Muldoon,
].:
—This
matter
is
brought
before
the
Court
on
the
application
of
the
above
named
defendants
Norberg
and
Sasnett.
It
concerns,
in
essence,
this
Court's
jurisdiction
to
implead
the
said
defendants
and
to
adjudicate
the
plaintiffs’
claims
against
them
for
damages
in
regard
to
the
plaintiffs'
allegations
that
the
said
defendants
conspired
in
Canada
with
servants
of
Her
Majesty
to
violate
the
plaintiffs’
right
to
confidentiality
of
document
in
the
Minister’s
hands,
accorded
by
section
241
of
the
Income
Tax
Act,
S.C.
1970-71-72,
Chap.
63
as
amended.
The
defendants
Norberg
and
Sasnett
are
both
officials
employed
in
or
by
the
Internal
Revenue
Service
of
the
Government
of
the
United
States
of
America.
The
plaintiffs
in
March
1987,
sought
an
order
permitting
service
ex
juris
of
the
statement
of
claim
on
the
said
defendants,
in
the
U.S.A.
The
order
was
granted,
with
extensive
reasons,
on
March
10,
1987.
In
June
1987,
the
defendants
moved
pursuant
to
Rule
401
to
be
granted
leave
to
file
a
conditional
appearance
and
they
sought
to
have
proceedings
stayed
until
they
could
invoke
the
extended
appeal
proceedings
provided
by
subsection
27(2)
of
the
Federal
Court
Act,
R.S.C.
1970
(2nd
Supp.)
Chap.
10.
Mr.
Justice
Collier,
on
August
11
and
12,
1987,
disposed
of
their
application
with
oral
reasons,
and
made
the
following
order:
1.
The
motion
is
dismissed,
subject
to
the
following:
(a)
The
defendants
Norberg
and
Sasnett
("the
defendants")
have
leave
to
file
a
conditional
appearance;
(b)
The
defendants
shall
bring
on
for
hearing,
on
or
before
September
30,
1987,
a
motion,
pursuant
to
Rule
330
to
rescind
the
order
of
Muldoon,
J.,
pronounced
March
10,
1987.
If
the
motion
is
not
brought
on
as
directed,
the
appearance
shall
stand
as
unconditional.
(c)
The
defendants
are
not
required
to
file
a
defence
until
after
the
hearing
and
disposition
of
the
motion
referred
to
in
paragraph
(b).
2.
The
costs
of
this
motion
are
in
the
cause.
The
said
defendants
filed
a
notice
of
conditional
appearance
on
September
2,
1987.
By
their
solicitors
they
also,
on
September
9,
1987,
gave
notice
of
two
distinct
motions,
in
sequence,
thus:
for
an
order
pursuant
to
Rule
330
.
.
.
that
the
order
of
Mr.
Justice
Muldoon
[granting
leave
to
serve
ex
juris]
pronounced
on
March
10,
1987,
be
set
aside;
and,
for
an
order
pursuant
to
subsection
27(2)
of
the
Federal
Court
Act.
.
.
that
the
time
limit
for
the
filing
of
notice
of
appeal
from
the
order
of
Mr.
Justice
Muldoon
[granting
leave
to
serve
ex
juris]
pronounced
on
March
10,
1987,
be
extended
for
a
period
of
twenty
(20)
days
from
the
date
of
the
disposition
of
this
motion.
This
latter
notice
of
motion
bears
a
note
asking
that
it
be
set
down
on
the
list
after
the
motion
for
an
order
pursuant
to
Rule
330.
Counsel
for
the
plaintiffs
and
counsel
for
those
defendants,
Norberg
and
Sasnett,
both
agree
that
the
first
motion
should
be
dealt
with
on
the
merits,
that
is
whether
or
not
the
Court
ought
to
have
accorded
leave
to
serve
those
defendants
ex
juris,
on
March
10,
1987.
No
new
material
has
been
filed
on
this
application,
only
the
affidavit
which
was
filed
in
the
proceedings
in
which
Mr.
Justice
Collier
made
the
order
dated
August
12,
1987.
Both
counsel
seek
a
definitive
judgment
on
the
matter
of
the
Court's
jurisdiction
in
this
matter.
Perceiving
that
this
first
application
would
be
dismissed,
upon
certain
intimations
by
the
Court,
both
counsel
appear
to
be
prepared
to
have
such
definitive
judgment
from
the
Appeal
Division.
Indeed,
it
was
the
plaintiff's
counsel
who,
at
the
hearing,
argued
that
such
a
definitive
resolution
of
the
Court's
jurisdiction
would
be
forthcoming
on
the
basis
revealed
in
Price
v.
Finland
Steamship
Co.
Ltd.,
[1983]
2
F.C.
944;
46
N.R.
372
(F.C.A.).
The
Court
will
dismiss
the
defendant's
motion
to
set
aside
the
ex
parte
order
for
service
ex
juris
dated
March
10,
1987,
for
the
reason
that
the
said
defendants
have
not
demonstrated
that
the
Court
erred
in
fact
or
in
law
in
pronouncing
that
order
for
the
reasons
published
at
that
time.
These
defendants
may
take
an
appeal
from
the
present
order
if
so
advised,
on
the
above
grounds.
The
conditional
appearance
herein
of
the
defendants
Norberg
and
Sasnett
endures
until
the
Appeal
Division
adjudicates
their
appeal,
if
any,
or
until
time
for
commencing
appeal
proceedings
expires,
if
none.
Obviously,
it
shall
not
now
be
necessary
for
them
to
file
a
defence
or
defences,
nor
until
30
days
after
the
expiry
of
time
to
appeal
or,
an
appeal
being
launched
by
them
from
this
dismissal
of
their
application,
until
the
Court
further
directs,
if
ever.
The
defendants'
second
application
invoking
subsection
27(2)
of
the
Federal
Court
Act
is
withdrawn,
since
they
wish
to
avoid
jeopardizing
the
conditional
quality
of
their
appearance.
Costs
in
regard
to
the
dismissal
of
the
application
invoking
Rule
330,
and
in
regard
to
the
withdrawal
of
the
application
invoking
subsection
27(2)
of
the
Act,
both,
shall
be
costs
in
the
cause.
ORDER
1.
THIS
COURT
ORDERS
that
the
application
filed
September
9,
1987,
on
behalf
of
the
defendants,
Reginald
H.
Norberg
and
Donald
J.
Sasnett
to
set
aside
the
ex
parte
order
dated
March
10,
1987,
for
service
ex
juris
is
dismissed;
2.
THIS
COURT
FURTHER
ORDERS
that
the
said
defendants’
conditional
appearance
shall
endure
until
the
times
provided
in
the
above
reasons
and
it
accordingly
shall
not
be
required
of
the
defendants
to
lodge
their
state-
ment(s)
of
defence
until
the
times
and
events
described
above;
and
3.
THIS
COURT
FURTHER
ORDERS
that
the
costs
of
the
present
proceedings,
and
of
those
now
withdrawn
by
or
on
behalf
of
the
said
defendants,
shall
be
costs
in
the
cause.
Order
accordingly.
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