Giles A.S.P.:
1 By the motion before me, the defendants seek to strike the Statement of Claim under Rule 419(1)(a) on the grounds that this Court does not have jurisdiction. The plaintiff has responded seeking to strike the Notice of Motion on the grounds that a motion to strike for lack of jurisdiction should be brought under Rule 401, and also alleging that a motion under Rule 401 should be brought before a judge and not before a prothonotary.
2 Dealing with the last point first, a motion under Rule 419 or under Rule 401 is an interlocutory motion, and by Rule 336 and the Associate Chief Justice's general direction under Rule 336(1)(g) an interlocutory motion of this kind is within my jurisdiction. This direction does not appear to have been drawn to the attention of Mr. Justice Richard when he decided Banerd v. Deputy Minister of National Revenue.(1994), 88 F.T.R. 14 (Fed. T.D.). However, the defendants' solicitor should not have attempted to select the judge or judicial officer before whom a motion or any other court proceeding is to be heard (except of course an order for reconsideration for which the rules provide which person shall hear it). The request of the defendants' solicitor was particularly unfortunate in that I was sick in bed when the motion would normally have been laid before the person who would dispose of it, and because it could not be laid before me as requested it appears to have become immersed in the system, and only recently surfaced. I do not consider the irregularity of the defendants' solicitor to be fatal to the motion.
3 The next point to deal with conveniently is the matter raised by the plaintiff that a challenge to the jurisdiction of the Court should be brought under Rule 401 and not Rule 419. In Banerd v. Deputy Minister of National Revenue, it was indicated that when it is sought to challenge the jurisdiction, it is more appropriate to proceed under Rule 401 than under Rule 419(1)(a). Rule 401 is the rule which deals with conditional appearances. As was pointed out in Bunker Ramo Corp. v. TRW Inc..[1980] 2 F.C. 488 (Fed. T.D.), where the Court's jurisdiction is to be challenged, ratione materae (because of the subject matter) there is no practical need to file a conditional appearance as there can be no attornment to the jurisdiction. Where the Court's jurisdiction ratione personae is to be challenged a conditional appearance should be entered. There is an alternative challenge to the Court's jurisdiction with regard to the action against the subjects. It is my view that the fact that this Court may not have jurisdiction in an action between subjects is a matter of jurisdiction rationematerae. However, it might be considered as a challenge to the Court's jurisdiction ratione personae and therefore the preferred procedure might have been to seek leave to file a conditional appearance. I note that in Concept Omega Corp. v. Logiciels KLM Ltée (1987), 12 F.T.R. 291 (Fed. T.D.), Mr. Justice Teitelbaum used Rule 2(2) to maintain an order of the Senior Prothonotary purporting to strike under Rule 419(1)(a) for want of jurisdiction. I notice that in Bunker Ramo it is suggested that it is not necessary to seek leave to file a conditional appearance where there can be no attornment to the jurisdiction. I conclude that where a motion is filed to employ Rule 419(1)(a), if it is found that the Court has jurisdiction the defendants have attorned.
4 The defendants have argued that this Court does not have jurisdiction because the Court has not jurisdiction in matters of contract which are determined by provincial law and not a law of Canada. The plaintiff has responded that her case is not founded on contract but on a) the doctrine of legitimate expectation, b) the Hedley Byrne principle[FN1: <p><em>Hedley Byrne & Co. v. Heller & Partners Ltd.</em>(1963), [1964] A.C. 465 (U.K. H.L.)</p>] , and c) the failure to fulfil a duty of care.
5 I note that in paragraph 1 of the Statement of Claim mention is made of an agreement between Pierre Gravelle, Q.C. and the plaintiff and mentions a letter of November 15, 1996. Paragraph 5 mentions an offer to pay made on November 26, 1996, and a notice of December 6, 1996 on a motion under Rule 419(1)(a). I am prepared to consider that the letters of November 15th, November 26th and December 6th are documents mentioned in a pleading which have been served. I am not prepared to consider any other letters attached to the Notice of Motion which are not even indirectly mentioned in a pleading. The Website material and the Declaration of Taxpayer Rights were served and will be considered because they were mentioned. Evidence cannot be considered under Rule 419(1)(a) motion and the extra letters were not being exhibited to an affidavit and are not even evidence.
6 An agreement is a consensus between two or more people, it is not enforceable in any way until it has become a contract. The law of contract is not a law of Canada and is only judicable in this Court when it is but a supplementary part of an issue which is within the jurisdiction of the Court. In any event, the letters mentioned in the pleading do not indicate even in the existence of any consensus.
7 Dealing with a matter of legitimate expectation, I note that in Bendahmane v. Canada (Minister of Employment & Immigration) (1989), 61 D.L.R. (4th) 313 (Fed. C.A.), the Federal Court of Appeal applied the doctrine in an immigration matter to provide relief under the Immigration Act. I do think it too great a stretch of the imagination to see the principle applicable in an income tax case to provide some relief under that Act. The relief of damages is obtainable in an action for tort. The Crown Liability and Proceedings Act indicates an action for tort can only be brought against the Crown for the tortious acts of her servants. The question immediately arises what act of what servant. This is not in my view at all clear from the pleading. To find an action against the Crown it is necessary to set out precisely the acts which would render a servant of the Crown liable in tort even though there may be no action in this Court against that servant of the Crown. The question also arises as to whether holding out such documents as the taxpayer's Charter of Rights is part of the law of Canada and creates any rights enforceable under the law of Canada.
8 The Website and the declarations of Taxpayer Rights do not appear in legislation. I question whether an advertising or public relation exercise can impose a duty on any civil servant and therefore doubtful if there is any cause of action which could be shown against these civil servants which could be founded on Hedley Byrne or any duty of care. In any event, without a federal statute or a regulation or other instruction founded on such a statute, no law of Canada would be involved and therefore this Court would not have jurisdiction.
9 The Department of National Revenue (however described) is implied to have held out certain things to the taxpayer by its Website described in the claim, and its Declaration of Taxpayer Rights and it is argued thereby created a legitimate expectation. If in fact it did so, it could only have legitimately done so under the authority of the Income Tax Act- a law of Canada. That fact would round out the prerequisites for an action in this Court. The action sounds in tort, although infelicitously expressed.
10 For the Crown to be found liable in tort, some subject for whom the Crown is or was at the appropriate time vicariously liable must have been liable in tort. I am prepared to assume that it was a servant or servants of the Crown who created the Website information and published the Declaration of Taxpayer Rights which, it is apparently intended to be alleged, created a legitimate expectation or expectations.
11 While it is probable that the civil servant who pulled these stunts (I am not aware of the correct language to describe the process of informing a taxpayer through a Website) was responsible to the Deputy Minister, there is no allegation which would connect the Deputy Minister to the stunts. The Deputy Minister as well the more junior persons in the Department are all servants of her Majesty. It is a long established principle of law that one servant is not vicariously responsible for the tort of another servant. I am therefore satisfied that while no cause of action has been set out in the statement of claim, and therefore, it should be struck, there is a suggestion of a possibility that a cause of action against the Crown might exist based on the creation of a legitimate expectation.
12 No cause of action within the jurisdiction of the Court has been shown against the two civil servants mentioned in the style of cause. Therefore, the Statement of Claim will be struck without leave as regards those civil servants. As regards the claim against the Crown, leave will be granted to file an Amended Statement of Claim on or before September 21st, 1997.
Order
13 The Statement of Claim is struck out with leave to file an Amended Statement of Claim against the Crown not inconsistent with the foregoing reasons on or before the 21st of September, 1997.
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