Morin v. Canada, 2003 FCT 440

Date: 20030416

Dockets: T-1252-99

T-1538-95

Citation:2003 FCT 440

BETWEEN:

JEANNINE MORIN, personally, and on behalf of a class

of persons having the same interest, which class is more particularly

described in Appendix "A", of the Statement of Claim

Plaintiffs

-and-

HER MAJESTY THE QUEEN

Defendant

                   SUPPLEMENTAL REASONS FOR JUDGMENT

DAWSON J.

Supplemental Reasons for Judgment with respect to the quantum of the defendant's counterclaim

[1]                 On December 18, 2002 I delivered written reasons for judgment with respect to these two actions. Those reasons dealt primarily with the determination of the fair market value of a typical lot in the Jocko Point Subdivision. For the reasons there delivered, I determined the value to be:

·            As of April 1, 1994: $42,000.00

·            As of April 1, 1999: $51,500.00

[2]                 Also at issue in action T-1252-99 was the interest factor to be applied in the 1999-2004 lease term. The relevance of that interest rate is that the yearly rental which the plaintiffs are obliged to pay in respect of the lots which they lease is assessed by multiplying the market value of the land by such interest rate. This issue was dealt with at paragraphs 95 and following of the reasons for judgment.

[3]                 As noted in the reasons for judgment, in paragraph 7 of the plaintiffs' statement of claim the applicable interest rate was alleged to be 5.39%. This rate was agreed to by the defendant in paragraph 4 of the amended statement of defence and counterclaim. I wrote, at paragraph 110 of the reasons, that in the absence of a motion to amend the pleadings, the rate of 5.39% must prevail. The reasons for judgment gave the plaintiffs leave to move for an amendment within 14 days of the receipt of the reasons for judgment.

[4]                 The reasons for judgment also noted that the amounts of the rental arrears were not in evidence. The calculation of the arrears was to flow from the determination of the fair market value of a typical lot for each lease term.

[5]                 Therefore, the defendant was directed to serve and file written submissions as to the issues of the quantum of the counterclaim, pre-judgment and post-judgment interest within 14 days of receipt of the reasons.

[6]                 Following the delivery of the reasons for judgment, the defendant filed written submissions, as permitted, but the plaintiffs neither filed a motion to amend the pleadings nor any responsive submissions to those of the defendant. Rather, the representative of the plaintiffs purported to file a Notice of Intention to Act in Person, notwithstanding that Rule 121 of the Federal Court Rules, 1998 requires that a person acting in a representative capacity be represented by a solicitor, unless the Court otherwise orders. At a teleconference held at the request of counsel, the Court was advised that the plaintiffs had corresponded with counsel for the defendant to the effect that they wish to relieve their current counsel of all duties and hire another lawyer, and that they would need "a few months" to hire another lawyer and "bring him up to speed".

[7]                 As a result, on February 3, 2003 I issued a written direction that the Court would decide the issues of the quantum of the counterclaim and interest on the basis of the submissions now before the Court unless the Court received from the plaintiffs either responding submissions or a motion for an extension of time on or before March 3, 2003.

[8]                 No submissions or motion was received, and so the issues of the quantum of the counterclaim and interest are now decided on the basis of the submissions now before the Court.

Interest rate to be applied to the 1999-2004 lease term

[9]                 In the absence of a motion to amend the pleadings, the admissions in the pleadings are conclusive of this issue. The rate to be applied is therefore 5.39%.

Pre-judgment and post-judgment interest

[10]            The defendant is entitled to pre and post-judgment interest. Pre-judgment interest shall be at the prescribed quarterly rate and post-judgment interest at the rate of 3%.

Summary of the total quantum owing

[11]            As of January 17, 2003, based upon an 8.87% interest rate used to determine fair market rent for the 1994-1999 rental period and a 5.39% interest rate used to determine fair market rent for the 1999-2004 rental period, the following amounts are due:

Summary of Rents

[12]            Thereafter interest will accrue at the rate of 3% per annum.

Costs

[13]            Now that all questions of liability and relief to be granted have been determined, the defendant may serve and file submissions as to costs within 14 days of receipt of these reasons.

[14]            Thereafter, the plaintiffs may serve and file responsive submissions within 14 days of service of the defendant's material upon the plaintiffs. Thereafter, the defendant may serve and file any reply submissions within 7 days of the receipt of the plaintiffs' material.

[15]            Following that, judgment will issue.

"Eleanor R. Dawson"

                                                                                                                                                    Judge                        

Ottawa, Ontario

April 16, 2003

                                                FEDERAL COURT OF CANADA

                                                              TRIAL DIVISION

                   NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NOS.:                 T-1252-99 and T-1538-95

STYLE OF CAUSE:                  Jeannine Morin et al. v. Her Majesty The Queen

WRITTEN ARGUMENTS:      Received on August 16, 2002, September 20, 2002 and September 27, 2002

SUPPLEMENTAL REASONS FOR JUDGMENT

OF THE HONOURABLE MADAM JUSTICE DAWSON

DATED:                                      April 16, 2003

WRITTEN SUBMISSIONS BY:

Mr. Gary N. Penner                                FOR THE DEFENDANT

Ms. Stephanie Paul

SOLICITORS ON THE RECORD:

Mr. Ian N. McLean                                 FOR THE PLAINTIFFS

Toronto, Ontario

Mr. Morris Rosenberg              FOR THE DEFENDANT

Deputy Attorney General of Canada