Date: 20011217
Docket: T-932-00
Neutral Citation: 2001 FCT 1388
BETWEEN:
JOHN E. SWIFT
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a motion brought by the applicant John E. Swift for a stay of proceedings pursuant to paragraphs 50(1)(a), 50(1)(b) and subsection 50(2) of the Federal Court Act [hereinafter referred to as the "Act"].
BRIEF SUMMARY OF FACTS
[2] On May 26, 2000, the applicant filed a statement of claim commencing an action in the Federal Court of Canada File No. T-932-00.
[3] The statement of claim named the respondent, Canada Custom and Revenue Agency (the "CCRA") as the defendant in this action, and alleged that the CCRA committed fraud on the applicant and claiming damages for same.
[4] On July 20, 2000, the applicant filed a statement of claim commencing an action in the Court of Queen's Bench of Alberta File No. 0001-11883.
[5] In the Court of Queen's Bench of Alberta statement of claim, the applicant named four (4) individuals employed by the CCRA as defendants. The applicant alleges that these four (4) individual defendants acted outside the scope of their employment by committing fraud and conspiracy with intentions of causing damage to him.
[6] The applicant now brings this motion for the purpose of obtaining a stay of proceedings of the Federal Court action pursuant to paragraphs 50(1)(a), 50(1)(b) and subsection 50(2) of the Act.
RELEVANT LEGISLATION
| 50. (1) The Court may, in its discretion, stay proceedings in any cause or matter,
(a) on the ground that the claim is being proceeded with in another court or jurisdiction; or
(b) where for any other reason it is in the interest of justice that the proceedings be stayed.
(2) The Court shall, on the application of the Attorney General of Canada, stay proceedings in any cause or matter in respect of a claim against the Crown if it appears that the claimant has an action or proceeding in respect of the same claim pending in any other court against a person who, at the time when the cause of action alleged in the action or proceeding arose, was, in respect thereof, acting so as to engage the liability of the Crown.
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50. (1) La Cour a le pouvoir discrétionnaire de suspendre les procédures dans toute affaire :
(a) au motif que la demande est en instance devant un autre tribunal;
(b) lorsque, pour quelque autre raison, l'intérêt de la justice l'exige.
(2) Sur demande du procureur général du Canada, la Cour suspend les procédures dans toute affaire relative à une demande contre la Couronne s'il apparaît que le demandeur a intenté, devant un autre tribunal, une procédure relative à la même demande contre une personne qui, à la survenance du fait générateur allégué dans la procédure, agissait en l'occurrence de telle façon qu'elle engageait la responsabilité de la Couronne.
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STAY OF PROCEEDINGS IN THE FEDERAL COURT OF CANADA
[7] There is ample jurisprudence emanating from the Federal Court of Canada under paragraph 50(1)(a) of the Act. The nature of the jurisprudence highlights the principles that must be considered by the Court when a motion is brought for a stay of proceedings. This Court must weigh several factors: the risk of inconsistent findings; the risk of excessive costs; the risk of avoiding conflicting adjudication; resulting prejudice or injustice; and lastly, the balance of inconvenience.
[8] Furthermore, courts in general should be reluctant to grant a stay of proceedings unless the applicant can satisfy the Court that it has discharged its burden of proving that the circumstances warrant the granting of a stay.
GENERAL PRINCIPLES
[9] The criteria for assessing whether a stay of proceedings ought to be granted were discussed in the recent case of WIC Premium Television Ltd. v. General Instrument Corp., [1999] F.C.J. No. 862 (F.C.T.D.) where Gibson J. made reference to the case of Eli Lilly & Co. v. Novopharm Ltd. (1994), 53 C.P.R.(3d) 428.
[10] In Eli Lilly, supra Forget J. of the Ontario Court General Division, wrote at page 432:
It is trite law that a multiplicity of proceedings is to be avoided wherever possible. In the case of Shell Canada Ltd. v. St-Lawrence Seaway Authority, ... 58 O.R. (2d) 437 (H.C.J.), the Court held that where plaintiffs sued in both the Federal Court and the Supreme Court of Ontario, the Ontario Supreme Court stayed the Ontario actions finding that this would avoid the risk of inconsistent findings, excessive costs and duplication of effort.
(my emphasis)
[11] These words were confirmed by Gibson J. in WIC Premium Television, supra at paragraph 12:
[para 12] While the criteria specified in subsection 50(1) of the Federal Court Act are proceedings in another court or jurisdiction and the interest of justice, I am satisfied that those criteria comprehend avoidance of risk of inconsistent finding, excessive costs in duplication of effort. Apart from the fact that it is the Alberta action that is broader in scope than is this action, rather than the reverse, I am satisfied that the words of Mr. Justice Forget are entirely applicable on this application.
APPROPRIATE CIRCUMSTANCES
[12] In Compulife Software Inc. v. Compuoffice Software Inc., [1997] F.C.J. No. 1772 (F.C.T.D.), Wetston J. held that a stay of proceedings should only be granted in certain circumstances:
[para 16] The Court will exercise its discretion to grant a stay, under s. 50(1) of the Federal Court Act, only in the clearest of cases. In consideration of whether granting a stay would be unjust to the plaintiff or applicant, this Court will be reluctant to interfere with any right of access, unless there is a risk of imminent adjudication in two different forums: Canadian Olympic Association v. Olympic Life Publishing Ltd. (1986), 8 C.P.R. (3d) 405 (F.C.T.D.) at 407-408; Discreet Logic, supra; York, supra.
(my emphasis)
ONUS
[13] Denault J. in Discreet Logic Inc. v. Registrar of Copyrights et al. (1993), 51 C.P.R. (3d) 191 (F.C.T.D.) addressed the issue of the onus which falls upon the party seeking the stay of proceedings and the Court's discretionary power:
The onus is on the respondents who seek a stay to establish that these conditions exist and the grant or refusal of the stay is within the discretionary power of the judge, a power that will only be exercised sparingly and in the clearest of cases.
(my emphasis)
[14] The issue of onus was also addressed in Canadian Pacific Railway Co. v. Sheena M (The) (T.D.), [2000] F.C.J. No. 467 (F.C.T.D.). Prothonotary Hargrave held:
[para 21] There is no dispute that the onus of convincing a court that there ought to be a stay is a heavy one and is on the party seeking the stay.
(my emphasis)
CONFLICTING ADJUDICATION
[15] Denault J. in Discreet Logic Inc., supra concludes his comments by remarking upon the issue of conflicting adjudication:
Furthermore, until there is a risk of imminent adjudication in two different forums [...] courts should be very reluctant to interfere with any litigant's right of access: Assoc. of Parents Support Groups in Ontario [page192] (using Toughlove) v. York (1987), 14 C.P.R. (3d) 263, 3 A.C.W.S. (3d) 188 (T.D.).
This was also confirmed by Wetston J. in Compulife Software Inc., supra.
PREJUDICEOR INJUSTICE
[16] In Discreet Logic Inc., supra Denault J. spoke to the prejudice or injustice that must be present for a stay of proceedings to be granted:
It is well established in jurisprudence that a stay should not be granted unless it can be shown that, (1) the continuation of the action would cause prejudice or injustice (not merely inconvenience or extra expense) to the defendant, and (2) that the stay would not work an injustice to the plaintiff: Plibrico (Canada) Ltd. v. Combustion Engineering Canada Inc. (1990), 30 C.P.R. (3d) 312 at p. 315, 32 F.T.R. 30, 19 A.C.W.S. (3d) 515 (T.D.).
[17] Lastly, in John E. Canning Ltd. v. Tripap Inc., [1999] F.C.J. No. 715 (F.C.T.D.) Lemieux J. referred to the case of Compulife Software Inc., supra in regards to the test adopted in order to assess prejudice:
[para 42] Mr. Justice Wetston's reasons in Compulife Software Inc. (supra), built upon previous decisions of this Court which are reflected, inter alia, in Mon-Oil Limited v. Canada, (supra), where Cullen J. adopted the test of Reed J. in action T-266-88:
The applicant must also demonstrate that the respondent would suffer no appreciable prejudice or injustice if the stay is granted. As the applicable law points out it is not merely a balance of convenience test which is applied. The burden on the applicant is heavier than that.
BALANCE OF INCONVENIENCE
[18] Again in Canadian Pacific Railway Co., supra Prothonotary Hargrave at paragraph 26 defines the test applied for a stay of proceedings comparing it to a balance of inconvenience:
The principle set out in this line of cases, based on pre-RJR--MacDonald cases, that a stay must not be unjust to the plaintiff and that continuation would cause prejudice to the defendant, has been applied in various fact situations, including where there was similar litigation in another court, where there were two actions involving different litigants and where an appeal was pending. This test is, in a sense, a balance of inconvenience test.
(my emphasis)
[19] The balance of inconvenience test was also referred to above by Lemieux J. in John E.Canning Ltd., supra.
[20] In light of this jurisprudence, it is clear that the granting of a stay of proceedings is a discretionary power that must be exercised sparingly by this Court. In particular, it is the issue of conflicting adjudication which is the most persuasive in the present case for this Court to refuse staying the Federal Court action. The respondent is of the opinion that the applicant has no intention of seeking adjudication of the matter now before the Court of Queen's Bench of Alberta. Rather, the applicant believes that the proceedings before the Court of Queen's Bench of Alberta can be discontinued. This is apparent from this excerpt from the Affidavit of John E. Swift at page 4, paragraph 10 which reads:
I believe that The Court of Queens [sic] Bench Claim can in fact be discontinued at any time after the documents and examination for discovery have taken place, it would appear that certain CCRA Employees have in fact been required to commit fraud, but have sabotaged their own department which is the reason the case against the CCRA is so strong and well documented.
[21] Therefore, if the action before the Court of Queen's Bench of Alberta should be discontinued, there is no risk of conflicting adjudication. Thus, there is no need for a stay of proceedings of the Federal Court action.
[22] As for the other factors, the present case does not present itself to be the "clearest of cases", as per Compulife Software Inc., supra, for this Court to exercise its discretion and stay the Federal Court action.
PARAGRAPH 50(1)(B) AND SUBSECTION 50(2) OF THE ACT
[23] There is no reason to proceed with the remaining grounds, as this motion warrants dismissal under paragraph 50(1)(a) of the Act. However, the applicant is not entitled to a stay of proceedings under paragraph 50(1)(b) of the Act because he has produced no evidence demonstrating that the interests of justice necessitate that the proceedings be stayed. As for subsection 50(2) of the Act, the applicant is not entitled to the mandatory stay as the allegations against the four (4) individuals named in the Court of Queen's Bench of Alberta statement of claim do not include allegations such that the vicarious liability of the Crown would be engaged.
[24] In light of the foregoing, the applicant has not shown that the circumstances warrant the granting of a stay of the proceedings in the Federal Court action pursuant to paragraphs 50(1)(a), 50(1)(b) and subsection 50(2) of the Act.
O R D E R
THIS COURT ORDERS THAT:
This motion for a stay be dismissed.
Pierre Blais
Judge
OTTAWA, ONTARIO
December 17, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-932-00
STYLE OF CAUSE: JOHN E. SWIFT v. HER MAJESTY THE QUEEN
NOTICE OF MOTION DISPOSED OF IN WRITING
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE BLAIS
DATED: DECEMBER 17, 2001
WRITTEN SUBMISSIONS:
Ms. Lorraine NeillFOR PLAINTIFF
Mr. John E. SwiftFOR DEFENDANT
SOLICITORS OF RECORD:
ON HIS OWN BEHALFFOR PLAINTIFF
MR. MORRIS ROSENBERGFOR DEFENDANT
DEPUTY ATTORNEY GENERAL OF CANADA
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