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A-214-79
Attorney General of Canada (Appellant) v.
Canadian Human Rights Commission (Respond- ent)
Court of Appeal, Pratte, Urie and Ryan JJ.— Ottawa, May 28 and June 11, 1979.
Practice — Parties — Appeal from judgment dismissing action against Canadian Human Rights Commission on ground that that Commission is not a suable entity — Trial Judge clearly indicating that dismissal was not made pursuant to Rule 419, and that no statutory authority is necessary to dismiss an action brought against a non-suable entity — Whether or not an action for a declaration under s. 18 of the Federal Court Act cannot be brought against respondent merely because respondent is not vested with legal personality — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18 -- Federal Court Rule 419.
Canadian Radio-Television Commission v. Teleprompter Cable Communications Corp. [1972] F.C. 1265, followed.
APPEAL. COUNSEL:
Duff Friesen and L. Holland for appellant. Gordon Henderson, Q.C., Emilio Binavince and Russell Juriansz for respondent.
SOLICITORS:
Deputy Attorney General of Canada for appellant.
Gowling & Henderson, Ottawa, for respond ent.
The following are the reasons for judgment rendered in English by
RYAN J.: This is an appeal from a judgment of the Trial Division, [page 137 supra] dated March 23, 1979, dismissing this action without costs. The
judgment was made on an application for an order declaring the statement of claim and the action a nullity or, in the alternative, for an order striking out the statement of claim and dismissing the action pursuant to Rule 419(1) of the Rules of this Court'; the applicant relied on subparagraphs (a), (c) and (f) of Rule 419(1).
The Trial Judge dismissed the action on the ground that the respondent (the defendant), the Canadian Human Rights Commission, was not a person amenable to action, that it was not a suable legal entity. In so doing, the learned Trial Judge made it clear that he was not acting under Rule 419. He was of the view that he needed no statu tory authority to dismiss an action brought against a non-suable entity.
With respect, I do not share the Trial Judge's view that an action for a declaration under section 18 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, cannot be brought against the Canadian Human Rights Commission merely because the Commission is not, as such, vested with legal personality by the Canadian Human Rights Act, S.C. 1976-77, c. 33, or otherwise. It seems to me that the decision of this Court in Canadian Radio-Television Commission v. Tele- prompter Cable Communications Corp. 2 is deci sive of the question. I would quote from the judg ment of Mr. Justice Thurlow [as he then was] at pages 1266 and 1267:
' Rule 419 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 prohib
ited by Rule 411.
2 [1972] F.C. 1265.
With respect to the objection as to the status of the appellant as a legal entity section 5(1) of the Broadcasting Act, by which the appellant is constituted, provides that:
5. (1) There shall be a commission to be known as the Canadian Radio-Television Commission, consisting of five full-time members and ten part-time members to be appoint ed by the Governor in Council.
An examination of the other provisions of Part II of that Act to my mind makes it clear that the members of the commission so constituted are a body or are persons "having jurisdiction or powers etc." falling within the definition of "federal board, commission or other tribunal" in section 2 of the Federal Court Act and that the Trial Division of this Court has in respect of such body or persons the jurisdiction conferred by section 18 of that Act. The rest of what is involved in the appellant's submission with respect to the defendant's status is but a matter of the rules of the Court for the exercise of that jurisdiction. As I see it, the appellant is not a body corporate or other entity having a legal personality recognized as distinct from that of its members and the respondent in framing its proceeding might have joined as defendants the members of the commission by their personal names or might have joined them all by the name of their office, i.e., by naming as defendants, "the members of the Canadian Radio-Television Commission". Instead of adopting either of these courses the respondent named the commission by its statutory name which appears to me to be a compendious reference to what the commission consists of, that is to say, its members. Save in the cases provided for by Rules 1708 to 1713 I know of no rule of the Court which authorizes the naming of a group of defendants by the name of the group but on the other hand no rule of the Court of which I am aware prohibits such a practice and it seems to me that the practice of naming the group by its statutory name is particularly convenient and appropriate in a case such as this where the principal object of the proceeding is to obtain a determination of the scope of the authority con ferred by statute on that group of persons. In my opinion therefore the appellant's objection is technical and without merit and should be rejected. Moreover, if the objection were sound it would follow that there is no appellant before the Court and that this appeal itself is a nullity.
I am also of opinion that the respondent has not made out a case for striking out the statement of claim or dismissing the action on the basis of any of the subparagraphs of Rule 419(1) which were relied on. There is clearly no substance to the application so far as reliance is placed on subpara- graph (c) or (J) of the Rule. Nor has the respond ent persuaded me that the statement of claim does not disclose a reasonable cause of action. The arguments of counsel demonstrated that questions of law of some difficulty are raised by the claims asserted. It cannot be said of the statement of claim that it is apparent on its face that the action is one which obviously must fail.
I would allow the appeal. I would set aside the judgment appealed against and dismiss the application to the Trial Division. The appellant has not asked for costs here or below. There will be no order as to costs.
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PRATTE J.: I agree.
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URIE J.: I agree.
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