Date: 20020319
Docket: T-609-99
Neutral Citation: 2002 FCT 298
BETWEEN:
BUDISUKMA PUNCAK SENDIRIAN BERHAD,
MARITIME CONSORTIUM MANAGEMENT SENDIRIAN BERHAD,
Plaintiffs
- and -
HER MAJESTY THE QUEEN
IN THE RIGHT IN CANADA,
B.S. WARNA AND D.A. HALL,
Defendants
REASONS FOR ORDER
HARGRAVE P.
[1] These reasons arise out of a portion of the Defendants' motion to amend the Defence in order to plead that the Statement of Claim is vexatious and abusive and to file a 146-page written argument, on an upcoming motion to strike out the Statement of Claim on, among other grounds, that it is vexatious and abusive. These two aspects of the motion are intertwined for, the Statement of Claim was pleaded to about two years ago: leaving aside delay, the Defendants cannot now move to strike it out as vexatious and abusive, unless the Defence specifically labels the Statement of Claim as vexatious and abusive. Thus the motion to rectify the procedural shortcoming in the Defence.
[2] The Defendants justify the material for the motion to strike out, some 80 case references, references to other authorities, 319 pages of affidavit material and documents and, as I say, 146 pages of written argument, by saying first, that even if required to shorten the written argument, counsel will in any event refer to all of the material in oral argument; and second, that the issue at stake, section 310 of the Canada Shipping Act, which deals with the detention of vessels by steamship inspectors, has not been judicially considered before and thus, because of its importance, deserves full treatment on a motion to strike out.
[3] I have dealt with the amendment, for the most part, using basic case law. It is tempting to deal with leave to file extensive argument in brief fashion, on the basis that if it takes a major portion of 146 pages of argument to show the Statement of Claim to be vexatious and abusive, it isn't. However those two points raise several interesting points: first, whether the Defendants may, at this time and for the procedural purpose of a motion to strike out the claim, amend to plead that the Statement of Claim is vexatious and abusive; and second, whether there can be justification for filing 146 pages of written representations on an interlocutory motion to strike out a Statement of claim. Some context would be helpful before I turn to an analysis.
BACKGROUND
[4] I have, to put this motion into a context, relied upon facts set out in the Statement of Claim and in the Defence, together with advice received from counsel during their presentations.
[5] It would seem that steamship inspectors, employed by the Department of Transport, detained the "Lantau Peak" at Vancouver in early April of 1997, primarily by reason of alleged wastage of the ship's frames, requiring fairly major repair work as a term of release. This detention occurred despite views, to the contrary, from the vessel's classification society surveyors that the wastage was within permissible limits and a contemporary and current certificate of seaworthiness. The vessel was detained for some four months in Vancouver. The Plaintiffs say that the actions of the Department of Transport were either negligent or, alternatively, grossly negligent and in breach of duty owed to the Plaintiffs. In the result the Plaintiffs now sue for cost of repair work which, as I understand it, if it had been necessary, could have been done much more efficiently offshore, together with loss of hire and other related expenses.
[6] By a Defence filed 14 May 1999, the Crown and the two defendant steamship inspectors say that the requirements, underlying the detention, were reasonable, that the Plaintiffs failed to take steps to mitigate the damages suffered and that the actions carried out by the Defendants were not only authorized by law, but carried out in good faith and without negligence, malice, or intent to injure.
[7] On 15 February 2002 the Defendants filed a two-volume motion record, containing the 146-page argument, seeking to strike out the Statement of Claim because it discloses no reasonable cause of action under Rule 221(1)(a) and that it is vexatious and otherwise an abuse of process under Rules 221(1)(c) and (f). The motion to strike out raises a number of points, including whether the Canada Shipping Act provides protection against any negligence on the part of the Defendants; whether the Department of Transport owes a duty of care; whether breach of statutory duty and negligent investigation are nominate torts; whether the Court has jurisdiction to hear the claim against the individual Defendants; whether the Crown is liable for the negligence of the Defendants because of the principle of independent discretion; whether the Plaintiffs exhausted their statutory appeal procedures; that the validity of the detention order was not challenged by means of judicial review; whether the decision to detain the "Lantau Peak" can be determined on its merits in this action; and whether the Statement of Claim raises justiciable issues.
[8] Subsequently, the Defendants realized that, having pleaded to the Statement of Claim without reservation, they could scarcely bring a motion to challenge the Statement of Claim on the basis that it was abusive and vexatious. Thus the present motion, filed 7 March 2002, to amend the Defence to add an allegation that the Statement of Claim is vexatious and abusive:
22. In further answer to the Statement of Claim as a whole he says that the Statement of Claim discloses no reasonable cause of action against any of the defendants and is vexatious and is otherwise an abuse of the process of this Honourable Court. He further says this Honourable Court has no jurisdiction to hear and determine a claim against the individual defendants.
The Defendants submit, even though they have pleaded to the Statement of Claim, that this amendment would allow them to challenge the claim on the basis that it is vexatious and an abuse of the process of the Court. I do not see that the Defendants need to reserve, by an amendment, a right to challenge jurisdiction for two reasons. First, jurisdiction goes to the heart of the action itself: thus it is not a technical matter and so may be challenged at any stage. Second, want of jurisdiction is often and indeed usually dealt with, on a motion to strike out, under Rule 221(1)(a), as an issue of want of a reasonable cause of action and thus, again, may be the subject of a motion to strike out at any time. The only relevant part of the proposed amendment, the part now at issue, is the allegation of vexatiousness and abusiveness.
CONSIDERATION
Amendment
[9] In Nabisco Brands Ltd. v. Proctor & Gamble Co. (1985) 5 C.P.R. (3d) 417 the Federal Court of Appeal noted that a pleading may be struck out, at any time, for want of a reasonable cause of action or defence, but that the balance of the grounds for striking out, under subsections (b) through (f) of the predecessor to Rule 221, an identical rule, could not be exercised where the applicant had already pleaded to the impugned portion of a pleading:
. . . While Rule 419(1), Federal Court Rules, undoubtedly permits the court to strike out anything in a pleading at any stage of a proceeding, it seems clear that, at least in so far as cls. (b) to (f) of Rule 419(1) are concerned, it will not do so when, as here, the party seeking to strike has already pleaded to the allegations contained in the impugned paragraph (Montreuil v. The Queen, [1976] 1 F.C. 528 at p. 529).
The Court of Appeal then went on to point out, as I have said, that pleading over is not a bar to striking out where want of a reasonable cause of action or defence is concerned.
[10] In Nabisco the Court of Appeal observed that the defendant had pleaded as a defence that the cause of action was not within the jurisdiction of the Court, without amplification. As a result the motions judge was unable to determine whether the alleged want of jurisdiction in fact negated the cause of action. Thus the motions judge denied the application to strike out. The Court of Appeal upheld Madam Justice Reed.
[11] Mr. Justice Hugessen, as he now is since retirement from the Court of Appeal, commented upon the reason for the rule, set out by the Court of Appeal in Nabisco, in Dene Tsaa First Nation v. Canada, unreported reasons, in file T-705-97, of 25 July 2001. He first set out the rule as follows:
3 In my view, the great weight of the case law in this Court is to the effect that a motion which is based on the subparagraphs of Rule 221 other than subparagraph a) must be brought before the defendant has pleaded over, or if brought after that time the plea itself must have contained a reservation with regard to the impugned paragraphs. I am satisfied to cite only one case in support of that proposition and that is the decision of the Court of Appeal in Proctor & Gamble Co. v. Nabisco Brands Ltd. [(1985) 62 N.R. 364 at 366)].
He then went on to set out the reason for the rule:
4 There is a reason for the rule, namely that where a motion to strike is based on paragraph a), that is to say that the statement of claim or the impugned paragraphs do not disclose a reasonable cause of action, the motion goes to the very heart of the action itself and it is appropriate that the Court should be able to deal with matters of that sort at any stage with perhaps only cost consequences flowing if the person making the motion does so on a late basis. However, where the motion is based on paragraphs b) to f) of the Rule, it is essentially a technical pleading matter and the policy of the Court is, and has for many years, been that parties should be encouraged to put those matters behind them at an early stage. If a party wishes to take issue on a technical basis with another party's pleading, that must be done as soon as possible in the proceedings, otherwise the party must hold his or her peace. [See Note 2 below]
In the above captioned footnote Mr. Justice Hugessen goes on to refer to Rules 56 and 58, which are to the effect that any formal defects be treated as mere irregularities and therefore must be invoked at the earliest possible time.
[12] To sum up the Dene Tsaa First Nation case, it is Mr. Justice Hugessen's view that the weight of the case law requires a motion to strike out, on the basis of anything other than want of a reasonable cause of action or defence, either to be brought before a defendant has pleaded over, or if brought subsequently, the defence itself must contain a reservation. The purpose of this rule is that while a court may deal at any stage with a want of a reasonable cause of action in that it goes to the heart of the matter, a technical challenge of a pleading, under subparagraphs (b) through (f), is such that it ought to be accomplished at an early stage, otherwise the aggrieved party must forever hold his or her peace.
[13] In many instances a defendant specifically reserves, in his or her defence, a right to challenge the statement of claim as vexatious, frivolous, abusive and the like, relying upon the enumerated technical deficiencies in pleading. That was not done by the Defendants in this instance. They now seek to amend their Defence so as to take advantage of their new view that the Statement of Claim is not only vexatious, but also an abuse of the process of the Court.
[14] As authority for the present amendment, the Defendants refer to Montreuil v. The Queen, [1976] 1 F.C. 528. There, relying upon Dominion Sugar v. Newman (1917-18) 13 O.W.N. 38, Mr. Justice Addy, after reiterating the rule that once a party has pleaded over he may not object to his opponent's pleading, he added a gratuitous proviso: ". . . without withdrawing or altering his own pleading, . . .".
[15] Dominion Sugar, relied upon by Mr. Justice Addy in Montreuil, does not particularly assist the present Defendants. In Dominion Sugar Mr. Justice Middleton, as he then was, dealt with an application to strike out a portion of a statement of claim. The motion , an appeal of a Master's order, had been brought on after the defence had been filed, the filing having been made in error. Mr. Justice Middleton said:
Generally a motion against a pleading is precluded by pleading to it; but the Court can relieve from this slip, and should do so when what is complained of is a matter of importance which might, unless otherwise remedied, bring about confusion and a mistrial.
The defence might be withdrawn and redelivered if it were not that examinations had been had, and inconvenience might be caused.
In Dominion Sugar, as in the present instance, not only had the defendant pleaded over, but also had held discoveries. While in Dominion Sugar Mr. Justice Middleton did allow the striking out, he was able to do so on the basis that the defence had been filed subsequent to the Master's order striking out the portions of the statement of claim and before the appeal. Thus, at the time the initial order was made, there had been no pleading over. This does not therefore detract from the general rule that a motion to strike out, in this case on the basis that this claim is vexatious or an abuse of process, must be brought before the defendant has pleaded over.
[16] All of this still leaves us with the basic question of whether an amendment ought to be allowed to insert a reservation, into the Defence, that the Statement of Claim is vexatious and abusive, enabling the Defendants to build upon the amendment to bring a motion to strike out on those two bases.
[17] The Court of Appeal, in Minister of National Revenue v. Canderel Ltd. (1994) 157 N.R. 380, set out a general rule for amendment, that it ought to be allowed at any stage, for the purpose of determining the real question or controversy between the parties, so long as it will not result in an injustice to the other side, injustice which is not capable of being compensated through an award of costs:
. . . while it is impossible to enumerate all the factors that a judge must take into consideration in determining whether it is just, in a given case, to authorize an amendment, the general rule is that an amendment should be allowed at any stage of an action for the purpose of determining the real questions in controversy between the parties, provided, notably, that the allowance would not result in an injustice to the other party not capable of being compensated by an award of costs and that it would serve the interests of justice. (page 384)
Moreover, my discretion does not extend to whether the amendment might be successful, but merely whether the amendment ought to be allowed, a point made by Associate Chief Justice Jerome in Gleason Works v. Excalibar Tool Inc. (1996) 66 C.P.R. (3d) 139 at 140.
[18] There are three other principles to which I should also refer. First, as Mr. Justice Lemieux pointed out in Hoechst Marion Roussel Deutchland GmbH v. Adir et Cie (2001) 190 F.T.R 233 that, as to the test for allowing an amendment, "ultimately it boils down to a consideration of simple fairness, common sense and the interest that the courts have that justice be done." (page 238).
[19] Second, Mr. Justice O'Keefe said in Yeager v. Correctional Service of Canada (2001) 189 F.T.R. 196, that while it was not possible to enumerate all the factors that ought to be taken into account in considering an amendment, ". . . an amendment should be allowed if such would help determine the real questions in controversy", there referring to Federal Court Rule 3 which requires that the Federal Court Rules ". . . be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits.". Thus I ought also to consider whether the amendment goes to the merits of the proceeding.
[20] Finally, Mr. Justice Richard, as he then was, in Munich Reinsurance Company v. The Queen (1995) 96 DTC 6100 first cited the rule which the applied to amendments, Rule 420, and summarized it by saying at page 6101 that:
Under this Rule, the Court will allow amendments on such terms as are just and necessary to determine the real issue in controversy between the parties. An amendment raising an arguable legal issue should be allowed and determined at trial. Therefore, the test is whether the amendment is necessary to determine the real question in controversy.
The necessity of the amendment to determine the real question in controversy was an important aspect in Mr. Justice Richard's view. He then went on to make a telling point:
An amendment which is purely procedural in nature does not meet this test (loc cit).
In the present situation the Crown initially called the amendment a procedural amendment, but when referred to Munich Reinsurance, recanted.
[21] The amendment sought, paragraph 22 which I have set out above, does not raise a defence. It raises a technical challenge to the pleading. In my view such a technical challenge is the same sort of plea as caught the attention of Mr. Justice Richard in Munich Reinsurance, an amendment which is purely procedural in nature, an amendment designed to take advantage, through hindsight and steps after the fact, of the need to reserve a right to attack the Statement of Claim as vexatious and abusive. It is the same sort of technical order that the plaintiff sought in Munich Reinsurance, an order to stop time running so that any future action might not be statute barred in the event that the Crown, in a separate adjudication, made a ruling which the plaintiff did not like.
[22] Here counsel for the plaintiff submitted that the amendment sought was a technical amendment which verged on abuse and that if the Court allowed such amendments it would undermine the whole of the rule that to strike out, for other than want of a cause of action or defence, that such a motion ought to be brought promptly and certainly before pleading over.
[23] In the present instance, as a matter of fairness and common sense, I ought not to allow the amendment, for it will not help the determination of any right claimed in the action on its merits. The amendment is merely of a procedural or technical nature, as described by Mr. Justice Richard in Munich Reinsurance (supra) and Mr. Justice Hugessen in Dena Tsaa First Nation (supra) and thus at this stage ought not to be allowed. This is all the more the case since the reservation could and ought to have been made in the initial pleading. Alternately, if I am wrong and the Defendants might in some instances be entitled to patch up what I have viewed as a fatal oversight, and in effect make meaningless a substantial body of law against striking out on technical grounds after pleading over, the Defendants ought to have applied for such a procedural or technical amendment much earlier. I now turn to the Defendants' application that they be allowed to file written argument of 146 pages.
Length of Written Representations
[24] Counsel for the Defendants agrees that 30 pages is a conventional limit on written representations on a motion, but submits there is no rule to that effect, there being no limit as to the length of the written argument contained in a motion record. Counsel for the Defendants submits that the written argument is not a massive undertaking and goes on to suggest that counsel for the Plaintiffs need not read all the argument if he does not wish to do so. Written submissions of 146 pages and a table of contents may be mind numbing, however competent opposing counsel must read and be prepared to deal with the submissions in their entirety.
[25] Federal Court Rule 70, a rule which applies to all proceedings, provides that a memorandum of fact and law not exceed 30 pages in length. Rule 366 sets out that a memorandum of fact and law is required on a motion for summary judgment, for an interlocutory injunction, to determine a question of law, or where the Court so orders. Rule 364 sets out the requirements for a motion record, requirement 2(e) being that, subject to Rule 366, the motion record must contain written representations. The Defendants' submission here, as I understand it, is that for substantial matters, such as injunctions, summary judgments or questions of law, there is a 30 page limit for a memorandum of fact and law, while for ordinary motions there is no limit to the length of written representations, unless the Court were to impose one by requiring, as part of a motion record and pursuant to Rule 366, a memorandum of fact and law in place of written representations.
[26] The result of all of this is an incongruity if the Rules were to require written representations of less than 30 pages on important and substantive matters but, on the other hand, to place no limit on written representations accompanying a procedural motion as is the case here.
[27] Federal Court Rule 4 allows the Court the discretion to deal with matters of practice and procedure which are not dealt with elsewhere in the Rules by analogy, drawing on appropriate practice or procedure from existing rules, so long as there is a clear gap in the Rules and the practice or procedure so mandated does not amount to amendment of existing rules. Rule 70(4), which applies to all proceedings, requires that where a memorandum of fact and law is called for, it not exceed 30 pages. While, as I have said, Rule 366 does allow the Court to specify that a motion record contain the more onerous memorandum of fact and law, as opposed to the written representations specified in Rule 364 as a part of a motion record, one must keep in mind the short time frame for the filing of motion records pursuant to Rules 364 and 365.
[28] Clearly there has been an oversight in not limiting written representations, on ordinary or usual motions, while limiting memoranda of fact and law on matters that are at least as complex, or more complex, to 30 pages. As a matter of practice counsel ought to limit written representations in motion records to 30 pages, unless counsel first obtains leave to the contrary. In any event counsel may not, as a right, file written representations exceeding 30 pages, but may seek a dispensation to file more extension written representations.
[29] While the lengthy written representations in the present instance may have the redeeming feature of containing quotes, which make up, by inspection, not quite half of the 146 pages, there is a limit as to what one can take in from such a volume of material in a matter of a few hours. Indeed, that is one of the great values of a neatly prepared written argument that is limited to 30 pages: it forces the person drafting the argument to focus on what is important and to say it concisely. This not only places a reasonable limit upon what the responding party must deal with, but also keeps the work required of the Court within reasonable limits. However, this is not to say that exceptions will not be made.
[30] In the present instance I am disinclined to make a major concession as to the length of the written argument. I am not moved by the Defendants' representations that what is at stake here are very important issues under the Canada Shipping Act and that nothing can be more important than a motion to strike out an entire action, particularly where there are six or seven major issues and to that end counsel assures me that he has cited all of the pertinent cases. If the numerous issues are that important it may be that they should be dealt with at trial by a judge who has a complete factual context in which to assess and determine the issues. Alternately, if the issues here are such that they could and ought to be dealt with on a motion, the present written representations should be narrowed and focussed so that the proceeding is of a manageable size.
CONCLUSION
[31] The Defendants may amend the Defence, except as to proposed paragraph 22, part of which is not relevant and the balance of which is an improper amendment, given all of the circumstances.
[32] The Defendants' redrafted written representations shall not exceed 45 pages.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
19 March 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-609-99
STYLE OF CAUSE: Budisukma Puncak Sendirian Berhad et al. v. HMQ et al.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: March 18, 2002
REASONS FOR ORDER: Hargrave P.
DATED: March 19, 2002
APPEARANCES:
Mr. Peter Swanson FOR PLAINTIFFS
Mr. George Carruthers FOR DEFENDANTS
SOLICITORS OF RECORD:
Campney & Murphy FOR PLAINTIFFS
Vancouver, British Columbia
Mr. Morris Rosenberg FOR DEFENDANTS
Deputy Attorney General of Canada