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T-948-76
Mario Carota (Plaintiff) v.
Donald Jamieson and Marcel Lessard (Defend- ants)
Trial Division, Collier J.—Charlottetown, May 18; Ottawa, May 31, 1976.
Crown—Practice—Plaintiff claiming defendants failed to comply with requirements of section 25(2) of Government Organization Act, 1969, re Comprehensive Development Plan for Prince Edward Island—Seeking interlocutory injunction to restrain defendants from expending federal funds—Defendants seeking to strike statement of claim—Government Organiza tion Act, 1969, S.C. 1969, c. 28, ss. 21-40—Fund for Rural Economic Development Act, S.C. 1966-67, c. 41.
Plaintiff claimed that a Comprehensive Development Plan for Prince Edward Island was formulated by Canada through defendant Ministers, and that an agreement to carry it out was entered into providing for commitment of federal funds without providing for participation by persons, groups etc., in accord ance with section 25(2) of the Government Organization Act, 1969. Plaintiff brought a motion for an interlocutory injunction to restrain defendants from expending federal funds to imple ment Phase II of the Plan. Defendants sought to strike the statement of claim, asserting that it disclosed no reasonable cause of action, that plaintiff had no standing, and that the matter, being essentially similar to an earlier action by plaintiff against the Crown in this Court, which was dismissed, was res judicata, or if not, that it was an abuse of process.
Held, both motions are dismissed. As to defendants' claim, the issue is very arguable, and should not be disposed of in an interlocutory proceeding at this stage; it is not a plain and obvious case of an action which is unsustainable and cannot succeed. As to the question of standing, while defendants submitted that the Attorney General of Canada would be the proper party to bring the action, the Thorson and McNeil decisions indicate that the Court has a discretion to be exer cised in proper circumstances, giving an individual standing to bring an action which might otherwise be traditionally an ex relatione type of action. Such discretion to allow standing is not necessarily confined to an attack on legislation as ultra vires. Plaintiff has standing; in any case, such a question should not be determined on a procedural, preliminary motion. Nor is the submission of res judicata proper; the present statement of claim is considerably different than the earlier one. The cause of action is different, the statutory provisions are somewhat different, and the relief sought is quite different. Nor are the parties or issues identical. And, the question of standing is on a different footing than in the earlier action. This action is not an abuse of process. As to plaintiff's motion, the case is not sufficiently strong enough to warrant, at this stage, interference by way of interlocutory injunction.
Hubbuck v. Wilkinson [1899] 1 Q.B. 86; Attorney General v. London and North Western Railway Company [1892] 3 Ch. 274; The Queen v. Wilfrid Nadeau Inc. [1973] F.C. 1045; Amoco Canada Petroleum Company Limited v. Texaco Exploration Canada Limited (unreported, T-697- 74); Shaw v. The Queen (unreported, T-2814-74); The Queen v. Douglas [1976] 2 F.C. 673, applied. Drummond- Jackson v. British Medical Association [1970] 1 All E.R. 1094, agreed with. Thorson v. Attorney General of Canada [1975] 1 S.C.R. 138 and McNeil v. Nova Scotia Board of Censors (1975) 5 N.R. 43, considered. Attorney General (on the relation of McWhirter) v. Independent Broadcasting Authority [1973] 1 All E.R. 689, discussed.
MOTIONS.
COUNSEL:
M. Carota on his own behalf. R. Hynes for defendants.
SOLICITORS:
M. Carota, North Bedeque, P.E.I., on his own behalf.
Deputy Attorney General of Canada for defendants.
The following are the reasons for judgment rendered in English by
COLLIER J.: There are here two motions for decision. The first is on behalf of the defendants seeking to strike out the statement of claim. Rule 419 of the Rules of this Court is relied on. The particular grounds asserted on behalf of the defendants are:
(1) the statement of claim discloses no reason able cause of action;
(2) the plaintiff has no standing (locus standi) to maintain the action;
(3) the claim asserted here was essentially pleaded in a previous action in this Court by the same plaintiff against the federal Crown as defendant (T-2988-75)*, and on a similar motion to strike out, that action was dismissed. It is said the present action is therefore res judicata or, if not, at least such a duplication of the previous litigation as to make this action an
* [Reasons for judgment not circulated—Ed.]
abuse of the process of the Court.
The principles to be applied in dealing with summary procedures of the kind involved here have been laid down and followed for many years. The pleading, or impugned portion of it, should only be struck out in plain and obvious cases; or (as has been said in other words) where, taking the statement of claim (or the portion attacked) at its face, the claim is obviously unsustainable or cannot succeed'.
For the purposes of this motion the facts alleged in the statement of claim are assumed to be admit ted and true.
The plaintiff is a resident of Prince Edward Island. That Province has been, by federal legisla tion and orders, designated a special area for the purpose of economic and social development. By the Government Organization Act 2 , the Depart ment of Regional Economic Expansion (DREE) was constituted. The presiding Minister is the Minister of Regional Economic Expansion. The defendant Jamieson is the former Minister; the defendant Lessard is the present Minister. Sections 23, 24 and 25 of the legislation are relevant:
23. The duties, powers and functions of the Minister extend to and include
(a) all matters over which the Parliament of Canada has jurisdiction, not by law assigned to any other department, branch or agency of the Government of Canada, relating to economic expansion and social adjustment in areas requiring special measures to improve opportunities for productive employment and access to those opportunities; and
1 Hubbuck & Sons Limited v. Wilkinson, Heywood & Clark Limited [1899] 1 Q.B. 86 at 91; A.G. of Duchy of Lancaster v. London & North Western Railway Company [1892] 3 Ch. 274. For a summary of the practice see Drummond-Jackson v. British Medical Association [1970] 1 All E.R. 1094 per Lord Pearson at 1101. See also The Queen v. Wilfrid Nadeau Inc. [1973] F.C. 1045 (App. Div.); and Amoco Canada Petroleum Co. Ltd. v. Texaco Exploration Canada Ltd. (T-697-74) Col lier J., unreported April 26, 1974; Shaw v. The Queen (T-2814- 74) Collier J., unreported November 18, 1974 and The Queen v. Douglas [1976] 2 F.C. 673. In the latter case, the Appeal Division reversed the Trial Division, which had refused to strike out the statement of claim. The matter was held to be "so clear".
2 S.C. 1968-69, c. 28, sections 21-40.
(b) such other matters over which the Parliament of Canada has jurisdiction relating to economic expansion and social adjustment as are by law assigned to the Minister.
24. The Governor in Council, after consultation with the government of any province, may by order designate as a special area, for the period set out in the order, any area in that province that is determined to require, by reason of the excep tional inadequacy of opportunities for productive employment of the people of that area or of the region of which that area is a part, special measures to facilitate economic expansion and social adjustment.
25. (1) In exercising his powers and carrying out his duties and functions under section 23, the Minister shall
(a) in co-operation with other departments, branches and agencies of the Government of Canada, formulate plans for the economic expansion and social adjustment of special areas; and
(b) with the approval of the Governor in Council, provide for co-ordination in the implementation of those plans by depart ments, branches and agencies of the Government of Canada and carry out such parts of those plans as cannot suitably be undertaken by such other departments, branches and agencies.
(2) In formulating and carrying out plans under subsection (1), the Minister shall make provision for appropriate co-opera tion with the provinces in which special areas are located and for the participation of persons, voluntary groups, agencies and bodies in those special areas.
The plaintiff says that a Comprehensive De velopment Plan was formulated by the Govern ment of Canada through the defendant ministers; an agreement to carry out the plan jointly between Canada and Prince Edward Island was entered into; the agreement provides for the commitment of federal funds. All this, the plaintiff asserts (and I must accept the facts alleged to be true) was formulated and carried out by the defendants without making provision for the participation in the formulation and carrying out of the plan of any persons (including the plaintiff), voluntary groups, agencies or bodies in Prince Edward Island.
The plaintiff in this case is not represented by a lawyer. In my opinion, on applications of this kind, the statement of claim must be read fairly and reasonably as a whole, and ought not to be subject ed to a powerful microscopic view for dissection purposes.
As I see it, the essence of the plaintiff's claim is the allegation that the defendants have not com plied with the mandatory requirements of subsec-
tion 25(2) and particularly the words in that sub section which I now underline:
25. (2) In formulating and carrying out plans under subsec tion (1), the Minister shall make provision for appropriate cooperation with the provinces in which special areas are located and for the participation of persons, voluntary groups, agencies and bodies in those special areas.
The pleading then goes on to assert that the plaintiff and all residents of Prince Edward Island are affected by the plan; that because of the failure of the defendants to comply with the specif ic provision in subsection 25(2) the plan was unlawfully and improperly formulated and the agreement between Canada and Prince Edward Island unlawfully and improperly entered into. There is next an alternative plea that, because of the failure to comply with the statutory require ments, the plan and the agreement are unlawful and unenforceable. The precise relief sought is:
(a) a declaration that the agreement between Canada and the province is void;
(b) an injunction preventing the expenditure of federal funds;
(c) an order of mandamus directing the defend ants to comply with subsection 25(2);
(d) punitive damages of $100,000.
I shall deal with the first contention on behalf of the defendants that the statement of claim dis closes no reasonable cause of action. It is said there is no legal remedy in anyone in respect of the matters asserted in the statement of claim; assum ing the defendants did not make provision for the participation of persons such as the plaintiff, or groups or agencies in the formulation and carrying out of the plan, that was merely a failure to perform administrative acts; the remedy is there fore in Parliament, or by political persuasion on the part of the plaintiff and other interested par ties. I cannot accept that contention. This Court might ultimately find the plaintiff is, in the par ticular circumstances of this case, without a remedy. But, in my opinion, the issue is a very arguable one and ought not to be disposed of in an interlocutory proceeding at this stage. As I see it, this is not a plain and obvious case of an action that is unsustainable or cannot succeed. This suit deserves, to my mind, a full hearing at trial.
The second ground asserted on behalf of the defendants is that the plaintiff has no standing to bring this action. That argument is put forward as part of the contention that the statement of claim discloses no reasonable cause of action. I am not convinced the issue of lack of standing is one that should be brought pursuant to Rule 419. It is perhaps more properly brought under Rule 474. The procedural point was not raised before me. Because of that I propose to deal with the conten tion on its merits rather than dismiss it on the grounds it is not properly part of a motion under Rule 419. The defendants' submission is that the proper person to bring this action is the Attorney General of Canada: what is termed the ex rela- tione type of action. Counsel for the defendants referred me to a considerable body of authority, most of it preceding the recent decisions of the Supreme Court of Canada in Thorson v. Attorney General of Canada' and McNeil v. Nova Scotia Board of Censors 4 . The plaintiff frankly admitted he had not endeavoured to persuade the Attorney General of Canada to lend his name as plaintiff in this action, and to conduct this litigation. He said he had made an appropriate request to the Attor ney General of Prince Edward Island and had, in effect, been refused 5 .
I am not convinced that in Canada's federal legal and political system (in contradistinction to a historical unitary system) the ex relatione type of suit is as often or as freely brought as it is thought to be in the United Kingdom 6 . In the Thorson and McNeil cases the Supreme Court of Canada has, I
3 [1975] 1 S.C.R. 138.
4 (1975) 5 N.R. 43.
5 Those facts are not in any of the material before me on this motion. Counsel for the defendants made a considerable point that there was no evidence that the Attorney General of Canada had refused to or would not bring this action. I felt, in the circumstances, it was advisable to clarify the point immedi ately, rather than adjourn the hearing, and have to make subsequent arrangements for a further sitting of the Court in Charlottetown.
6 See Attorney General (on the relation of McWhirter) v. Independent Broadcasting Authority [1973] 1 All E.R. 689 per Lawton J. at 705, paras. c-g.
consider, expressed the view that a court has a discretion, to be exercised in proper circumstances, giving an individual person standing to bring an action which might otherwise be traditionally brought by the appropriate legal officer of the Crown.
Counsel for the defendants took the position that the Thorson and McNeil cases must be con fined to the situation where an individual is attempting to attack legislation as ultra vires the particular legislative body which purported to enact it. That was undoubtedly the factual situa tion in the two cases referred to. Nevertheless, the general observations through Laskin J. of the majority in the Supreme Court of Canada in the Thorson case, and the unanimous opinion in the McNeil case, to my mind at least, indicate the discretion to allow standing is not necessarily con fined to an attack on legislation as ultra vires.
I am of the view, in the circumstances here, that the plaintiff has standing to bring this action. In any event, that is a question which should not be determined on a procedural preliminary motion of this kind. It should be the subject of full evidence, argument and deliberation at trial. At the very least it should be the subject of a formal hearing on a point of law, after all relevant facts for determination of that point have been established.
The third objection put forward on behalf of the defendants was the one I earlier described as res judicata or an abuse of the process. The plaintiff, on August 27, 1975, commenced an action. The defendant was Her Majesty the Queen in the Right of Canada. The statement of claim in that action has some similarity to the present one. The particular statute primarily relied upon was the Fund for Rural Economic Development Act 7 . The Government Reorganization Act was not relied upon as founding the cause of action.
In the earlier statement of claim the allegations were that an agreement, pursuant to the 1966 legislation, was entered into on March 7, 1969 between Canada and Prince Edward Island; that
S.C. 1966-67, c. 41.
the agreement provided for participation and involvement of residents in the formulation and the carrying out of any and all programs financed pursuant to the agreement and the applicable legislation; that the program was transferred to DREE; that necessary funds were provided, pursu ant to the agreement, for the financing of a specif ic project, the Summerside Waterfront Develop ment Project; that the expenditure of such funds was illegal on the grounds that the corporation created for the development of the Summerside project was ultra vires, and the funds were there fore disbursed without any proper authority. Fur ther grounds alleged were that the residents of the area of the town of Summerside, including the plaintiff, had not had any reasonable opportunity to be involved as required under the earlier legisla tion or under the Government Reorganization Act. Declaratory relief only was sought. A successful motion to strike out the statement of claim under Rule 419 was heard by Addy J. In his reasons, he held that the particular project in Summerside, and the funds already expended, were past acts of the defendant; any declaration that the past acts of the defendant were illegal or improper did not provide grounds for legal relief. In Addy J.'s anal ysis of that earlier statement of claim, the real thrust of the pleading was a political or citizens' criticism of the defendant (the Federal Govern ment) in the carrying out of the particular scheme described. Addy J. did conclude the plaintiff had, in the particular circumstances, no standing to bring that particular action.
The present statement of claim is, in my view, a considerably different document than the one that was before Addy J. The cause of action is differ ent; the particular statutory provisions relied upon are somewhat different; the relief sought is quite different.
I therefore rule against the submission of res judicata. The parties are not the same. Nor, in my opinion, are the issues the same.
On the issue of standing, the attack launched by the plaintiff in the present action is different to an appreciable degree from the attack launched in the_ former action. I think the question of standing is on quite a different footing that what it was in the action and in the motion before Addy J.
For the reasons set out above, I reject the argu ment that this second action is an abuse of the process of this Court.
The motion on behalf of the defendants is, as I stated at the hearing in Charlottetown on May 18, dismissed.
I go now to the second motion. It is issued on behalf of the plaintiff for an interlocutory injunc tion to restrain the defendants from expending federal funds to implement Phase II of the Prince Edward Island Comprehensive Development Plan. At the hearing on May 18 I dismissed that motion. I have no hesitation in now confirming that deci sion. I am not persuaded the plaintiff, or any or all of the residents of Prince Edward Island, will, if an interim injunction is not granted at this stage, suffer irreparable damage. The material filed in support of the contention that irreparable damage will be suffered is, in my opinion, unconvincing. I am satisfied the plaintiff has an action and a claim that ought to be entertained at a full court hear ing. I am not satisfied his case is sufficiently strong enough to warrant, at this stage, interference by way of an interim injunction. The plaintiff's motion is therefore dismissed.
There may be, in respect of either or both of my dispositions of these motions, appeals. With that eventuality in mind, I direct that the successful party (or parties) on the respective motions before me recover the costs of that particular motion, in any event of the cause.
I add this further comment (I made similar remarks at the hearing of these motions). I think it very likely an early trial date of this action can be obtained. The fixing of an early date requires, of course, the prompt carrying out of (or waiver of) the customary pre-trial procedures. I commend to the parties that course.
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