Judgments

Decision Information

Decision Content

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.