Canada v. J.D. Irving, Ltd., docket T-1625-97

Date: 19990312

Docket: T-1625-97

BETWEEN:

     HER MAJESTY THE QUEEN

     Plaintiff

     AND

     J.D. IRVING, LIMITED, a body corporate

     ATLANTIC TOWING LTD., a body corporate,

     IRVING OIL COMPANY, LIMITED, a body corporate

     The TUG "IRVING MAPLE", Her Owners and all others

     interested in Her and UNIVERSAL SALES, LIMITED

     Defendants

     AND

     THE ADMINISTRATOR OF THE SHIP-SOURCE

     OIL POLLUTION FUND

     -and-

     THE INTERNATIONAL OIL POLLUTION

     COMPENSATION FUND 1971

     Parties by Statute

     REASONS FOR ORDER

     (Delivered from the Bench at Montréal, Québec,

     Friday, March 12, 1999)

HUGESSEN J.

[1]      The plaintiff moves for leave to amend the statement of claim so as to add a number of paragraphs and to amend a number of others. The defendants take objection to the motion primarily on two grounds.

[2]      The first, is that the proposed amendments, or many of them, are not sufficiently particularised so as to comply with the rules of pleading as set forth in the Federal Court Rules, 1998.

[3]      The second, is that in some of the proposed amendments, there are words or phrases which may not be supportable in law or may not specifically apply to one or more of the defendants who have all pleaded together.

[4]      With regard to the first point objection, I am not called upon to decide, at this stage, whether or not the defendants may be entitled to obtain particulars of some one or more of the proposed amendments. I do, however, note that any pleading, and that includes a proposed amendment to a pleading, must be read in its entire context. When applying that principle to a proposed amendment, it means that the proposed amendment must be read as being part of the pleading to which it relates. When the proposed amendments to which objection has been taken on this ground are read in that context, I am quite satisfied that it is, by no means, plain and obvious that such amendments would be susceptible of being struck out on a motion as not disclosing a cause of action. That being so, it is my view that the amendments may properly be made and that, as I say, notwithstanding that there may be a right on the part of one or more of the defendants to obtain further particulars, a matter on which I make no decision.

[5]      With regard to the second objection taken by the defendants, it deals, as I have said, with certain specific words or phrases contained in some of the proposed amendments. An example is the new pleading to the effect that the defendants committed a "statutory" (as well as common law) nuisance. The defendants take the point that by a previous decision of this Court all claims based on Part XVI of the Canada Shipping Act¹ were found to have no basis in law because they were brought out of time. My reaction to the defendants" objection is simply this: it is no part of the Court"s role on a motion to amend to edit the proposed amendments. If the amendments taken as a whole, appear to be a reasonable pleading which discloses a cause of action which is not susceptible to being struck out, then the fact that one or more words or phrases in any particular paragraph of the pleading may be susceptible to being struck out does not render the amendment as a whole bad.

[6]      Accordingly, I am prepared to allow the motion to amend and to grant the leave sought. In the circumstances, I do not think this is an appropriate case to make an order as to costs and I will make none.

     "James K. Hugessen"

     Judge

¹      R.S.C. 1985, c. S-9