Date: 20001004
Docket: T-1602-95
BETWEEN:
JOSÉ PEREIRA E HIJOS, S.A. and
ENRIQUE DAVILA GONZALEZ
Plaintiffs
- and -
THE ATTORNEY GENERAL OF CANADA
Defendant
REASONS FOR ORDER
MacKAY J.
[1] These reasons concern a motion brought by the plaintiffs for leave to file an Amended Reply or, in the alternative, leave to amend the Statement of Claim with the same amendments. When the matter was heard counsel for plaintiffs asked that of four proposed amending paragraphs leave be granted for three of them to be incorporated in substance in amendments to the Statement of Claim and for the fourth paragraph in substance to be an amendment, by the Court's leave, to the Reply already filed.
[2] As a preliminary matter the defendant objected to reliance upon an affidavit filed by the plaintiffs, except for the exhibit of the proposed amended Reply, insofar as that affidavit related to the proposed amendments. Affidavit evidence is not required in support of a motion to amend pleadings1 and I have not considered the plaintiffs' affidavit in support of amendments in my conclusion to allow the amendments as proposed. I note, however, that affidavit evidence may have been of assistance to the Court if the defendant had made an issue of the timeliness of the motion in light of the state of knowledge of the plaintiffs when pleadings were filed. The plaintiffs may have anticipated this issue in producing evidence for the Court, but the issue was not raised. Rather, the defendant opposes the motion for leave to amend on the merits of the amendments in light of an earlier ruling of this Court striking portions of the plaintiffs' original Statement of Claim.2
[3] In their motion, the plaintiffs seek to amend the statement of claim to put in issue the vires of amendments made to the Coastal Fisheries Protection Regulations,3 in light of the perceived purpose of the amendments, under which the plaintiff corporation's vessel, the "Estai", was boarded at sea and brought to St. John's in March 1995. In particular, it is said that the dispute between Canada and the European Union over allocations of Greenland halibut (turbot), which precipitated the amendment to the regulations, had nothing to do with conservation and protection of the fish stocks, but instead the purpose of the changes was to secure as much as possible of the turbot catch under NAFO allocations, for Canada. Thus, it is said the amendments made to the Regulations are ultra vires because they were enacted for a purpose not within section 6 of the Coastal Fisheries Protection Act.4
[4] The defendant argues that the proposed amendments to the pleadings, in effect, would reintroduce into the Statement of Claim portions that had been previously ordered struck as irrelevant. As a consequence, it is urged the plaintiffs are precluded by res judicata and issue estoppel from having the pleadings amended as proposed. It is also argued, in the alternative, that even if not barred by res judicata and issue estoppel, I should nevertheless refuse the amendments as being irrelevant.
[5] The portions of the original statement of claim referred to by the defendant, which were ordered struck out, were paragraphs 40 and 41. Those were set out as follows:
| 40. The Plaintiffs state further that the Regulations of March 3rd, 1995 were passed by the Governor-in-Council when the European Community refused to accept a quota for turbot (Greenland halibut) set by the Northwest Atlantic Fisheries Organization whereby Canada received 60 percent of the quota for 1995 and the fifteen nations of the European Community received 12.6 percent to be divided between them. This represented an increase in the Canadian quota of over 300 percent over the previous years catch, and a decrease in the European Community quota to 8.5 percent of the previous years catch. In accordance with the Rules and Regulations of the Northwest Atlantic Fisheries Organization, the European Community withdrew from the NAFO quota and established its own quota for turbot and agreed to respect the overall NAFO total allowable catch for 1995. The Defendants responded to this with new Canadian Regulations, as contained in P.C. 1995 - 372 of March 3rd, 1995 purporting to outlaw Spanish fishing on the high seas and six days later opened fire upon the Plaintiffs ship "ESTAI" and unlawfully boarded the "ESTAI" on the high seas. Following negotiations between the European Community and Canada, agreement was reached on 20th April, 1995 respecting control and enforcement measures, total allowable catch for turbot (Greenland halibut) for 1995, inter alia, and quotas and other matters respecting, inter alia, the international waters where the "ESTAI" had been fishing. Pursuant to the said agreement, the Regulations enacted by P.C. 1995-372 of March 3rd, 1995 were amended by deleting the two states in Table IV thereof, namely Spain and Portugal, with the result that the Defendants no longer purported to regulate Spanish vessels on the high seas - Coastal Fisheries Protection Regulations Amendment of May 1st, 1995, Canada Gazette, Part II, May 17th, 1995, Page 1445. |
| 41. The Plaintiffs repeat the foregoing and state that the dispute between Canada and the European Union was precipitated by the refusal of the European Community to accept an unfair quota of turbot (Greenland halibut) obtained by Canada. The Plaintiffs state further that the seizure of the "ESTAI" and arrest of the "ESTAI" and its Master and the laying of charges were used by Canada for the purpose of forcing an international agreement with the European Community covering turbot inter alia. The seizure, arrests and charges were used by Canada as bartering pieces towards the Canadian objective of obtaining a new international agreement concerning turbot and fishing generally. The Plaintiffs state that the Defendants did not have reasonable and probable grounds for the institution of proceedings against the Plaintiff Enrique Davila Gonzalez and the motor vessel "ESTAI" and used the criminal justice system for ends which it was not designed to serve and thereby abused the offices of Attorney General and Minister of Fisheries and Oceans. The Plaintiffs state that the seizure, arrests and charges were made in bad faith by the Defendants and that the prosecutions were malicious. |
[6] In Reasons for Order dated December 13, 1995, in relation to my determination that paragraphs 40 and 41 of the Statement of Claim be struck, I commented:
| The defendants move to strike paragraph 40 and the first sentence of paragraph 41 of the Statement of Claim. They concern Canada/European Community negotiations over turbot quotas prior to, and following the seizure and arrest of the "ESTAI" until May 1, 1995, when the Regulations were again amended, this time to delete provisions specifying Spanish and Portuguese vessels. It is urged by the defendants that the entire paragraph is immaterial, embarrassing and does not disclose a reasonable cause of action. On the other hand, in the plaintiffs' view, the history of those negotiations is central to this case. The breakdown in those negotiations it is said, led to the amending Regulations in March 1995, and when the nation parties got back to negotiations, the charges laid were dropped and ultimately the Regulations were amended again to delete their application to Spanish vessels. That is an interesting story which might take substantial evidence and time at trial to establish, without substantial effect on the plaintiffs' basic claims for damages, whether or not the events as described in the Statement of Claim are established. It may appear that the events as alleged are relevant to the issue of purpose of the amending Regulations, at least the events prior to the amendment, but those events seem to support the purpose of protecting coastal fisheries, by negotiation or by regulations, and that would be consistent with the purpose of the Act, in my opinion. |
| It is my conclusion that paragraph 40 and the first sentence of paragraph 41 of the Statement of Claim are immaterial, in part redundant to other portions of the Statement, and they do not support, or weaken, the plaintiffs' claims for damages. In my opinion, they should be struck from the Statement. |
[7] The amendments now sought to be introduced by the plaintiff read as follows, as originally drafted to be in an amended Reply:
| 10. The Plaintiffs state further in reply to paragraph 30 that they deny the regulation resulted from overfishing, and state that the regulation resulted from the intention of Canada to increase five fold in 1995 its harvesting effort at Greenland Halibut and to increase more than twelve fold its share of the Greenland Halibut to 75% of the total catch and the refusal of the European Union to accept an inequitable share of Greenland Halibut for Canada and its decision to establish its own quota in accordance with the NAFO Constitution. |
| 11. The Plaintiffs state further in reply that the regulation was not enacted for the purposes of sound conservation and management or for any other purpose authorized by the Coastal Fisheries Protection Act, and was ultra vires the |
| authority conferred by the Coastal Fisheries Protection Act. |
| 12. The Plaintiffs state further that the Defendant engaged in vote buying to obtain an unfair proportion of the total allowable catch of Greenland Halibut, and that such vote buying precipitated a breakdown in international agreement for fishing the international sea. The Plaintiffs state that the authority conferred by the Coastal Fisheries Protection Act for the management of fishing in international waters did not authorize vote buying by Canada. |
| 13. The Plaintiff states further in reply to Paragraph 31 of the Defence that the Defendant purchased votes and made threats to obtain an unfair proportion of the Greenland Halibut quota, and that such actions are not acceptable to a free and democratic society under Section 1 of the Canadian Charter of Rights and Freedoms. |
[8] In my view, the amendments proposed are not the same, in form or substance, as paragraphs 40 and 41 of the statement of claim that have previously been ordered struck. In my opinion, the struck portions pertained to an allegation of malicious prosecution and the facts in paragraph 40 were pleaded in support of such an allegation. They were struck, in part, because the claim for malicious prosecution was struck and they were irrelevant to the balance of the cause of action pleaded. If I understand the contention of the plaintiffs, the amendments now proposed, in particular paragraphs 11 and 12, are pleaded to support the allegation that the regulations in issue were ultra vires. That issue was not pleaded, at least on the basis now raised, in the original statement of claim, and the proposed paragraphs 11 and 12 are not equivalent to matters struck with the original paragraphs 40 and 41. Therefore the doctrines of res judicata and issue estoppel do not apply in this case.
[9] When hearing and considering a motion to amend a pleading, it is not the Court's role to consider the merits of what is being pleaded. The proposed amendments, however, have to satisfy the ordinary rules of pleading; in particular, that the facts pleaded are relevant and material to the cause of action alleged. In my opinion, the allegations and conclusions contained in paragraphs 10 and 13 are relevant in response to the paragraphs of the Defence referred to and more aptly fit within the Reply than in the Statement of Claim. As for paragraphs 11 and 12, in my view, the facts pleaded therein may be relevant to a claim regarding the vires of the Regulations which should be included in the Statement of Claim. Therefore, leave to incorporate the substance of those claims in the Statement of Claim will be allowed.
[10] In the result, an Order issues allowing the plaintiff's motion, in part. The plaintiffs are granted leave to amend their statement of claim by incorporating the substance of paragraphs 11, and 12 as set out, and to amend their Reply by incorporating the substance of paragraphs 10 and 13 as proposed.
[11] Costs shall be in the cause.
(signed) W. Andrew MacKay
OTTAWA, Ontario
October 4, 2000
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1602-95
STYLE OF CAUSE: JOSÉ PEREIRA E HIJOS, S.A. AND ENRIQUE DAVILA GONZALEZ v. THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: ST. JOHN'S, NEWFOUNDLAND
DATE OF HEARING: SEPTEMBER 15, 1999
REASONS FOR ORDER OF MACKAY, J.
DATED: OCTOBER 4, 2000
APPEARANCES:
JOHN R. SINNOTT, Q.C. FOR PLAINTIFFS
MICHAEL F. DONOVAN FOR DEFENDANT
SOLICITORS OF RECORD:
| LEWIS, SINNOTT, SHORTALL, HURLEY FOR PLAINTIFFS |
ST. JOHN'S, NEWFOUNDLAND
MORRIS ROSENBERG FOR DEFENDANT
DEPUTY ATTORNEY GENERAL OF CANADA
__________________
1 Visx Inc. v. Nidek Co. et al., (1997), 209 N.R. 342 at 347 (F.C.A.).
2 Order, and Reasons for Order, December 13, 1996 Court File T-1602-95 (F.C.T.D.).
3 C.R.C., c. 413 as amended by SOR/99-313.
4 R.S.C. 1985, c. C-33.
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