A-361-76
CAE Industries Ltd. and CAE Aircraft Ltd.
(Appellants) (Plaintiffs)
v.
The Queen (Respondent) (Defendant)
Court of Appeal, Jackett C.J., Urie and Ryan
JJ.—Ottawa, July 20 and 21, 1976.
Crown—Practice—Appeal from order of Trial Division dis
missing application under Rule 465 for order that Minister of
Defence be designated as proper officer of defendant for
examination—Whether Minister "officer of the Crown"—
Federal Court Act, ss. 46(1)(a)(i), 52(b)(i) and Rules 465(1),
(7), (15), (17), (20), National Defence Act, R.S.C. 1970, c.
N-4, s. 3.
In an action by plaintiffs against the Queen for breach of
contract or negligence, the Trial Division dismissed an applica
tion under Rule 465(1)(c) for an order that the Minister of
National Defence be designated as the proper officer to be
examined for discovery. The Trial Judge reasoned that the
Minister was not a "departmental or other officer of the
Crown" within the meaning of section 46(1)(a)(i) of the Fed
eral Court Act.
Held, the appeal is allowed. The Trial Judge was correct in
concluding that a Minister is not a "departmental officer". The
difficulty arose with his interpretation of the words "or other"
in section 46(1)(a)(i); the Trial Judge held that the more likely
purpose of the words was to bring within the meaning of the
word "officer" persons employed in Crown organizations that
do not fall within any department and who are still officers of
the Crown. Since the decision of the Supreme Court of Canada
in Jones v. Gamache, in the absence of some special context,
the words "officer of the Crown" cannot be read as excluding a
Minister, at least if he has, by statute, been placed in charge of
a department, as had the Minister here. There is to be implied
no limitation on the words because they are preceded by the
words "departmental or other". These words suggest that, in
ordinary litigation to which the Crown is a party, where the
litigation arises out of business of a department, the appropri
ate officer for examination will be a "departmental officer".
Where the nature of the litigation calls for it, any officer of the
Crown may be nominated.
As to what decision the Trial Judge should-have made, the
parties seem to have agreed that the Deputy Attorney General
of Canada had nominated the "officer to be examined." Rule
465(1) does not confer on the Attorney General or his deputy
the right to determine conclusively what officer is to be exam
ined. The officer to be examined must be one nominated by
those charged with the conduct of the Crown's litigation, or one
nominated by the Court. The opposing party should not be
bound to accept a nomination on behalf of the Crown, if
inappropriate, and Rule 465(1)(c) should not be so interpreted.
The question of the onus of establishing that the Deputy
Attorney General's nominee is not a proper one does not have
to be decided; material has been placed before the Court
showing that the contract and representations relied on are not
restricted to something affecting only part of a single depart
ment. In the absence of rebutting material, this leads to the
conclusion that it is improbable that the nominee is appropri
ate. And, material filed by appellant makes out some basis for
nominating the Minister and, in the absence of rebutting
material, he should be nominated. In any ordinary case, a
minister whose duties extend far beyond the affairs of his
department would not be the proper officer; his time should not
be spent in doing what inferior officers may do equally well
and, where ordinary departmental business is involved, discov
ery can be better made by a departmental officer more closely
connected to the matters, provided he has authority.
Jones v. Gamache [1969] S.C.R. 49, followed.
APPEAL.
COUNSEL:
L. Mercury and D. Hill for appellants.
J. Scollin, Q.C., and G. St. John for
respondent.
SOLICITORS:
Aikins, MacAulay, Thorvaldson, Winnipeg,
for appellants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is an appeal from an order
of the Trial Division dismissing an application for
an order that the Honourable James A. Richard-
son be designated as the proper officer of the
defendant to be examined for discovery touching
upon the matters in question in the action in the
Trial Division in which the application was made.
The application was made pursuant to Rule
465(1)(c). The portions of Rule 465 that seem to
be relevant, for the purposes of understanding the
effect of the Rule in so far as this appeal is
concerned, read as follows:
Rule 465. (1) For the purpose of this Rule, a party may be
examined for discovery, as hereinafter in this Rule provided,
(a) if the party is an individual, by questioning the party
himself,
(b) if the party is a corporation or any body or group of
persons empowered by law to sue or to be sued, either in its
own name or in the name of an officer or other person, by
questioning any member or officer of such corporation, body
or group,
(c) if the party is the Crown, by questioning any departmen
tal or other officer of the Crown nominated by the Attorney
General of Canada or Deputy Attorney General of Canada
or by order of the Court, and
(d) in any case, by questioning a person who has been
agreed upon by the examining party and the party to be
examined with the consent of such person;
and, in this Rule, a party who is being, or is to be, so examined
for discovery is sometimes referred to as the "party being
examined" or the "party to be examined", as the case may be,
and the individual who is being, or is to be, questioned is
sometimes referred to as the "individual being questioned" or
the "individual to be questioned", as the case may be.
(7) Upon request of the party who proposes to exercise a
right under this Rule to examine for discovery, a person who is
qualified by paragraph (6) to be the examiner and who has
agreed so to act for the particular examination shall issue an
appointment signed by him fixing the time when, and the place
where, the examination is to be conducted. (Such appointment
shall indicate the names of the examining party, the party to be
examined for discovery, and the individual to be questioned.)
(15) Upon examination for discovery otherwise than under
paragraph (5), the individual being questioned shall answer any
question as to any fact within the knowledge or means of
knowledge of the party being examined for discovery that may
prove or tend to prove or disprove or tend to disprove any
unadmitted allegation of fact in any pleading filed by the party
being examined for discovery or the examining party.
(17) In order to comply with paragraph (15), the individual
being questioned may be required to inform himself and for
that purpose the examination may be adjourned if necessary.
(20) If any individual to be questioned fails without reason
able excuse to attend and submit to questioning as required by
this Rule, or to comply with an order under paragraph (18), the
party being examined is liable, in the discretion of the Court, if
a plaintiff to have his action dismissed, and if a defendant to
have his defence struck out and to be placed in the same
position as if no defence had been filed. The onus of proof of
"reasonable excuse" for the purpose of this Rule is on the party
being examined.
The application was made in an action by the
plaintiffs against the Canadian Government (Her
Majesty in right of Canada) for breach of contract
or negligence; which action is apparently based
principally upon a letter written by the Minister of
Transport and concurred in by the Minister of
Trade and Commerce and the Minister of Defence
Production. In so far as the statement of claim or
anything else in the Record reveals, the claim does
not arise out of the business of any particular
"department" created by Parliament.
The learned Trial Judge concluded that the
Honourable Mr. Richardson, who is Minister of
National Defence, is not a "departmental or other
officer of the Crown" within the meaning of sec
tion 46(1)(a)(i) of the Federal Court Act,' the
specific authority for Rule 465, and, accordingly,
made the order appealed from. I am inclined to
agree with the learned Trial Judge's conclusion
that a minister of the Crown is not a "departmen-
tal officer". My difficulty with his conclusion is in
accepting the reasoning contained in that part of
his judgment [[1977] 1 F.C. 206 at pages 213-14]
reading as follows:
The further question remains, viz: Is a minister brought
within section 46(1)(a)(i) of the Act and Rule 465(1)(c) by the
words "or other"? With some doubt, 1 have come to the
conclusion that he is not. If the word "officer" is intended to
embrace every kind of officer of the Crown there is no need for
the word "departmental". The same is true if the words "or
'Section 46(1)(a)(i) reads:
46. (1) Subject to the approval of the Governor in Coun
cil and subject also to subsection (4), the judges of the Court
may, from time to time, make general rules and orders not
inconsistent with this or any other Act of the Parliament of
Canada,
(a) for regulating the practice and procedure in the Trial
Division and in the Court of Appeal, including, without
restricting the generality of the foregoing,
(i) rules providing, in a proceeding to which the Crown
is a party, for examination for discovery of a departmen
tal or other officer of the Crown,
other" are intended to expand the meaning of "officer" not
simply beyond "departmental" but to make it all inclusive. In
my view the more likely purpose of the words "or other" is to
bring within the meaning of the word "officer" persons who are
employed or engaged in one or other of various Crown organi
zations that do not fall within any department, and whose
functions entitle them to be called officers of the Crown.
In view of what I have said above and after a careful
examination of all the cases cited to the Court by counsel for
the parties my conclusion is that the Honourable James A.
Richardson, Minister of National Defence in the Government
of Canada, is not a "departmental or other officer of the
Crown" within the meaning of those words in section
46(1)(a)(i) of the Federal Court Act.
In so far as the learned Trial Judge based his
decision on the reasoning in earlier decisions in the
Exchequer Court, in my view, his decision cannot
be accepted because, as I understand the decision
of the Supreme Court of Canada in Jones v.
Gamache 2 , that reasoning is unacceptable. Since
that decision, I do not think that, in the absence of
some special context, the words "officer of the
Crown" can be read as excluding a minister of the
Crown, at least if he has been, by statute, placed in
charge of a department of government, as the
Honourable Mr. Richardson has been. 3 Further
more, I do not think that there is any limitation to
be implied on the words "officer of the Crown"
because they are preceded by the words "depart-
mental or other". The latter words suggest to me
that, in ordinary litigation to which the Crown is a
party, where the litigation arises out of the busi
ness of some department of government, the
appropriate officer for examination will be a
"departmental officer". I do not, however, find in
those words some implied restriction on the gener
al words that follow. In my view, where the nature
of the litigation calls for it, any officer of the
Crown may be "nominated."
i [1969] S.C.R. 119.
3 See section 3 of the National Defence Act, R.S.C. 1970, c.
N-4, which reads:
3. There shall be a department of the Government of
Canada called the Department of National Defence over
which the Minister of National Defence appointed by the
Governor General by commission under the Great Seal shall
preside.
I am, therefore, of the view that the judgment
appealed against cannot be supported on the rea
soning of the learned Trial Judge. It, therefore, in
my view, becomes our duty to consider what deci
sion the learned Trial Judge should have given.'
Although it nowhere appears in the affidavit
material filed, or in the statement of facts in the
parties' memoranda in this Court, it appears from
the reasons for judgment of the learned Trial
Judge that the parties were in agreement before
him that the Deputy Attorney General of Canada
had nominated Brian Thomas Boyd, Chief of
Operations, Division of Project Management
Centre, Department of Supply and Services, as
"the officer to be examined for discovery". By the
memorandum filed by the Attorney General of
Canada in this Court, the following points are
made on the second aspect of the case:
2. If the answer to 1 is in the affirmative, does the Federal
Court have jurisdiction to make an order under paragraph
465(1)(c) of the Federal Court Rules in view of the fact that
the Deputy Attorney General of Canada has already nominated
a person to be examined?
3. If the answers to both 1 and 2 are affirmative, does the
Appellant have the onus of establishing that the person nomi
nated by the Deputy Attorney General of Canada to be exam
ined is not the proper person to be examined?
In my view, Rule 465(1) does not confer on the
Attorney General of Canada or his deputy the
right to determine conclusively what officer of the
Crown is to be examined. In the case of an ordi
nary corporation, Rule 465(1)(b) enables the
opposing party to choose "any ... officer of such
corporation". In the case of the "Crown", having
regard, presumably, to the vast and varied field of
its operations, the officer to be examined must be
one nominated by those charged with the conduct
of the Crown's litigation or one nominated by the
Court. I see no reason in principle why the oppos
ing party should be bound to accept a nomination
on behalf of the Crown no matter how inappropri-
4 See section 52(b)(i) of the Federal Court Act, which reads:
52. The Court of Appeal may
(b) in the case of an appeal from the Trial Division,
(i) dismiss the appeal or give the judgment and award
the process or other proceedings that the Trial Division
should have given or awarded,
ate it might be; and I do not accept the view that
Rule 465(1)(c) is to be so interpreted.
In so far as concerns the "onus" of establishing
that the person nominated by the Deputy Attorney
General is not the proper person to be examined,
in my view, that does not have to be decided as a
question of law in this case. Material has been
placed before the Court that shows, in the absence
of any evidence to the contrary, that the contract
and representations relied upon by the appellant
cover the whole gamut of government operations
and are not restricted to something affecting a part
of a single department. In the absence of rebutting
material, in my view, such material leads to the
conclusion that it is improbable that the officer
nominated by the Deputy Attorney General is
appropriate for examination in this case.
Finally, the material filed by the appellant in
support of its application makes out, in my view,
some basis for the nomination of the Honourable
Mr. Richardson and, in the absence of any rebut
ting material, I am of the view that he should be
nominated.
I should say that, in any matter other than an
extraordinary case, such as this is, I should not
regard a minister, whose duties extend far beyond
the affairs of the department over which he pre
sides, as the proper officer for examination for
discovery. The time of a minister, in my view,
should not be occupied with doing what inferior
officers may do just as well. Furthermore, where
ordinary departmental business is involved in a
lawsuit, discovery can be made more expeditiously
and more satisfactorily by a departmental officer
who :s not too remote from the matters in issue as
long as he has departmental or other authority in
relation to the matters giving rise thereto.
I am of opinion that the appeal should be
allowed with costs, that the order of the Trial
Division should be set aside and that the Honour
able James A. Richardson should be nominated,
under Rule 465(1)(c), as the person to be ques-
tioned in the course of the examination of the
respondent for discovery under that Rule.
* * *
URIE J. concurred.
* * *
RYAN J. concurred.
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.