A-214-79
Attorney General of Canada (Appellant)
v.
Canadian Human Rights Commission (Respond-
ent)
Court of Appeal, Pratte, Urie and Ryan JJ.—
Ottawa, May 28 and June 11, 1979.
Practice — Parties — Appeal from judgment dismissing
action against Canadian Human Rights Commission on
ground that that Commission is not a suable entity — Trial
Judge clearly indicating that dismissal was not made pursuant
to Rule 419, and that no statutory authority is necessary to
dismiss an action brought against a non-suable entity —
Whether or not an action for a declaration under s. 18 of the
Federal Court Act cannot be brought against respondent
merely because respondent is not vested with legal personality
— Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18 --
Federal Court Rule 419.
Canadian Radio-Television Commission v. Teleprompter
Cable Communications Corp. [1972] F.C. 1265, followed.
APPEAL.
COUNSEL:
Duff Friesen and L. Holland for appellant.
Gordon Henderson, Q.C., Emilio Binavince
and Russell Juriansz for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Gowling & Henderson, Ottawa, for respond
ent.
The following are the reasons for judgment
rendered in English by
RYAN J.: This is an appeal from a judgment of
the Trial Division, [page 137 supra] dated March
23, 1979, dismissing this action without costs. The
judgment was made on an application for an order
declaring the statement of claim and the action a
nullity or, in the alternative, for an order striking
out the statement of claim and dismissing the
action pursuant to Rule 419(1) of the Rules of this
Court'; the applicant relied on subparagraphs (a),
(c) and (f) of Rule 419(1).
The Trial Judge dismissed the action on the
ground that the respondent (the defendant), the
Canadian Human Rights Commission, was not a
person amenable to action, that it was not a suable
legal entity. In so doing, the learned Trial Judge
made it clear that he was not acting under Rule
419. He was of the view that he needed no statu
tory authority to dismiss an action brought against
a non-suable entity.
With respect, I do not share the Trial Judge's
view that an action for a declaration under section
18 of the Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, cannot be brought against the
Canadian Human Rights Commission merely
because the Commission is not, as such, vested
with legal personality by the Canadian Human
Rights Act, S.C. 1976-77, c. 33, or otherwise. It
seems to me that the decision of this Court in
Canadian Radio-Television Commission v. Tele-
prompter Cable Communications Corp. 2 is deci
sive of the question. I would quote from the judg
ment of Mr. Justice Thurlow [as he then was] at
pages 1266 and 1267:
' Rule 419 provides:
Rule 419. (1) The Court may at any stage of an action order
any pleading or anything in any pleading to be struck out,
with or without leave to amend, on the ground that
(a) it discloses no reasonable cause of action or defence, as
the case may be,
(b) it is immaterial or redundant,
(c) it is scandalous, frivolous or vexatious,
(d) it may prejudice, embarrass or delay the fair trial of
the action,
(e) it constitutes a departure from a previous pleading, or
(f) it is otherwise an abuse of the process of the Court;
and may order the action to be stayed or dismissed or
judgment to be entered accordingly.
• (2) No evidence shall be admissible on an application
under paragraph (1)(a).
(3) In this rule "departure" means that which is prohib
ited by Rule 411.
2 [1972] F.C. 1265.
With respect to the objection as to the status of the appellant
as a legal entity section 5(1) of the Broadcasting Act, by which
the appellant is constituted, provides that:
5. (1) There shall be a commission to be known as the
Canadian Radio-Television Commission, consisting of five
full-time members and ten part-time members to be appoint
ed by the Governor in Council.
An examination of the other provisions of Part II of that Act
to my mind makes it clear that the members of the commission
so constituted are a body or are persons "having jurisdiction or
powers etc." falling within the definition of "federal board,
commission or other tribunal" in section 2 of the Federal Court
Act and that the Trial Division of this Court has in respect of
such body or persons the jurisdiction conferred by section 18 of
that Act. The rest of what is involved in the appellant's
submission with respect to the defendant's status is but a
matter of the rules of the Court for the exercise of that
jurisdiction. As I see it, the appellant is not a body corporate or
other entity having a legal personality recognized as distinct
from that of its members and the respondent in framing its
proceeding might have joined as defendants the members of the
commission by their personal names or might have joined them
all by the name of their office, i.e., by naming as defendants,
"the members of the Canadian Radio-Television Commission".
Instead of adopting either of these courses the respondent
named the commission by its statutory name which appears to
me to be a compendious reference to what the commission
consists of, that is to say, its members. Save in the cases
provided for by Rules 1708 to 1713 I know of no rule of the
Court which authorizes the naming of a group of defendants by
the name of the group but on the other hand no rule of the
Court of which I am aware prohibits such a practice and it
seems to me that the practice of naming the group by its
statutory name is particularly convenient and appropriate in a
case such as this where the principal object of the proceeding is
to obtain a determination of the scope of the authority con
ferred by statute on that group of persons. In my opinion
therefore the appellant's objection is technical and without
merit and should be rejected. Moreover, if the objection were
sound it would follow that there is no appellant before the
Court and that this appeal itself is a nullity.
I am also of opinion that the respondent has not
made out a case for striking out the statement of
claim or dismissing the action on the basis of any
of the subparagraphs of Rule 419(1) which were
relied on. There is clearly no substance to the
application so far as reliance is placed on subpara-
graph (c) or (J) of the Rule. Nor has the respond
ent persuaded me that the statement of claim does
not disclose a reasonable cause of action. The
arguments of counsel demonstrated that questions
of law of some difficulty are raised by the claims
asserted. It cannot be said of the statement of
claim that it is apparent on its face that the action
is one which obviously must fail.
I would allow the appeal. I would set aside the
judgment appealed against and dismiss the
application to the Trial Division. The appellant has
not asked for costs here or below. There will be no
order as to costs.
* * *
PRATTE J.: I agree.
* * *
URIE J.: I agree.
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.