preclude opportunity for argument at trial persons sailing vessels, ordinarily nationals of state whose flag vessel sails, directly affected by application of Regulations — Corporate plaintiff not having cause of action under s. 15.

Construction of statutes — Coastal Fisheries Protection Regulations — Action for damages following boarding, seizure on high seas, arrest, detention of Spanish fishing trawler, arrest of master by Canadian authorities — Allegation vessel not subject to amendments because engaged in fishing voyage in international waters prior to enactment thereof struck — According to Statutory Instruments Act, Interpretation Act, Regulations in force March 2, 1995 — If intra vires, Regulations apply to plaintiff.

Practice — Pleadings — Motion to strike — Portions of statement of claim, reply to demand for particulars — Action for damages following boarding, seizure on high seas, arrest, detention of Spanish fishing trawler, arrest of master by Canadian authorities — Claiming damages for trespass, assault, malicious prosecution, negligent navigation — General principles on motion to strike — Objections to allegations relating to international law, malicious prosecution, infringement of Charter, ss. 7, 8, 10, 15 rights — Motion allowed in part.

Fisheries — Canada v. Spain “turbot war” — Canadian position Spanish vessels exceeding quota — Action for damages following boarding, seizure on high seas, arrest, detention of Spanish fishing trawler, arrest of master by Canadian authorities — Pleadings raising issue of vires of Coastal Fisheries Protection Regulations — Motion to strike portions of statement of claim, reply to demand for particulars relating to international law, Charter rights — Motion allowed in part.

This was a motion to strike portions of the statement of claim and of the plaintiffs’ reply to demand for particulars, for an extension of time to file a defence, and amendment of the style of cause as it related to the defendants. The context of this litigation was the 1995 “turbot war” between Canada and Spain in which Canada’s position was that Spanish vessels were exceeding their quota for Greenland halibut (turbot) in the North Atlantic Fishery Organization Convention Area (NAFO zone). The plaintiff, Jose Pereira E Hijos S.A., is a corporation incorporated under the laws of Spain and is the owner and operator of the fishing vessel Estai. In March 1995, the Estai was fishing in international waters, in the North Atlantic Fishery Organization Convention Area. The Estai was approached by an armed boarding party from a Canadian fisheries patrol vessel. After a chase, when the Estai was on the high seas and east of the NAFO zone, an armed party of RCMP and Canadian fisheries officers boarded the Estai, and arrested the vessel and her master. The Estai and her crew were taken to St. John’s, travelling partly through Arctic ice. Upon arrival, the vessel was tied up and the Master was led through an angry crowd who allegedly abused, jostled and assaulted him. On April 18, defendants advised the plaintiffs that charges against the Estai and her Master would be stayed. The plaintiffs claimed damages for trespass, assault, malicious prosecution and negligent navigation, including special, general, punitive and exemplary damages. The defendants objected to allegations relating to international law, to malicious prosecution, to Charter rights said to be infringed and other matters.

Held, the motion should be allowed in part.

The plaintiffs were seeking the opportunity to establish at trial that the amended Coastal Fisheries Protection Regulations were unlawful because they were beyond the authority granted to the Governor in Council under the Coastal Fisheries Protection Act. That issue may be raised without reference in the pleadings or particulars to specific international treaties or conventions which in so far as they are considered a source of law, will be applied in the action only if they are incorporated in Canadian domestic law by legislation specifically so providing. To the extent that international conventions or treaties are considered authority for international law principles, it is unnecessary to plead them specifically, in the same way that it is unnecessary to plead other authority, i.e. case law or legislation, and such pleading is not of facts, the essence of pleading, but of law, which is not to be pleaded. Thus the sentences, phrases or references to particular conventions, the words “and in contravention of the freedom of the seas and the rule of law” were immaterial and redundant to the plaintiffs’ claim. General references to international law were not struck because it was merely part of the factual description of the legal regime.

The allegations concerning malicious prosecution were struck on the ground that not all the elements of the tort of malicious prosecution were established by the plaintiffs’ claims. There was no evidence or allegation that the corporate plaintiff was charged with an offence. One of the key elements of the tort of malicious prosecution is the absence of reasonable and probable cause. This was not pleaded, and could not be established even if it were pleaded. The plaintiffs’ pleadings established that those acting on behalf of the defendants acted with reasonable and probable cause under the Act and Regulations. Their actions were supported by the presumption of validity of legislation, which applies until found otherwise at trial. Even if the plaintiffs established at trial that the Regulations were enacted for an unlawful purpose, it concerned the validity of the Regulations, not the nature, tortious or otherwise, of any prosecution under the Regulations.

The allegation in the statement of claim of a violation of Charter, section 7 was struck because it was frivolous and disclosed no reasonable cause of action. The corporate plaintiff could not claim rights under section 7. The complaint that the plaintiff master of the Estai, was treated differently than others on the basis of nationality was essentially an equality argument within the scope of Charter, section 15.

The claim that the amendment to the Regulations, by applying to Spanish or Portuguese vessels, but not to vessels of any other country, purported to authorize unreasonable search and seizure in contravention of section 8, was not a basis for the relief sought, and was struck as frivolous and as disclosing no reasonable cause of action. The Act provides for search and seizure of vessels perceived to contravene the Act and Regulations, and the Regulations provided for use of reasonable force in detaining vessels at sea. None of those provisions singled out Spanish and Portuguese vessels exclusively, though the Regulations regulated fishing only for vessels of those nationalities, in addition to stateless vessels or vessels of designated countries commonly accepted as providing flags of convenience for registration of vessels over which little or no actual control was exercised. The impugned claim related to equality within the context of Charter, section 15, not section 8.

Plaintiffs alleged that on arrival of the Estai in St. John’s the defendants refused to allow both the Captain and the vessel a reasonable time or opportunity to instruct counsel about charges against them, contrary to Charter, paragraph 10(b) which assures everyone the right, on arrest or detention, to retain and instruct counsel without delay. It was uncertain that the owners of a vessel arrested would have rights within paragraph 10(b) of the Charter. That matter was left for determination at trial if the plaintiffs amend the statement of claim by pleading the facts underlying their complaint of an unreasonable time for the owners to consult counsel.

The Regulations were alleged to be discriminatory on the basis of race, and national and ethnic origin because they purported to bring only Spain and Portugal within the ambit of Canadian regulation, and they prescribed conservation and management measures applicable only to vessels of those nations. While the Regulations apply to vessels of Spain and Portugal, not to individuals, it would be ignoring a substantive effect of the Regulations to preclude, by striking out at this stage, opportunity for argument at trial that persons sailing those vessels, ordinarily nationals of the state whose flag a particular vessel sails, at least in the case of Spanish vessels, would be directly affected by the application of the Regulations as amended. Any claim for relief by the corporate plaintiff based upon Charter, section 15 was struck as raising no reasonable cause of action. Corporate plaintiffs have no reasonable cause of action under section 15, which expressly applies to individuals. The issue raised by the pleadings concerning the individual’s claim that the Regulations violated his Charter rights as an individual under section 15 were not struck. The legislation on its face distinguished those affected by reference to the national origin of the vessels which they sail, and thus implicitly, by reference to the national origin of the individuals affected.

Those paragraphs describing details of the voyage prior to the events of significance in March 1995 were struck as immaterial to the plaintiffs’ claims.

The words “Maritime Law” where they describe a source of the exclusive jurisdiction of Spain over the Estai were struck as immaterial.

The references to piracy or other criminal activity were struck as they had legal significance only in regard to criminal activity, and any such activity was irrelevant to the plaintiffs claims for damages.

The allegation that the fact that the Estai was engaged on its fishing voyage in international waters prior to enactment of the amendments to the Regulations meant that it was not subject to those amendments before it completed its fishing trip, was struck as frivolous and raising no reasonable cause of action. The Statutory Instruments Act and the Interpretation Act indicated that the amending Regulations were in force and applicable according to their terms, in all respects including with reference to the operations of the Estai from midnight on March 2, 1995. Thus if the Regulations were intra vires, they were applicable to the plaintiffs’ operations.

References to Canada/European Community negotiations over turbot quotas prior to and following the seizure and arrest of the Estai until May 1, 1995 when provisions specifying Spanish and Portuguese vessels were deleted from the Regulations, were struck as redundant to other portions of the statement of claim and as not supporting, or weakening, the plaintiffs’ claims for damages.

Where there is no claim against a Minister in a personal capacity, and no such claim was here alleged, the Minister should not be named as a defendant. Federal Court Act, subsection 48(1) and Form 2(2) direct that, except where otherwise authorized, a proceeding against the Crown is to be instituted against Her Majesty the Queen as the sole defendant. But the Crown Liability and Proceedings Act, subsection 23(1) provides that proceedings against the Crown may be taken in the name of the Attorney General of Canada. Therefore it is optional whether the Crown is named as Her Majesty the Queen or as the Attorney General of Canada. Since the alleged abuse of office by the Ministers was struck out, the Minister of Fisheries and Oceans was struck from the style of cause and the statement of claim. There was but one defendant, the Attorney General of Canada, representing the Crown, Her Majesty the Queen.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Barristers and Solicitors Act, R.S.B.C. 1979, c. 26.

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 7, 8, 10(b), 15.

Coastal Fisheries Protection Act, R.S.C., 1985, c. C-33, s. 5.2 (as enacted by S.C. 1994, c. 14, s. 2), 6 (as am. by S.C. 1990, c. 44, s. 14; 1992, c. 1, s. 43; 1994, c. 14, s. 3).

Coastal Fisheries Protection Regulations, C.R.C., c. 413, s. 21 (as am. by SOR/95-136, s. 2; 95-222, s. 1).

Convention on the High Seas, April 29, 1958, 450 U.N.T.S. 11.

Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50 (as am. by S.C. 1990, c. 8, s. 21), s. 23(1) (as am. idem, s. 29).

Federal Court Act, R.S.C., 1985, c. F-7, s. 48(1).

Federal Court Rules, C.R.C., c. 663, RR. 419, 1716, Appendix, Form 2(2).

Interpretation Act, R.S.C., 1985, c. I-21, s. 6(2)(b).

Statutory Instruments Act, R.S.C., 1985, c. S-22, s. 11(2) (as am. by R.S.C., 1985 (4th Supp.), c. 31, s. 103).

United Nations Convention on the Law of the Sea, December 10, 1982, UN Doc. A/CONF. 62/122 and Corr. 1 to 11; 26 I.L.M. 1261.

CASES JUDICIALLY CONSIDERED

APPLIED:

Nelles v. Ontario, [1989] 2 S.C.R. 170; (1989), 60 D.L.R. (4th) 609; 41 Admin. L.R. 1; 37 C.P.C. (2d) 1; 71 C.R. (3d) 358; 42 C.R.R. 1; 98 N.R. 321; 35 O.A.C. 161; Canada (Attorney General) v. Central Cartage Co., [1990] 2 F.C. 641 (1990), 71 D.L.R. (4th) 253; 45 Admin. L.R. 1; 109 N.R. 357 (C.A.); National Anti-Poverty Organization v. Canada (Attorney General), [1989] 3 F.C. 684 (1989), 60 D.L.R. (4th) 712; 36 Admin. L.R. 197; 26 C.P.R. (3d) 440; 99 N.R. 181 (C.A.); revg [1989] 1 F.C. 208 (1988), 32 Admin. L.R. 1; 21 C.P.R. (3d) 305; 21 F.T.R. 33 (T.D.); Imperial Chemical Industries PLC v. Apotex Inc., [1989] 2 F.C. 608 (1989), 22 C.I.P.R. 201; 23 C.P.R. (3d) 1; 26 F.T.R. 32 (T.D.); Liebmann v. Canada (Minister of National Defence), [1994] 2 F.C. 3 (1993), 69 F.T.R. 81 (T.D.).

CONSIDERED:

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; (1989), 103 A.R. 321; 64 D.L.R. (4th) 577; [1990] 1 W.W.R. 577; 71 Alta. L.R. (2d) 273; 45 C.R.R. 1; 102 N.R. 321; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d) 273; 25 C.C.E.L. 255; 10 C.H.R.R. D/5719; 36 C.R.R. 193; 91 N.R. 255; R. v. Turpin, [1989] 1 S.C.R. 1296; (1989), 48 C.C.C. (3d) 8; 69 C.R. (3d) 97; 39 C.R.R. 306; 96 N.R. 115; 34 O.A.C. 115; Antonsen v. Canada (Attorney General), [1995] 2 F.C. 272 (1995), 32 Admin. L.R. (2d) 237; 91 F.T.R. 1 (T.D.).

REFERRED TO:

Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735; (1980), 115 D.L.R. (3d) 1; 33 N.R. 304; Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441; (1985), 18 D.L.R. (4th) 481; 12 Admin. L.R. 16; 13 C.R.R. 287; 59 N.R. 1; Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959; (1990), 74 D.L.R. (4th) 321; [1990] 6 W.W.R. 385; 49 B.C.L.R. (2d) 273; 4 C.C.L.T. (2d) 1; 43 C.P.C. (2d) 105; 117 N.R. 321; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; (1989), 58 D.L.R. (4th) 577; 25 C.P.R. (3d) 417; 94 N.R. 167; R. v. Généreux, [1992] 1 S.C.R. 259; (1992), 88 D.L.R. (4th) 110; 70 C.C.C. (3d) 1; 8 C.R.R. (2d) 89; 133 N.R. 241; R. v. Pearson, [1992] 3 S.C.R. 665; (1992), 77 C.C.C. (3d) 124; 17 C.R. (4th) 1; 12 C.R.R. (2d) 1; 144 N.R. 243; 52 Q.A.C. 1; Kealey v. Canada (Attorney General), [1992] 1 F.C. 195 (1991), 1 Admin. L.R. (2d) 138; 46 F.T.R. 107 (T.D.).

MOTION to strike portions of the statement of claim and of the plaintiffs’ reply to a demand for particulars. Motion allowed in part.

COUNSEL:

John R. Sinnott, Q.C. for plaintiffs.

John R. Power, Q.C. and Michael F. Donovan for defendant.

SOLICITORS:

Lewis, Sinnott & Heneghan, St. John’s, for plaintiffs.

Deputy Attorney General of Canada for defendant.

The following are the reasons for order rendered in English by

MacKay J.: In July 1995, the plaintiffs commenced an action for damages claimed following the boarding and seizure on the high seas and the subsequent arrest and detention in March 1995 of a Spanish fishing trawler, and the arrest of her master, by officers of the Government of Canada. The action was initiated against the Attorney General of Canada and the Minister of Fisheries and Oceans as the named defendants. In these reasons, the term “defendants” refers to those two Ministers of the Crown, whose standing as defendants is among the issues here considered. By order now issued, the defendant shall hereinafter be the Attorney General of Canada, as the representative of Her Majesty the Queen. The defendants responded to the statement of claim with a request for particulars, and those were provided by the plaintiffs’ reply.

The defendants now seek an order pursuant to subsection 419(1) of the Rules that portions of the plaintiffs’ statement of claim, and of the plaintiffs’ reply to demand for particulars, be struck out. That Rule, under the Federal Court Rules, C.R.C., c. 663 as amended, provides:

Rule 419. (1) The Court may at any stage of an action order any pleading or anything in any pleading to be struck out, with or without leave to amend, on the ground that

(a) it discloses no reasonable cause of action or defence, as the case may be,

(b) it is immaterial or redundant,

(c) it is scandalous, frivolous or vexatious,

(d) it may prejudice, embarrass or delay the fair trial of the action,

(e) it constitutes a departure from a previous pleading, or

(f) it is otherwise an abuse of the process of the Court,

and may order the action to be stayed or dismissed or judgment to be entered accordingly.

(2) No evidence shall be admissible on an application under paragraph (1)(a).

(3) In this Rule, “departure” means that which is prohibited by Rule 411.

A number of the grounds set out in subsection 419(1) of the Rules are here relied upon by the defendants in relation to particular portions of the plaintiffs’ pleadings. Those portions I will turn to after a brief review of the factual background as it is alleged in the plaintiffs’ pleadings, and after a brief reference to the general principles that have evolved regarding the application of subsection 419(1).

In addition to their motion to strike portions of the plaintiffs’ pleadings, the defendants seek an extension of time to file a defence, and they seek amendment of the style of cause in so far as it relates to the defendants.

The background

The plaintiff Jose Pereira E Hijos, S.A. is a corporation incorporated under the laws of Spain and is the owner and operator of the fishing vessel Estai. The second plaintiff, a citizen of Spain, was at all relevant times the master of the Estai, which he sailed, with a Spanish crew, under the flag of Spain.

In March 1995, the Estai was engaged in fishing in international waters, in the North Atlantic Fishery Organization Convention Area (the NAFO zone) lying east of Canadian waters and of Canadian fisheries waters in the North Atlantic Ocean. On March 6, the Estai moved outside the NAFO zone because of a communication from Canadian authorities threatening to seize Spanish vessels found in the NAFO zone to be fishing Greenland halibut (turbot), because Canada claimed Spanish vessels had exceeded their quota.

On March 8, 1995, the Estai returned to the fishing grounds within the NAFO zone after receiving advice from Spanish authorities that the vessel could continue fishing within the combined quota for the European Community. On March 9, while in the NAFO zone, the Estai was approached by an armed boarding party from the Canadian fisheries patrol vessel Cape Roger, but the Estai increased speed in an apparent effort to avoid the boarding party. The Cape Roger, the Leonard Cowley, another Canadian fisheries patrol vessel, and the Sir Wilfred Grenfell, a Canadian Coast Guard ship, joined in the pursuit of the Estai. After a chase, when the Estai was on the high seas outside and east of the NAFO zone, the Canadian vessels first fired water cannon and then two bursts of machine gun fire as warnings to the Spanish vessel, whereupon the Estai hove to and an armed Canadian party of RCMP officers and fisheries officers boarded the Estai and took charge of the vessel, arresting the vessel and her master.

The Estai and its crew were taken to St. John’s, travelling partly through Arctic ice, despite objections by the Spanish crew, with the result, it is claimed, that the ice caused damage to the vessel. Upon arrival in St. John’s harbour on March 12, the vessel was tied up. A major demonstration was underway on the dockside. When the Master, the second plaintiff in this action, then under arrest, was led through a crowd of angry demonstrators to the courthouse, he claims that he was abused, jostled, assaulted and subjected to obscenities.

On March 14, 1995, a couple of days after the Estai’s arrival in St. John’s, under the direction of the defendants offloading of the vessel’s fish cargo was begun. It was only stopped after bail in the amount of $500,000 was arranged. The vessel and the balance of her cargo were then freed from arrest.

On April 18, 1995, the defendants advised the plaintiffs that charges against the Estai and her master would be stayed. The following day, the bail which was previously posted was remitted with interest. Fish that had been offloaded was, by arrangement, returned to the plaintiff corporation, by shipment, the costs of which were apparently met by the Crown.

The plaintiffs commenced this action by statement of claim filed on July 28, 1995. For the defendants, a request for particulars was filed on August 24, 1995, and the plaintiffs filed a reply to defendants’ demand for particulars on October 18, 1995. Thereafter, by motion dated December 6, 1995, the defendants made this application, heard May 15 and 16, 1996 in St. John’s, to strike portions of the plaintiffs’ pleadings.

The plaintiffs claim damages against the defendants for trespass, assault, malicious prosecution and negligent navigation, including special damages, general damages, punitive and exemplary damages. Special damages are sought for detention of the Estai from March 9 to 15, for damages to the vessel from ice on the voyage to St. John’s, for loss of fishing after seizure until the end of March, for operating expenses of the vessel from the point of seizure to St. John’s and for the return trip, and for expenses incurred for the vessel, its crew, bail and other expenses in St. John’s. General damages are claimed in paragraph 43(b) of the statement of claim in the following terms:

General Damages for trespass on the high seas, endangerment on the high seas, piracy, unlawful seizure, unlawful arrest of the Motor Vessel “ESTAI”, unlawful arrest of the Plaintiff Captain Davila, negligence, unlawful detention and interference with the Plaintiff’s servants and agents, namely the crew of the Motor Vessel “ESTAI”, malicious prosecution of the Motor Vessel “ESTAI” and the Plaintiff Captain Davila, abuse of process, failure to protect Captain Davila while in custody, interference with Charter right to retain and instruct Counsel without delay (Section 10(b)) and also interference with Charter rights under Sections 15, 7 and 8, eviction of crew from the “ESTAI”, and unlawful discharge of cargo.

The plaintiffs also claim punitive and exemplary damages.

The motion to strike portions of the plaintiffs’ pleadings

The defendants’ motion to strike sets out in detail objections taken to many portions of the plaintiffs’ statement of claim and of the plaintiffs’ reply to the defendants’ demand for particulars. The objections arise in relation to allegations classed by defendants as relating to international law, to malicious prosecution, to Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] rights said to be infringed, and other matters. Before turning to the detailed objections, it is useful to refer briefly to accepted general principles in the application of subsection 419(1) of the Federal Court Rules, in considering the striking of pleadings. Those general principles are, for the most part, settled by the Supreme Court of Canada, both in relation to subsection 419(1) of the Federal Court Rules and to similar rules in the provincial courts in common law provinces. (See Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735; Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441; Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959.)

Those general principles are that in considering a motion to strike all or a portion of pleadings, the Court does not consider the merits of the issues as it would at trial; the Court is reluctant to strike pleadings, recognizing the right of a party to be heard on the merits; and assuming the facts pleaded will be established, it is only in cases where it is plain and obvious that the facts pleaded raise no cause of action that the Court will strike a pleading. Those principles underlie the Court’s consideration of objections said to be based on specific grounds under the specific headings set out in paragraphs (b) to (f) of subsection 419(1) of the Rules.

Another general principle questioned in this case concerns the timing of an order to strike. Here the plaintiffs claim that by the request for particulars filed by the defendants in this case, subsequently replied to by the plaintiffs, the defendants have taken a step in the process of pleading that should preclude consideration thereafter of a motion to strike previous pleadings. In my opinion, subsection 419(1) of the Rules deals expressly with this issue, for it provides “The Court may at any stage of an action order any pleading or anything in any pleading to be struck out, with or without leave to amend”. The Rule clearly vests discretion in the Court to deal with an application to strike at any time in the course of an action.

Where, as here, defendants have simply sought particulars of matters set out in a statement of claim, have received those particulars but have not yet filed a defence, in my view, they may move to strike, without leave since they have acted in timely fashion, and the Court may order striking all or portions of pleadings, in accord with the general principles set out above. While it is somewhat anomalous for a party, having obtained particulars for which it formally asked, to then move to strike the particulars provided, where those particulars concern facts that do not improve the factual basis of a faulty claim which is objected to, then it is appropriate to strike the particulars as well as the claim. If the claim is not struck, particulars as to facts, provided in response to a request, should not be struck unless there be some other ground, for example, that they plead law and not facts.

International law allegations

The plaintiffs’ allegations concerning international law, to which the defendants object, include the following.

a) In the statement of claim, the plaintiffs allege

8…. the M.V. “ESTAI” … was subject to the exclusive jurisdiction of Spain pursuant to Maritime Law, established principles of international law , Spanish Law, Canadian Law, Article 6 of the Geneva Convention on the High Seas, 1958, and Article 92.1 of the United Nations Convention on the Law of the Sea, 1982.

…

16. [Referring to Canadian ships, operated under control of the defendants] … continued to unlawfully pursue the “ESTAI” in international waters, at times in dense fog, and in contravention of the freedom of the seas and the rule of law.

The words here underlined, in paragraphs 8 and 16, are objected to and the defendants urge they be struck out.

b) In paragraph 3 of the reply to defendants’ demand for particulars, which demand sought particulars of “the established principles of international law” and of “Canadian Law” referred to in paragraph 8 of the statement of claim, the following particular principles are alleged:

— the principle that the high seas are open to all states and no state may subject any part of them to its sovereignty;

— the principle that all vessels are subject to the jurisdiction and entitled to protection of the particular state under whose flag a vessel sails;

— the principle that states may fish on the high seas;

— the principle that, while a state may control fishing in its territorial waters and in an economic zone bordering its coasts, that zone does not extend more than 200 nautical miles from relevant coastal baselines.

For each of the principles identified, the plaintiffs also identify particular international conventions on the high seas, of 1958 [Convention on the High Seas, April 29, 1958, 450 U.N.T.S. 11] and 1982 [United Nations Convention on the Law of the Sea, December 10, 1982, UN Doc. A/CONF. 62/122 and Corr. 1 to 11; 26 I.L.M. 1261].

For all the principles identified, the plaintiffs allege these are “established principles of Canadian Law in that Canada applies the rule of law, including established principles of International Law”.

c) In paragraph 14 of the plaintiffs’ reply to defendants’ demand for particulars, response is made to the defendants’ request for particulars of the laws alleged to be contravened by use of the adjective “unlawful” in designated paragraphs of the statement of claim. In paragraph 15 of the reply, response is made to the defendants’ similar request for particulars of laws alleged to be contravened by use of the adverb “unlawfully” in certain other paragraphs. The plaintiffs’ responses include, in subparagraphs 14(a)(i), 14(c)(i), 14(h)(i) and 15(a)(i), the words “International Law giving exclusive jurisdiction to the Flag State”.

The defendants contend that in all of these cases a), b) and c) above, these allegations are beyond the jurisdiction of the Court and constitute abuses of process, that they do not disclose any reasonable cause of action or they are immaterial and embarrassing.

The basis of the defendants’ claim lies in their perception that by referring to principles of international law, the plaintiffs seek to establish that those principles should have priority over the domestic law of Canada, in particular, the Coastal Fisheries Protection Regulations (the Regulations) [C.R.C., c. 413] as amended by P.C. 1995-372, dated March 3, 1995, SOR/95-136, published in the Canada Gazette, Part II, Vol. 129, No. 6, on March 22, 1995. Those amendments to the Regulations, made under the Coastal Fisheries Protection Act, R.S.C., 1985, c. C-33 as amended, were intended, it appears, to deal with fish species classed as “straddling stocks” and certain other fish other than groundfish, and to regulate fishing in NAFO zones by vessels of certain states, including regulating fishing by Spanish vessels. In the defendants’ view, the actions here complained of were undertaken under the Regulations as amended, domestic law which it is urged “occupies the field” and must be given precedence in this Court.

The principles concerning the application of international law in our courts are well settled, and they are not here disputed by plaintiffs. One may sum those up in the following terms: accepted principles of customary international law are recognized and are applied in Canadian courts, as part of the domestic law unless, of course, they are in conflict with domestic law. In construing domestic law, whether statutory or common law, the courts will seek to avoid construction or application that would conflict with the accepted principles of international law. In so far as those principles are reflected in or arise from international conventions, which may conflict with domestic law, these conventions become a part of the law of Canada only by legislative enactment, of Parliament or of a provincial legislature, acting under the Constitution.

The plaintiffs profess to accept those principles governing the relationships of international and domestic law. They do not contest that if there is conflict, the Court will apply domestic law. But they do urge, and seek the opportunity to establish at trial, that the amended Regulations are unlawful for a variety of reasons. Some of those reasons concern the Charter, to which we shall return, but among others, it is argued the Regulations are beyond the authority granted to the Governor in Council under relevant provisions of the Coastal Fisheries Protection Act. In my opinion, assuming facts alleged are true, that claim concerning the validity of the Regulations is arguable, and the Court will not bar the plaintiffs’ opportunity to raise it for determination at trial.

That issue, one fundamental to these proceedings, may be raised without reference in the pleadings or particulars to specific international treaties or conventions which, in so far as they are considered a source of law, will be applied in the action only if they are incorporated in Canadian domestic law by legislation specifically so providing. To the extent that international conventions or treaties are considered authority for international law principles, it is unnecessary to plead them specifically, in the same way that it is unnecessary to plead other authority, e.g., jurisprudence or legislation, and such pleading is not of facts, the essence of pleading, but of law, which is not to be pleaded. Thus, I would direct that the sentences, phrases or references to particular conventions in paragraph 8 of the statement of claim and paragraphs 3(a), 3(b), 3(c) and 3(d) of the reply to demand for particulars be struck from the record.

I direct that the words “and in contravention of the freedom of the seas and the rule of law” be struck in paragraph 16 of the statement of claim because they constitute a conclusion of law.

The defendants’ final objection in relation to international law allegations concerns portions of responses to the demand for particulars concerning the laws intended by use of the adjective “unlawful” or the adverb “unlawfully”, in paragraphs 13, 15, 16, 17, 18, 19, 20, 21, 27, 28, 30 and 43 of the statement of claim. The reply refers, inter alia, to breach of “international law giving exclusive jurisdiction to the flag state”. Those descriptive words refer to a source of law upon which the plaintiffs rely, set out in the reply, as the defendants requested. In my opinion, they should not be struck out.

My opinion about the portions to be struck is based on my conclusion that those matters now to be deleted are immaterial and redundant to the plaintiffs’ claim. They do not state material facts, but rather they plead law, a matter not to be pleaded, for it is unnecessary to do so. Thus, I would strike them pursuant to paragraph 419(1)(b) of the Rules.

I should make it clear that I do not direct striking out the words “established principles of international law” in paragraph 8 of the statement of claim, or the principles referred to by general descriptions in paragraph 3 of the reply to defendants’ demand for particulars, or the general references in paragraphs 14 and 15 of the reply to “International Law giving exclusive jurisdiction to the Flag State”. In my opinion, paragraph 8 describes the operation of the Estai under the Spanish flag and the legal regime, including various sources of law, under which she was operating prior to her seizure, including Spanish law and Canadian law. That regime is said also to include established principles of international law, a matter I consider a part of the factual description of the legal regime here applicable. In so far as the defendants requested particulars of the established principles of international law, they have them in paragraph 3 of the particulars, without reference to specific conventions or treaties which are said to include those principles, but which conventions are not to be pleaded and which I direct now be struck. The general description of international law, in paragraphs 14 and 15 of the reply, as one of the sources of law included in the plaintiffs’ meaning in use of the words “unlawful” or “unlawfully” in various paragraphs of the statement of claim, was simply provided as part of the plaintiffs’ response to the defendants’ request for particulars. No argument was here directed to striking “unlawful” or “unlawfully” in all of their uses in the statement of claim, and the general descriptions of sources of law, set out in the reply in response to the defendants’ request, as bases for that assessment should not be struck from the reply.

Allegations of malicious prosecution

The defendants contend that allegations that the laying of charges was unlawful, made in bad faith, without reasonable and probable grounds, that it was a blatant misuse of prosecutorial power and was malicious, all should be struck out. They urge that these allegations by the plaintiffs are scandalous, frivolous, vexatious and do not disclose any reasonable cause of action.

Those portions of the statement of claim in this category include:

(i) in paragraph 30 of the statement of claim, the words “and made in bad faith” in describing the actions of the defendants’ servants in boarding the Estai and in the subsequent laying of charges against the Master, i.e. the second plaintiff in the action, and the vessel.

(ii) the whole of paragraph 41 of the statement of claim, which refers to a dispute between Canada and the European Community in which the seizure and arrest of the Estai and its master, and the laying of charges, are alleged to have been for the purpose of forcing the Community to accept Canadian proposals in relation to turbot and perhaps other species. The paragraph concludes:

The Plaintiffs state that the defendants did not have reasonable and probable grounds for the institution of proceedings against the Plaintiff … Gonzalez and the … Estai, and used the criminal justice system for ends which it was not designed to serve and thereby abused the offices of the Attorney General and Minister of Fisheries and Oceans. The Plaintiffs state that the seizure, arrests and charges were made in bad faith by the Defendants and that the prosecutions were malicious.

(iii) in paragraph 42 of the statement of claim, which refers to actions of the defendants in using water canon and guns and in boarding the Estai under force of automatic weapons on the high seas, as being high-handed and oppressive, justifying punitive damages, the pleading concludes in the following words that the defendants move to strike out:

The Plaintiffs state further that the actions of the Defendants were precipitated by a breakdown in the fish quota system theretofore in force and the laying of charges against the Plaintiff … Gonzalez and the … “ESTAI” and the bargaining by the Defendants in relation to such charges involved blatant misuse of the prosecutorial power and abuse of process, and justify an award of punitive and exemplary damages against the Defendants.

(iv) paragraph 12 of the plaintiffs’ reply to demand for particulars should also be struck in its entirety, so the defendants contend. That paragraph provides:

Particulars of the bargaining are that the Defendants between the 12th day of March and the 16th day of April 1995 negotiated with the European Union concerning Fish Quotas and regulations of Fishing Vessels of the European Union and Canada in International Waters to the East of Canadian Fisheries Waters. Particulars of the bargaining are within the knowledge of the Defendants who were participants in the bargaining. The boarding and arrest of the “ESTAI” were used as a means to force the European Union to the bargaining table, and when Agreement was reached between the European Union and Canada on the 16th day of April, 1995 it was conditional upon the charges against the Plaintiff Enrique Davila Gonzalez and against the “ESTAI”; being stayed, the bail for Captain Davila being returned, the bond for the “ESTAI” being returned, and the fish seized from the “ESTAI” being returned. The bargaining took place between the European Union and Canada.

The basis of the defendants’ claim to strike allegations of malicious prosecution is that the elements of the tort or wrong of malicious prosecution are said not to be established by the plaintiffs’ claims. It is urged the plaintiffs could not succeed in relation to these allegations which thus are frivolous and vexatious, in the circumstances here.

In Nelles v. Ontario, [1989] 2 S.C.R. 170, at pages 192-194, Lamer J., as he then was, set out the test for malicious prosecution.

There are four necessary elements which must be proved for a plaintiff to succeed in an action for malicious prosecution:

a) the proceedings must have been initiated by the defendant;

b) the proceedings must have terminated in favour of the plaintiff;

c) the absence of reasonable and probable cause;

d) malice, or a primary purpose other than that of carrying the law into effect.

…

Reasonable and probable cause has been defined as “an honest belief in the guilt of the accused based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would ordinarily lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed” ….

This test contains both a subjective and objective element. There must be both actual belief on the part of the prosecutor and that belief must be reasonable in the circumstances. The existence of reasonable and probable cause is a matter for the judge to decide as opposed to the jury.

To succeed in an action for malicious prosecution against the Attorney General or Crown Attorney, the plaintiff would have to prove both the absence of a reasonable and probable cause in commencing the prosecution, and malice in the form of a deliberate and improper use of the office of the Attorney General or Crown Attorney …. In my view, this burden on the plaintiff amounts to a requirement that the Attorney General or Crown Attorney perpetrated a fraud on the process of criminal justice ….

… a plaintiff bringing a claim for malicious prosecution has no easy task. Not only does the plaintiff have the notoriously difficult task of establishing a negative, that is the absence of a reasonable and probable cause, but he is held to a very high standard of proof to avoid a non-suit or directed verdict.

The plaintiffs contend the elements of the tort of malicious prosecution are indeed pleaded by the statement of claim and particulars, stressing those aspects which allege the malicious or improper purpose of the actions of the defendants’ servants. However, as the defendants point out, there is no evidence or allegation that the corporate plaintiff was charged with an offence. In so far as the plaintiff Gonzalez is concerned, the defendants contend that the factual basis supporting charges against him under the Coastal Fisheries Protection Act and Regulations is, in fact, included in the plaintiffs’ own pleadings. Section 5.2 of the Act, as enacted in 1994 by S.C. 1994, c. 14 [section 2], provides:

5.2 No person, being aboard a foreign fishing vessel of a prescribed class, shall, in the NAFO Regulatory Area, fish or prepare to fish for a straddling stock in contravention of any of the prescribed conservation and management measures.

The Regulations, as amended, include Spanish vessels in the prescribed class, and provide for fish of various species, including turbot, the species apparently being fished by the Estai.

I am persuaded the defendants are right that the plaintiffs’ pleadings establish that those acting on behalf of the defendants acted with reasonable and probable cause under the Act and the Regulations. The plaintiffs contest the validity of the Regulations, but in my opinion, even if they succeed at trial, those acting for the defendants in March 1995 under the Act and the Regulations then said to be applicable were acting with reasonable and probable cause at that time.

In my opinion, in the circumstances, their actions could be said to be supported by the presumption of validity of legislation, a presumption still applicable, until it may be found otherwise at a future trial. It is not possible, in my view, for the plaintiffs to establish that in March 1995, those acting on behalf of the defendants did so without reasonable and probable cause.

Further, in so far as the plaintiffs urge the amending Regulations were enacted for an unlawful purpose, even if they succeed in establishing that at trial, it concerns the validity of the Regulations, and not the nature, tortious or otherwise, of any prosecution under the Regulations.

In my opinion, one of the key elements of the tort of malicious prosecution has not here been pleaded and, in my view, that element, the absence of reasonable and probable cause, could not be established here even if it were pleaded. My conclusion is that the allegations concerning malicious prosecution should be struck from the plaintiffs’ pleadings, including most of that requested by the defendants. I would not order to be struck out, for this reason, words in paragraph 12 of the reply to demand for particulars which refer to negotiations between Canada and the European Union, which respond to the defendants’ request. Only those words in lines 8 to 10 of that paragraph, referring to the purpose for the boarding and arrest of the Estai as related to the claim for malicious prosecution, are ordered to be struck out.

Allegations concerning Charter violations

The plaintiffs allege violation of several Charter rights, all of which the defendants move should be struck out as frivolous and vexatious, and not disclosing any reasonable cause of action. I summarize the plaintiffs’ claims, the objections of the defendants and my own conclusions as follows.

In regard to section 7 of the Charter, the plaintiffs allege in paragraph 34 that amendments to the Act by P.C. 1995-372 of March 3, 1995, by which I infer they mean amendments to the Regulations, violate the rights to “life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. That violation is said to arise by the inclusion of Spanish and Portuguese vessels, but not vessels generally, within the ambit of the Regulations and in purporting to impose conservation and management measures on those vessels only.

In argument, counsel for both parties agreed that the corporate plaintiff could not claim rights under section 7 of the Charter, or complain of any alleged violation (see Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at page 1004, per Dickson C.J.). I am persuaded by the argument of the defendant that in so far as this allegation concerns the rights of the plaintiff Master of the Estai, the complaint is that he is treated differently than others on the basis of nationality, as a result of the description of a “class of vessel” adopted by the 1995 amendments to the Regulations. This is essentially an equality argument within the scope of section 15 of the Charter. Specific equality guarantees falling within section 15 are not also generally considered as falling within the scope of section 7, at least for purposes of considering the validity of legislation or regulations (see R. v. Généreux , [1992] 1 S.C.R. 259, at page 310, per Lamer C.J.; R. v. Pearson, [1992] 3 S.C.R. 665, at pages 688-689, per Lamer C.J.).

I conclude that the allegation, in paragraph 34 of the statement of claim, of violation of section 7 of the Charter by reason of the 1995 amendment to the Regulations should be struck. It is frivolous and discloses no reasonable cause of action since it would not succeed at trial as a basis for the relief claimed.

In regard to section 8 of the Charter, the plaintiffs allege in paragraph 35 of the statement of claim that the Regulations as amended in 1995, by applying to Spanish or Portuguese vessels but not vessels of any other country, purport to authorize unreasonable search and seizure in contravention of section 8. In support of their claim, plaintiffs urge that the owner of the ship and employer of its master, and the Master himself, have rights to complain, and to claim in damages that search and seizure under the Act and Regulations is unconstitutional and contrary to section 8 of the Charter.

I am persuaded that the defendants are correct that search and seizure of vessels perceived to contravene the Act and Regulations thereunder, is provided for by the Act, and that the Regulations provide for use of reasonable force in detaining vessels at sea. None of those provisions single out Spanish and Portuguese vessels exclusively, though the Regulations as amended do regulate fishing only for vessels of those nationalities, in addition to stateless vessels or vessels of designated countries commonly accepted as providing flags of convenience for registration of vessels over which little or no actual control is exercised. I agree with the defendants that the claim as stated in paragraph 35, related as it is to the perceived discriminatory treatment of Spanish and Portuguese vessels, is a claim in the nature of one concerned with equality, within the context of section 15 of the Charter, and it does not lie within section 8. If there be a claim that unreasonable search and seizure is provided for under the Regulations, in my opinion that is not because the Act and Regulations permit search and seizure principally or only of Spanish and Portuguese vessels. The claim as stated in paragraph 35 of the statement of claim is not one the Court would recognize as a basis for the relief here sought, and in my opinion it should be struck out as frivolous and one that discloses no cause of action.

In paragraph 24 of the statement of claim, it is alleged that on arrival of the Estai at St. John’s, the defendants refused to allow both the Captain and the vessel a reasonable time or opportunity to instruct counsel about charges against them, contrary to paragraph 10(b) of the Charter, which assures everyone the right, on arrest or detention, to retain and instruct counsel without delay. The facts allege that the Captain was given no time to consult counsel before his court appearance, but no such detail is expressly stated in relation to the vessel, other than the general denial of a reasonable time to instruct counsel.

It is uncertain that the owners of a vessel arrested would have rights within paragraph 10(b) of the Charter. That matter may be left for determination at trial if the plaintiffs amend the statement of claim by pleading the facts underlying their complaint of an unreasonable time for the owners to consult counsel. In the circumstances, the failure to amend paragraph 24 of the statement of claim within a reasonable time fixed by the order disposing of the motion to strike will result in striking the references to the Estai to which the defendants’ motion objects.

The plaintiffs’ final Charter allegations, objected to by the defendants, as set out in paragraphs 32 and 33 of the statement of claim, are that the Regulations, by purporting to bring two nations and no others within the ambit of Canadian regulation, and by prescribing conservation and management measures applicable only to vessels of those nations, violate the plaintiffs’ right under section 15 of the Charter. The Regulations are said to be discriminatory on the basis of race, national origin and ethnic origin.

The defendants rightly point out that the Regulations are applicable to vessels of Spain and Portugal, not to individuals, but in my view it would be ignoring a substantive effect of the Regulations as amended in 1995 to preclude, by striking out at this stage, opportunity for argument at trial that persons sailing those vessels, ordinarily nationals of the state whose flag a particular vessel sails, at least in the case of Spanish vessels, would be directly affected by the application of the Regulations as amended.

The defendants urge that in any event, the corporate plaintiff has no reasonable cause of action under section 15 of the Charter, which expressly applies to individuals. The plaintiffs urge that matter is not finally determined, though they acknowledge the denial of corporate standing to claim relief under section 15, expressed by La Forest J., in dissent, without comment on this issue by other members of the Supreme Court, in Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at page 1382. That lack of standing for a corporation was affirmed by Iacobucci C.J. for the Court of Appeal in Canada (Attorney General) v. Central Cartage Co., [1990] 2 F.C. 641 at pages 656-657 with reference to the comments of Stone J.A., concerning standing under section 15 of a non-profit corporation, in National Anti-Poverty Organization v. Canada (Attorney General), [1989] 3 F.C. 684 (C.A.), at pages 703-704. The defendants also refer to the decision of my colleague Rouleau J. in Imperial Chemical Industries PLC v. Apotex Inc., [1989] 2 F.C. 608 (T.D.), at pages 620-622, where His Lordship struck out the defendant’s statement of defence and counterclaim in so far as the corporate defendant relied upon section 15 of the Charter, on the ground that section 15 does not apply to corporations. In my opinion, that issue must be accepted as well settled in this Court, and any claim here for relief by the corporate plaintiff based upon section 15 of the Charter is struck out as raising no reasonable cause of action.

As for the individual plaintiff, the defendants urge the section 15 claim is frivolous and vexatious and does not disclose a reasonable cause of action because the pleadings do not allege the Regulations “were intended to or did have an adverse effect on him because he is of Spanish nationality or ethnic origin”, and moreover, Spanish “fishermen operating in international waters off the coast of Canada are not a group suffering social, political and legal disadvantages in our society”, and thus the Regulations cannot constitute discrimination under section 15 of the Charter.

As for the first of the deficiencies referred to by the defendants, I note that paragraph 32 of the statement of claim, after alleging that the March 1995 amendment to the Regulations is discriminatory, in violation of subsection 15(1) of the Charter, does state that “Spanish nationals sail Spanish vessels”, and it does allege the Regulations as amended discriminate on the basis of ethnic origin. In paragraph 2 of the statement of claim, the individual plaintiff is identified as a master mariner, a resident and citizen of Spain, the Master of the Estai. Subsequent paragraphs describe the operations of the vessel, a Spanish vessel, under his command, the chase and seizure of the vessel, and the arrest of its master, its return to St. John’s under command of Canadian officers, and the principal other acts affecting the individual plaintiff. In my view, it is implicit from the statement of claim that application of the Regulations to the Master of the Estai had an adverse effect upon him because of his nationality, but if that requires explicit expression, the plaintiffs may so amend that statement.

The second deficiency in the section 15 claim to which the defendants point, concerns the essential qualification under section 15 of the Charter that legislation complained of be discriminatory. Section 15 ensures equality “before and under the law and … the right to equal protection and equal benefit of the law … without discrimination based on race, national or ethnic origin”, in the sense elaborated by McIntyre J. for the Supreme Court of Canada in Andrews v. Law Society of British Columbia , [1989] 1 S.C.R. 143, at pages 180-181, 182, and by Wilson J. for the Supreme Court in R. v. Turpin, [1989] 1 S.C.R. 1296, at pages 1330-1333. In the former, McIntyre J. found that a requirement of citizenship for admission to the provincial bar under the Barristers and Solicitors Act of British Columbia [R.S.B.C. 1979, c. 26] was discriminatory since it barred an entire class of persons from certain opportunities for employment solely on grounds of lack of citizenship, though he also found that limitation justified under section 1 of the Charter. In Turpin, Wilson J. commented, at pages 1331-1332, on the importance “in most but perhaps not all cases” of considering a broader social context than is afforded by the law in question, of looking to the context of the place of the group affected by the law “in the entire social, political and legal fabric of our society”. The latter qualification on the meaning of discrimination, in my view, is express in the terms of the legislation itself, for on its face, it distinguishes those affected by reference to the national origin of the vessels which they sail, and thus implicitly, it is urged, with reference to the national origin of the individuals affected. In my opinion, in a case such as this, where the questioned legislation is expressly made applicable only to vessels of certain nations, it is unnecessary to consider, as I understood the defendants to urge, whether citizens of those nations are otherwise treated adversely in our society in order to consider whether the questioned legislation is discriminatory in the sense of section 15 of the Charter. Thus, if the Regulations be found at trial to be directed to Spanish and Portuguese fishermen, those persons are by reason of the terms of the Regulations themselves, a “discrete and insular minority” defined in terms of national or ethnic origin no less than those who were not citizens under the law in question in Andrews.

In my opinion, at this stage, the issue raised by the pleadings concerning the individual’s claim that the Regulations as amended violate his Charter rights as an individual, under section 15, is to be left for argument at trial and should not be struck from the statement of claim.

Defendants’ objections to other allegations of the plaintiffs

The defendants object to several other portions of the plaintiffs’ statement of claim and of their reply to demand for particulars. The following summary relates to the portions concerned, with a brief statement of the defendants’ objection, and my conclusion on each objection. The portions objected to are here identified as (a) to (l), corresponding to the defendants’ motion, paragraphs 4(a) to (l).

(a) The words in paragraph 5 of the statement of claim, describing the Estai, “and with its certificates, including safety certificate, tonnage certificate, and equipment certificate issued in accordance with the laws of Spain”, and paragraph 1(a) of the reply to demand for particulars, responding the defendants’ request as to what certificates are included in the term “certificates” in paragraph 5, and which sets out 24 certificates said to have been issued in relation to the Estai, those words in paragraph 5 and in paragraph 1(a) of the reply, are now said to be immaterial and embarrassing, so that they should be struck out.

The defendants submit these portions should be struck out since they add nothing to the issues raised by the case, their proof at trial, if required, would not be relevant to the issues. The plaintiffs submit the statement of claim includes reference to general certificates applicable in accord with Spanish law to make clear that the vessel was subject to an active regulatory regime in Spain and that Spain was not simply a convenient forum for vessel registry with no continuing supervisory interest of the Spanish government. Absent any agreement at this stage that the defendants will not contest the application to the Estai of Spanish laws of general application in relation to fishing vessels, the words of the statement of claim serve a purpose, amplified by paragraph 1(a) of the reply to defendants’ demand for particulars. In my opinion, those words in paragraph 5 and paragraph 1(a) of the reply should not be struck out. The allegations concerning particular certifications of the Estai will only require proof if they are contested by the defendants.

(b) The defendants urge that paragraphs 6, 9 and 10 of the statement of claim be struck as immaterial and embarrassing. Those paragraphs describe the sailing of the Estai, in October 1994, from Spain to fishing grounds on the Grand Banks in the NAFO zone east of Canadian fisheries waters, fishing in those waters from November 3, 1994, until February 5, 1995, when with a death aboard the vessel she sailed to St. Pierre, and thereafter returned to fishing in the NAFO zone until March 9, 1995.

The plaintiffs say there is nothing prolix or prejudicial in the paragraphs referred to, that they do establish the nature, length and location of the fishing voyage on which the Estai was engaged. That may be so, but I am not persuaded that the details of her voyage prior to the events of significance in March 1995 are relevant to the plaintiffs’ claims. In my opinion, paragraphs 6, 9 and 10 deal with facts that are generally immaterial to the plaintiffs’ claims and thus should be struck out. A few facts alleged may be considered material by the plaintiffs, e.g., that in early March 1995, the Estai was fishing in the NAFO zone east of Canadian fisheries waters, an area of traditional fishing for Spanish vessels, continuing a fishing voyage begun in November 1994. If that is the case, the plaintiffs have opportunity to amend the statement of claim in accord with the order now issued.

(c) Paragraph 7 of the statement of claim, referring to the Estai, her master and crew fishing under licence of the European Community and of Spain, is said by the defendants to be immaterial and embarrassing and should be struck out. The defendants urge that it is immaterial whether the vessel was operating under authorization of Spain and of the European Community, that it makes no difference to the issue of whether it was subject to application of valid Canadian regulations. The plaintiffs urge that it is a material fact that the vessel was operating on the high seas under authorization of her own flag state and the Community. It was not simply operating without any authorization. In my opinion, there is merit in the plaintiffs’ purpose for this pleading of facts which I would hope the defendants would come to accept without contesting and the necessity for proof, and I would not strike paragraph 7 of the statement of claim. I might note that the defence is likely to rely upon the fact that the vessel was a Spanish fishing vessel and it is anomalous that objection is made to allegation that the Estai was fishing under licence issued by Spain.

(d) The defendants say that the words “Spanish Law” in paragraph 8 of the statement of claim, and in paragraphs 1(b) and 2 of the reply to demand for particulars, which set out the basis in Spanish laws for certificates and licences issued in relation to the Estai , should be struck out as immaterial and embarrassing. It is urged these portions add nothing to the basic claims of the plaintiffs. I agree with the plaintiffs that there is merit in stating that at least until the incidents giving rise to this action, the vessel operated under the exclusive jurisdiction of Spain. Paragraph 8 of the statement of claim, as we have earlier seen, alleges that the Estai at all material times, inter alia, was subject to the exclusive jurisdiction of Spain pursuant to various sources of law, including “established principles of international law”. I have earlier determined that source of law, as described, should not be struck out. Similarly, I would not strike out the words “Spanish Law” from paragraph 8, or the words “Canadian Law” about which no question is raised. While it is unusual to include sources of law in pleadings, in my view, it is of assistance in a case like this where the incidents giving rise to the plaintiffs’ claims commenced outside the territorial limits of Canada and its territorial or fisheries waters. The content of the law, from each of the sources referred to, which is relevant in this case, need not require proof at trial, if there is an appropriate measure of co-operation between counsel in preparing for and in arguing at trial.

Thus, I am not disposed to strike out the reference to “Spanish Law” in paragraph 8 of the statement of claim. Moreover, the paragraphs of the reply here objected to, 1(b) and 2, which provide particulars of Spanish law applicable to certificates and licences issued to the Estai, is provided in answer to the defendants’ own request. In my view, those should not be struck, unless the request for that information should be withdrawn by defendants. If the request remains, the reply completes the picture. The information provided in the reply may prove to be immaterial, but in the circumstances that it is provided to meet the defendants’ request, it should not be struck out. If the details of Spanish law now set out are indeed immaterial to the claim, they will not be embarrassing, in the sense of requiring time and proof which may be unnecessary for the plaintiffs’ basic claims, unless the defendants contest those details.

(e) The defendants would strike out the words “Maritime Law” from paragraph 8 of the statement of claim, where they describe a source of the exclusive jurisdiction of Spain over the vessel Estai , in addition to “established principles of international law, Spanish Law [and] Canadian Law”. In my opinion, the defendants are correct in their characterization of “Maritime Law” as redundant, not merely of Canadian law as defendants urge, but of the other sources of law here referred to and, in my view, the words add nothing to the portion of paragraph 8 that remains after words referring to particular conventions are struck out. The reference to “Maritime Law”, since the words are immaterial, should be struck out.

(f) The defendants move to strike the words “and an act of piracy” in paragraph 19 of the statement of claim, the word “piracy” in paragraph 43(b) of that statement, which is part of the prayer for relief, for general damages for “piracy” inter alia, and in the reply to demand for particulars, words which refer to piracy or other alleged criminal conduct by the defendants. The defendants say those references are scandalous or redundant or disclose no reasonable cause of action, for they say piracy is not a tort but a criminal offence, and neither it or any other criminal offence referred to can found a basis for damages in the plaintiffs’ claims. The plaintiffs urge that piracy, like assault, may provide a basis for criminal or for civil liability. Yet, the only authorities mentioned to the Court, referring to piracy, deal with circumstances of criminal liability, and no reference supports a criminal charge of piracy, or other crimes here referred to, against a modern state. In my opinion, references to piracy have legal significance only in regard to criminal activity and any such activity is irrelevant to the plaintiffs’ claims for damages. Thus, I order that the references to piracy or other criminal activity be struck from the portions of the statement of claim to which the defendants object.

(g) The defendants move to strike paragraphs 22 and 25 of the statement of claim as immaterial, disclosing no cause of action, a pleading of evidence and embarrassing. Those paragraphs respectively refer to the berthing of the Estai, on arrival at St. John’s, adjacent to the site of a public demonstration. They allege that the Master of the vessel, the second plaintiff, was escorted by officers of the defendant “through a gauntlet of hostile demonstrators” and an assault was committed when eggs were thrown at him and certain European diplomats who accompanied him, with the result that the Crown failed in its duty to protect that plaintiff when escorting him to the courthouse in St. John’s.

The defendants urge that the reference to diplomats being the object of eggs thrown should be struck out, since the diplomats are not parties to this action, and further, that these paragraphs do not disclose a reasonable cause of action or are frivolous and do not establish a claim in tort. In my opinion, the reference “and Spanish, French, German and European Community Diplomats accompanying him” should be struck from paragraph 25.

It is true that paragraph 22 does not in itself disclose a reasonable cause of action, but the two paragraphs together, 22 and 25, set out the factual basis, albeit with some colour, for the claim in the latter portion of paragraph 25 of an assault, of failure by the Crown’s officers in their duty to protect the master, and of negligence in failing to make proper arrangements for access to the courthouse, which permitted “the abuse, jostling, obscenities and assaults to continue”. I do not agree that this is basically a pleading of evidence, and at trial, evidence may or may not be adduced to support the second plaintiff’s claim, but that is not a matter to be adjudged at this stage.

(h) The defendants seek to strike a portion of paragraph 28 and the whole of paragraph 39 of the statement of claim, as frivolous, vexatious and not disclosing a reasonable cause of action. The former portion of paragraph 28 refers to offloading of the Estai’s fish cargo although it had been fishing in international waters and for some time prior to the enactment of the Regulations in March 1995. This was not dealt with in writing or in oral argument as separate from the matter referred in paragraph 39, which concerns the fact that the Estai was engaged on its fishing voyage in international waters prior to enactment of the March 1995 amendments and, it is urged, this means that the vessel was not subject to those amendments, even if they were valid, before it completed its fishing trip.

The words objected to in paragraph 28, in my view, raise the prospect of a claim that even if the amendments in March 1995 were valid, the Act and Regulations, so far as they authorize seizure of cargo, do not apply to fish caught and stored as cargo prior to enactment of the amendments to the Regulations. Whether the plaintiffs ultimately so argue at trial, I am not persuaded to strike the words objected to in paragraph 28.

It is otherwise with paragraph 39. The plaintiffs here would rely on jurisprudence dealing with common law principles, but in my opinion, as the defendants urge, under paragraph 6(2)(b) of the Interpretation Act, R.S.C., 1985, c. I-21, the regulatory amendments here in issue came into force at midnight on March 2, 1995, the day before the amending Regulation was registered. While subsection 11(2) of the Statutory Instruments Act, R.S.C., 1985, c. S-22 [as am. by R.S.C., 1985 (4th Supp.), c. 31, s. 103], provides that no person shall be convicted of an offence consisting of a contravention of any regulation that at the time of the contravention was not published in the Canada Gazette, and here the amending Regulation was not published until March 22, 1995, unless the regulation expressly provides that it shall apply according to its terms before it is published in the Canada Gazette. In this case, the Regulations expressly so provided, that the operative provisions “apply according to their terms before they are published in the Canada Gazette”.

In my opinion, legislative provisions of the Statutory Instruments Act and the Interpretation Act leave no doubt that the amending Regulations were in force and applicable according to their terms, in all respects including with reference to the operations of the Estai, from midnight on March 2, 1995. Thus, if the Regulations are intra vires, they are applicable to the plaintiffs’ operations and paragraph 39 of the statement of claim is frivolous and raises no reasonable cause of action. On that basis, it is to be struck out.

(i) The defendants move to strike paragraphs 36 and 37 of the statement of claim on the ground they disclose no reasonable cause of action. Those paragraphs set out the basis of the plaintiffs’ claim, central to their action, that the amending Regulations of March 3, 1995, are ultra vires the authority conferred by section 6 [as am. by S.C. 1990, c. 44, s. 14; 1992, c. 1, s. 43; 1994, c. 14, s. 3] of the Coastal Fisheries Protection Act. That section of the Act provides authority for the Governor in Council to make regulations, inter alia, under paragraph 6(b.2) [as eneacted idem], “prescribing any class of foreign fishing vessel for the purposes of section 5.2”. It is accepted that the amending Regulations, applying section 5.2 to Spanish vessels, were made pursuant to paragraph 6(b.2) and the defendants urge that “there is no legal basis for the proposition that ‘class’ in section 6(b.2) cannot be established on the basis of the national origin of a vessel”.

In my opinion, the paragraphs in question should not be struck out. While in themselves, they may not give rise to a cause of action, they are the central foundation of the plaintiffs’ claims for damages arising from alleged unauthorized, unlawful activities of employees of the defendants. The plaintiffs seek to present evidence and argument on the interpretation of the Act and the scope of authority conferred by paragraph 6(b.2), in part in relation to the words used, and in part in light of constitutional limitations said to arise on the basis of the Charter. Moreover, the parties differ on the precedential value of the decision of my colleague Madam Justice Reed in Antonsen v. Canada (Attorney General), [1995] 2 F.C. 272 (T.D.) where it was held that the exercise of discretion by the Minister, of powers delegated by regulations concerning licensing, was not proper when purposes other than those of the statute, the Coastal Fisheries Protection Act, were sought to be achieved by the Minister.

Clearly, there is much room for argument about the issues of validity of the amending Regulations raised by paragraphs 36 and 37, argument not yet heard and which can only be dealt with at trial. Far from being clear and obvious that these paragraphs should be struck out, in my opinion, at this stage, it is obvious they should remain in the statement of claim.

(j) The defendants move to strike paragraph 40 and the first sentence of paragraph 41 of the statement of claim. They concern Canada/European Community negotiations over turbot quotas prior to, and following the seizure and arrest of the Estai until May 1, 1995, when the Regulations were again amended [SOR/95-222, s. 1], this time to delete provisions specifying Spanish and Portuguese vessels. It is urged by the defendants that the entire paragraph is immaterial, embarrassing and does not disclose a reasonable cause of action. On the other hand, in the plaintiffs’ view, the history of those negotiations is central to this case. The breakdown in those negotiations, it is said, led to the amending Regulations in March 1995, and when the nation parties got back to negotiations, the charges laid were dropped and ultimately the Regulations were amended again to delete their application to Spanish vessels. That is an interesting story which might take substantial evidence and time at trial to establish, without substantial effect on the plaintiffs’ basic claims for damages, whether or not the events as described in the statement of claim are established. It may appear that the events as alleged are relevant to the issue of purpose of the amending Regulations, at least the events prior to the amendment, but those events seem to support the purpose of protecting coastal fisheries, by negotiation or by regulations, and that would be consistent with the purpose of the Act, in my opinion.

It is my conclusion that paragraph 40 and the first sentence of paragraph 41 of the statement of claim are immaterial, in part redundant to other portions of the statement, and they do not support, or weaken, the plaintiffs’ claims for damages. In my opinion, they should be struck from the statement.

(k) & (l) The defendants, reflecting earlier submissions, move to strike portions of paragraph 43(b) of the statement of claim, in particular (i) the words “malicious prosecution of the Motor Vessel ‘ESTAI’ and the Plaintiff Captain Davila, abuse of process” in lines 8-10; (ii) the words “failure to protect Captain Davila while in custody” and (iii) the words “interference with Charter rights under Sections 15, 7 and 8”. In addition, the defendants seek to strike subparagraph 14(h)(v) from the plaintiffs’ reply to demand for particulars which refers to sections 7, 8 and 15 of the Charter, and “Civil Laws against use in bad faith of the Criminal Justice System”.

For reasons I have already set out, I would now strike from paragraph 43 of the statement of claim the words “malicious prosecution of the Motor Vessel `ESTAI’ and the Plaintiff Captain Davila” and strike the “s” at the end of “sections” so that it reads in the singular and I strike the words “7 and 8”.

In subparagraph 14(h)(v) of the plaintiffs’ reply to demand for particulars, which, in part, refers to paragraph 30 of the statement of claim, the words “Civil Laws against use in bad faith of the Criminal Justice System” should be struck out, in parallel with striking the words “and made in bad faith” from paragraph 30 of the statement, as earlier noted. I also strike the words “Section 7, and Section 8” of subparagraph 14(h)(v) of the reply.

The style of cause—naming the proper defendant

The defendants also move for an order under Rules 419 and 1716, striking out the Attorney General of Canada and the Minister of Fisheries and Oceans as defendants, in the style of cause, and in the references to them as defendants in paragraph 3, and the whole of paragraph 4 of the statement of claim, and the reference in paragraph 41 of that statement which alleges abuse of office by those named Ministers, based upon malicious prosecution. Instead of those Ministers named as defendants, it is urged the sole defendant in the style of cause, one already referred to in paragraph 3 of the statement of claim and one to be understood as the defendant, singular, in paragraph 41 should be, it is urged, Her Majesty the Queen.

Where there is no claim against the Ministers in their personal capacities, and no such claim is here alleged against either the Attorney General or the Minister of Fisheries and Oceans, neither should ordinarily be named as a defendant (see Kealey v. Canada (Attorney General), [1992] 1 F.C. 195 (T.D.)). In this Court, subsection 48(1) of the Federal Court Act [R.S.C., 1985, c. F-7] directs that, except where otherwise authorized, a proceeding against the Crown is to be instituted in the form set out in the Schedule, and Form 2(2) in the Appendix to the Rules names Her Majesty the Queen as the sole defendant in an action against the Crown. With the enactment in 1982 of the Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50 [as am. by S.C. 1990, c. 8, s. 21], subsection 23(1) [as am. idem, s. 29], it is provided that “[p]roceedings against the Crown may be taken in the name of the Attorney General of Canada”. The latter provision is here relied upon by the plaintiffs. In view of the permissive nature of the two statutes, my colleague Madam Justice Reed concluded, in Liebmann v. Canada (Minister of National Defence) , [1994] 2 F.C. 3 (T.D.), at page 21, that it is optional in an action in this Court whether the Crown is named as Her Majesty the Queen or as the Attorney General of Canada.

The plaintiffs have opted to describe the Crown as defendant by naming the Attorney General of Canada, not contemplating an action against that Minister personally, but rather in accord with subsection 23(1) of the Crown Liability and Proceedings Act. I would not order that be changed.

The plaintiffs urge both Ministers named be continued as defendants in view of the alleged abuse of their office by each of them. That allegation concerns the alleged malicious prosecution, which I have ordered be struck out. The alleged abuse of office in itself gives rise to no reasonable cause of action. Thus, I do order that the Minister of Fisheries and Oceans be struck from the style of cause and from the statement of claim as a named defendant, and that the plural “defendants” where it appears in the statement of claim be changed to the singular, “defendant”.

There is but one defendant in the action, the Attorney General of Canada, representing the Crown, Her Majesty the Queen, and the Crown, Her Majesty, is vicariously liable for the actions of all of her servants acting in the course of their responsibilities. In accord with the Crown Liability and Proceedings Act, Her Majesty the Queen, that is, the Crown, may be represented by the Attorney General of Canada.

Conclusion and direction for filing of pleadings

An order goes allowing the defendants’ motion in part only. The order sets out in detail the portions of the statement of claim and of the reply to demand for particulars which are to be struck out.

The changes are numerous, though fewer than the defendants sought. Since they are numerous, it seems appropriate to direct that a revised statement of claim be filed, in accord with the order now issued, on or before January 17, 1997, and if a defence is to be filed by the defendant, that be done on or before January 20, 1997.

Both parties ask for costs of the motion. Here success is divided and the defendants’ motion is allowed in part only. In the circumstances, costs are ordered to be determined in the cause.