R. v. CAE Industries Ltd., [1977] 2 SCR 566

Supreme Court of Canada

R. v. CAE Industries Ltd., [1977] 2 S.C.R. 566

Date: 1977-03-08

Her Majesty The Queen (Defendant) Appellant;

and

CAE Industries Ltd., and CAE Aircraft Ltd. (Plaintiffs) Respondents.

1977: March 8.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Practice—Federal Court—Examination for discovery—Order nominating a Minister of the Crown to be examined—Court Rules applying only to a person who is an officer of the Crown when the discovery is to take place—Resort to provincial practice not allowed—Federal Court Act, R.S.C. 1970 (2^nd Supp.), c. 10, s. 46(1)(a)—Federal Court Rules, Rules 5 and 465(1)(c).

APPEAL from an order of the Federal Court[1] nominating the Honourable James A. Richardson to be examined for discovery and reversing the order of Smith D.J. of the Trial Division[2], who had dismissed the respondents’ motion. Appeal allowed.

John Scollin, Q.C., and Glen St. John, for the appellant.

Leon N. Mercury and David G. Hill, for the respondents.

The judgment of the Court was delivered orally by

THE CHIEF JUSTICE—We are all of the opinion that the order of the Federal Court of Appeal, nominating the Honourable James A. Richardson to be examined for discovery, should be vacated. Mr. Richardson was a Minister of the Crown when that order was made, but it is common ground and, in any event, a matter of which we take judicial notice that he has ceased to be a Minister. In our view, assuming that a Minister of the

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Crown is a “departmental or other officer of the Crown” within s. 46(1)(a) of the Federal Court Act, R.S.C. 1970 (2^nd Supp.), c. 10 and within Federal Court Rule 465(1)(c) (and we leave this question open), those words can only refer to a person who is such an officer at the time that the discovery is to take place. We say this having regard to the fact that admissions would ordinarily be elicited to bind the Crown on issues arising in the litigation.

We are unable to agree with the contention of the respondents that under Rule 5 of the Federal Court Rules resort may be had to provincial practice and procedure, here the practice and procedure in Manitoba, to cover what is alleged to be a gap in the Federal Court Rules. We do not construe those Rules as revealing a gap in this case, and, in any event, resort to Rule 5 cannot be had to effect amendments to Rules which, in our view, limit discovery, pursuant to the Act, to examination of those who are existing officers.

We express no opinion on the subsidiary point raised by the Crown, namely, that the nomination of an officer by the Attorney-General or Deputy Attorney-General pursuant to s. 465(1)(c) of the Federal Court Rules precludes the Federal Court from entertaining an application for the nomination of someone else.

The appeal is accordingly allowed, and the order of the Federal Court of Appeal is set aside and the order of Smith D.J. dismissing the respondents’ motion is restored. There will be no order as to costs.

Appeal allowed.

Solicitor for the appellant: D.S. Thorson, Ottawa.

Solicitors for the respondents: Aikins, MacAuley & Thorvaldson, Winnipeg.