Terrasse Jewellers Inc. v. Canada
A-334-97
Pratte, Marceau (dissenting) and Létourneau JJ.A.
20/2/98
19 pp.
Appeal from order declaring Rouleau J. functus officio (1997), 129 F.T.R. 161 (F.C.T.D.)-In 1979 respondent seizing large quantity of appellants' jewellery-Appellants suing, alleging illegality of seizure-Rouleau J. rendering judgment in favour of appellants-Concluding 25% of inventory seized should not have been confiscated and declaring appellants entitled to compensation for 25% of value of goods still remaining in respondent's custody-Replacement value of goods remaining in respondent's custody valued at $720,000-Appellants entitled to obtain goods having total value of $180,601-On subsequent motion Rouleau J. granting appellants right to select items considered more saleable-Appellants selecting jewellery having total value of $108,601, after which not attending further at customs warehouse to pursue selection-Jewellery subsequently stolen-Five years later, appellants filing motion for order declaring respondent indebted to appellants in an amount of $71,399 plus interest-Matter adjourned-Nadon J. declaring Rouleau J. functus officio-Appeal dismissed (Marceau J.A. dissenting)-Per Pratte J.A.: To decide whether Rouleau J. functus necessary to know precisely what judgment decided-Judgment stating plaintiffs entitled to return of compensation for specified goods which were unlawfully seized-Not awarding alternative right to claim, at appellants' option, either compensation or return of goods-Judge clearly intending to give appellants right to claim compensation only if return of goods impossible-Judgment giving appellants same right to compensation only if could not obtain return of jewellery-After theft, appellants could no longer obtain return of jewellery-Situation due to appellants' refusal to comply with Rouleau J.'s direction and select items of jewellery wished to have-Rouleau J. could not order payment of damages without modifying judgment previously rendered-Per Létourneau J.A.: Rouleau J. intending to authorize return of goods; compensation or damages simply alternative in case return of goods impossible-Appellants, after retrieving jewellery on three occasions, ceasing without reasons to make selections, notwithstanding numerous unanswered requests by respondent to proceed with selection in compliance both with judgment and direction subsequently issued-Judgment satisfied when appellants ostensibly renouncing right to seek, abandoning right to, return of additional goods entitled to repossess-In so doing, waived any rights to execution of balance of judgment-Rouleau J. then functus officio-If Quebec Code of Civil Procedure, s. 540 containing principles governing voluntary execution of judgment, to apply through gap rule (Federal Court Rules, R. 5), conclusion would be same-Per Marceau J. (dissenting): appeal should be allowed-Motions Judge's interpretation unfounded, based on terms of direction, even legal impossibility-Trial Judge's direction intended to settle dispute between parties, authorizing appellants to choose jewellery that could be taken by them in satisfaction of judgment-Nothing indicating Judge wanted to do more, assuming he could-Suggested interpretation legal impossibility as supposing Trial Judge intended to substantially change own final judgment of June 9, 1988 which gave appellants right to 25% of value of jewels, payable in kind or in money-Such change forbidden as functus officio in this respect-December 8 direction not making Trial Judge functus officio with respect to execution of own judgment-Judge retained jurisdiction to dispose of unforseen obstacles to execution of decision-Code of Civil Procedure, s. 540-Federal Court Rules, C.R.C., c. 663, R. 5.