T-1350-75
William Smith (Plaintiff)
v.
Attorney General of Canada (Defendant)
Trial Division, Collier J.—Vancouver, November
15 and 16, 1976.
Practice — Motion by plaintiff for order to join third party
— Whether Rule 324(1) requirement for written representa
tions complied with — Whether affidavit required pursuant to
Rule 319(2) Request for disposal of motion under Rule 324
without personal appearance — Applicability of Rule 311
Federal Court Rules 311, 319(2) and 324.
Plaintiff submitted a motion by letter to have the Governor
General of Canada joined as a party to this action. The only
representation submitted in compliance with Rule 324(1) was a
statement in the motion to the effect that as further written
representations the plaintiff was submitting the originating
documents and affidavit already filed in the matter. No affida
vit was filed as contemplated by Rule 319(2), the plaintiff
stating that all the facts were already on record.
Held, the disposition of the motion will be held in abeyance
until (a) proof of service, in accordance with the Rules of the
Court, of the documents required by Rule 324(2) is filed, (b)
the defendant has exercised one of the alternatives set out in
Rule 324(3) within a reasonable time and, if he does so, the
plaintiff has been given a reasonable time to reply. Whether the
plaintiff complied with Rule 324(1) and whether all the neces
sary facts are on record will be decided by the Court when it
deals with the motion.
APPLICATION in writing under Rule 324 to join
third party.
SOLICITORS:
William Smith, Old Crow, Y.T., acting on his
own behalf.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
COLLIER J.: By letter dated November 8, 1976
(received in the Vancouver Registry on November
15, 1976), the plaintiff submitted a motion for
"... an order to join as a party to this action His
Excellency, Jules Léger, as Her Majesty's Gover-
nor-General in and over Canada ...". The grounds
for the motion were then set out.
The plaintiff did not submit any representations,
as contemplated by Rule 324(1), except in these
words contained in the notice of motion:
And Take Notice that Plaintiff Submits as further written
representation (1) the originating documents, including sup
porting affidavit filed 5 April 1975 in this matter.
I express no opinion, at this stage, as to whether
that material will ultimately qualify as written
representations.
Nor was an affidavit filed in support of the
motion, as contemplated by Rule 319(2) which
provides:
(2) A motion shall be supported by affidavit as to all the
facts on which the motion is based that do not appear from the
record, which affidavit shall be filed; and an adverse party may
file an affidavit in reply.
As to that, the plaintiff put this in his notice of
motion:
And further take notice that as all the facts upon which this
motion is grounded are already in the record, no further
affidavit in support is submitted herewith.
It is not, of course, the plaintiff's opinion which
governs that matter: as to whether all the neces
sary facts are already in the record. That decision
is for the Court. On this point I express no opinion,
at this stage, as to how the Court will deal with the
motion and the absence of an affidavit.
He also requested that the motion be disposed of
under Rule 324, without his personal appearance.
I set out Rule 324 in full.
Rule 324. (1) A motion on behalf of any party may, if the
party, by letter addressed to the Registry, so requests, and if
the Court or a prothonotary, as the case may be, considers it
expedient, be disposed of without personal appearance of that
party or an attorney or solicitor on his behalf and upon
consideration of such representations as are submitted in writ
ing on his behalf or of a consent executed by each other party.
(2) A copy of the request to have the motion considered
without personal appearance and a copy of the written
representations shall be served on each opposing party with the
copy of the notice of motion that is served on him.
(3) A party who opposes a motion under paragraph (1) may
send representations in writing to the Registry and to each
other party or he may file an application in writing for an oral
hearing and send a copy thereof to the other side.
(4) No motion under paragraph (1) shall be disposed of until
the Court is satisfied that all interested parties have had a
reasonable opportunity to make representations either in writ
ing or orally.
Applying the mandatory provisions of paragraph
(2) to this motion, the plaintiff must serve copies
of
(a) the motion,
(b) affidavits in support (if any are filed),
(c) the request to have it considered without
personal appearance,
(d) any written representations on the present
defendant, the Attorney General of Canada.
Rule 311 of the Rules of this Court is then
applicable. Where another party to a proceeding is
represented by a solicitor (as the present defendant
is here) then the documents I have referred to are
to be served personally, or by registered mail, on
that solicitor at the address for service given. In
this proceeding, that address is given as
Stephen J. Hardinge, Esq.,
Barrister & Solicitor
Department of Justice,
1900-1055 W. Georgia St.
(P.O. Box 11118 Royal Centre)
Vancouver, B.C.
V6E 3P9
The Court may, on request, by virtue of Rule
311(c) direct a manner of service, other than
personal service or service by registered mail. The
Court may, for example, authorize service by ordi
nary mail. Any request for authority to serve in
some different manner must, however, be itself the
subject of a notice of motion, with an affidavit in
support setting out the grounds why a method of
service, different from that prescribed by the
Rules, should be allowed. Generally speaking,
separate applications of that kind would have to be
brought in respect of every proceeding (in the
same action) where a special method of serving
was sought.
In respect of this present motion to add Jules
Léger, it will not be disposed of by the Court until
(a) proof of service (in accordance with the
Rules of Court) of the documents referred to in
paragraph 3 of these reasons has been filed by
the plaintiff,
(b) the defendant Attorney General of Canada
has exercised one of the alternatives set out in
Rule 324(3), or a reasonable time (calculated
from the date of service referred to above) has
expired and neither of the alternatives has been
exercised,
(c) if the defendant elects to file written
representations pursuant to Rule 324(3) he must
of course send a copy to the plaintiff. The
plaintiff would then have a reasonable time
within which to reply.
The disposition of the motion is, accordingly,
held in abeyance.
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.