Federal Court Decisions

Date: 20020208

Docket: T-2728-96

Neutral reference: 2002 FCT 148

Montréal, Quebec, February 8, 2002

Before: Richard Morneau, prothonotary

BETWEEN:

ROBERT CHÂTEAUNEUF, personally and his capacity

as representative of all the natural persons, employees

of the Singer company, who are registered in group

pension contract G-522 and who on December 12, 1966 or

after have acquired and retained the right to receive from the

Annuities Branch of the Canadian federal government an

annuity consisting of their contributions and those of their

employer, and any beneficiaries who may have succeeded to the

said natural persons on account of their death

Plaintiff

and

HER MAJESTY THE QUEEN

Defendant

REASONS FOR ORDER AND ORDER

RICHARD MORNEAU, PROTHONOTARY:

[1]        The case at bar concerns a motion by the plaintiff pursuant to Rules 75, 201 and 369 of the Federal Court Rules (1998) ("the Rules") to again amend its amended statement of claim.

[2]       On the rules applicable to pleading amendments, the following passage from Canderel Ltée v. Canada, [1994] 1 F.C. 3 (C.A.), at 10, clearly reflects the liberal approach which the Court must use in such a matter:

. . . 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.

[3]       As a background to these statements it may be added that, in questions involving amendments, like an application to strike a pleading, the amendment must be allowed unless it is clear and obvious that it is doomed to failure (see Raymond Cardinal et al. v. Her Majesty the Queen, an unreported judgment of the Appeal Division of this Court on January 31, 1994, case A-294-77, per Heald, Décary and Linden JJ.A.).

[4]       In Visx v. Nidek, [1998] F.C.J. No. 1766, the Federal Court of Appeal also adopted the following comments made in an 1886 case:

The rule of conduct of the Court in such a case is that, however negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed, if it can be made without prejudice to the other side. There is no injustice if the other side can be compensated by costs; but, if the amendment will put them into such a position that they must be injured, it ought not to be made.

(My emphasis.)

[5]        The defendant objected to the plaintiff's motion to re-amend its statement of claim on the ground that there were certain discrepancies in the motion and the amendments sought are belated, would have the effect of introducing a new cause of action, substantially altering the basis of the case, and would unduly delay its being heard.

[6]        As regards the discrepancies mentioned by the defendant, I do not think that the challenges made by the defendant to paras. 1 to 35 and 43 to 46 of the affidavit submitted by the plaintiff are valid, in view of all the circumstances and the fact that in the case at bar counsel for the plaintiff is still in the best position to deal with the situation, and for all practical purposes the financing of the instant case required him to act in this way. There is thus no basis for excluding this affidavit, striking it or deleting a part of it.

[7]        Additionally, the suggestion that the amendments are belated, even if it were to be accepted, is not a ground which complies with the rules in Visx v. Nidek, supra.

[8]        Further, the defendant did not persuade me that the amendments sought by the plaintiff in the case at bar would necessarily delay the hearing of the case on the merits. The matters which must be reviewed because of the amendments can and must be covered between now and the time the case begins. There is accordingly no irreparable harm here.

[9]        Finally, it would not appear that it is obvious at this stage that the amendments sought could be regarded as introducing a new cause of action or, ultimately, a cause of action which does not meet the parameters of Rule 201.

[10]      Consequently, I intend to allow the instant motion to re-amend by the plaintiff, the whole with costs to follow.

[11]      Accordingly, it is hereby ordered:                                    

1.         that the plaintiff serve and file his re-amended statement of claim on or before February 13, 2002;

2.         that the parties submit jointly to the Court within 30 days of the date of this order a schedule covering measures to be completed or reviewed in the instant case: any schedule proposed by the parties shall be limited to what is essential and aimed at completing these measures with dispatch;

3.         costs to follow on the instant motion.

Richard Morneau                               prothonotary

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

                COUNSEL AND SOLICITORS OF RECORD

FILE:                                        T-2728-96

STYLE OF CAUSE:              ROBERT CHÂTEAUNEUF, personally and his capacity as representative of all the natural persons, employees of the Singer company, who are registered in group pension contract G-522 and who on December 12, 1966 or after have acquired and retained the right to receive from the Pensions Branch of the Canadian federal government an annuity consisting of their contributions and those of their employer, and any beneficiaries who may have succeeded to the said natural persons on account of their death

Plaintiff

and

HER MAJESTY THE QUEEN

Defendant

WRITTEN MOTION CONSIDERED IN MONTRÉAL WITHOUT APPEARANCE BY PARTIES

REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY

DATED:                                                                           February 8, 2002

WRITTEN SUBMISSIONS BY:

Guy Desautels                                                                  FOR THE PLAINTIFF

Carole Bureau                                                                  FOR THE DEFENDANT

Linda Mercier

SOLICITORS OF RECORD:

Rivest, Schmidt                                                                  FOR THE PLAINTIFF

Montréal, Quebec

Morris Rosenberg                                                              FOR THE DEFENDANT

Deputy Attorney General of Canada