T-756-76
The Queen (Plaintiff)
v.
La Garantie, Compagnie d'assurance de l'Amé-
rique du Nord (Defendant) (Applicant)
and
Economic Structural Steel Inc. (Third Party)
Trial Division, Marceau J.—Montreal, June 7;
Ottawa, June 8, 1976.
Practice—Third party notice—Application for direction
under Rule 1729—No jurisdiction over third party proceed-
ings—Third party notice dismissed—Federal Court Rule
1729.
The Queen v. F. E. Cummings Construction Co. [1974] 2
F.C. 9, followed.
APPLICATION for directions.
COUNSEL:
A. Coté-Pistono for plaintiff.
R. D. LeMoyne for defendant, applicant.
C. Therrien for third party.
SOLICITORS:
Deputy Attorney General of Canada for
plaintiff.
Doheny, Mackenzie, Grivakes, Gervais and
LeMoyne, Montreal, for defendant, applicant.
Ray, Jolicoeur and Therrien, Montreal, for
third party.
The following is the English version of the
reasons for order rendered by
MARCEAU J.: Defendant was sued as surety
consequent upon the failure of the principal debtor
to fulfil its commitments as a tenderer, following a
call for tenders for the granting of a public works
contract; it served a third party notice on the latter
and submitted this application for directions under
Rule 1729 of the Rules of this Court. Plaintiff
contests the granting of this application, and
argues that this Court lacks jurisdiction to decide
cases which may bring defendant and the third
party for which it stood surety into conflict.
In a recent decision, The Queen v. F. E. Cum-
mings Construction Co. Ltd. [1974] 2 F.C. 9, my
colleague Collier J. undertook to re-examine the
principles involved here and to make a review of
the principal relevant previous decisions. I need
only refer to that decision.
I believe that plaintiff's objection is justified.
The fact that the third party could have been sued
as joint and sole* debtor on the obligation alleged
in the action could not confer jurisdiction on this
Court to decide which means of redress defendant
may use against the third party. Moreover, noth
ing requires that the principal debtor be a party to
an action, in order for its grounds of defence to be
pleaded by its surety. A third party notice is
equivalent to a writ of summons and in itself gives
rise to an action: in the case at bar, this action does
not come under the jurisdiction of this Court.
The third party notice should therefore be dis
missed and struck out, and the third party exclud
ed from the action.
* Translator's note: "Solitaire"?
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.