Charalambous v. Canada, 2004 FC 4

Date: 20040105

Docket: T-1715-03

Citation: 2004 FC 4

BETWEEN:

                                                   JOSEPHAKIS CHARALAMBOUS

                                                                                                                                                          Plaintiff

                                                                                 and

                                                        HER MAJESTY THE QUEEN

                                                                                                                                                      Defendant

                                                            REASONS FOR ORDER

HARGRAVE P.

[1]                 The action underlying this motion for a Federal Court Act section 50.1 stay is for damages, said to have been suffered and which are ongoing, by the Plaintiff who had a heart attack, but was not provided with timely medical assistance. The Defendant requests a stay of this action on the basis that the Crown intends to institute B.C. Supreme Court third-party proceedings against their independent contractor and provider of physician's services, Dr. Alan Moore.

[2]                 While section 50.1 of the Federal Court Act, which provides for a stay of Federal Court proceedings when the Crown desires to counterclaim or to institute third-party proceedings, beyond the jurisdiction of the Court, is phrased in a mandatory way, such a stay is not automatic, a point made by Mr. Justice Rouleau in Fairford First Nation v. Canada (1995) 96 F.T.R. 172.

[3]                 In order to come within Rule 50.1 it is for the Crown to clearly establish that it "desires to institute a ... third-party proceeding in respect of which the Court lacks jurisdiction.". From the material it appears that the Crown's claim would be for breach of contract and thus, pursuant to [1977] 2 S.C.R. 654">McNamara Construction (Western) Ltd. v. The Queen [1977] 2 S.C.R. 654, is founded on provincial law and therefore is beyond the jurisdiction of the Federal Court. It remains for the Crown to establish an appropriate desire to institute the third-party proceedings.

[4]                 In the present instance the Crown's evidence establishes only that Crown counsel sent a letter to counsel for the Plaintiff indicating an "intent" to third-party Dr. Alan Moore in B.C. Supreme Court proceedings. The Crown presents no prima facie case for claiming over against Dr. Moore in negligence or for breach of contract.

[5]                 To the contrary, and here I must keep in mind that the Plaintiff's claim is for damages arising out of delay and inadequate institutional response by the Defendant, the material presented on this motion clearly establishes that there was no undue delay by Dr. Moore, in prescribing and ordering what needed to be done, once he was paged and shortly thereafter responded. Rather, any delay in the Plaintiff obtaining medical assistance is said to be that of the Crown's servants: this contention is certainly borne out by the Crown's own running written record of the events leading up to the eventual paging of Dr. Moore and the again eventual transfer by the Crown of the Plaintiff to hospital. That running record indicates a timely response and appropriate instructions by Dr. Moore once he was paged, but a delay by the Defendant in carrying out those instructions. As I have already pointed out the whole thrust of the Plaintiff's claim is that he suffered and continues to suffer damages by reason of the Crown's delay both in providing medical assistance and in following Dr. Moore's instructions to get the Plaintiff to hospital.

[6]                 To stay an action on the pretext that Dr. Moore erred would be unjust, for I am not convinced by the vague and unparticularized evidence that the Crown desires to commence third-party proceedings against Dr. Moore. Similarly, in Fairford First Nation v. Canada at 175-176 Mr. Justice Rouleau was unconvinced by the vague material and absence of particulars that there was a desire to commence third-party proceedings. Mr. Justice Rouleau went on to point out, at page 176, that

... the defendant's present application is extremely vague; it does not contain any particulars of the intended third-party claim. Indeed, the defendant's position appears to be that this court must grant the relief sought as a right. It would be improper however to deny the plaintiffs their right to a trial and possible remedy when there is no evidence before this court to indicate the Attorney General is in fact going to commence third-party proceedings against Manitoba.

[7]                 The motion for a stay, pursuant to section 50.1 of the Federal Court Act, is denied. However the Crown may have until close of Registry on 23 January 2004 within which to serve and file a defence. Costs to the Plaintiff.

(Sgd.) "John A. Hargrave"

   Prothonotary

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                           T-1715-03

STYLE OF CAUSE:                                        Josephakis Charalambous v HMQ

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY:                                    John A. Hargrave, Prothonotary

DATED:                                                             

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: