Citation: 2006 FC 940
Ottawa, Ontario, August 1, 2006
Present: The Honourable Mr. Justice de Montigny
BETWEEN:
AURÉLIEN HACHÉ, LUCIEN CHIASSON, SYLVIE CHIASSON,
ARMAND FISET, JEANNOT GUIGNARD, HÉLIODORE AUCOIN,
GILDARD HACHÉ, GUY HACHÉ, RHÉAL HACHÉ,
ROBERT F. HACHÉ, GREG HINKLEY, VINCENT JONES,
SOLANGE LANTEIGNE, JEAN‑PIERRE LEBOUTHILLIER,
RHÉAL H. MALLET, ANDRÉ MAZEROLLE, EDDY MAZEROLLE,
ALBANIE NOËL, ALPHÉE NOËL, SERGE C. NOËL, GILLES NOËL,
JOSEPH A. NOËL, LÉVI NOËL, LORENZO NOËL, MARTIN NOËL, MATHURIN NOËL, NICOLAS NOËL, ONÉSIME NOËL, PAUL NOËL,
RAYMOND NOËL, RENALD NOËL, ROBERT ROSS, BRUNO ROUSSEL, JEAN‑CAMILLE NOËL, VALMI ROUSSEL, DONAT VIENNEAU, FERNAND VIENNEAU, RHÉAL VIENNEAU, MATHIAS ROUSSEL, SERGE BLANCHARD, ROBERT BOUCHER, ELIDE BULGER, JEAN‑GILLES CHIASSON, ROMÉO G. CORMIER,
BERNARD DUGUAY, THOMAS DUGUAY, DONALD DUGUAY,
EDGAR FERRON, WILBERT GODIN, AURÈLE GODIN,
VALOIS GOUPIL, EUCLIDE GUIGNARD, FLORENT GUIGNARD,
JACQUES E. HACHÉ, JEAN‑PIERRE HACHÉ, ROBERT G. HACHÉ, DONALD R. HACHÉ, ULYSSE HACHÉ, GAËTAN H. HACHÉ,
GABRIEL JEAN, JEAN‑VICTOR LAROCQUE, DASSISSE MALLET, DELPHIS MALLET, ALBERT A. NOËL, GILLES A. NOËL,
DOMITIEN PAULIN, SYLVAIN PAULIN, ALMA ROBICHAUD,
ADMINISTRATOR OF THE ESTATE OF JEAN‑PIERRE ROBICHAUD, SYLVA HACHÉ, MARIO SAVOIE, LES PÊCHERIES JIMMY L. LTÉE,
ERIC GIONET, ADMINISTRATOR OF ALLAIN O. GIONET TRUST,
LES PRODUITS BELLE‑BAIE LTÉE., OLIVA ROUSSEL,
E. GAGNON ET FILS LTÉE., BERNARD ARSENEAULT,
GÉRARD CASSIVI, JACQUES COLLIN, RAYMOND COLLIN,
ROBERT COLLIN, MARC COUTURE, LES CRUSTACÉES DE GASPÉ LTÉE., 2973‑1288 QUÉBEC INC., 2973‑0819 QUÉBEC INC., BRUNO DUGUAY, CHARLES‑AIMÉ DUGUAY, ALBAN HAUTCOEUR, FERNAND HAUTCOEUR, JEAN‑CLAUDE HAUTCOEUR, ROBERT HUARD, CHRISTIAN LELIÈVRE, ELPHÈGE LELIÈVRE, JEAN‑ÉLIE LELIÈVRE, JULES LELIÈVRE, JEAN‑MARC MARCOUX, DOUGLAS MCINNIS, ROGER PINEL, JEAN‑MARC SWEENEY, MICHEL TURBIDE, RÉAL TURBIDE, PÊCHERIES DENISE QUINN SYVRAIS INC., STEVEN ROUSSY, GENEVIÈVE ALLAIN, FRANCIS PARISÉ, MARTIAL LEBLANC, DANIEL DESBOIS, ROLLAND ANGLEHART, JACQUES LANGIS, JEAN‑PIERRE HUARD, CLAUDE GIONET, CAROL DUGUAY, DENIS DUGUAY, PAUL CHEVARIE, THÉRÈSE VIGNEAU, ADMINISTRATOR OF THE ESTATE OF BENOÎT POIRIER, DENIS ÉLOQUIN, CLAUDE POIRIER, HENRY‑FRED POIRIER, ROBERT THÉRIAULT, RAYNALD VIGNEAU
Plaintiffs
and
Her Majesty in Right of Canada as represented by the Department of Fisheries and Oceans and the Department of Human Resources Development Canada
REASONS FOR JUDGMENT AND JUDGMENT
[1] The plaintiffs instituted this action against the defendants on December 21, 2001. They claimed damages in the amount of $9,139,132.54, as well as aggravated damages and interest on these amounts before and after judgment. This claim is based on six causes of action, that is, unjust enrichment by the defendant, public misfeasance, duress against the plaintiffs, negligent misrepresentation, a tort of conversion and mistake of law.
[2] After four and a half years during which numerous proceedings were undertaken before this Court, the trial ended in quite an unusual way on the first day of the hearing. After having failed in her attempt to obtain a postponement from the Court, counsel for the plaintiffs stated that she did not intend to adduce any evidence or have any witnesses heard, and that she would defer to the Court’s disposition of the dispute. In such circumstances, I have no other choice but to dismiss the suit because the plaintiffs did not meet the initial burden of proof on them so as to establish the constituent elements of their causes of action on a balance of probabilities.
SUMMARY OF THE PROCEEDINGS
[3] The facts giving rise to this case took place more than 10 years ago. The plaintiffs are all commercial fishers of snow crab and reside in the provinces of New Brunswick and Quebec. They fish in Zone 12 of the Gulf of Saint Lawrence, which is located south of Quebec (the Gaspé and the Magdalen Islands) and east of New Brunswick.
[4] This summary is based on the facts noted by my colleague Mr. Justice Rouleau in Aucoin v. Canada (Minister of Fisheries and Oceans), 2001 FCT 800, mentioned by my colleague Madam Justice Tremblay‑Lamer in Haché v. Canada (Minister of Fisheries and Oceans), 2002 FCT 703, as well as the judgment of the Federal Court of Appeal reported as Canada (Minister of Fisheries and Oceans) v. Haché, 2005 FCA 418. I will come back to these decisions later.
[5] Following amendments made to the Employment Insurance Act, several employees working in snow crab processing plants were unable to receive benefits under the Act because of the increase in the required number of weeks worked. Discussions were held in the fall of 1995 between representatives of Fisheries and Oceans and the snow crab fishers to establish a program to assist processing plant workers. Following an agreement in principle concluded in February 1996 between federal representatives and various associations of snow crab fishers, it was agreed that a Solidarity Fund, a not-for-profit corporation, would be created. The Fund would finance job‑creation projects for persons working in crab processing plants and for some of the crew members of fishing vessels, which would allow these workers to accumulate the number of insurable weeks of work specified under the Act and thus qualify for Employment Insurance benefits. In so doing, the snow crab fishers voluntarily agreed to help their colleagues in the fishing industry who were less fortunate than they were.
[6] The terms and conditions of the agreement and the establishment of the Solidarity Fund (replaced in 1999 by the Partenariat du crabe des neiges inc. [snow crab partnership corporation]) are not contested and were summarized as follows by the Federal Court of Appeal in the above‑mentioned judgment:
8. In the spring of each year, the Minister’s representatives issued a guideline providing that 20% of each fishermen’s traditional quota would be withheld and transferred to the Partnership. On each fishermen’s payment of an amount calculated on the basis of the fishermen’s total quota per pound, the Partnership advised the Minister of the payment made by the fishermen. The amount was then transferred to the Fund and the Minister’s representatives released to the fishermen the 20% of the quota that had been withheld.
[7] However, this agreement was based on the expectation of the conclusion of a partnership agreement with the Department of Fisheries and Oceans, the 130 snow crab fishers, and the processing plant workers. Such an agreement would provide for the sharing of the responsibility for managing the fishing industry and creating jobs. Such an agreement could not be concluded until some amendments were made to the Fisheries Act.
[8] Pursuant to this agreement, the Department of Fisheries and Oceans tabled a bill in the House of Commons on October 3, 1996 (Bill C-62), which specifically authorized the Minister to conclude agreements for the management of fisheries. Among other things, the bill provided (at paragraph 17(2)(d)) that the agreement could stipulate the “obligations, responsibilities and funding arrangements with respect to management of the fishery”. Unfortunately, the bill died on the order paper on May 27, 1997, when Parliament was dissolved.
[9] In spite of the fact that no fisheries management agreement was ever concluded, the fishers assumed their obligations under the agreement in principle until 2001. It is true, however, that in February 2000, one of their representatives wrote to the Auditor General, questioning the legality of this program. In his response dated March 1, 2000, the Auditor General noted his concerns, indicating that this levy imposed on the fishers did not seem to be authorized by law. However, it was only on April 30, 2001 that the fishers filed an application for judicial review before this Court, seeking to quash the Minister’s decision to impose a levy on fishers holding a traditional licence for snow crab for the 2001 fishing season.
[10] On July 17, 2001, Rouleau J. concluded that the Minister’s decision concerning the transfer of 20% of the fishing quota to the Partnership was null and void because it was ultra vires his powers under the Act. The Court therefore quashed the decision and prohibited the Minister from enforcing the scheme. This judgment was not appealed.
[11] On June 7, 2002, the plaintiffs filed an application for summary judgment to obtain a judgment ordering the defendant to reimburse the fishers for the amounts they had paid to the Fund from 1997 to 2001. In their view, there was no longer any real issue between the parties from the moment when Rouleau J. concluded that the Minister had acted illegally.
[12] Tremblay-Lamer J. dismissed this application. Although she was satisfied that the plaintiffs did indeed pay $9,139,132.54 into the Fund, she was of the opinion that this was not a case where the defendant’s defence was so doubtful that it did not deserve consideration by the trier of fact. In her view, the fact that the defendants acted beyond their jurisdiction did not automatically give rise to a right to restitution of the amounts paid, and she stressed the need to assess the evidence on key aspects of the dispute. For example, she mentioned it was not at all certain that the plaintiffs had not derived any benefit from the creation of the Fund. In fact, the defendant alleged that the 20% share of the quota held back and given to the fishers who had paid their contribution to the Fund constituted additional income, because the quota to be allocated was within the Minister’s discretion, and no fisher had a legal right to a specific quota in any given year. On this issue, as well as on many others, only an adversarial proceeding based on the evidence submitted by the parties could enable the trial judge to reach a determination for or against one or the other party. On this point, Tremblay-Lamer J. wrote the following in Haché v. Canada (Minister of Fisheries and Oceans), 2002 FCT 703:
22. Although it is true that in the present case, the Plaintiffs bore the burden of the payments, these payments were not made to the Government, nor were they made for or on behalf of the Government. Also, it is not possible to determine whether the Plaintiffs have suffered a loss in this summary judgment proceeding, the reason being that it appears that they have received something in exchange for their contribution to the Funds. Only a full trial will yield the evidence necessary to make such a determination.
[13] The present case subsequently progressed at a snail’s pace subject to numerous complex legal proceedings. The Court had to make several orders to ensure the proper conduct of the case and to ensure that the hearing could finally be held. On May 6, 2003, the Associate Chief Justice (as he was then) ordered that the case be subject to special management under section 383 of the Rules. Then, in August 2004, the defendant filed a motion for summary judgement seeking the complete dismissal of the claim made by 57 of the plaintiffs, on the ground that they had not paid anything into the Fund, and the partial dismissal of the claim filed by the other 47 plaintiffs, on the grounds that they had not made all of their alleged contributions to the Fund and, moreover, that for a number of years the contributions had been paid by commercial corporations.
[14] Mr. Justice Hugessen, who was in charge of case management, dismissed this motion for the same reason Tremblay‑Lamer J. had dismissed a similar motion by the plaintiffs. He was of the opinion that not only was there a triable issue, but also that his colleague’s judgment constituted res judicata with regard to the issue of the payments made by or on behalf of the plaintiffs for a total amount of $9,139,132.54. It should be noted that he refused to grant costs, stating that “the systematic attitude of refusal and obstruction demonstrated by the plaintiffs for close to two years” had been such that they had lost the right to claim such an order.
[15] The following day, on November 26, 2004, following a pre‑trial conference, Hugessen J. made an order setting the expected duration of the hearing at three weeks and specifying that the hearing should not be held before September 1, 2005, or during the months of May and June 2006. On April 1, 2005, the Court Administrator decided that the hearing would be held starting April 3, 2006, in Fredericton.
[16] There was every indication that the hearing would be held as scheduled in April 2006. However, that was not to be the case. First of all, on March 27, in a letter to the Court Administrator, the counsel for the plaintiffs applied for the disqualification of the undersigned judge. Considering the seriousness of such an application based on allegations of bias, I invited the lawyers to make their application by way of a motion which I scheduled for the beginning of the trial. After having heard the parties, I decided to dismiss the motion in a decision which I read at the resumption of the trial on Tuesday, April 4, for reasons which are now posted on the Court’s Web site (2006 FC 434).
[17] Following this decision, a notice of a change of solicitor was filed by the plaintiffs. Ms. Sivret then applied for a postponement in order to study the case and make adequate preparations for the hearing. After having heard the parties on this application, I reached the conclusion that a postponement was appropriate in the circumstances, out of fairness, but that it was not appropriate to postpone the hearing to the fall as Ms. Sivret had requested. Considering this case had been instituted more than four years ago, that the hearing date had been scheduled more than one year ago, that the plaintiffs had deliberately decided to change counsel, that Ms. Sivret accepted this case with full knowledge of the situation, and that a time limit of two months seemed to me to be sufficient to study this case and prepare for the hearing, I therefore made an order dated April 18, 2006, scheduling the hearing in this case for June 19, 2006.
[18] However, other developments were to take place before the scheduled hearing date. On the day before a trial management conference, counsel for the plaintiffs presented two motions under paragraph 41(4)(b) of the Federal Courts Rules: one to obtain the Court’s permission to subpoena witnesses (the Honourable Douglas Young, a former cabinet minister of the federal government at the relevant time, and Frank McKenna, Premier of New Brunswick during the same period) who resided more than 800 kilometres from the place of hearing, and the other requesting that the Court disqualify the two lawyers representing the defendant because of conflict of interest.
[19] These two motions were heard by teleconference on June 9, 2006. The first motion was allowed, while the second one was briefly discussed and postponed to June 16 to give counsel for the defendant time to prepare a response.
[20] On June 12, Ms. Sivret filed an amended notice of motion in Court in which it was alleged that counsel for the defendant were disqualified from continuing in this case not only because a lawyer from their office had formerly acted on behalf of an association representing several of the plaintiffs, but also because she had subpoenaed the Honourable Douglas Young as a witness, who was also a member of the same law firm as counsel for the defendant.
[21] On June 15, Mr. Young’s lawyer objected to the subpoena that had been served on him on the grounds that he had no personal knowledge of the facts on which he was to testify and that the partial information he might have obtained as a minister of the Crown would in any case be subject to the privilege affecting this type of information. The motion to quash the subpoena served on Mr. Young was allowed on June 16 following a hearing held by teleconference.
[22] As far as the motion to have counsel for the defendants disqualified was concerned, it was also the subject of a long debate during the same teleconference on June 16. Following this hearing, I came to the conclusion (for the reasons mentioned in an order made on the same day) that this motion must be dismissed not only because evidence of the conflict of interest was at most flimsy, but also because in January 2003 the lawyers who represented the plaintiffs at that time had explicitly waived the right to raise any alleged conflict of interest.
[23] As soon as she was advised of my decision, Ms. Sivret made an oral motion to obtain a postponement of the hearing on the ground that she did not feel able to properly represent her clients. This motion was immediately dismissed, considering it was made late and considering the harm that would be caused to the defendant, the witnesses, and the Court.
[24] On June 19, at the beginning of the hearing, Ms. Sivret once again made a new motion to obtain a stay of the hearing until the Federal Court of Appeal could render a judgment on the orders I made on Friday, June 16, concerning the subpoena served on David Young and the disqualification of the defendant’s lawyers. They vigorously objected to this motion, especially because the decision had not yet been appealed to the Court of Appeal. Because the plaintiffs did not try to prove the existence of serious harm, and because the balance of convenience was clearly in favour of the defendant and of holding the trial, I dismissed this motion, stating that it was always possible for the Court of Appeal to order a stay of the proceedings if it was of the view that this was appropriate, once the appeal was before it.
[25] Ms. Sivret then made another motion, relying on section 36 of the Federal Courts Rules, to obtain a postponement until the fall because she did not feel ready to proceed. She stated that the case was so complicated that, in spite of all her efforts, she did not feel she was in a position to proceed and had not even had the chance to meet with all of her witnesses.
[26] In spite of her laudable professionalism, I once again dismissed Ms. Sivret’s motion essentially for the same reasons which had led me to schedule the hearing for June 19. Furthermore, this motion was late to say the least and would have caused considerable harm to the defendant and its witnesses, not to mention the serious harm this would cause to the Court. It is common knowledge that cases are assigned to judges several months in advance and that any last‑minute changes make it impossible to reschedule the judge to other tasks, with all the consequences this has on the proper administration of justice.
[27] When advised of this decision, Ms. Sivret immediately informed the Court that she did not intend to adduce any evidence or cross examine the witnesses heard by the opposing party and, accordingly, would not make any submissions. Considering this, and as counsel for the defendant had asked me to do, I had no other choice but to dismiss the action.
[28] The burden is on the plaintiff to prove, on a balance of probabilities, the causes of action alleged in its statement of claim. For example, unjust enrichment entails proof of enrichment, a corresponding deprivation and the absence of any juristic reason for the enrichment. It is only when the plaintiff has discharged the initial burden of proof that the defendant must out forward its own evidence. This in fact is the procedure to be followed for a trial as specified in section 274 of the Federal Courts Rules.
[29] In this context, counsel for the defendant requested the dismissal of the action. As I stated at the hearing, I have no other choice but to do so, because it is not up to the Court to take the place of the plaintiff and adduce its evidence. In fact, this case is similar to the scenario my colleague Madam Justice Heneghan had to deal with in Tucker v. Canada, 2004 FC 1729. Even if the plaintiffs in that case were acting on their own behalf and alleged a lack of resources and research abilities, my colleague did not hesitate to dismiss their action because they had not adduced any evidence. The same thing must a fortiori apply when the plaintiffs are represented by experienced counsel. Once again, they decided to change lawyers on the same day the hearing was initially scheduled. Ms. Sivret was not obliged in any way to accept this case if she felt she was not able to properly prepare within the two months allotted to her to do so. Considering these circumstances, the plaintiffs’ action must be dismissed.
[30] As far as costs are concerned, I asked the parties at the end of the trial to make written submissions. Counsel for the plaintiffs merely asked me to stay the award of costs while waiting for the Federal Court of Appeal to dispose of her appeal against this decision. As far as counsel for the defendant are concerned, they argued that any order as to costs should made on a solicitor‑and‑client basis, or at least in accordance with the maximum amount specified in Column V of Tariff B.
[31] Considering the criteria set out in section 400 of the Federal Courts Rules and the relevant case law, I reached the conclusion that the defendant is entitled to costs to be calculated according to the maximum amount in Column IV of Tariff B. I reached this determination by taking into consideration the complexity of the case, the amount involved, the number of plaintiffs, and the conduct of and the delays caused by the plaintiffs and their counsel. I also took into consideration the plaintiffs’ refusal to cooperate and lack of respect in connection with several orders and directions made by this Court, as well as the formal offer of settlement presented by the counsel for the defendant on March 27, 2006. This offer was more advantageous than this decision and was never withdrawn up to the time this judgement was rendered. Finally, I must stress the fact that the public interest requires that the award as to costs be higher than the average, considering the harm the Court and all litigants have sustained because of the loss of the six weeks previously scheduled for the hearing of this case.
CONCLUSION
The plaintiffs’ action is dismissed, with costs to the defendant calculated on the basis of the maximum amount specified in Column IV of Tariff B.
Certified true translation
Michael Palles
JUDGMENT
THE COURT ORDERS that:
The plaintiffs’ action be dismissed, with costs to the defendant calculated on the basis of the maximum amount specified in Column IV of Tariff B.
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2263-01
STYLE OF CAUSE: Aurélien Haché et al. v. Her Majesty the Queen et al.
PLACE OF HEARING: Fredericton, New Brunswick
DATE OF HEARING: June 19, 2006
REASONS FOR JUDGMENT
AND JUDGMENT: The Honourable Mr. Justice de Montigny
APPEARANCES:
|
BRIGITTE SIVRET
|
FOR THE PLAINTIFFS |
|
MICHEL DOUCET CHRISTIAN MICHAUD
|
FOR THE DEFENDANTS |
SOLICITORS OF RECORD:
|
BRIGITTE SIVRET BATHURST NEW BRUNSWICK
|
FOR THE PLAINTIFFS |
|
PATTERSON PALMER MONCTON NEW BRUNSWICK
|
FOR THE DEFENDANTS |