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Emile Couture (Suppliant)
v.
The Queen (Respondent)
Trial Division, Pratte J.—Montreal, May 1; Ottawa, May 18, 1972.
Practice—Pleadings—Jurisdiction—Judgment delayed for 30 days after trial to permit application to amend claim— Prescription interrupted by institution of action—Rules 424, 496(2).
Following the trial of a petition of right for damages against the Crown on the ground of negligence by employees of the CRTC, the trial judge held that the negli gence pleaded was not established, but instead of dismissing the petition gave the suppliant thirty days in which to apply for leave to amend his petition by alleging negligence other than that pleaded.
Held, rejecting an objection to the suppliant's application:
1. The order granting suppliant leave to amend his plead ing was authorized by Federal Court Rule 496(2).
2. While Federal Court Rule 424 does not permit an amendment which sets up a new cause of action after expiration of the delay for prescription under Quebec law, prescription in this case was interrupted by the institution of the action.
MOTION.
William Hesler for suppliant.
Paul Coderre, Q.C., for respondent.
PRATTE J.—Suppliant seeks leave to amend his petition of right and have the trial reopened in a case which was tried before me last December.
In his petition of right suppliant seeks com pensation for the loss which certain of respond ent's employees allegedly caused him by mis representing to him that he had the licence required by law to operate a commercial radio and television receiving station. He alleged therein various letters sent to him by respond ent's employee, and he indicated that he had been arrested as a result of the negligence allegedly committed by employees of the Canadian Radio-Television Commission (the CRTC) in writing him a letter dated May 7, 1968. At the hearing all correspondence exchanged between the parties was filed but counsel for both parties at all times assumed
that the only negligence on which the action was founded was that allegedly committed by respondent's employees in sending the letter of May 7 to suppliant.
On April 7, 1972 I signed and filed with the Registrar reasons for a judgment in which I expressed the opinion that the mistake of which suppliant was the victim was not caused by the letter sent to him on May 7 by the CRTC. I did not then, as I might have done, dismiss suppli ant's petition of right. I felt it could be reason ably contended that suppliant's mistake was due to negligence by respondent's employees other than that specifically alleged in the pleadings. I therefore concluded by saying that I would not give judgment for thirty days so that suppliant might, if he saw fit, request leave to amend his petition of right and have the hearing reopened. Suppliant has exercised this option by submit ting the motion now before the Court.
Counsel for the respondent objected to the motion. He first submitted, if I understood him correctly, that I exceeded the powers conferred on me by Rule 496(2) in suggesting to suppliant that he seek leave to amend his pleadings. In reply to that argument I need only say that if I expressed myself as I did in the reasons which I filed with the Registrar on April 7 last, it was because I felt after due consideration that Rule 496(2) authorized me to act in that way. Coun sel for the respondent has not persuaded me I was mistaken.
Counsel for the respondent raised a second objection to the motion. He stated that suppli ant is seeking leave to amend his petition of right by adding new causes of action to it (that is, acts of negligence which were not specifical ly alleged in the original petition). Such leave should not be granted because the remedy resulting from these new facts, he contends, has long been prescribed. According to counsel, the cause of action in this case having arisen in the Province of Quebec, the Court is bound, under section 38 of the Federal Court Act, to apply the rules of Quebec law as to prescription. It is established that under Quebec law an action like that of suppliant is subject to a short two-
year prescription period, the effect of which according to Art. 2267 of the Civil Code, is to extinguish the action, so that "no action can be maintained after the delay for prescription has expired". As the Rule enacting this prescription is not a mere rule of procedure, counsel for the respondent submitted that the Court could not use Rule 424 as authority to allow an amend ment adding a new cause of action after the delay for prescription had expired; for it cannot be said, he submitted, that the Court could, merely through rules of practice, alter substan tive rules such as those relating to prescription.
Before proceeding further I should make cer tain observations on the scope of Rule 424. That Rule reads as follows:
Rule 424. Where an application to the Court for leave to make an amendment mentioned in Rule 425, 426 or 427 is made after any relevant period of limitation current at the date of commencement of the action has expired, the Court may, nevertheless, grant such leave in the circumstances mentioned in that Rule if it seems just to do so.
The validity of that Rule, in so far as it enables the Court to authorize an amendment after a period of limitation has expired, appears beyond any doubt (Rodriguez v. Parker [1967] 1 Q.B. 116). Under section 46 of the Federal Court Act the Court has the power to regulate practice and procedure, and the rules concern ing limitation of actions are, at least in theory, rules of procedure. However, the rules of Quebec law relating to short prescriptions are not rules of procedure, and because of this, when they are applicable under section 38 of the Act, their effect cannot be altered by Rule 424. Further, the English text of this rule refers only to amendments made after the expiry of a period of limitation, not to those made after the prescription has been acquired. I therefore feel that in a case where Quebec law must be applied, the Court cannot base itself on Rule 424 in permitting an amendment after the pre scription has come into effect.
This does not mean, however, that the motion to amend now before me must be dismissed. Indeed, even if I assume that the law of Quebec on prescription must be applied here (which may be doubted since most of the acts of negli gence alleged against respondent's servants appear to have been committed in Ontario), that law in my opinion is not a bar to granting the motion.
If suppliant had not sued respondent within two years following the date on which the CRTC refused to grant him a licence, he would then, because of his inaction, have lost the right to claim compensation for the loss which he allegedly has suffered. By bringing an action suppliant interrupted the prescription; in other words, he took the necessary step to protect the claim which by his petition of right he is seeking to have enforced. Suppliant is not seeking to amend his petition of right so as to assert a right other than that on which prescription was inter rupted; he only wants to allege new facts estab lishing the existence of the same right.
For these reasons, the motion is allowed. However, suppliant will pay the costs of this motion as well as all costs resulting from this amendment.
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