T-2213-74
John Harper Falls and Mary Falls (Plaintiffs)
v.
The Queen (Defendant)
Trial Division, Heald J.—Vancouver, March 3 and
5, 1975.
Practice Application by defendant to dismiss plaintiffs'
actions—Whether plaintiffs failed to file and serve list of
documents required—Expropriation—Offer of compensation
made to plaintiffs—Whether defendant waiving time limit for
appointment of negotiator—Plaintiffs bringing action for com-
pensation—Defendant rejecting offer of settlement—Plaintiffs
serving notice for appointment of negotiator—Whether service
operates as stay of proceedings—Expropriation Act, R.S.C.
1970 (1st Supp.) c. 16, ss. 16 and 28(1), (3) and (4)—Federal
Court Rules 447, 460.
Defendant applies under Rule 460 to dismiss plaintiffs'
actions, citing plaintiffs' failure to file and serve a list of
documents as required under Rule 447. Defendant made an
offer of compensation for expropriation to plaintiffs on May 29,
1973, and plaintiffs maintain that defendant waived the time
limit for appointment of a negotiator under section 28(1) of the
Act. Plaintiffs commenced an action for compensation on May
29, 1974; their offer of settlement was rejected by defendant,
and, on February 26, 1975, plaintiffs served notice for appoint
ment of a negotiator, maintaining that such service operated to
stay proceedings in the matter for 60 days, or until the negotia
tor should report to the Minister under section 28(1).
Held, dismissing the motion, a notice to negotiate, under
section 28(1), should have been served within 60 days of May
29, 1973. The notice herein is of no effect. Nowhere in the Act
is there provision for extension of the 60 day period; it was not
Parliament's intent that negotiation should unduly prolong
adjudication. Both the 60 day period in subsection (1) and the
use of the word "forthwith" in subsection (3) of section 28
demonstrate that the time limits are clear and unambiguous,
and that only Parliament can extend them. As to the substan
tive question, plaintiffs have not been unduly dilatory in filing
their list of documents and should be given until May 25, 1975
to file and serve it.
MOTION.
COUNSEL:
W. C. Johnstone for plaintiffs.
N. D. Mullins, Q.C., for defendant.
SOLICITORS:
W. Charles Johnstone & Co., Richmond,
B.C., for plaintiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
HEALD J.: These reasons will apply equally to
the orders made in the following actions since the
motions were heard together on common evidence
and the parties in all of said actions were repre
sented by the same counsel.
1. John Wesley Bolton v. The Queen—File No. T-2347-74
2. Alfred Edinger & Dorothy Edinger v. The Queen—File
No. T-2346-74
3. David Gentles v. The Queen—File No. T-2212-74
4. Edgar J. Doucet v. The Queen—File No. T-2351-74
5. John M. Walker & Elizabeth L. Walker v. The Queen—
File No. T-2215-74
6. Nichol Kolibas & Joyce Marjorie Kolibas v. The Queen—
File No. T-2349-74
7. Herbert S. Hall & Gertrude A. Hall v. the Queen—File
No. T-2238-74
8. Francis S. Hingston & Mildred C. Hingston v. The
Queen—File No. T-2216-74
9. Barry Robert Hastings & Marilyn Hastings v. The
Queen—File No. T-2221-74
10. George William Jones & Jessie Mary Jones v. The
Queen—File No. T-2224-74
11. George William Jones & Jessie Mary Jones v. The
Queen—File No. T-2237-74
12. Gordon K. Bicknell & Mary E. Bicknell v. The Queen—
File No. T-2214-74
13. Peter Hoshowsky & Amerik Hoshowsky v. The Queen—
File No. T-2227-74
14. Fong Mah & Yuk Chan Mah v. The Queen—File No.
T-2353-74
There was some question about the Bolton and
Edinger actions being in the same category as the
other actions and I gave leave to counsel for the
plaintiffs to file additional material in these two
actions to establish that said two actions were in
the same category as the other actions in so far as
the alleged waiver hereinafter referred to is con
cerned. In view of the conclusions I have reached
as to the legal effect of said waiver, I am assum
ing, for the purposes of these motions, that all of
subject actions are in the same category in so far
as the alleged waiver is concerned, even though the
additional material above referred to has not yet
been filed.
Subject motions are applications by the defend
ant pursuant to Rule 460 for orders dismissing the
within actions upon the ground that the plaintiffs
have failed without reasonable cause or excuse to
file and serve a list of documents as required by
Rule 447.
At the outset of the argument on the motions,
plaintiffs' counsel made a preliminary objection
based on the provisions of section 28(1) of the
Expropriation Act, R.S.C. 1970 (1st Supp.) c. 16
and on the facts established by the affidavit of
John Harper Falls, one of the plaintiffs herein,
dated March 3, 1975. Said section 28(1) reads as
follows:
28. (1) Where, after an offer of compensation in respect of
an expropriated interest has been made under section 14 to any
person (hereinafter in this section referred to as "the owner"),
the owner and the Minister are unable to agree on the amount
of compensation to which the owner is then entitled, either the
owner or the Minister may, within sixty days after the making
of the offer, serve on the other a notice to negotiate settlement
of the compensation to which the owner is then entitled, and,
where any such notice has been so served, no proceedings under
section 29 shall be instituted, or if instituted shall be proceeded
with, by or on behalf of either the owner or the Attorney
General of Canada in respect of the expropriation until the
expiration of sixty days from the serving of the notice, unless
before the expiration of those sixty days the negotiator to whom
the matter is referred under subsection (3) has made a report to
the Minister that he has been unable to effect a settlement and
has sent a copy of his report to the owner.
The Falls affidavit establishes that the offer of
compensation under section 14, contemplated by
said section 28 (1) was made to the plaintiffs on or
about May 29, 1973. It also states that "the time
limited for the appointment of a negotiator pursu
ant to section 28(1) of the Expropriation Act was
orally waived by the defendant through P. M.
Troop, Q.C., Assistant Deputy Attorney General,
on July 30, 1973, in a telephone conversation with
my solicitor ...." and that said oral waiver
(emphasis is mine) was confirmed by letter from
the said Mr. Troop dated October 26, 1973. The
affidavit goes on to state that since the matter of
compensation had not been settled, the plaintiffs
commenced this action for compensation on May
29, 1974; that a defence was duly filed; that an
offer of settlement was made by the plaintiffs to
the defendant which said offer was rejected on
January 20, 1975, and it thus appears that agree
ment between the parties as to compensation
cannot be reached. On February 26, 1975, the
plaintiffs, purporting to act under said section
28(1), quoted supra, served a notice for the
appointment of a negotiator under said subsection.
It is the submission of counsel for the plaintiffs
that the service of said notice operates as a stay of
proceedings in these actions until the expiration of
sixty days from the serving of said notice or at
least until the negotiator so appointed has reported
to the Minister that he has been unable to effect
settlement.
I would agree with learned counsel for the plain
tiffs as to the effect of service of the notice to
negotiate if I were able to conclude that the notice
of February 26, 1975, was a valid and effective
notice under said section 28(1).
As I read said section 28(1), it seems to me
clear that the notice to negotiate therein contem
plated, must, on the facts of these cases, have been
served on the Minister within sixty days of May
29, 1973. It follows that a notice served on Febru-
ary 26, 1975, is null and void and of no effect.
What plaintiffs' counsel is arguing, in effect, is
that the defendant, through her agent Troop,
waived the statutory requirements set out in said
section 28 (1) in so far as the sixty day period for
service of the notice to negotiate is concerned. I
am not able to find anywhere in subject statute,
nor anywhere else for that matter, any provision
for the extension of said sixty day period. A perus
al of sections 28 to 32 of the statute, dealing as
they do with payment of compensation, when
viewed in the context of the statute as a whole,
convinces me that Parliament clearly intended, in
enacting section 28, to provide an additional pro
cess of negotiation but, in so doing, also clearly
intended that said process should be an expeditious
one and one that should not unduly prolong final
adjudication on the question of compensation. I
say this because of the sixty day period stipulated
in subsection (1) and also because of the stipula
tion in subsection (3) of section 28 that the
negotiator shall forthwith (emphasis is mine) be
appointed and because of the stipulation in subsec
tion (4) of section 28 that: "The negotiator shall,
within sixty days from the service of the notice to
negotiate, report to the Minister his success or
failure in the matter of the negotiation, and shall
thereupon send a copy of his report to the owner."
Parliament has prescribed, in clear and unam
biguous terms, the time limits for the process of
negotiation set out in section 28 and it is only
Parliament that can amend so as to extend the said
time period.
For the foregoing reasons, I have the view that
the preliminary objection of counsel for the plain
tiffs is not well founded in law.
On the substantive part of the motion, it is my
opinion that plaintiffs have not been unduly dilato
ry in filing their list of documents since negotia
tions for settlement were continuing until at least
January 20, 1975. It is also noted that the defend
ant's list of documents was not served until Febru-
ary 3, 1975. I therefore feel that the plaintiffs
should be given until March 25, 1975, to file and
serve their list of documents. Costs in the cause.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.