T-3908-76
William Smith (Plaintiff)
v.
The Queen and the Attorney General of Canada
(Defendants)
Trial Division, Collier J.—Ottawa, February 10,
1977.
Practice — Plaintiff seeking judgment by default on
grounds that defendants had not filed statement of defence —
Plaintiff's application governed by Rule 437 — Rule 402(2)(c)
requires defendants to apply for leave to file defence
Federal Court Rules 402(2)(b)(i) and (c) and 437.
Plaintiff moved for judgment by default on the grounds that
no defence had been filed. A defence was subsequently filed,
out of time but before a decision had been taken on the
plaintiff's application.
Held, plaintiff's motion is adjourned sine die. Plaintiff's
motion is governed by Rule 437 and the Court would not have
granted it without directing that notice of it be given to the
defendants so as to enable them to be heard. The defendants,
having allowed the time for filing a defence to elapse, must now
apply for leave to file a defence under Rule 402(2)(c).
MOTION in writing under Rule 324.
SOLICITORS:
William Smith acting on his own behalf.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for order ren
dered in English by
COLLIER J.: The plaintiff, by a document
received in the Vancouver registry on December 6,
1976, applied for default judgment. His grounds
were that the defendants had not, within the time
prescribed by the Rules of Court, filed "pleadings
in defence". The plaintiff requested his application
be disposed of without personal appearance (see
Rule 324).
The application was referred to me in Ottawa
after my return in mid-January from assignments
in British Columbia. While I was considering the
plaintiffs application, the defendants on February
1, 1977 filed a defence. Under Rule 402(2)(b)(i) a
defence may be filed after the prescribed 30-day
period provided it is done before any application
for default judgment. The defendants will there
fore have to apply to the Court for leave to file a
defence'.
In the circumstances, the plaintiffs motion for
default judgment will be held in abeyance.
I add this. The plaintiff's application for default
judgment was governed by Rule 437. In a case of
that kind the Court may:
(a) direct that evidence be adduced or make such order as in
the circumstances of the case seems just (Rule 437(2)); or
(b) may adjourn the hearing and give such directions for
service of notice of the adjourned hearing as seem just (Rule
437(4)).
I had serious doubt as to whether the plaintiff was
entitled to the relief he seeks against the defend
ants Her Majesty the Queen and the Attorney
General of Canada.
The initiating document, which is described by
the plaintiff as a statement of claim, begins "An
application under the Federal Court Act Section
18, and Court Rule 603 for an order that a Writ of
Prohibition shall issue." The document then goes
on to "declare" that Roland Michener, a Gover-
nor-General of Canada and Her Majesty's Region
al Director of Resources for the Yukon Territory
(both asserted to be servants of Her Majesty the
Queen), caused certain land use permits to be
issued in respect of the construction of the
Dempster Highway.
It is then asserted that the "acts of both servants
are judicial acts involving exercise of a discretion
and are in the nature of acts of an inferior tribu
nal". In paragraph 4 of the document it is said:
that the doing of these acts complained of injures the plaintiff
in that they do set a bad precedent, being based on error,
defect, deprivation of justice to interested persons to the detri
ment of the plaintiff and of the public or the Realm as a whole.
The relief claimed is:
... in the form of an order that .a Writ of Prohibition issue
restraining further proceeding in the matter of Land Use
Permit No. Y 75 H 260 and certain other land permits which
authorize use of lands and minerals for purposes connected
with the erection of bridge across Eagle River, or such other
' Rule 402(2)(c).
order as in view of the Court in the circumstances seems
appropriate.
In my opinion the procedure and the cause of
action are misconceived. I would have refused the
plaintiffs motion for judgment. I would have
directed that notice of the application for default
judgment be given to the defendants so they could
be heard.
Now that the defendants intend to file a
defence, I shall await their motion for leave pursu
ant to Rule 402(2)(b)(î).
ORDER
The plaintiff's motion for default judgment is
adjourned sine die.
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.