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National Capital Commission (Appellant)
v.
Édouard Bourque and Paul J. Bourque (Respondents)
Court of Appeal, Jackett C.J., Cameron and Sweet D.JJ.—Ottawa, April 25, 1972.
National Capital Commission—Action by—Expropria- tion—Practice—Action brought in Commission's name— Impropriety of—Award by Court—Federal Court Rule 604—Motion for directions, procedure—National Capital Act, R.S.C. 1970, c. N-3, s. 4(4).
The National Capital Commission brought action in the Exchequer Court to determine the compensation payable for land expropriated. The Court adjudged defendants enti tled to $142,000 plus interest and costs upon supplying releases of all claims arising out of the expropriation. Subsequently the Deputy Attorney General of Canada on behalf of the National Capital Commission applied to the Trial Division of this Court for directions as to whom and in what amounts the balance owing on the judgment should be paid. In a supporting affidavit deponent gave the names of various persons who according to his information had inter ests in the land expropriated or had claims against one or both of the defendants in the action.
Held, the Trial Division was right in dismissing the motion for directions.
1. Section 4(4) of the National Capital Act does not authorize the Commission to be a party to an action in this Court in respect of rights or obligations acquired or incurred by the Commission on behalf of Her Majesty. In this Court such proceedings must be brought in the name of Her Majesty.
2. The material before the Trial Division was inadequate. Proceedings on an interlocutory motion under section 17(3) of the Federal Court Act must comply with Rule 604, and hence a motion for directions should be accompanied by a draft of the proposed order and be supported by affidavits setting out the facts and supporting the opinion of the Deputy Attorney General. Moreover the motion for direc tions should not be entitled in the expropriation action.
APPEAL from Trial Division.
George Ainslie, Q.C. and Eileen Mitchell Thomas, Q.C. for appellant.
H. Soloway, Q.C. for respondents.
The judgment of the Court was delivered by
JACKETT C.J. (orally)—This is an appeal from a judgment of the Trial Division dismissing an application on behalf of the National Capital Commission, made in an expropriation action, for directions pursuant to section 17(3)(c) of the Federal Court Act "as to whom and in what amounts the balance owing on the Judgment" in that action should be paid.
To understand the problem raised by this appeal it is necessary first to examine some aspects of the law applicable to the National Capital Commission.
The National Capital Commission is a corpo ration created by section 3 of the National Capital Act (R.S.C. 1970, c. N-3). The Commis sion is made, by the statute, "an agent of Her Majesty" for all purposes of the Act and its powers under that Act may be exercised "only as an agent of Her Majesty" (s. 4). It follows that any right acquired by the Commission is acquired by it as agent and is therefore a right of Her Majesty and not a right of the Commis sion and that, similarly, any obligation incurred by the Commission is an obligation incurred by it as agent and is an obligation of Her Majesty and not an obligation of the Commission. As a general rule, rights and obligations must be liti gated in the name of the principal and not of the agent. However, in the case of rights or obliga tions acquired or incurred by the National Capi tal Commission as agent of Her Majesty, there is an alternative. An action in respect of any such right or obligation may be brought or taken by or against the Commission "in any court that would have jurisdiction if the Commission were not an agent of Her Majesty" (s. 4(1)). In addi tion, the Commission has authority to take or acquire lands without the consent of the owner, and it was, prior to June 1, 1971, provided that claims against the Commission for compensa tion or damage for lands so taken could be heard and determined in the Exchequer Court' (s. 13(1) & (3)).
The action in the Exchequer Court of Nation al Capital Commission v. Édouard Bourque and Paul J. Bourque (B-2072) was an action under section 13(3) of the National Capital Act to determine the compensation payable in respect of land expropriated by the National Capital Commission on behalf of Her Majesty. By the judgment in that action, it was adjudicated that "The defendants are entitled, upon supplying to the plaintiff releases of all claims arising out of the expropriation, to be paid the sum of $142,- 000" plus interest computed in a certain manner and costs to be taxed.
In August 1971, the Deputy Attorney General of Canada, as solicitor for the National Capital Commission, gave notice in the expropriation action of an application to be made, on behalf of the National Capital Commission, "for Direc tions pursuant to Section 17(3)(c) of the Federal Court Act as to whom and in what amounts the balance owing on the Judgment herein and the costs herein should be paid." The notice of motion further gave notice that in support of the motion would be read the judgment, the pleadings and an affidavit of one William Oliver, which affidavit reads as follows:
I, WILLIAM OLIVER, of the City of Ottawa, in the Regional Municipality of Ottawa-Carleton, Appraisal Con sultant MAKE OATH AND SAY:
(1) That I am an Appraisal Consultant for the National Capital Commission and have knowledge of the within matter and that I attended throughout the trial of the within action' in the Exchequer Court of Canada.
(2) That the Judgment rendered herein on the 9th day of June, 1970 awarded to the Defendants the sum of $142,000.00 less the amounts already advanced, plus interest on the unadvanced portion thereof from the 3rd day of November, 1966 to the said date of Judgment.
(3) That the advance payments totalling $105,000.00 had been made to the Defendants as follows:
5 May, 1967 $70,000.00
11 October, 1967 $35,000.00
and it is my information and belief that the said advances were used to complete the agreement entered into by the Defendants, prior to expropriation, to purchase the subject land and for other expenses incurred by the Defendants prior to expropriation.
(4) That to the best of my knowledge, information and belief there remains owing on the Judgment the sum of $37,000.00 and interest in the amount of $10,054.53 and the costs of the Defendants to be taxed.
(5) That paragraph 2 of the Statement of Defence filed on the 31st day of June, 1968 sets out that on November 3, 1966, the date of expropriation, the Defendants owned the subject property as trustees for the benefit of
(1) Edouard Bourque
(2) Paul J. Bourque
(3) Bernard Bourque
(4) Pierre Bourque, and
(5) Lyall Haines
(6) That during the course of the trial of this action I recall that evidence was given by Edouard Bourque to the effect that the said beneficieries were interested in the land in the following proportional shares.
75%—among—
(1) Edouard Bourque-1/6
(2) Paul J. Bourque-3/6
(3) Bernard Bourque-1/6
(4) Pierre Bourque and-1/6
25%—Lyall Haines.
(7) That during the course of the trial of this action I recall that evidence was given by Paul Bourque to the effect that on the date of expropriation each of the following had a quarter interest in the subject property.
Edouard Bourque-25%, Paul J. Bourque-25%
Pierre Bourque-25%, and Lyall Haines-25%.
(8) That I am informed that since the date of Judgment the Sheriff of the Regional Municipality of Ottawa-Carle- ton has served upon the Plaintiff Writs of Fieri Facias on behalf of the following named Judgment Creditors who claim from any monies payable to Paul J. Bourque the sums set forth.
Raoul Lacroix $2,069.72
M. Loeb Limited $1,661.12
Wilfred Brady $992.52
(9) That I am further informed that the Department of National Revenue has filed a claim against monies pay able to the said Paul J. Bourque in the sum of $475.57.
(10) That I am further informed that there is a Judg ment in the Provincial Court of the Province of Quebec against the said Paul J. Bourque in favour of Raoul Lacroix in the amount of $1,754.40.
(11) I am also informed that there is pending in the Superior Court of Quebec an action by Gerard Langlais represented by Albert Verreoulst, Trustee in Bankruptcy in which the said Plaintiff claims a one-third share in the compensation payable as a result of the Expropriation of the subject property.
(12) I am further informed that there is an action pending in the Ontario Courts on behalf of Maclntyre Realties Limited which claims to be entitled to the sum of $1,157.52 of the compensation monies for Appraisal services rendered to the Defendant in connection with the subject property.
It is further to be noted that the notice of motion appears to have been served on various firms of solicitors who are described as solici tors' for various persons who are not parties to the expropriation action. There does not appear to be any affidavit of personal service on any one.
The motion in question was duly made and, by judgment of the Trial Division, was dis missed on August 23, 1971.
This is an appeal from the judgment dismiss ing the motion.
Section 17(3)(c) of the Federal Court Act reads as follows:
(3) The Trial Division has exclusive original jurisdiction to hear and determine the following matters:
(c) proceedings to determine disputes where the Crown is or may be under an obligation, in respect of which there are or may be conflicting claims.
We have concluded that the motion for direc tions made by the National Capital Commission in the expropriation action was rightly dismissed.
In the first place, it should be said that, as appears from the outline of the relevant provi sions of the National Capital Act at the outset of these reasons, we are of the view that the judgment in the expropriation action in favour of the defendants in that action is an adjudica tion as to an obligation of Her Majesty in right of Canada to be paid out of monies of Her Majesty administered by the National Capital Commission.
However, that is not sufficient to support the application that was made to the Trial Division. We have no doubt that the Court has jurisdic tion, by virtue of section 17(3)(c) to determine a dispute where the Crown is under an obligation incurred under the National Capital Act in respect of which there are conflicting claims. We are of the view, however, that this appeal must fail
(a) because the National Capital Commission had no status to make the motion in the Trial Division, and
(b) because the jurisdiction cannot be invoked by a simple motion in an existing action but must be invoked by new proceed ings under Rule 604 of the Federal Court Rules.
With reference to the question of the status of the National Capital Commission, it will be remembered that the Commission functions only as an agent of Her Majesty and in the absence of special statutory authority, would therefore have no status as a party to a pro ceeding to enforce a right or obligation of Her Majesty. Its status in such litigation is therefore limited to the special statutory authority con ferred on it. In our view, section 4(4) of the National Capital Act makes it possible for the National Capital Commission to be a party to proceedings "in respect of any right or obliga tion acquired or incurred by the Commission on behalf of Her Majesty" in any court "that would have jurisdiction if the Commission were not an agent of Her Majesty." This is obviously designed to provide for litigation in the courts that would have jurisdiction if the Commission were carrying on its activities on its own behalf and not as an agent of Her Majesty. It does not authorize the Commission to be a party to an action in this Court in respect of rights or obligations acquired or incurred by the Com mission on behalf of Her Majesty. 2 In this Court such proceedings, in our view, must be conducted in the name of Her Majesty.
It should be said that, if that were the only objection to the application, we should be inclined to seek some way to remedy the defect. Compare Sociedad Transoceanica Canopus S.A. v. National Harbours Board [1968] 2 Ex.C.R. 330 at p. 346. However, in our view, the second objection to granting the motion is insurmountable.
Granting that the Court has jurisdiction in a matter by virtue of a jurisdictional provision such as section 17(3)(c), a party must conform with the Rules in order to invoke that jurisdic tion. Normally one party seeks relief against another and the jurisdiction is invoked by launching an action under Rule 400. There are special provisions, usually in statutes, for launching proceedings in some other form. A failure to resort to one form or another in such a case might not be too important and could generally be rectified under Rule 302. However, an interpleader proceeding is a very special type of proceeding. One party is asking the Court to determine conflicts that have arisen so as to affect other persons. To do that, some way must be found of giving a fair opportunity to each of such other persons to come in and assert and defend his position. Rule 604, which follows the general scheme of section 24 of the Exchequer Court Act, has been designed to accomplish that purpose. Until the various steps set out therein have been taken, the Court is in no position to adjudicate on the problems that have arisen. The material put before the Trial Division in this matter is quite inadequate for the purpose.
Furthermore, it should be emphasized that a motion made under Rule 604(1) for directions should be for an order in the form of a draft that has been previously prepared, having regard to Rule 604(2) and (3), and that is pre sented to the Court for consideration and should be supported by affidavit material put ting before the Court in definitive and compre hensive form a picture of the facts giving rise to the application and the necessary opinion of the Deputy Attorney General.
It should finally be noted that there is no justification for bringing the interpleader matter into the expropriation action as that action is at an end once the incidentals to the judgment, such as taxation of costs, have been completed and that we can find no basis in this matter for failure to effect personal service of both the notice of motion in the Trial Division and of the notice of appeal to this Court.
We have concluded that the appeal should be dismissed but, as it was not opposed, without costs.
' Such compensation is paid by the Commission out of monies appropriated by Parliament from the Consolidated Revenue Fund. See sections 16, 17 and 13(3) of the Nation al Capital Act. Although section 13(3) requires such pay ments to be made "by the Commission", having regard to the other provisions of the statute, it is clear that the Commission makes such payments as agent of Her Majesty in respect of obligations of Her Majesty. The Commission is in no case the principal debtor.
2 Compare Canadian National Railway v. North-West Telephone Company [1961] S.C.R. 178.
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