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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