T-3377-79
La Ferme Filiber Ltée (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Marceau J.—Quebec City, Novem-
ber 23; Ottawa, December 6, 1979.
Practice — Application to strike out statement of claim —
Plaintiff operated a rainbow trout hatchery and always held
the required licence — Plaintiff's operating licence not
renewed because Regulations were amended to prohibit rearing
of rainbow trout in a large area, which included plaintiff's
establishment — Statement of claim alleges disguised expro
priation and seeks a stated amount as compensation or dam
ages — Whether or not the statement of claim discloses a
reasonable cause of action — Federal Court Rule 419.
Manitoba Fisheries Ltd. v. The Queen [1979] 1 S.C.R.
101, distinguished.
APPLICATION.
COUNSEL:
G. Bélanger for plaintiff.
C. Ruelland, Q.C. foi defendant.
SOLICITORS:
Marquis, Jessop, Gagnon, Huot & Bélanger,
Quebec, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following is the English version of the
reasons for order rendered by
MARCEAU J.: By motion submitted under Rule
419 of the General Rules of the Court, defendant
contended that the statement of claim at bar does
not disclose on its face any reasonable cause of
action, and that it should accordingly be dismissed.
There is no difficulty in understanding the state
ment of claim. Its allegations are clear and simple,
those relating to the facts relied on as well as those
relating to the right which plaintiff seeks to exer
cise. Moreover, it contains only 13 paragraphs.
The first eight paragraphs are devoted exclu
sively to a statement of the facts. Their content is
as follows: plaintiff had for five years, at Petite-
Matane, in the Province of Quebec, operated a
hatchery establishment devoted to the stocking,
rearing and selling of a special kind of trout, the
so-called "rainbow" trout. For this purpose he had
always obtained and held the licence required by
the Act and its Regulations. In May 1978, how
ever, an amendment was made to the Regulations,
prohibiting the rearing of rainbow trout within a
large area that included Petite-Matane. His oper
ating licence was therefore not renewed, and he
had to cease operations. The facts having been
established, the succeeding paragraphs are devoted
to the basis of the action. It is as well to reproduce
them here in their entirety:
[TRANSLATION] 9. The adoption of this regulation constituted
no more or less than a disguised expropriation for which
plaintiff was not compensated;
10. No sufficient offer of compensation was made to plaintiff;
11. As a consequence of this disguised expropriation, plaintiff
suffered considerable damage and loss for which it is entitled to
be compensated;
12. As a consequence of this disguised expropriation, plaintiff
is entitled to claim from defendant the sum of $183,000.00 as
compensation or damages;
13. This action is well founded in fact and in law.
That is the statement of claim. Does a statement
of claim worded in this way expressly or by
implication disclose a valid cause of action? That
is what defendant questions, and in my opinion she
is clearly right.
It need hardly be noted that there is no question
here as to the validity of the Quebec Fishery
Regulations, adopted by the Governor in Council
pursuant to section 34 of the Fisheries Act, R.S.C.
1970, c. F-14, either as they stood before 1978
(P.C. 1975-1632, (SOR/75-420) promulgated on
July 17, 1975) or as they stand today, as the result
of amendments made to section 28 by Order in
Council P.C. 1978-2806 (SOR/78-721). There is
further no question that they were applied errone
ously, improperly, or in a discriminatory or other
wise wrongful way; they provide unambiguously
that no one may operate a hatchery establishment
without a licence, and that such a licence cannot
be issued for rearing rainbow trout within the zone
including Petite-Matane. All that the statement of
claim contends is that the adoption in 1978 of a
regulation prohibiting the rearing and selling of
rainbow trout in the future at Petite-Matane
[TRANSLATION] "constituted an expropriation of
plaintiff's business". This contention cannot be
supported.
An expropriation implies dispossession of the
expropriated party and appropriation by the expro
priating party; it necessarily requires a transfer of
property or rights from one party to the other.
There is nothing of that kind here. Defendant has
not acquired anything belonging to plaintiff.
Counsel for the plaintiff dwelt at length on the
recent decision of the Supreme Court in Manitoba
Fisheries Limited v. The Queen [1979] 1 S.C.R.
101, which awarded compensation to a business
establishment forced to close as the result of the
implementation of a statute creating a government
monopoly over the operations engaged in by the
establishment. However, the situation there was
different. The decision was based on the finding
that the government corporation had at least in
directly appropriated and applied to its own ben
efit property belonging to the establishment,
namely its goodwill, or if you will its operating
channels, its customers. A similar observation
cannot be made here. Counsel for the plaintiff also
cited the old decision of the Privy Council, North
Shore Railway Company v. Pion (1889) 14 A.C.
612, in which the owner of a piece of land adjoin
ing a waterway, to which access had been obstruct
ed by the building of a railway line, was admitted
to have a right to compensation. However, to begin
with, the decision speaks of fault by the railway
company apart from the expropriating powers on
which it relied, and secondly, it recognizes that a
genuine right was infringed and denied by the
actions of the company and for its benefit. I do not
see the connection here, as there is no question of
fault or of advantage being derived by the Queen,
or of any right, since well before the 1978 amend
ment plaintiff had been prohibited from operating
its establishment without a licence.
If the legal proposition on which this action is
based were to be admitted, and the adoption or
amendment of a regulation such as that in ques
tion here were to be regarded as constituting a
disguised act of expropriation with respect to
anyone whose commercial activities were inter
fered with thereby, it is easy to imagine the prolif
eration of claims that would follow. There is no
doubt that the establishment or amendment of a
regulation of this kind may create extremely
unfortunate situations, and the action appears to
provide a striking example of this. If however, in
such special cases, the government has not made
any exceptional provision for the payment of com
pensation, there is no legal principle I know of
which can force it to do so.
In my opinion, the allegation of the statement of
claim disclosed no cause of action and the motion
to dismiss can only be allowed.
ORDER
The motion to dismiss the statement of claim is
allowed and the action is accordingly dismissed
with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.