Judgments

Decision Information

Decision Content

T-1511-91
William Cairns, Patricia Cairns and Eagleton Dairies Ltd., Maximillian Englot, Gerald Blerot and Alfred Froese, Glen Hainsworth and Jocelyn Hainsworth, Jerry Kosheluk, Kenneth Botterill, Norman Jean Botterill, Delbert Leader, Charles E. Sutcliffe, Brian R. Wilson, Clarence A. Mennie, Norman Desrochers, Donald Monastyrski, Reginald Englot, Kenneth Cairns, Gary and Shirley Granger, Kenneth Pedde, Marcel Bouchard and Hart Haidn, in their personal capacity and representing Past, Present and Future, Borrowers from the Farm Credit Corporation (Plaintiffs)
v.
The Farm Credit Corporation, The Honourable William McKnight, The Farm Debt Review Board (Defendants)
INDEXED AS: CAIRNS V. FARM CREDIT CoRP. (TD.)
Trial Division, Denault J.—Toronto, October 16; Ottawa, November 19, 1991.
Federal Court jurisdiction Trial Division Application for interlocutory injunction restraining Farm Credit Corpora tion (F.C.C.) from realizing upon security until providing lists of rules, regulations and policies (1) governing dealings with clients and (2) detailing manner, conditions and criteria by which F.C.C. obtaining funds from Farm Debt Review Fund— F.C.C. not `federal board, commission or other tribunal" within definition in Federal Court Act, .c. 2(g) Definition not including private powers exercisable by ordinary corporation created under federal statute which are merely incidents of authorized business Necessary to examine circumstances of each case Plaintiffs seeking review of private powers of F.C.C. which are incidents of authorized business of commer cial lending F.D.R.B. not `federal board, commission or other tribunal" as mere mediator without decision-making authority.
Agriculture Federal Court, Trial Division lacking juris diction to try action against Farm Credit Corporation, Farm Debt Review Board as neither organization "federal board, commission or other tribunal" Method of accessing F.D.R. Fund Fund not directly accessible by farmers F.C.C. granting concessions on same basis as commercial lenders No intervention by government Nature of F.D.R.B.'s powers
Latter merely mediating negotiations between F.C.C. and financially distressed clients.
Practice Parties Class action to force Farm Credit Corporation, Farm Debt Review Board to provide to borrow ers in financial difficulty lists of rules, regulations and policies (1) governing dealings with clients and (2) detailing manner, conditions and criteria by which Farm Credit Corporation (F.C.C.) obtaining funds from Farm Debt Review Fund Cir cumstances inappropriate for class action under R. 1711 "Same interest" in proceeding in R. 1711 meaning same inter est in outcome of judgment As plaintiffs at different stages in dealing with F.C.C., varying interests in obtaining lists Relief sought by class of plaintiffs must have practical impact on each member of class Minister struck as defendant as no allegation against him relating to acts done in personal capac ity.
This was a motion for an interlocutory injunction to restrain the Farm Credit Corporation (F.C.C.) from realizing upon its security, acquiring lands by voluntary transfer, or disposing of lands that it holds until it has provided to all its borrowers in financial difficulty the lists sought in the main action. The main action was a class action to force the defendants to pro vide a list of the rules, regulations and policies which govern the F.C.C. in its dealings with its clients in financial difficulty, and a list outlining the rules, regulations and policies detailing the manner, conditions and criteria by which the F.C.C. may obtain funds from the Farm Debt Review Fund (F.D.R. Fund). The plaintiffs are Canadian farmers who borrowed money from the F.C.C., subsequently fell into arrears on their pay ments and were dissatisfied with the settlement options offered to them by the F.C.C. Although each plaintiff's situation is dif ferent, they are generally alleging that they were treated unfairly and dealt with in an inconsistent fashion by the F.C.C. during negotiations regarding their outstanding loans. The defendants moved to strike the statement of claim for failing to disclose a reasonable cause of action. They argued that the Court lacked jurisdiction to grant the relief sought. The issues were whether The Honourable William McKnight was a proper party; whether the action can properly form the subject- matter of a class action; and whether the Court had jurisdiction.
Held, the motion to strike should be allowed; the motion for an interlocutory injunction and the action should be dismissed.
A minister cannot be sued either in a representative or per sonal capacity unless the allegations against him relate to acts done in a personal capacity. As no claim was made against the
Minister in his personal capacity, his name was struck as a defendant.
The circumstances were inappropriate for a class action within Rule 1711. Persons instituting a class action must have a common interest and a common grievance. The relief must be beneficial to all members of the class. Rule 1711 requires that the plaintiffs and those they seek to represent have the same interest in the proceedings. This has been interpreted as meaning the same interest in the outcome of the judgment. The plaintiffs are at varying stages in their dealings with the F.C.C. The individual members of the class have varying interests in obtaining the lists of rules, regulations and policies. The pur pose of a class action is not to allow a group of plaintiffs to seek numerous forms of relief in an attempt to satisfy the vary ing needs of all of its members. In order to satisfy the require ment of having the same interest in the outcome of the judg ment, the relief sought by a class of plaintiffs must have a practical impact on each of the members of the class.
While the F.C.C. exercises statutory powers and would appear to fall under Federal Court jurisdiction, the particular circumstances of a case had to be examined by the Court prior to making a determination. It has been held that the definition "federal board, commission or other tribunal" in Federal Court Act, paragraph 2(g) does not extend to those private powers exercisable by an ordinary corporation created by statute which are merely incidents of its legal personality or author ized business. Thus, both the C.B.C. and the Canada Council fall outside the definition. The plaintiffs misunderstood the method of accessing the F.D.R. Fund. To do so, the F.C.C. must be convinced either of the future viability of the farming operation or that a farmer is in need of assistance to preserve his equity while he phases out of farming operations. In either case, the F.C.C. must ensure that any concession granted is made on a sound commercial basis. The Fund is not directly accessible by the farmers. That determination is made in the course of its authorized business, that is, commercial lending. That being the case, the F.C.C. has none of the attributes of a federal board, commission or tribunal, since all commercial lenders are required to make the very same determinations. The government in no way controls the criteria to be used by the F.C.C. in determining who should benefit from specific compromise arrangements or concessions. In addition, the Farm Credit Act grants absolute discretion to the F.C.C. in developing its own standards in order to carry out its mandate. Nor was the F.D.R. a "federal board, commission or other tri bunal". It has neither access to the F.D.R. Fund nor authority over decisions made by the F.C.C. Other than its authority to extend or terminate a stay of proceedings by creditors, the F.D.R.B. has no decision-making power whatsoever. The F.D.R.B. was merely called upon to mediate negotiations between the F.C.C. and its financially distressed clients. A Board which acts only as a mediator and which has no deci- sion-making authority is not a "board, commission or other tri bunal" within the Act.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Department of Agriculture Act, R.S.C., 1970, c. A-10, s. 5(2).
Farm Credit Act, R.S.C., 1985, c. F-2, ss. 3(1), 11, 20, 25, 34, 40.
Farm Debt Review Act, R.S.C., 1985, c. F-2.3 ss. 26, 29. Farm Syndicates Credit Act, R.S.C., 1985, c. F-5. Federal Court Act, R.S.C., 1985, c. F-7, ss. 2(g), 18. Federal Court Rules, C.R.C., c. 663, RR. 401, 419, 1711. Financial Administration Act, R.S.C., 1985, c. F-I1,
Schedule III, Part I.
CASES JUDICIALLY CONSIDERED
APPLIED:
Canada Metal Co. Ltd. et al. v. Canadian Broadcasting Corp. et al. (No. 2) (1975), 11 O.R. (2d) 167; 65 D.L.R. (3d) 231; 29 C.C.C. (2d) 325 (C.A.); Wilcox v. Canadian Broadcasting Corporation, [1980] 1 F.C. 326; (1979), 101 D.L.R. (3d) 484 (T.D.); Aeric, Inc. v. Chairman of the Board of Directors, Canada Post Corporation, [1985] 1 F.C. 127; (1985), 16 D.L.R. (4th) 686; 56 N.R. 289 (C.A.); Toronto Independent Dance Enterprise v. Canada Council, [1989] 3 F.C. 516; (1989), 60 D.L.R. (4th) 503; 38 Admin. L.R. 231; 30 F.T.R. 20 (T.D.).
CONSIDERED:
General Motors of Canada Ltd. v. Naken et al., [1983] 1 S.C.R. 72; (1983), 144 D.L.R. (3d) 385; 22 C.P.C. 138; 46 N.R. 139.
REFERRED TO:
Air India Flight 182 Disaster Claimants v. Air India (1987), 62 O.R. (2d) 130; 44 D.L.R. (4th) 317 (H.C.); Bedford (Duke of) v. Ellis, [1901] A.C. 1 (H.L.); Kiist v. Canadian Pacific Railway Co., [1982] 1 F.C. 361; (1981), 123 D.L.R. (3d) 434; 37 N.R. 91 (C.A.); Copeland v. Mr. Justice McDonald, [1978] 2 F.C. 815; (1978), 88 D.L.R. (3d) 724; 42 C.C.C. (2d) 334 (T.D.); Hamilton (City of) v. Hamilton Harbour Commissioners, [1972] 3 O.R. 61; (1972), 27 D.L.R. (3d) 385 (C.A.); Concept Omega Corp. v. Logiciels KLM Ltée (1987), 15 C.I.P.R. 312; 12 F.T.R. 291 (F.C.T.D.).
COUNSEL:
Lawrence D. Ryder for plaintiffs.
Debra McAllister and Jonathan Keene for
defendants.
SOLICITORS:
Ryder & Planz, Port Elgin, Ontario, for plain tiffs.
Deputy Attorney General of Canada for defend ants.
The following are the reasons for order rendered in English by
DENAULT J.:
The Facts:
The plaintiffs in this action are Canadian farmers who borrowed money from the Farm Credit Corpora tion (hereinafter "F.C.C."), subsequently fell into arrears on their payments, and were dissatisfied with the settlement options offered to them by the F.C.C. Although each plaintiff's fact situation is different, they are generally alleging that they were treated unfairly and dealt with in an inconsistent fashion by the F.C.C. during negotiations regarding their out standing loans. They claim that during the course of these negotiations, F.C.C. representatives led them to believe that the only option available to such finan cially distressed farmers, other than a buy out, was the voluntary transfer of the title to their mortgaged farm lands, with a lease back of the same, in satisfac tion of their debt.
The Action:
The plaintiffs have instituted a class action against the F.C.C., the Farm Debt Review Board (hereinafter "F.D.R.B.") and the Honourable William McKnight in an effort to force the F.C.C. and the F.D.R.B. to promulgate and provide to F.C.C.'s financially dis tressed clients, a list of the rules, regulations, and pol icies which govern the F.C.C. in its dealings with its clients in financial difficulty, as well as a second list outlining the rules, regulations and policies detailing the manner, conditions and criteria by which the F.C.C. may obtain funds from the Farm Debt Review Fund (hereinafter "F.D.R. Fund"). They are also seeking a number of injunctive and declaratory forms of relief which relate to these lists.
The Motions:
By way of motion before this Court, the plaintiffs are seeking an interlocutory injunction against the defendant F.C.C. More specifically, the plaintiffs are requesting an order restraining the F.C.C. from auc tioning, selling or realizing upon its security, acquir ing lands by voluntary transfer, or disposing of lands that it presently holds, until it has promulgated and provided to all its borrowers in financial difficulty, essentially the same lists sought in the principle action against the defendants.
The defendants have presented a motion to strike the plaintiffs' statement of claim in its entirety on the grounds that it discloses no reasonable cause of action. They submit that this Court lacks jurisdiction to grant the relief sought by the plaintiffs in their action against the defendants. They further seek to have the Honourable William McKnight struck as a party to this action.
I will deal with these two motions concurrently as the same principles of law are at issue. Before pro ceeding to a discussion involving this Court's juris diction to entertain these matters, I wish to comment on some preliminary considerations involving form.
Matters relating to Form: The Minister of Agriculture:
The plaintiffs have named the Honourable William McKnight as a defendant in this action. A Minister of the Crown cannot be sued in his representative capac ity, nor can he be sued in his personal capacity unless the allegations against him relate to acts done in his personal capacity (Air India Flight 182 Disaster Claimants v. Air India (1987), 62 O.R. (2d) 130 (H.C.)). As the plaintiffs have made no claims against the Minister relating to actions done in his personal capacity, the Honourable William McKnight must be struck as a party to the action.
Requirements for a Class Action:
Can the plaintiffs' action, as it is framed, properly form the subject-matter of a class action within the meaning of Rule 1711 of the Federal Court Rules [C.R.C., c. 663]? Paragraph (1) of Rule 1711 reads as follows:
Rule 1711.(1) Where numerous persons have the same interest in any proceeding, the proceeding may be begun, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.
The plaintiffs' statement of claim describes the proposed class of plaintiffs to this action as including all "farmers, borrowers from the F.C.C. who have been, are or may be in financial difficulty".
For a matter to be appropriate for the institution of a class action, the persons in the class must have a common interest and a common grievance. Further more, the relief sought must in its nature be benefi cial to all members of the class, or as it has some times been described, "if the plaintiffs win, all win" (Bedford (Duke of) v. Ellis, [1901] A.C. 1 (H.L.); General Motors of Canada Ltd. v. Naken et al., [1983] 1 S.C.R. 72; Kiist v. Canadian Pacific Rail way Co., [1982] 1 F.C. 361 (C.A.); Copeland v. Mr. Justice McDonald, [ 1978] 2 F.C. 815 (T.D.)).
Rule 1711 requires that the plaintiffs and those they seek to represent have the "same interest" in the proceedings. In the case of General Motors of Canada Ltd. v. Naken et al., [1983] 1 S.C.R. 72, the Supreme Court of Canada interpreted this term to mean that the plaintiffs must all have the same inter est in the outcome of the judgment.
In the present case, the plaintiffs are currently at greatly varying stages in their dealings with the F.C.C. Several plaintiffs have voluntarily transferred their farms to the F.C.C. and are operating under a lease-back arrangement; whereas others are still attempting to negotiate a settlement agreement. While some plaintiffs have seen their farm lands sold to a third party, others face the execution of a final provincial court order for the judicial sale of their property. As a result, the individual members of the
class have varying interests in obtaining the lists of rules, regulations and policies described in the state ment of claim.
Many of the plaintiffs are certainly hoping to find, in these lists, an undivulged option which would allow them to keep their land. However, those who face final provincial court orders or whose lands have already been sold can receive no "practical" benefit from the distribution of these lists. This may explain why the plaintiffs are also seeking additional forms of relief such as "an order declaring voidable all transfers of land to the F.C.C. from farmers, by way of transfer or legal action, prior to the production of the [lists]" and "an order to prohibit the F.C.C. from selling any land which it now holds and which was obtained ... by way of legal action or transfer until 60 days after [the distribution of the lists]". Unfortu nately, the purpose of a class action is not to allow a group of plaintiffs to seek numerous forms of relief in an attempt to satisfy the varying needs of all of its members. It is the opinion of this Court that, in order to satisfy the requirement of having "the same inter est in the outcome of the judgment", the relief sought by a class of plaintiffs must, at the very least, have a practical impact on each of the members of the class.
For the above reasons, the plaintiffs cannot he per mitted to pursue their action as it is currently framed since it does not properly form the subject-matter of a class action within the meaning of Rule 1711.
Since this action may not proceed as a class action, any reference to the "plaintiffs' motion" shall be directed at the motion presented solely by William Cairns, Patricia Cairns and Eagleton Dairies Limited (as it was in fact constructed).
Jurisdiction:
One of the issues to be determined in this matter is whether this Court has the jurisdiction to entertain the plaintiffs' motion for injunction and the principal action against the defendants.
Section 18 of the Federal Court Act [R.S.C., 1985, c. F-7] confers on this Court an exclusive review jurisdiction over federal boards, commissions or other tribunals by the prerogative and extraordinary remedies outlined in the section. Section 18 reads as follows:
18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibi tion, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceed ing for relief in the nature of relief contemplated by para graph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a fed eral board, commission or other tribunal.
The expression "federal board, commission or other tribunal" is defined in paragraph 2(g) of the Federal Court Act as follows:
2. In this Act,
"federal board, commission or other tribunal" means any body or any person or persons having, exercising or pur porting to exercise jurisdiction or powers conferred by or under an Act of Parliament, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867;
Therefore, this Court must determine whether the F.C.C. and the F.D.R.B. are "federal board[s], com mission[s] or other tribunal[s]" upon which this Court, in these circumstances, has jurisdiction.
The F.C.C. is a corporation which was established pursuant to subsection 3(1) of the Farm Credit Act, R.S.C., 1985, c. F-2. The F.C.C. is also an agent of the Crown and is listed in Part I of Schedule III to the Financial Administration Act, R.S.C., 1985, c. F-11,
which lists parent Crown corporations which are wholly owned by the federal Crown.
The F.C.C. makes, administers and supervises farm loans under the Farm Credit Act and the Farm Syndicates Credit Act, R.S.C., 1985, c. F-5. F.C.C.'s role is to provide mortgage credit and complementary financial services to Canadian farmers on a break- even basis. F.C.C. loan products, interest rates and risk parameters are developed on a national basis. However, since it is felt that the regional offices are better suited to take into account local conditions, the strength of the market for the farm product, as well as the impact of provincial legislation on lending opera tions, loan decisions and debt settlements are nor mally made at the local level.
In order to advance a loan, the F.C.C. must be sat isfied that a farmer has significant potential for com mercial viability (Farm Credit Act, section 25). If the F.C.C. declines a loan or approves a lesser amount than that which was applied for, a farmer may have his loan application reviewed by an appeal board established pursuant to F.C.C. by-laws. Recommen dations made by the appeal board are not binding on the F.C.C.
F.C.C. accounts which are in arrears are also dealt with at the local level. The F.C.C. has the power to enter into compositions or arrangements, grant exten sions of time, substitute security and renegotiate mortgages or other agreements (Farm Credit Act, section 11). If negotiations between the F.C.C. and the borrower to deal with arrears are unsuccessful, the assistance of the F.D.R.B. may be sought.
The Farm Debt Review Act, R.S.C., 1985, c. F-2.3 establishes an F.D.R.B. for each province or region of Canada. The Farm Debt Review Act allows both "farmers in financial difficulty" and "insolvent farm ers" to apply to the F.D.R.B. for a review of their financial affairs or for assistance in facilitating arrangements with their creditors. Insolvent farmers may apply to the F.D.R.B. for a stay of any proceed-
ings by their creditors. However, apart from this lim ited power, the F.D.R.B. has no decision-making or enforcement authority.
Privy Council Minute P.C. 1986-1/2914, issued on December 18, 1986, on the recommendation of the Minister of Agriculture and the Treasury Board pur suant to subsection 5(2) of the Department of Agri culture Act, R.S.C. 1970, c. A-10, established what has come to be known as the F.D.R. Fund. The Privy Council Minute (and its subsequent amended ver sions) provides that concessions granted to eligible farmers in financial difficulty, through the F.D.R.B. negotiation process, will be reimbursed to the F.C.C. by Agriculture Canada. Schedules A and B to the Privy Council Minute set out the terms, conditions and principles governing the F.C.C.'s participation in this reimbursement arrangement, as well as the types of assistance that the F.C.C. may provide. Specifi cally, the F.C.C. is authorized to provide the follow ing forms of assistance to its eligible farm clients:
a) postponement of payments to the end of the mortgage contract;
b) refinancing with other F.C.C. loans i.e. regular loans, shared-risk mortgages and C.B.L. loans;
c) reamortization of loans (including arrears);
d) loans for debt consolidation;
e) leases of up to five years;
f) debt set asides, defined as stopping future interest accrual on a portion of debt for a period of time;
g) forgiving interest in arrears;
h) sale-back of building sites to exiting farmers;
i) stopping the accrual of interest to allow for a reasonable period of time to sell assets for exiting farmers; and
j) other methods resulting from Farm Debt Review Board hearings.
As I understand it, this list of options is among the information which the plaintiffs wish to have distrib uted to all of the F.C.C.'s financially distressed farm clients. Unfortunately, the plaintiffs appear to have misunderstood the method used to access this Fund.
In order to do so, the F.C.C. must be convinced either of the future viability of the farming operation or that a farmer is in need of assistance in order to preserve his equity while he phases out of farming operations. In either case, the F.C.C. must ensure that any con cession granted, through the F.D.R.B. process, is made on a sound commercial basis. The F.D.R. Fund is not directly accessible by the farmers themselves and the determination of a farmer/borrower's eligibil ity for a particular concession is to be made by the F.C.C.
Under section 18 of the Federal Court Act, Parlia ment granted exclusive jurisdiction on the Trial Divi sion of the Federal Court to provide the type of injunctive and declaratory relief sought by the plain tiffs. However, in order to obtain relief under section 18, the defendants against whom such relief is sought must come within the definition of a "federal board, commission or other tribunal" set out in paragraph 2(g) of the Federal Court Act (Hamilton (City of) v. Hamilton Harbour Commissioners, [1972] 3 O.R. 61 (C.A.)). Although in principle, both the F.C.C. and the F.D.R.B. are bodies which exercise jurisdiction or powers conferred by an Act of Parliament and, there fore, appear to fall under the Federal Court's jurisdic tion, the Court must examine the particular circum stances of a case before making such a determination.
In the case of Canada Metal Co. Ltd. et al. v. Canadian Broadcasting Corp. et al. (No. 2) (1975), 11 O.R. (2d) 167 (C.A.), MacKinnon J.A., writing for a unanimous Ontario Court of Appeal, held that the Canadian Broadcasting Corporation, a body which exercises powers conferred by an Act of Par liament, is not a "federal board, commission or other tribunal", within the meaning of paragraph 2(g) of the Federal Court Act, when it is carrying on the bus iness of broadcasting. The Court established that a corporate entity carrying on its business purpose and having, in such circumstances, none of the attributes of a federal board, commission or tribunal, does not fall within the definition set out in paragraph 2(g).
In Wilcox v. Canadian Broadcasting Corporation, [1980] 1 F.C. 326 (T.D.), Thurlow A.C.J. (as he then was) examined the Federal Court's jurisdiction in light of an application for a declaration against the C.B.C. In that decision, Mr. Justice Thurlow held that the expression contained in paragraph 2(g) does not include the private powers exercisable by an ordinary corporation created under a federal statute which are merely incidents of its legal personality or its author ized business.
This interpretation was later applied by the Federal Court of Appeal in Aeric, Inc. v. Chairman of the Board of Directors, Canada Post Corporation, [1985] 1 F.C. 127 (C.A.) and by Rouleau J. in Toronto Independent Dance Enterprise v. Canada Council, [1989] 3 F.C. 516 (T.D.). In the latter case, Rouleau J. was called upon to consider whether the Canada Council, as a public body created by an Act of Parliament and distributing government funds, should be subject to a duty of fairness to the potential recipients of these funds. In arriving at the conclusion that the Federal Court did not have jurisdiction as the Canada Council was not a "board, commission or other tribunal" within the meaning of paragraph 2(g) of the Federal Court Act, my brother Rouleau (at page 525) considered factors such as the absence of government control over the Council's allocation of funds and the absolute discretion granted to the Council in developing its own standards and proce dures in order to carry out its mandate. He also added that "Creation by government and distribution of public funds is not by itself determinative".
Decisions regarding the most commercially sound compromise arrangement to be reached with a client or the most appropriate remedy to be exercised against a borrower whose loan payments are in arrears are made by the F.C.C. in the course of its authorized business, that is, commercial lending. In such circumstances, the F.C.C. has none of the attrib utes of a "federal board, commission or tribunal", as all commercial lenders are required to make precisely these determinations. The government in no way controls the criteria to be used by the F.C.C. in deter-
mining who should benefit from specific compromise arrangements or concessions. In addition, the Farm Credit Act grants absolute discretion to the F.C.C. in developing its own standards in order to carry out its mandate (see specifically sections 11, 20, 25, 34 and 40).
The plaintiffs are asking this Court to review the private powers of the F.C.C. which are incidents of its authorized business of commercial lending. Fol lowing the Wilcox decision, this Court does not have jurisdiction to entertain either the plaintiffs' present motion or its principal action against the defendants since, in these circumstances, the F.C.C. does not fall within the definition of a "federal board, commission or other tribunal" contained in paragraph 2(g) of the Federal Court Act.
With respect to the F.D.R.B., the circumstances surrounding its involvement in these matters also make it impossible to characterize this organization as a "federal board, commission or other tribunal" falling within the scope of paragraph 2(g). The F.D.R.B. has no access to or control over the F.D.R. Fund. It exercises no authority over decisions made by the F.C.C. In fact, other than its authority to extend or terminate a stay of proceedings by creditors pursuant to sections 26 and 29 of the F.D.R. Act (which is not at issue here), the F.D.R.B. has no deci- sion-making power whatsoever. With regards to its involvement with the plaintiffs in this case, the F.D.R.B. was only called upon to mediate negotia tions between the F.C.C. and its financially distressed farm clients. In my opinion, a board, which acts only as a mediator and which has no decision-making authority, is not a "board, commission or other tribu nal" within the meaning of the Federal Court Act. Accordingly, this Court also lacks jurisdiction to entertain an application for relief against the F.D.R.B.
Conclusion:
Although Rule 401 was intended to deal with ques tions involving the Court's jurisdiction and Rule 419(1)(a) was meant to deal with whether there exists a reasonable cause of action assuming that the matter falls within the Court's jurisdiction, a failure to set forth the correct Rule does not defeat the substance
of the motion (Concept Omega Corp. v. Logiciels KLM Ltée (1987), 15 C.LP.R. 312 (F.C.T.D.)). As this Court does not have the jurisdiction to grant the relief sought by the plaintiffs in these circumstances, I must grant the defendants' motion to strike, and dis miss the plaintiffs' motion as well as its action against the defendants, with costs.
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