Judgments

Decision Information

Decision Content

T-1386-83
James Joliffe, Colin Montgomery, Arthur Hansen, Wallace Gray, Christopher France, William Grif- fis and Byron Wright (Plaintiffs)
v.
The Queen in right of Canada (Defendant)
Trial Division, Strayer J.—Vancouver, March 27 and 29; Ottawa, April 18, 1985.
Fisheries — Transfer of licence permitting purse seining to new vessel approved by letter in November 1979 — S. 15(2) of Regulations amended in January 1980 restricting purse seine fishing for salmon — No limitations re: fishing by purse seine in 1980 and 1981 licences issued to new vessel, but 1982 licence prohibiting salmon seining — S. 15(2) of Regulations fishing restriction applying equally to anyone engaged in com mercial salmon fishing — No vesting of licence beyond rights for year issued — Interest of licence-holder subject to validly enacted laws — Pacific Fishery Registration and Licensing Regulations, C.R.C., c. 824, ss. 4(1), 9(1),(2), 10(1)(a),(2), 15(2) (as am. by SOR/80-85, s. 4), 34(1),(2), 36(2), 37 — Fisheries Act, R.S.C. 1970, c. F-14, ss. 7, 9, 34(d),(e),(g) (as am. by R.S.C. 1970 (1st Supp.), c. 17, s. 4) — Statutory Instruments Act, S.C. 1970-71-72, c. 38, s. 11.
Construction of statutes — Plaintiffs holding Salmon "A" licence containing no restrictions re: fishing by purse seine — Letter approving transfer of licences to new vessel dated November 1979 — January 1980 amendment to s. 15(2) of Regulations restricting purse seine fishing for salmon — Necessary to determine what "right" vested in each situation to apply s. 35(c) of Interpretation Act — No vesting of rights in licence beyond year issued — S. 35(c) only protecting right to licence until end of licence year — Interpretation Act, R.S.C. 1970, c. I-23, s. 35(c) — Pacific Fishery Registration and Licensing Regulations, C.R.C., c. 824, s. 15(2) (as am. by SOR/80-85, s. 4).
Estoppel — Departmental officials aware of plaintiffs' intentions to build vessel primarily for purse seine fishing and of impending Regulation prohibiting purse seining — Depart ment approving transfer of licences — Estoppel not binding Crown so as to require ignoring express provisions of law.
The plaintiffs seek a declaration as to their entitlement to a licence to fish for salmon by means of a purse seine. The plaintiffs had three fishing licences, one of which permitted purse seining, which they sought to transfer to a new vessel under construction and primarily designed for purse seining for
salmon. The Department of Fisheries approved by letter the transfer of the licences in November 1979. Although depart mental officials were aware of proposed changes to the Pacific Fishery Registration and Licensing Regulations, which could preclude the plaintiffs from purse seining for salmon, the plaintiffs were not so informed. In January 1980, subsection 15(2) of the Regulations was amended restricting purse seine fishing for salmon. The three licences were issued in respect of the new vessel in 1980 and 1981. However, in 1982 the licence expressly prohibited salmon seining. The issues are: (1) whether Regulation 15(2) is a licensing restriction which cannot be applied so as to modify existing licences, or a fishing restriction which potentially applies to anyone fishing for salmon regard less of when their licence was issued; (2) whether paragraph 35(c) of the Interpretation Act prevents the application of Regulation 15(2) to modify existing licences; (3) whether the Crown is estopped from denying the plaintiffs' right to fish for salmon by purse seine.
Held, the action should be dismissed.
Subsection 15(2) is a fishing restriction which, by its terms, applies equally to anyone engaged in commercial salmon fish ing. By sections 34 and 37 of the Regulations, licences are valid for one year only and expire each year as of March 31. By section 7 the Minister has an "absolute discretion" in the issuance of new licences. Therefore there is no legal underpin ning for the "vesting" of a licence beyond the rights which it gives for the year in which it was issued. The interest vested in a licence-holder is subject to modification by validly enacted laws. This is similar to the application of municipal building by-laws in a way which impairs rights previously enjoyed by land owners: Canadian Petrofina Ltd. v. Martin and Ville de St. Lambert, [1959] S.C.R. 453.
In applying a rule of interpretation, such as paragraph 35(c) against derogation from vested rights, it must be determined what "right" has vested. It is necessary to look at each situation to determine whether the grant of approval has vested an interest which, by the rules of statutory interpretation, is to be presumed not to have been taken away by the adoption of new criteria for the granting of such approvals. The Salmon "A" licence was always subject to validly enacted laws, whether adopted before or after its issue, in respect of the way that fishing could be conducted. The fact that Regulation 10 required classification in a certain manner of vessels with a certain recorded catch does not mean that it has guaranteed rights for the indefinite future. The future activities of a certain category of vessel must depend on the law as it exists from time to time. Finally, subsection 15(2) is not framed as a licence restriction. In any event, paragraph 35(c) could only protect the plaintiffs' right to fish using a purse seine from Regulation 15(2) until the end of the licence year.
The officers of the Crown cannot be bound by estoppel so as to require them to ignore the express provisions of the law.
CASES JUDICIALLY CONSIDERED
APPLIED:
Canadian Petrofina Ltd. v. Martin and Ville de St. Lambert, [1959] S.C.R. 453.
DISTINGUISHED:
Laurie's Caterers Ltd. v. North Vancouver (1984), 53 B.C.L.R. 381 (S.C.).
CONSIDERED:
Canada Employment and Immigration Commission v. Dallialian, [1980] 2 S.C.R. 582; 33 N.R. 118; McDoom v. Minister of Manpower and Immigration, [1978] 1 F.C. 323; (1977), 77 D.L.R. (3d) 559 (T.D.); Central Mort gage and Housing Corp. v. Co-operative College Resi dences, Inc. et al. (1975), 71 D.L.R. (3d) 183 (Ont. C.A.).
REFERRED TO:
Lapointe v. Min. of Fisheries & Oceans (1984), 9 Admin. L.R. 1 (F.C.T.D.); St. Ann's Fishing Club v. The King, [1950] S.C.R. 211.
COUNSEL:
J. Raymond Pollard for plaintiffs. Alan D. Louie for defendant.
SOLICITORS:
Buell Ellis, Vancouver, for plaintiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment rendered in English by
STRAYER J.: Facts
The issue before me at this time is the plaintiffs' claim to certain declarations that in respect of their vessel the Proud Venture they are, or are entitled to be, licensed to fish for salmon by means of a purse seine.
The plaintiffs in 1979 owned a fishing trawler named the Chasam for which they had the follow ing fishing licences: a Salmon "A" licence, a Groundfish Trawl licence and a West Coast
Shrimp licence. In the autumn of 1979 they com missioned the construction of a new vessel which was designed to be primarily for salmon fishing by the use of a "purse seine". As the times permitted for salmon fishing by purse seine are very limited, the vessel was designed to be usable to some extent for other forms of fishing although, admittedly, it would not be as efficient in these other uses. The Salmon "A" licence which they had had in respect of the Chasam permitted purse seining.
On November 14, 1979 one of the plaintiffs wrote to the Department of Fisheries on their behalf requesting that the above licences for the Chasam be transferred to the new vessel under construction. The final paragraph of this letter read as follows:
We would appreciate your prompt approval since we have advanced $124,000.00 into the construction of the new boat and our bank will not advance any more funds until the licence is approved. You will note that time is of the essence in this matter since our new vessel is well under construction.
By a letter from the Department dated November 29, 1979, the letter on behalf of the plaintiffs was acknowledged and they were advised that their application had been considered by the Vessel Licence Appeal Committee. This letter advised that "The Committee therefore approves your request". They were told however that a commer cial fishing vessel number would not be assigned to the new vessel until the old registration plates and annual tabs had been returned for cancellation. They were further advised that new plates and tabs would not be released until the Department received certain further material including a "completed application and $10.00 initial registra tion fee". It is apparent from the evidence that one or more of the officials in the Department of Fisheries who handled this application was aware at the time that a change in the Pacific Fishery Registration and Licensing Regulations, C.R.C., c. 824, was contemplated, a change which could preclude the plaintiffs from purse seining for salmon. It was also clear that it must have been obvious to officials of the Department that the proposed vessel, a plan of which had been submit-
ted, was primarily designed for this kind of fishing. Nevertheless, no indication of this was given to the plaintiffs before they proceeded with the construc tion on the strength of the letter of November 29 indicating approval by the relevant committee of the transfer of licences. A new subsection 15(2) [as am. by SOR/80-85, s. 4] of the Regulations was adopted by Order in Council on January 18, 1980. This amendment was registered on January 21, 1980 and published in the Canada Gazette on February 13, 1980. It provided as follows:
15....
(2) No person shall use a vessel in salmon fishing by means of a purse seine unless that vessel, or the vessel or vessels from which the salmon licence privilege was transferred, made land ings of purse seine caught salmon during 1975 and 1976 and before July 28th, 1977.
It was stipulated by the parties in an agreed statement of facts submitted at trial that the Chasam had not made landings of purse seine caught salmon during the periods specified in the amendment, and therefore the successor vessel of the plaintiffs would not be entitled to fish by purse seine pursuant to this "grandfather clause".
The plaintiffs apparently were unaware of the adoption of this Regulation, even though it was published in the Canada Gazette. By a letter from the Department of Fisheries of April 3, 1980 they were advised that their new vessel would be li censed for, inter alia "salmon by other than seine". On April 9, 1980 an application was sub mitted on behalf of the plaintiffs for the issue of licences to their new vessel, now named the Proud Venture. The application was for the same three licences as the plaintiffs had held with respect to the Chasam. It appears that this application was submitted as required by the Regulations which contemplate an annual application for licences, and as contemplated by the condition set forth in the "Approval" of November 29, 1979 of the transfer of the licences from the Chasam to the new vessel. One of the conditions stated therein was the receipt of a "completed application and $10.00 initial registration fee" as indicated above. These licences were subsequently issued in respect of the Proud Venture which was completed and
launched about mid-April, 1980. The Salmon "A" licence contained no express limitations with respect to fishing by purse seine, nor did the licence issued in 1981. The licence issued for 1982, however, included an express restriction as follows: "no salmon seining permitted". Evidence was not adduced to indicate precisely what effect this had on the fishing activities carried out by the Proud Venture, but counsel for the plaintiffs indicated that in 1984 the vessel was effectively prevented from using its Salmon "A" licence transferred from the Chasam for the purposes of purse sein- ing, and that it became necessary to acquire another licence. These events, if they have any relevance, relate to a possible claim for damages which will be referred to below.
Issues
Essentially, the plaintiffs contend that the new subsection 15(2) of the Regulations adopted in January, 1980 was in the nature of licensing re striction. They assert that fishing licence is in the nature of intangible property which has a commer cial value and which cannot be altered or revoked except for reasons specified in the Fisheries Act, R.S.C. 1970, c. F-14, or in the Pacific Fishery Registration and Licensing Regulations. They say those conditions and procedures were not relevant to the present case. It is further contended that the new subsection 15(2) of the Regulations as adopt ed in January 1980, cannot be applied so as to modify existing licences, because of the provisions of paragraph 35(c) of the Interpretation Act, R.S.C. 1970, c. I-23 which provides as follows:
35. Where an enactment is repealed in whole or in part, the repeal does not
(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed;
The contention is that this new subsection purport ed to repeal earlier licensing provisions, and there-
fore could not be applied to take away rights already vested by the prior issuance of a licence. The plaintiffs contend that by the letter of Novem- ber 29, 1979, approving their application for trans fer of their licences from the Chasam to the Proud Venture, the Salmon "A" licence had been effec tively issued in respect of the Proud Venture thus vesting in them a right to fish for salmon limited only by conditions applicable at that time to such fishing.
In effect, the defendant contends that subsection 15(2) of the Regulations is a fishing restriction, a legislative measure which potentially applies to anyone fishing for salmon regardless of when their licence was issued. The defendant further contends that in any event no rights vested in the plaintiffs prior to the adoption of the Regulation because the letter of November 29, 1979 did not constitute the issuance of a licence. The licence could only be issued after an application had been received for same together with the appropriate fee, and that application was not submitted until April 9, 1980, almost three months after the Regulations were amended.
I should note also that, whereas originally when this action was commenced in June 1983, the plaintiffs sought only declarations as to their enti tlement to a Salmon "A" licence unrestricted as to gear, they amended their statement of claim in February 1985, after a date had been fixed by the Court for the trial, seeking damages as well. I understand that the defendant consented to this amendment but only on the condition that it would be allowed to file an amended statement of defence on the question of damages before the issue of damages is tried. As this was not done, nor was there discovery on the question of damages before trial, it was the wish of both counsel that the Court at this time dispose of the questions involving entitlement to and scope of the licence, leaving open the possibility that there may have to be further proceedings with respect to the question of damages depending in part on such determination as I may make with respect to the licence. I shall revert to this matter at the end of the reasons for judgment.
Conclusions
I have concluded that subsection 15(2) of the Pacific Fishery Registration and Licencing Regu lations, as adopted by the Governor in Council on January 18, 1980, is a fishing restriction which by its terms applies equally to anyone engaged in commercial fishing of a kind within the ambit of those Regulations, including the plaintiffs. It became effective to this end as of the date of its registration on January 21, 1980 and, by virtue of the Statutory Instruments Act, S.C. 1970-71-72, c. 38, s. 11, could have formed the basis for prosecution as of the date of its publication in the Canada Gazette on February 13, 1980.
It is necessary to note some of the salient provi sions in the Fisheries Act and in the Pacific Fish ery Registration and Licensing Regulations. In essence the Act contains the following provisions [as am. by R.S.C. 1970 (1st Supp.), c. 17, s. 4]:
7. The Minister may, in his absolute discretion wherever the exclusive right of fishing does not already exist by law, issue or authorize to be issued, leases and licences for fisheries or fishing, wherever situated or carried on; but except as herein- after provided, leases or licences for any term exceeding nine years shall be issued only under authority of the Governor General in Council.
9. The Minister may cancel any lease or licence issued under the authority of this Act, if he has ascertained that the opera tion under such licence were not conducted in conformity with its provisions.
34. The Governor in Council may make regulations for carrying out the purposes and provisions of this Act and in particular, but without restricting the generality of the forego ing, may make regulations
(d) respecting the operation of fishing vessels;
(e) respecting the use of fishing gear and equipment;
(g) respecting the terms and conditions under which a lease or licence may be issued;
The Regulations contain the following provisions:
4. (I) No vessel shall be used in commercial fishing unless
(a) a commercial fishing licence has been issued for the vessel;
(b) registration plates are, subject to subsection (2), legibly displayed on both sides of the bow, pilot house or deck cabin of the vessel;
(0 current year commercial fishing tabs have been issued for the vessel and are attached to the registration plates; and
(d) the vessel meets the requirements of section 13.
9. (1) Every application for registration of a fishing vessel under these Regulations shall be made to the Regional Director on a form approved by the Minister.
(2) Where an application referred to in subsection (1) is made in respect of a vessel and the vessel has been classified in accordance with section 10, the vessel shall be registered with the Department as a commercial fishing vessel and metal registration plates bearing a serial number shall be issued in respect of the vessel.
10. (1) Every vessel registered as a commercial fishing vessel shall be classified as follows:
(a) a Category A vessel, being
(i) a vessel with a recorded commercial catch and sale in 1967 or that portion of 1968 prior to September 6th, of 10,000 pounds or more of pink or chum salmon or the equivalent thereof,
(ii) a vessel that replaces a Category A vessel pursuant to section 18, or
(iii) a vessel that, but for circumstances beyond the control of the owner, could have met the requirement of subpara- graph (i) and for which the issue of a commercial salmon fishing licence is authorized by the Minister by reason of such circumstances;
(2) Every vessel classified in accordance with subsection (1) shall hereinafter be referred to as a Category A vessel, a Category B vessel, a Category C vessel or a Category D vessel, whichever is appropriate, and shall be licensed accordingly.
(Paragraph 10(1)(a) was revised in 1981 [SOR/ 81-161, s. 1], but read as above during the period in question.)
34. (1) Subject to subsection (2), no licence, registration plate or licence tab issued pursuant to these Regulations is valid after March 31st next following the date of issue.
(2) No roe herring fishing licence tab issued pursuant to these Regulations is valid after December 31st next following the date of issue.
36....
(2) Where a vessel for which registration plates or licence tabs have been issued pursuant to these Regulations is sold or otherwise disposed of, the plates and tabs shall continue to be
valid in respect of that vessel for the period for which they would have been valid if the vessel had not been sold.
37. Every commercial fishing licence issued in respect of a vessel is valid for one year only and may be renewed only within one year from the time it ceases to be valid. [Emphasis added.]
While there is a good deal of force in the contention of the plaintiffs that licences, because they have a recognized commercial value and are frequenly bought and sold, should be regarded as vesting in their holders a right which is indefea- sible except (as contemplated by section 9 of the Act) where there has been a breach of the condi tions of the licence, I am unable to find support for that conception of licences in the Act or Regula tions. First, it must be underlined that no matter what the popular belief on the subject, by sections 34 and 37 of the Regulations no licence is valid for more than one year and expires as of March 31 in any given year. It is true that by section 9 of the Act the Minister's power to cancel licences is restricted to situations where there has been a breach of a condition of the licence, and no doubt in exercising that power of cancellation the Minis ter or his representatives would have to act fairly: see Lapointe v. Min. of Fisheries & Oceans (1984), 9 Admin. L.R. 1 (F.C.T.D.). But licences terminate each year and by section 7 the Minister has an "absolute discretion" in the issuance of new licences. I am therefore unable to find a legal underpinning for the "vesting" of a licence beyond the rights which it gives for the year in which it was issued.
Whether any interest vests in the licence-holder for a year or indefinitely, however, it is an interest which is subject to modification by validly enacted laws. A similar issue has frequently arisen with respect to the application of municipal building by-laws in a way which impairs rights previously enjoyed by land owners. The Supreme Court of Canada dealt with this question in Canadian Petrofina Ltd. v. Martin and Ville de St. Lambert, [1959] S.C.R. 453, at pages 458-459 where it said:
The whole object and purpose of a zoning statutory power is to empower the municipal authority to put restrictions, in the general public interest, upon the right which a land owner, unless and until the power is implemented, would otherwise have to erect upon his land such buildings as he thinks proper. Hence the status of land owner cannot per se affect the operation of a by-law implementing the statutory power with out defeating the statutory power itself. Prior to the passing of such a by-law the proprietary rights of a land owner are then insecure in the sense that they are exposed to any restrictions which the city, acting within its statutory power, may impose.
Similarly, in the present case, the holder of any fishing licence remains subject to the possible exer cise by Parliament of its legislative authority with respect to fisheries under the Constitution, or by the Governor in Council in the exercise of its delegated legislative authority as prescribed by the Act. The plaintiffs did not suggest that the adop tion of subsection 15(2) of the Regulations was in any way beyond the authority delegated to the Governor in Council nor that Parliament lacked jurisdiction to delegate that authority.
In applying a rule of interpretation such as paragraph 35(c) of the Interpretation Act against derogation from vested rights, one must look care fully to see what "right" if any has vested. It is true that in the Canadian Petrofina case itself, the Court at page 459 says in obiter dicta that once a building permit has been issued then the right to build in accordance herewith has accrued. In Canada Employment and Immigration Commis sion v. Dallialian, [1980] 2 S.C.R. 582; 33 N.R. 118, the Supreme Court of Canada held that once a man had established entitlement to a 51-week benefit period under the Unemployment Insurance Act, 1971 [S.C. 1970-71-72, c. 48], he was entitled to those benefits regardless of subsequent changes to the law respecting entitlements. In other words, his rights were ascertained in accordance with the law as it stood at the time of his application and the approval thereof. In McDoom v. Minister of Manpower and Immigration, [1978] 1 F.C. 323; (1977), 77 D.L.R. (3d) 559 (T.D.), my colleague Walsh J. held that the nomination by a landed immigrant of her sons for admission to Canada was effective when submitted and accepted in Toronto, even though it had to be sent to New
York for "evaluation". Therefore additional requirements for effective nominations, subse quently imposed by regulation, could not properly be applied to this situation. Similarly, in Central Mortgage and Housing Corp. v. Co-operative College Residences, Inc. et al. (1975), 71 D.L.R. (3d) 183 (Ont. C.A.), it was held that notification by C.M.H.C. of approval of a loan effectively bound the Corporation, notwithstanding a subse quent amendment to its Act which required pro vincial government approval for a loan of the type in question. These cases illustrate that it is neces sary to look in each situation to determine whether the grant of approval has vested an interest which, by the rules of statutory interpretation, is to be presumed not to have been taken away by the adoption of new criteria for the granting of such approvals. But rules of statutory interpretation such as paragraph 35(c) of the Interpretation Act do not mean that the holders of "accrued" inter ests are thereby rendered immune from all future laws which might affect the enjoyment of those interests.
I therefore find that the Salmon "A" licence which the plaintiffs had in respect of the Chasam, and which they transferred to the Proud Venture, was always subject to validly enacted laws, wheth er adopted before or after its issue, in respect of the way that fishing could be conducted. I cannot accept the plaintiffs' interpretation of section 10 of the Regulations, that because such a vessel with a certain recorded commercial catch must, and its successors must, be classified for registration pur poses as a Category A vessel, that means it has guaranteed rights for the indefinite future to fish with a purse seine. The activities that a Category A vessel can carry on in future must depend on the law as to commercial fishing as it exists from time to time. Nor do I accept that the new subsection 15(2) of the Regulations was a licensing restriction rather than a fishing restriction. It is not framed as a licence restriction. The fact that in letters from the Department to the plaintiffs of April 3, 1980, and April 14, 1980, and in the licence issued to them for 1982, specific reference is made to the
purse seining prohibition, is explicable on other grounds. Since the application of the new subsec tion 15(2) to particular vessels depended on whether they had landings of purse seine caught salmon in a particular period, it was appropriate that the vessels be identified to which the prohibi tion was thought by the Department to apply.
Even if I were to accept that the plaintiffs had an accrued right in 1979 to a Salmon "A" licence including the right to fish by the use of a purse seine, that right would, by virtue of paragraph 35(c) of the Interpretation Act, only be regarded as immune from the new subsection 15(2) of the Regulations until the end of that licence year. As noted above, these licences are in law good for one year only and must be the subject of a new application each year. In granting a renewal of a licence any time after January 21, 1980, the Min ister or his representatives would have no authority to grant, expressly or by implication, a licence which was contrary to subsection 15(2) as enacted by the Governor in Council. Even if it were accept ed that the plaintiffs continued to have the right to fish by purse seine until the expiry of their 1979- 1980 licence on March 31, 1980, this as far as I can see is of no practical consequence since no fishing was done by either of their vessels from the time the application for transfer was made on November 14, 1979, until at least some time in April when the new vessel was launched.
It was contended by counsel for the plaintiffs that the Crown was in any event estopped from denying the right of the plaintiffs to fish for salmon by purse seine, because in spite of its knowledge of the plaintiffs' intentions to build a vessel for this purpose and its knowledge of the impending Regulation prohibiting purse seining, the Department by its approval on November 29, 1979 of the transfer of the licences had induced the plaintiffs to proceed with construction of the
vessel designed for purposes which would soon be illegal. The plaintiffs cited decisions to the effect that the Crown may be bound by estoppel. With out examining carefully the question of detriment, since I need not do so here and it may be relevant to issues not yet tried, I am satisfied that in these circumstances the officers of the Crown cannot be bound by estoppel so as to require them to ignore the express provisions of the law: see, e.g., St. Ann's Fishing Club v. The King, [1950] S.C.R. 211. This is not to say that I find the conduct of the Department of Fisheries excusable or expli cable in these circumstances. It is obvious that certain officers of the Department must have been aware, or should have realized, that the Depart ment would be in effect encouraging the plaintiffs to embark on a costly investment largely devoted to an activity which might soon be prohibited by the Governor in Council on recommendation of the Department. No facts emerged at the trial which explained this course of conduct.
Since the trial, counsel for the plaintiffs has also brought to my attention the decision of the Supreme Court of British Columbia in Laurie's Caterers Ltd. v. North Vancouver (1984), 53 B.C.L.R. 381 (S.C.). That decision deals with the liability of a municipal government for damages caused by a failure to warn a successful applicant for a building permit that a business licence might not be issued to allow the operation of the kind of business it planned to operate. Apart from the question of whether the same principles apply to the Crown and its officers as apply to a municipal body, the case does not deal with the validity of the limitation placed on the business permit pre venting the plaintiff from carrying on its proposed business. The decision relates only to the question of liability for damages arising out of that limita tion. It may, as noted before, be relevant to a later aspect of these proceedings but not to the issue now before me.
The action, in so far as it seeks declarations in favour of the plaintiffs with respect to the licence, is therefore dismissed. The plaintiffs must bear the costs of the action to date.
I was advised by counsel for the plaintiffs that even if I should reach such a conclusion, this would not necessarily foreclose their claim for damages. I take it that the plaintiffs may wish to assert such a claim on the basis of alleged mis representation by the defendant giving rise to pos sible liability in tort. I am not seized of that issue, and for it to be tried it will be necessary for the defendant to have an opportunity to amend the statement of defense to meet this claim and fur ther discoveries may be necessary. It is not of course appropriate for me to comment on the possible success of such a claim, at this time. I will simply direct that if the plaintiffs decide to pursue the claim in damages, that will have to be the subject of consideration in a further trial of this same action to be held as and when directed by the Associate Chief Justice.
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