Date:
20060801
Docket:
T-2263-01
Citation:
2006 FC 940
Ottawa, Ontario, August 1, 2006
Present: The Honourable
Mr. Justice de Montigny
BETWEEN:
AURÉLIEN HACHÉ, LUCIEN
CHIASSON, SYLVIE CHIASSON,
ARMAND FISET, JEANNOT GUIGNARD,
HÉLIODORE AUCOIN,
GILDARD HACHÉ, GUY HACHÉ, RHÉAL
HACHÉ,
ROBERT F. HACHÉ, GREG HINKLEY,
VINCENT JONES,
SOLANGE LANTEIGNE, JEAN‑PIERRE LEBOUTHILLIER,
RHÉAL H. MALLET, ANDRÉ MAZEROLLE,
EDDY MAZEROLLE,
ALBANIE NOËL, ALPHÉE NOËL, SERGE C.
NOËL, GILLES NOËL,
JOSEPH A. NOËL, LÉVI NOËL,
LORENZO NOËL, MARTIN NOËL, MATHURIN NOËL, NICOLAS NOËL,
ONÉSIME NOËL, PAUL NOËL,
RAYMOND NOËL, RENALD NOËL,
ROBERT ROSS, BRUNO ROUSSEL, JEAN‑CAMILLE NOËL, VALMI
ROUSSEL, DONAT VIENNEAU, FERNAND VIENNEAU, RHÉAL VIENNEAU,
MATHIAS ROUSSEL, SERGE BLANCHARD, ROBERT BOUCHER, ELIDE BULGER,
JEAN‑GILLES CHIASSON, ROMÉO G. CORMIER,
BERNARD DUGUAY, THOMAS DUGUAY,
DONALD DUGUAY,
EDGAR FERRON, WILBERT GODIN,
AURÈLE GODIN,
VALOIS GOUPIL,
EUCLIDE GUIGNARD, FLORENT GUIGNARD,
JACQUES E. HACHÉ, JEAN‑PIERRE HACHÉ,
ROBERT G. HACHÉ, DONALD R. HACHÉ, ULYSSE HACHÉ, GAËTAN
H. HACHÉ,
GABRIEL JEAN, JEAN‑VICTOR LAROCQUE,
DASSISSE MALLET, DELPHIS MALLET, ALBERT A. NOËL,
GILLES A. NOËL,
DOMITIEN PAULIN,
SYLVAIN PAULIN, ALMA ROBICHAUD,
ADMINISTRATOR OF THE ESTATE OF JEAN‑PIERRE ROBICHAUD,
SYLVA HACHÉ, MARIO SAVOIE, LES
PÊCHERIES JIMMY L. LTÉE,
ERIC GIONET, ADMINISTRATOR OF ALLAIN
O. GIONET TRUST,
LES PRODUITS BELLE‑BAIE LTÉE.,
OLIVA ROUSSEL,
E. GAGNON ET FILS LTÉE.,
BERNARD ARSENEAULT,
GÉRARD CASSIVI, JACQUES COLLIN,
RAYMOND COLLIN,
ROBERT COLLIN, MARC COUTURE, LES
CRUSTACÉES DE GASPÉ LTÉE., 2973‑1288 QUÉBEC INC., 2973‑0819 QUÉBEC INC.,
BRUNO DUGUAY, CHARLES‑AIMÉ DUGUAY, ALBAN HAUTCOEUR,
FERNAND HAUTCOEUR, JEAN‑CLAUDE HAUTCOEUR, ROBERT HUARD,
CHRISTIAN LELIÈVRE, ELPHÈGE LELIÈVRE, JEAN‑ÉLIE LELIÈVRE,
JULES LELIÈVRE, JEAN‑MARC MARCOUX, DOUGLAS MCINNIS,
ROGER PINEL, JEAN‑MARC SWEENEY, MICHEL TURBIDE, RÉAL
TURBIDE, PÊCHERIES DENISE QUINN SYVRAIS INC.,
STEVEN ROUSSY, GENEVIÈVE ALLAIN, FRANCIS PARISÉ,
MARTIAL LEBLANC, DANIEL DESBOIS, ROLLAND ANGLEHART,
JACQUES LANGIS, JEAN‑PIERRE HUARD, CLAUDE GIONET,
CAROL DUGUAY, DENIS DUGUAY, PAUL CHEVARIE, THÉRÈSE VIGNEAU,
ADMINISTRATOR OF THE ESTATE OF BENOÎT POIRIER, DENIS ÉLOQUIN,
CLAUDE POIRIER, HENRY‑FRED POIRIER, ROBERT THÉRIAULT, RAYNALD VIGNEAU
Plaintiffs
and
Her Majesty in Right of Canada as
represented by the Department of Fisheries and Oceans and the Department of
Human Resources Development Canada
Defendant
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
The
plaintiffs instituted this action against the defendants on December 21, 2001. They claimed damages in the
amount of $9,139,132.54, as well as aggravated damages and interest on these
amounts before and after judgment. This claim is based on six causes of action,
that is, unjust enrichment by the defendant, public misfeasance, duress against
the plaintiffs, negligent misrepresentation, a tort of conversion and mistake
of law.
[2]
After four
and a half years during which numerous proceedings were undertaken before this
Court, the trial ended in quite an unusual way on the first day of the hearing.
After having failed in her attempt to obtain a postponement from the Court, counsel
for the plaintiffs stated that she did not intend to adduce any evidence or
have any witnesses heard, and that she would defer to the Court’s disposition
of the dispute. In such circumstances, I have no other choice but to dismiss
the suit because the plaintiffs did not meet the initial burden of proof on
them so as to establish the constituent elements of their causes of action on a
balance of probabilities.
SUMMARY OF THE PROCEEDINGS
[3]
The facts giving
rise to this case took place more than 10 years ago. The plaintiffs are
all commercial fishers of snow crab and reside in the provinces of New Brunswick and Quebec. They fish in Zone 12 of the Gulf
of Saint Lawrence, which is located south of Quebec (the Gaspé and the Magdalen Islands) and east of New Brunswick.
[4]
This
summary is based on the facts noted by my colleague Mr. Justice Rouleau
in Aucoin v. Canada (Minister of Fisheries and Oceans),
2001 FCT 800, mentioned by my colleague Madam Justice Tremblay‑Lamer in Haché v.
Canada (Minister of Fisheries and Oceans), 2002 FCT 703, as
well as the judgment of the Federal Court of Appeal reported as Canada (Minister
of Fisheries and Oceans) v. Haché, 2005 FCA 418. I
will come back to these decisions later.
[5]
Following
amendments made to the Employment Insurance Act, several employees
working in snow crab processing plants were unable to receive benefits under
the Act because of the increase in the required number of weeks worked.
Discussions were held in the fall of 1995 between representatives of Fisheries
and Oceans and the snow crab fishers to establish a program to assist
processing plant workers. Following an agreement in principle concluded in
February 1996 between federal representatives and various associations of
snow crab fishers, it was agreed that a Solidarity Fund, a not-for-profit
corporation, would be created. The Fund would finance job‑creation
projects for persons working in crab processing plants and for some of the crew
members of fishing vessels, which would allow these workers to accumulate the
number of insurable weeks of work specified under the Act and thus qualify for Employment
Insurance benefits. In so doing, the snow crab fishers voluntarily agreed to
help their colleagues in the fishing industry who were less fortunate than they
were.
[6]
The terms
and conditions of the agreement and the establishment of the Solidarity Fund
(replaced in 1999 by the Partenariat du crabe des neiges inc. [snow crab
partnership corporation]) are not contested and were summarized as follows by
the Federal Court of Appeal in the above‑mentioned judgment:
8. In the spring of each year,
the Minister’s representatives issued a guideline providing that 20% of each
fishermen’s traditional quota would be withheld and transferred to the
Partnership. On each fishermen’s payment of an amount calculated on the basis
of the fishermen’s total quota per pound, the Partnership advised the Minister
of the payment made by the fishermen. The amount was then transferred to the
Fund and the Minister’s representatives released to the fishermen the 20% of
the quota that had been withheld.
[7]
However,
this agreement was based on the expectation of the conclusion of a partnership
agreement with the Department of Fisheries and Oceans, the 130 snow crab fishers,
and the processing plant workers. Such an agreement would provide for the sharing
of the responsibility for managing the fishing industry and creating jobs. Such
an agreement could not be concluded until some amendments were made to the Fisheries
Act.
[8]
Pursuant
to this agreement, the Department of Fisheries and Oceans tabled a bill in the
House of Commons on October 3, 1996 (Bill C-62), which specifically
authorized the Minister to conclude agreements for the management of fisheries.
Among other things, the bill provided (at paragraph 17(2)(d)) that
the agreement could stipulate the “obligations, responsibilities and funding
arrangements with respect to management of the fishery”. Unfortunately, the bill
died on the order paper on May 27,
1997, when
Parliament was dissolved.
[9]
In spite
of the fact that no fisheries management agreement was ever concluded, the fishers
assumed their obligations under the agreement in principle until 2001. It is
true, however, that in February 2000, one of their representatives wrote
to the Auditor General, questioning the legality of this program. In his response
dated March 1, 2000, the Auditor General noted his concerns, indicating
that this levy imposed on the fishers did not seem to be authorized by law. However,
it was only on April 30,
2001 that the fishers
filed an application for judicial review before this Court, seeking to quash the
Minister’s decision to impose a levy on fishers holding a traditional licence
for snow crab for the 2001 fishing season.
[10]
On July
17, 2001, Rouleau J. concluded that the Minister’s decision concerning the
transfer of 20% of the fishing quota to the Partnership was null and void because
it was ultra vires his powers under the Act. The Court therefore quashed
the decision and prohibited the Minister from enforcing the scheme. This
judgment was not appealed.
[11]
On June 7, 2002, the plaintiffs filed an
application for summary judgment to obtain a judgment ordering the defendant to
reimburse the fishers for the amounts they had paid to the Fund from 1997 to
2001. In their view, there was no longer any real issue between the parties
from the moment when Rouleau J. concluded that the Minister had acted
illegally.
[12]
Tremblay-Lamer J.
dismissed this application. Although she was satisfied that the plaintiffs did indeed
pay $9,139,132.54 into the Fund, she was of the opinion that this was not a
case where the defendant’s defence was so doubtful that it did not deserve
consideration by the trier of fact. In her view, the fact that the defendants
acted beyond their jurisdiction did not automatically give rise to a right to
restitution of the amounts paid, and she stressed the need to assess the evidence
on key aspects of the dispute. For example, she mentioned it was not at all
certain that the plaintiffs had not derived any benefit from the creation of
the Fund. In fact, the defendant alleged that the 20% share of the quota held
back and given to the fishers who had paid their contribution to the Fund
constituted additional income, because the quota to be allocated was within the
Minister’s discretion, and no fisher had a legal right to a specific quota in
any given year. On this issue, as well as on many others, only an adversarial
proceeding based on the evidence submitted by the parties could enable the trial
judge to reach a determination for or against one or the other party. On this
point, Tremblay-Lamer J. wrote the following in Haché v. Canada (Minister of Fisheries and
Oceans), 2002 FCT 703:
22. Although it is true that
in the present case, the Plaintiffs bore the burden of the payments, these
payments were not made to the Government, nor were they made for or on behalf
of the Government. Also, it is not possible to determine whether the Plaintiffs
have suffered a loss in this summary judgment proceeding, the reason being that
it appears that they have received something in exchange for their contribution
to the Funds. Only a full trial will yield the evidence necessary to make such
a determination.
[13]
The
present case subsequently progressed at a snail’s pace subject to numerous
complex legal proceedings. The Court had to make several orders to ensure the
proper conduct of the case and to ensure that the hearing could finally be held.
On May 6, 2003, the Associate Chief Justice (as he was then) ordered that
the case be subject to special management under section 383 of the Rules.
Then, in August 2004, the defendant filed a motion for summary judgement
seeking the complete dismissal of the claim made by 57 of the plaintiffs, on
the ground that they had not paid anything into the Fund, and the partial
dismissal of the claim filed by the other 47 plaintiffs, on the grounds
that they had not made all of their alleged contributions to the Fund and,
moreover, that for a number of years the contributions had been paid by
commercial corporations.
[14]
Mr.
Justice Hugessen, who was in charge of case management, dismissed this motion
for the same reason Tremblay‑Lamer J. had dismissed a similar motion
by the plaintiffs. He was of the opinion that not only was there a triable
issue, but also that his colleague’s judgment constituted res judicata with
regard to the issue of the payments made by or on behalf of the plaintiffs for
a total amount of $9,139,132.54. It should be noted that he refused to grant
costs, stating that “the systematic attitude of
refusal and obstruction demonstrated by the plaintiffs for close to two years”
had been such that they had lost the right to claim such an order.
[15]
The
following day, on November 26,
2004, following
a pre‑trial conference, Hugessen J. made an order setting the
expected duration of the hearing at three weeks and specifying that the hearing
should not be held before September 1, 2005, or during the months of May
and June 2006. On April 1,
2005, the Court
Administrator decided that the hearing would be held starting April 3,
2006, in Fredericton.
[16]
There
was every indication that the hearing would be held as scheduled in April 2006. However, that was not to be the case.
First of all, on March 27, in a letter to the Court Administrator, the counsel
for the plaintiffs applied for the disqualification of the undersigned judge.
Considering the seriousness of such an application based on allegations of bias,
I invited the lawyers to make their application by way of a motion which I
scheduled for the beginning of the trial. After having heard the parties, I decided
to dismiss the motion in a decision which I read at the resumption of the trial
on Tuesday, April 4, for reasons which are now posted on the Court’s Web site
(2006 FC 434).
[17]
Following
this decision, a notice of a change of solicitor was filed by the plaintiffs. Ms. Sivret
then applied for a postponement in order to study the case and make adequate
preparations for the hearing. After having heard the parties on this
application, I reached the conclusion that a postponement was appropriate in
the circumstances, out of fairness, but that it was not appropriate to postpone
the hearing to the fall as Ms. Sivret had requested. Considering this case
had been instituted more than four years ago, that the hearing date had
been scheduled more than one year ago, that the plaintiffs had deliberately
decided to change counsel, that Ms. Sivret accepted this case with full
knowledge of the situation, and that a time limit of two months seemed to me to
be sufficient to study this case and prepare for the hearing, I therefore made
an order dated April 18, 2006, scheduling the hearing in this case for
June 19, 2006.
[18]
However,
other developments were to take place before the scheduled hearing date. On the
day before a trial management conference, counsel for the plaintiffs presented
two motions under paragraph 41(4)(b) of the Federal Courts Rules:
one to obtain the Court’s permission to subpoena witnesses (the
Honourable Douglas Young, a former cabinet minister of the federal
government at the relevant time, and Frank McKenna, Premier of New Brunswick
during the same period) who resided more than 800 kilometres from the
place of hearing, and the other requesting that the Court disqualify the two
lawyers representing the defendant because of conflict of interest.
[19]
These
two motions were heard by teleconference on June 9,
2006.
The first motion was allowed, while the second one was briefly discussed and
postponed to June 16 to give counsel for the defendant time to prepare a
response.
[20]
On
June 12, Ms. Sivret filed an amended notice of motion in Court in
which it was alleged that counsel for the defendant were disqualified from
continuing in this case not only because a lawyer from their office had
formerly acted on behalf of an association representing several of the
plaintiffs, but also because she had subpoenaed the Honourable Douglas Young
as a witness, who was also a member of the same law firm as counsel for the
defendant.
[21]
On June
15, Mr. Young’s lawyer objected to the subpoena that had been served on him on
the grounds that he had no personal knowledge of the facts on which he was to
testify and that the partial information he might have obtained as a minister of
the Crown would in any case be subject to the privilege affecting this type of
information. The motion to quash the subpoena served on Mr. Young was
allowed on June 16 following a hearing held by teleconference.
[22]
As far as
the motion to have counsel for the defendants disqualified was concerned, it
was also the subject of a long debate during the same teleconference on June 16.
Following this hearing, I came to the conclusion (for the reasons mentioned in
an order made on the same day) that this motion must be dismissed not only
because evidence of the conflict of interest was at most flimsy, but also
because in January 2003 the lawyers who represented the plaintiffs at that
time had explicitly waived the right to raise any alleged conflict of interest.
[23]
As soon as
she was advised of my decision, Ms. Sivret made an oral motion to obtain a
postponement of the hearing on the ground that she did not feel able to properly
represent her clients. This motion was immediately dismissed, considering it
was made late and considering the harm that would be caused to the defendant,
the witnesses, and the Court.
[24]
On June
19, at the beginning of the hearing, Ms. Sivret once again made a new
motion to obtain a stay of the hearing until the Federal Court of Appeal could
render a judgment on the orders I made on Friday, June 16, concerning the
subpoena served on David Young and the disqualification of the defendant’s
lawyers. They vigorously objected to this motion, especially because the
decision had not yet been appealed to the Court of Appeal. Because the
plaintiffs did not try to prove the existence of serious harm, and because the
balance of convenience was clearly in favour of the defendant and of holding
the trial, I dismissed this motion, stating that it was always possible for the
Court of Appeal to order a stay of the proceedings if it was of the view that this
was appropriate, once the appeal was before it.
[25]
Ms. Sivret
then made another motion, relying on section 36 of the Federal Courts
Rules, to obtain a postponement until the fall because she did not feel ready
to proceed. She stated that the case was so complicated that, in spite of all
her efforts, she did not feel she was in a position to proceed and had not even
had the chance to meet with all of her witnesses.
[26]
In spite
of her laudable professionalism, I once again dismissed Ms. Sivret’s
motion essentially for the same reasons which had led me to schedule the
hearing for June 19. Furthermore, this motion was late to say the least
and would have caused considerable harm to the defendant and its witnesses, not
to mention the serious harm this would cause to the Court. It is common knowledge
that cases are assigned to judges several months in advance and that any last‑minute
changes make it impossible to reschedule the judge to other tasks, with all the
consequences this has on the proper administration of justice.
[27]
When
advised of this decision, Ms. Sivret immediately informed the Court that
she did not intend to adduce any evidence or cross examine the witnesses heard
by the opposing party and, accordingly, would not make any submissions.
Considering this, and as counsel for the defendant had asked me to do, I had no
other choice but to dismiss the action.
[28]
The burden
is on the plaintiff to prove, on a balance of probabilities, the causes of
action alleged in its statement of claim. For example, unjust enrichment entails
proof of enrichment, a corresponding deprivation and the absence of any
juristic reason for the enrichment. It is only when the plaintiff has discharged
the initial burden of proof that the defendant must out forward its own evidence.
This in fact is the procedure to be followed for a trial as specified in section 274
of the Federal Courts Rules.
[29]
In this
context, counsel for the defendant requested the dismissal of the action. As I
stated at the hearing, I have no other choice but to do so, because it is not
up to the Court to take the place of the plaintiff and adduce its evidence. In
fact, this case is similar to the scenario my colleague Madam Justice Heneghan
had to deal with in Tucker v. Canada, 2004 FC 1729.
Even if the plaintiffs in that case were acting on their own behalf and alleged
a lack of resources and research abilities, my colleague did not hesitate to
dismiss their action because they had not adduced any evidence. The same thing
must a fortiori apply when the plaintiffs are represented by
experienced counsel. Once again, they decided to change lawyers on the same day
the hearing was initially scheduled. Ms. Sivret was not obliged in any way
to accept this case if she felt she was not able to properly prepare within the
two months allotted to her to do so. Considering these circumstances, the plaintiffs’
action must be dismissed.
[30]
As far as
costs are concerned, I asked the parties at the end of the trial to make
written submissions. Counsel for the plaintiffs merely asked me to stay the
award of costs while waiting for the Federal Court of Appeal to dispose of her
appeal against this decision. As far as counsel for the defendant are
concerned, they argued that any order as to costs should made on a solicitor‑and‑client
basis, or at least in accordance with the maximum amount specified in Column V
of Tariff B.
[31]
Considering
the criteria set out in section 400 of the Federal Courts Rules and
the relevant case law, I reached the conclusion that the defendant is entitled
to costs to be calculated according to the maximum amount in Column IV of
Tariff B. I reached this determination by taking into consideration the
complexity of the case, the amount involved, the number of plaintiffs, and the
conduct of and the delays caused by the plaintiffs and their counsel. I also
took into consideration the plaintiffs’ refusal to cooperate and lack of
respect in connection with several orders and directions made by this Court, as
well as the formal offer of settlement presented by the counsel for the
defendant on March 27, 2006. This offer was more advantageous than this
decision and was never withdrawn up to the time this judgement was rendered.
Finally, I must stress the fact that the public interest requires that the
award as to costs be higher than the average, considering the harm the Court
and all litigants have sustained because of the loss of the six weeks
previously scheduled for the hearing of this case.
CONCLUSION
The plaintiffs’ action is dismissed, with costs to the
defendant calculated on the basis of the maximum amount specified in Column IV
of Tariff B.
Certified
true translation
Michael
Palles
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