T-2140-76
Georgina Barlow (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Mahoney J.—Ottawa, May 31,
1977.
Practice — Action for possession of documents in Public
Archives — Application by defendant for interpleader pro
ceedings to determine among claimants whether and to whom
Crown liable — Application inappropriate where action begun
by statement of claim — Federal Court Rule 604.
APPLICATION in writing under Rule 324.
COUNSEL:
No one appearing for plaintiff.
J. P. Malette for defendant.
SOLICITORS:
LeBlanc, Boucher, Rodger & Richard, Monc-
ton, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
MAHONEY J.: The plaintiff seeks in this action
possession of certain items of personal property
which she claims to own and which are said pres
ently to repose in the Public Archives of Canada.
The action was commenced by statement of claim
issued June 8, 1976. No defence has been filed but
an appearance was entered on behalf of the
defendant, on June 21, 1976, who now seeks, by a
motion in writing under Rule 324, an order pursu
ant to Rule 604. The provisions of Rule 324 have
been complied with by the defendant. The plaintiff
has made no representations nor has she consented
to the order sought.
Rule 604 provides a means by which the Crown
can institute interpleader proceedings in this Court
to determine, as among a number of claimants,
actual or potential, whether and to which of them
the Crown is liable. It provides a means by which
proceedings are commenced and is not appropri
ately invoked where, as here, the proceedings have
been commenced by statement of claim. The
defendant may file a defence and, if she does, the
onus will be on the plaintiff to prove her entitle
ment to possession of the property, not on the
defendant to prove that someone else may be so
entitled. If no defence is filed, the plaintiff may
seek judgment in default. Any other person claim
ing to be entitled to possession of the property may
apply, under Rule 1716, to be joined or the defend
ant may apply to have such other person joined.
The method, if any, which the defendant adopts
with a view to either inviting such applications by
others or to identifying anyone whom the defend
ant may wish to apply to have joined is of no
immediate concern to either the plaintiff or the
Court.
Alternatively, if, as does not appear on the
record, the parties are in agreement that this
matter could more satisfactorily be dealt with by
interpleader proceedings rather than this action,
there is nothing to prevent the stay or dismissal of
this action on consent and the institution of pro
ceedings under Rule 604. Otherwise, it seems to
me that the plaintiff is entitled to prosecute her
action in the usual way.
ORDER
The motion is dismissed without costs.
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.