Date: 19990426
Docket: A-216-97
CORAM: THE CHIEF JUSTICE
STONE J.A.
DESJARDINS J.A.
| IN THE MATTER of the Agricultural Products Co-operative Marketing Act, R.S.C. 1985, c.A-5, as amended |
| AND IN THE MATTER of an Application by Bank of Montreal and Coopers & Lybrand Limited for judicial review against the Respondents |
|
| AND IN THE MATTER of the Federal Court Act, R.S.C. 1985, c. F-7, as amended |
|
BETWEEN:
BANK OF MONTREAL and
COOPERS & LYBRAND LIMITED
Appellants
(Applicants)
- and -
THE ATTORNEY GENERAL OF CANADA,
THE MINISTER OF AGRICULTURE OF CANADA
and THE MINISTER OF FINANCE CANADA
Respondents
(Respondents)
HEARD at Toronto, Ontario, Monday, April 26, 1999.
JUDGMENT delivered at Toronto, Ontario, Monday, April 26, 1999.
REASONS FOR JUDGMENT BY: THE CHIEF JUSTICE
Date: 19990426
Docket: A-216-97
CORAM: THE CHIEF JUSTICE
STONE J.A.
DESJARDINS J.A.
| IN THE MATTER of the Agricultural Products Co-operative Marketing Act, R.S.C. 1985, c.A-5, as amended |
|
| AND IN THE MATTER of an Application by Bank of Montreal and Coopers & Lybrand Limited for judicial review against the Respondents |
|
| AND IN THE MATTER of the Federal Court Act, R.S.C. 1985, c. F-7, as amended |
|
BETWEEN:
BANK OF MONTREAL and
COOPERS & LYBRAND LIMITED
Appellants
(Applicants)
- and -
THE ATTORNEY GENERAL OF CANADA,
THE MINISTER OF AGRICULTURE OF CANADA
and THE MINISTER OF FINANCE CANADA
Respondents
(Respondents)
REASONS FOR JUDGMENT
(Delivered orally from the Bench at Toronto, Ontario
on Monday, April 26, 1999)
THE CHIEF JUSTICE:
[1] This is an appeal from an order of a Motions Judge in the Trial Division made on 9 March, 1997. In the order, the learned Motions Judge dismissed the application by the appellants for an order in the nature of mandamus compelling the respondents to exercise their discretion under the Agricultural Products Cooperative Marketing Act, R.S.C. 1985, c. A-5, as amended, to pay to the appellants the amount of a guarantee given by the Minister of Agriculture in an agreement dated 11 September, 1991.
[2] In dismissing the application, the Motions Judge gave reasons which read in part:
| |
Nothing about this case is simple. The facts will depend on the Court's interpretation of a number of technical documents and, of course, on the credibility and reliability of oral testimony. In turn, the law involves resolution of difficult questions requiring the examination and extent of the Minister's duty under the statute which has been rendered even more complex because of the receivership of those who were to be the beneficiaries of this loan guarantee programme. It would be inappropriate to attempt to resolve these kinds of issues on the basis of documentary evidence by motion.1 |
|
[3] We agree.
[4] The reasons concluded as follows:
| |
Hopefully, however, the steps taken by the parties up to this point should not be wasted. Once the parties have read these reasons, I am prepared to meet with them at their request to discuss directions for transforming this into an appropriate kind of hearing and to expedite the process.2 |
|
[5] It is clear from the concluding paragraph of his reasons that the Motions Judge intended that the application before him should proceed as an action, if the parties asked for an order to that effect. Unfortunately, instead of making such an order ex proprio motu, the Motions Judge dismissed the application with costs in the cause.
[6] In their memoranda of fact and law filed in this appeal, counsel for the parties have both claimed, as alternative relief, a direction from this Court converting the application to an action pursuant to subsection 18.4(2) of the Federal Court Act. This, they contended, is the order that the Motions Judge should have made when he decided that the unresolved factual issues before him prevented his dealing with the relief which the appellants were seeking.
[7] We agree with counsel, that the conjoint effect of paragraph 52(b)(i)and subsection 18.4(2) of the Federal Court Act is that this Court has authority to make the order that the Motions Judge should have made.
[8] Consequently, we direct that the application for judicial review which the appellants filed in the Trial Division on 15 May, 1996 shall be treated and proceeded with as an action.
[9] The application shall be considered as the statement of claim and the appellants shall be considered plaintiffs in the action and the respondents as defendants.
[10] The appellants, as plaintiffs, may amend the application, to bring it in conformity to the form of statement of claim in Form 171A. Such amendment to be completed and the statement of claim served and filed not later than 7 May, 1999.
[11] The respondents, as defendants, shall serve and file their statement of defence not later than 21 May, 1999.
[12] The appellants, as plaintiffs, shall serve and file their reply, if any, not later than 31 May, 1999.
[13] Thereafter, within 10 days from the filing of the reply, counsel for the parties shall appear before the Associate Chief Justice to fix the times for taking further steps in the action.
[14] We are all of the view that in all other respects, the appeal should be dismissed with costs to be assessed under Column III, and be payable forthwith after assessment.
"Julius A. Isaac"
C.J.
TORONTO, ONTARIO
April 26, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-216-97
| STYLE OF CAUSE: BANK OF MONTREAL and |
COOPERS & LYBRAND LIMITED
- and -
| THE ATTORNEY GENERAL OF CANADA, THE MINISTER OF AGRICULTURE OF CANADA |
and THE MINISTER OF FINANCE CANADA
DATE OF HEARING: MONDAY, APRIL 26, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: THE CHIEF JUSTICE
| DATED: MONDAY, APRIL 26, 1999 |
APPEARANCES: Mr. Andrew R. Brodkin
Mr. Benjamin Zarnett
For the Appellants
Mr. Jeffrey M. McEown
For the Respondent
SOLICITORS OF RECORD: Goodman Phillips & Vineberg
Barristers & Solicitors
Box 24, 2400-250 Yonge St.,
Toronto, Ontario
M5B 2M6
For the Appellants
Keel Cottrelle
Barristers & Solicitors
920-36 Toronto St.
Toronto, Ontario
M5C 2C5
For the Respondent
| |
COOPERS & LYBRAND LIMITED |
|
| |
THE ATTORNEY GENERAL OF CANADA, |
|
| |
THE MINISTER OF AGRICULTURE OF CANADA and |
|
| |
THE MINISTER OF FINANCE CANADA |
|
__________________
1 Appeal Book, pp. 417-18.
2 Appeal Book, p. 418.
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