Date: 20070523
Docket: T-875-06
Citation:
2007 FC 548
Vancouver, British Columbia, May
23, 2007
PRESENT: Roger R. Lafrenière, Esquire
Prothonotary
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA
Appellant
and
THE ADMINISTRATOR OF THE SHIP-SOURCE OIL
POLLUTION FUND
Respondent
REASONS FOR ORDER AND ORDER
[1]
By
motion in writing, the Appellant, Her Majesty the Queen in Right of
Canada, as represented by the Attorney General of Canada (the Crown), seeks an
extension of time for filing proof of service of the Notice of Appeal, as well
as directions regarding the naming of the proper respondent to the appeal. The Crown
also requests a suspension of the filing deadlines under Part 6 of the Federal
Courts Rules (FCR) pending disposition of this motion.
[2]
The Administrator of the Ship-source Oil Pollution Fund
(Administrator), who is named as the sole respondent in the appeal, does not
oppose the Crown’s motion to extend the time for filing proof of service of the
Notice of Appeal. He
takes issue, however, with the Crown’s request for directions in light of the
existing procedure to identify the proper respondent set out in the FCR.
[3]
I
am satisfied that the motion for extension of time should be granted in light
of the explanation provided by the Crown for the relatively short delay. As
for the request for directions, for the reasons that follow, I conclude that
none should be provided.
Analysis
[4]
Section 87(2) of the Marine Liability Act (ML Act)
provides that a claimant may, within 60 days after receiving an offer of
compensation from the Administrator, or a notification that the Administrator
has disallowed the claim, appeal the adequacy of the offer or the disallowance
of the claim to the Admiralty Court (defined under section 2 of the ML Act
as the Federal Court).
[5]
The present
appeal concerns the adequacy of the offer of compensation made by the
Administrator, wherein he offered $20,000.00 in compensation for the Crown’s
claim of $223,543.88.
One of the
grounds for appeal is that the Administrator failed to provide any notice to
the Crown of his intention to rely on certain material that was allegedly never
provided to the Crown.
[6]
The Crown
named the Administrator as the Respondent and served him with the Notice of
Appeal. However, the Administrator refused to file a Notice of Appearance, taking
the position that he was wrongly named as the Respondent in this appeal, and that
the identification of the proper respondent is a matter specifically provided
for in Rule 338.
[7]
Rule
338 sets out the persons to be included as respondents to an appeal, and reads
as follows:
|
338.
(1) Unless the Court orders otherwise, an appellant shall include as a
respondent in an appeal
(a)
every party in the first instance who is adverse in interest to the appellant
in the appeal;
(b)
any other person required to be named as a party by an Act of Parliament
pursuant to which the appeal is brought; and
(c)
where there are no persons that are included under paragraph (a) or (b), the
Attorney General of Canada.
(2) On a motion by the Attorney General
of Canada, where the Court is satisfied that the Attorney General is unable
or unwilling to act as a respondent in an appeal, the Court may substitute
another person or body, including a tribunal whose order is being appealed,
as a respondent in the place of the Attorney General of Canada.
|
338. (1) Sauf ordonnance contraire de
la Cour, l’appelant désigne les personnes suivantes à titre d’intimés dans
l’appel :
a) toute personne qui était une partie
dans la première instance et qui a dans l’appel des intérêts opposés aux
siens;
b) toute autre personne qui doit être
désignée à titre de partie aux termes de la loi fédérale qui autorise
l’appel;
c) si les alinéas a) et b) ne
s’appliquent pas, le procureur général du Canada.
(2)
La Cour peut, sur requête du procureur général du Canada, si elle est
convaincue que celui-ci est incapable d’agir à titre d’intimé ou n’est pas
disposé à le faire, désigner en remplacement une autre personne ou entité, y
compris l’office fédéral dont l’ordonnance fait l’objet de l’appel.
|
[8]
In summary, Rule 338(1) provides that a
notice of appeal must name every party in the first instance who is adverse in
interest to the appellant in the appeal, or any other person required to be
named by statute as a respondent. In the event there are no such parties or
persons, the Attorney General of Canada must be named as the default
respondent. Where, however, the Attorney General is unwilling or unable to act,
the Court may appoint a substitute, including the tribunal which made the
decision, as a respondent on motion brought pursuant to Rule 338(2).
[9]
The
Administrator contends that the Crown is attempting, by this motion, to short-circuit
the process set out in the FCR by naming the Administrator as
Respondent. The Administrator maintains that there is no party who is adverse
in interest to the Crown in this appeal. Further, the Marine Liability Act
does not require any other person to be named as a party.
[10]
The
Administrator submits that, in the circumstances, Rule 338(1)(c) stipulates that
the appropriate respondent in this appeal is the Attorney General of Canada. According
to the Administrator, the Crown should be seeking to amend the Notice of Appeal
to name the Attorney General of Canada as Respondent. The Amended Notice of
Appeal would then have to be served on the Attorney General of Canada and on the
Administrator in accordance with Rule 339. The Attorney General would then have
to file a Notice of Appearance as Respondent on the appeal and decide, as
Respondent, whether or not to proceed with an application to substitute another
person or body as respondent.
[11]
The
Administrator’s approach is rather technocratic. I see no useful purpose in
requiring the Crown to sue itself and to go through the cumbersome procedure
prescribed by Rule 338, particularly since the Rule does not appear to
contemplate the possibility that the Crown could be an appellant.
[12]
In
any event, the Administrator’s arguments are based on the assumption that he is not a
person included under paragraph (a) or (b) of Rule 338. The Crown does not
share that view.
[13]
The correct
identification of the respondent who is required to be served with a notice of
appeal is the responsibility of the appellant or his solicitor: Indian Manufacturing
Ltd. et al v. Lo et al. (1996) 199 N.R. 114 (F.C.A.). The general rule is
that an appellant is free to choose the responding party.
[14]
Once
a notice of application has been served upon a respondent, the respondent, if
it should choose to defend, must serve and file a notice of appearance. A
respondent who does not deliver a notice of appearance is not entitled to
receive notice of any step in the proceeding or other document. Nor is the
respondent able to file material, examine a witness, cross-examine on an
affidavit, or be heard at the hearing except with the leave of the judge.
[15]
If
the Crown’s decision to name the Administrator as respondent proves to be
incorrect, it may be without a remedy. However, there is no obligation on the
Crown, at this stage of the proceeding, to establish that it has named the
correct respondent, or on the Court to confirm the Crown’s position.
[16]
Rather,
the onus was on the Administrator to establish that he was improperly joined. On
the basis of the material before me, it appears that the Administrator is
independent from the Crown when performing his duties under Part 6 of the MLA,
and that he can arguably be viewed as adverse in interest to the Crown in his
role as guardian of the Ship-source Oil Pollution Fund.
[17]
In
the circumstances, I am not satisfied that the Administrator was misjoined as
Respondent. The appeal can therefore proceed with the parties as currently
named.
ORDER
THIS COURT
ORDERS that
1. The Appellant is granted an
extension of time to June 1, 2007 to file proof of service of the Notice
of Appeal.
2. The Respondent shall serve and
file a Notice of Appearance within 10 days of the date of this Order.
3. The time for taking subsequent
steps under Part 6 of the Federal Courts Rules is extended to run from
the date of service of the Respondent’s Notice of Appearance, or the expiration
of the time for doing so, whichever is earlier.
4. There shall be no order as to
costs of this motion.
“Roger
R. Lafrenière”
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