Mandate Erectors and Welding Ltd. v. Canada
T-1978-95
MacKay J.
28/8/96
12 pp.
Plaintiffs applying for order requiring all copies of seized books, records, documents or things and all summaries, notes or extracts therefrom in defendants' control or possession be impounded and kept in sealed boxes until final disposition of action-Defendant applying for order striking Department of National Revenue employees, Attorney General, Minister of National Revenue from statement of claim as defendants, and for order striking paragraphs 22(f), (g) and (h) from statement of claim-Following audits of plaintiff corporations, Department of National Revenue employee swearing to information to obtain search warrants alleging reasonable and probable grounds to believe plaintiffs' documents would provide evidence of commission of violations of Income Tax Act-Search warrants issued, executed-Documents eventually returned to plaintiffs pursuant to Court order, though Department retained copies of all documents-Plaintiffs alleging search warrants should be declared of no force or effect as based on mischaracterization of various transactions-Alleging abuse of power, breach of Minister's duty to act fairly, search warrants not meeting minimal standards of specificity-Submitting allowing defendants to keep, review documents continuing invasion of privacy-(1) Plaintiffs' application dismissed-Plaintiffs relying on R. 470, permitting Court to order detention of property that is subject-matter of action-Purpose of R. 470 preservation of goods or property which are subject-matter of suit-No need to ensure preservation of property herein because already returned to plaintiffs pursuant to Court order-Criminal Code, s. 490 at relevant time permitting Attorney General to copy document before returning it; certified true copies admissible in evidence-Plaintiffs seeking order in nature of stay-Harm compensable in damages or other relief, not irreparable-(2) Individual defendants should be removed as parties defendants-Court lacking jurisdiction to determine personal claims against them as individuals, because claims grounded in law of tort, not in federal law-Neither Criminal Code nor Income Tax Act essential to disposition of claims against individual defendants-Names of individuals not struck from paragraphs of statement of claim where plaintiffs setting out facts on which intending to rely in support of claim to relief, even though individuals no longer defendants in action-Attorney General, Minister of National Revenue struck as defendants because unnecessary parties to action-Federal Court Act, s. 48 requiring Her Majesty be named as defendant-Redundant to name Attorney General, MNR-Where no claim against defendants in personal capacity, no basis for including them as defendants-Plaintiffs' right to cross-examine in discovery limited to party defendants in sense of one defending against order or judgment sought against named party-In so far as Crown defendant as result of activities of officers or servants purporting to act within scope of lawful duties, plaintiff may cross-examine upon discovery only officer(s) named by Crown as its representative-Unnecessary for Attorney General, Minister to individually bring applications to be removed as parties where no jurisdiction over claims against Minister in personal capacity-Sufficient if Queen as defendant initiates application for removal of parties improperly impleaded-Paragraphs 22(f), (g) and (h) of the statement of claim, seeking declarations defendants must return papers, copies, notes, and not to use them, not struck-Whether relief sought in reality declaration, or order of mandamus or injunction depending on argument, form of declaratory relief sought at trial-R. 1723 providing no action open to objection on ground merely declaratory judgment or order sought, and Court may make binding declarations of right whether or not any consequential relief claimed-Federal Court Rules, C.R.C., c. 663, RR. 470, 1723-Federal Court Act, R.S.C., 1985, c. F-7, s. 48-Criminal Code, R.S.C., 1985, c. C-46, s. 490 (as am by R.S.C., 1985 (1st Supp.), c. 27, s. 73).