T-96-81
David Baird, Elizabeth Baird, George A. Bayley,
Neil Baylor, Frederick Field, Marion Field, Ron
Forbes, Edward Kuta, Mira Kuta, Alexander
Leblovic, Carlo Lemma, Brian Moar, Marianne
Moar, Frances Salvo, Mark Smith, Jr., Pauline
Smith, Bruce Wilson and John Gatecliff (Plain-
tiffs)
v.
The Queen in right of Canada as represented by
the Attorney General of Canada (Defendant)
Trial Division, Marceau J.—Toronto, February 9;
Ottawa, February 16, 1981.
Practice — Application by defendant (a) to strike plaintiffs'
statement of claim, (b) to have a question of law determined
and (c) for particulars — Monies invested by plaintiffs in a
trust company duly licensed by Federal Department of Insur
ance, lost — Plaintiffs pleading a duty owed by the Queen and
her representatives to them and to the public to administer
faithfully the laws of Canada — Application (a) to strike and
(b) re question of law, dismissed; (c) for particulars, granted in
order to make allegations understandable — Federal Court
Rules 419, 474.
APPLICATION.
COUNSEL:
W. Dunlop for plaintiffs.
P. A. Vita for defendant.
SOLICITORS:
Martin Dunlop Hillyer & Associates, Bur-
lington, for plaintiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
MARCEAU J.: The application before the Court
is made on behalf of the defendant. It seeks:
(a) an order pursuant to Rule 419 striking out
the statement of claim and dismissing the
action;
(b) in the alternative, an order pursuant to the
provisions of Rule 474 that a question of law is
to be determined;
(c) in the further alternative, an order for par
ticulars with respect to paragraphs 2, 3, 5, 6, 7
and 8 of the statement of claim.
The statement of claim is a lengthy one; I do not
think it is necessary that it be reproduced here
verbatim: a brief summary should suffice. The
plaintiffs state, in substance, that monies they had
invested in a trust company duly licensed by the
Federal Department of Insurance were lost as a
result of the failure of the defendant and her
servants to adequately supervise and regulate the
said trust company. Giving some indications as to
the practices of the trust company following which
the loss occurred, they plead in various paragraphs
that a duty was owed by Her Majesty and her
appointed and elected representatives, or servants,
to the plaintiffs and the public in general, to
faithfully administer the laws of Canada, including
the Trust Companies Act, R.S.C. 1970, c. T-16, in
order to prevent such deceptive, fraudulent and
unethical practices. They conclude therefrom that
they are entitled to damages for monetary losses
and mental anguish as well as punitive damages.
It is well established—in fact so well established
that it hardly needs be repeated—that an order
striking out a statement of claim under Rule 419
of the General Rules of this Court can only be
made where the statement of claim under attack is
clearly futile and does not reveal any arguable
cause of action. This is certainly not the case here.
It is true that some of the allegations made by the
plaintiffs are so vague that it is hard to see what
they imply. But if all of them had to be taken as
admitted, the action no doubt would have to be
sustained. Nothing more is needed to compel the
view that a cause of action is satisfactorily
revealed.
It may well appear, in the course of the proceed
ings, that the action in fact raises a precise ques
tion of law which could be set down on a case to be
argued before trial pursuant to the provisions of
Rule 474 of the General Rules of this Court. It is
not possible, however, to come to such a conclusion
at this early stage and on the sole basis of the
allegations made in the declaration. The applica-
tion for an order pursuant to the provisions of Rule
474 is no doubt premature.
That leaves us with the request for particulars.
Surprisingly, it is not supported by affidavit as
required by Rule 419. Counsel for the applicant,
somewhat taken by surprise, indicated his readi
ness to correct forthwith, with leave of the Court,
the technical impropriety, but he explained that he
did not believe an affidavit was here necessary
since his application was not based on facts that
did not appear from the record. Indeed, he argued,
a mere reading of the statement of claim was
enough to convince that the particulars sought
were necessary simply to make the allegations
understandable and properly answerable. It is only
inasmuch as I can agree with that contention that
I am prepared to deal with the motion. The par
ticulars requested in subparagraphs (a),(b),(c),(d)
and (i) of the notice of motion indeed appear to me
to be necessary in order to make the allegations
referred to merely understandable. The plaintiffs
will be ordered to deliver them.
ORDER
The application for an order striking out the
statement of claim and dismissing the action is
denied. The application for an order that a ques
tion of law be determined is also denied but with
out prejudice to the right of the defendant to
renew her application at a later stage if she still
sees fit to do so.
The plaintiffs are, however, ordered to deliver to
the defendant within thirty days the following
particulars:
(a) particulars with respect to the phrase "Her
Majesty's ... elected representatives . .." set out
in paragraph 2 of the statement of claim herein;
(b) particulars of the duty owed by Her Majes-
ty's appointed representatives to the plaintiffs,
alleged in paragraph 2 of the statement of claim
herein;
(c) particulars of the duty owed by Her Majes-
ty's elected representatives to the plaintiffs,
alleged in paragraph 2 of the statement of claim
herein;
(d) particulars of the fiduciary duty owed by
Her Majesty's servants to the public, alleged in
paragraph 3 of the statement of claim herein;
(i) particulars of the phrase "... they failed to
discover and report to the Minister of Finance
... other matters requiring his attention ..."
alleged in paragraph 8 of the statement of claim
herein.
Until delivery of such particulars the proceed
ings will be stayed.
The costs of this application shall be 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.