Adidas (Canada) Limited (Appellant)
v.
Skoro Enterprises Limited and Raymond C.
Labarge, Deputy Minister of National Revenue,
Customs and Excise Division (Respondents)
Court of Appeal, Thurlow J., Wells D.J. and
Cameron D.J.—Toronto, October 20, 1971.
Practice—Parties—Originating motion for mandamus—
Right of interested person to be joined in proceeding—
Federal Court Rules 5, 1716—Comparable practice in Eng-
land and Ontario.
The respondent, the Deputy Minister of National Reve
nue (Customs and Excise), obtained a judgment in the
Exchequer Court prohibiting the importation into Canada of
footwear bearing a certain trade mark. The respondent,
Skoro, then applied to the Federal Court by originating
motion under Federal Court Rule 603(b) for a mandamus
directing the Deputy Minister of National Revenue (Cus-
toms and Excise) to admit to Canada certain of Skoro's
shoes held by Customs. The appellant applied to be added
as a party to the mandamus proceeding. Gibson J. granted
the mandamus but dismissed the appellant's application to
be added as a party. The appellant appealed.
Held, the appellant should be joined as a party respondent
to the mandamus proceeding.
There being no Federal Court Rule dealing with joinder of
parties on originating motions as distinct from actions, the
practice established in England and Ontario, which is simi
lar to that prescribed by this Court's Rules for joinder of
parties in actions (Rule 1716), should be adopted having
regard to Rule 5. The appellant's rights under the Exche
quer Court judgment were so affected by the mandamus
order that justice required that the appellant be made a
party to those proceedings to enable it to appeal therefrom.
APPEAL from judgment of Gibson J.
Donald F. Sim, Q.C. and R. T. Hughes for
appellant.
I. Goodman for Skoro Enterprises Ltd.
No one for the Deputy Minister of National
Revenue (Customs and Excise).
The judgment of the Court was delivered by
THURLOW J.—This appeal is from the dismis
sal by Mr. Justice Gibson of the appellant's
application for an order (inter alia) adding the
applicant as a party to a proceeding brought by
the respondent Skoro for a mandamus to the
respondent Labarge directing him to admit into
Canada certain shoes belonging to the respond
ent Skoro and held by Canadian Customs offi
cers at Toronto. The mandamus proceeding and
the appellant's application came before Gibson
J. on June 7, 1971 when, after hearing counsel
for the appellant as well as for both respondents
on the merits of the mandamus proceeding the
mandamus was granted and the appellant's
application was dismissed. By the present
appeal the appellant seeks an order (1) revers
ing the dismissal of its application for an order
joining the appellant as a party to the man-
damus proceeding; and (2) extending for thirty
days the time within which to appeal from the
order granting the mandamus.
With respect to (2), section 27(2) of the Fed
eral Court Act provides that an appeal to the
Court of Appeal from a judgment of the Trial
Division shall be brought within a prescribed
time or within such further time as the Trial
Division may, either before or after the expiry
of such time fix or allow. As there appears to be
no provision conferring on the Court of Appeal
authority in the first instance to grant an exten
sion of time for appealing, I am of the opinion
that the appellant's request for such an exten
sion cannot be entertained. This leaves for con
sideration only the question whether the appel
lant should have been joined as a party to the
proceeding for a mandamus.
Jurisdiction to entertain such a proceeding is
conferred on the Trial Division by section 18 of
the Federal Court Act and the procedure for its
exercise is prescribed by Rule 603. The Rule
reads:
RULE 603. Proceedings under section 18 of the Act for
any of the relief described therein, other than a proceeding
against the Attorney General of Canada, may be brought
either
(a) by way of an action under Rule 400, or
(b) by way of an application to the Court under Rule 319
et seq.
Both in its notice of motion and in the affida
vit filed in its support, as well as in its memo
randum of fact and law, the appellant has treat
ed what I have referred to as the mandamus
proceeding as an action and has sought to apply
Rule 1716 of the Rules of this Court and the
jurisprudence on the corresponding English and
Canadian rules in support of its claim to be
joined. The Rule reads:
RULE 1716. (1) No action shall be defeated by reason
of the misjoinder or nonjoinder of any party; and the Court
may in any action determine the issues or questions in
dispute so far as they affect the rights and interests of the
persons who are parties to the action.
(2) At any stage of an action the Court may, on such
terms as it thinks just and either of its own motion or on
application,
(a) order any person who has been improperly or
unnecessarily made a party or who has for any reason
ceased to be a proper or necessary party, to cease to be a
party, or
(b) order any person who ought to have been joined as a
party or whose presence before the Court is necessary to
ensure that all matters in dispute in the action may be
effectually and completely determined and adjudicated
upon, to be added as a party;
but no person shall be added as a plaintiff without his
consent signified in writing or in such other manner as the
Court may find to be adequate in the circumstances.
(3) Where an order is made under this Rule, the statement
of claim or declaration must be amended accordingly and
must be indorsed with
(a) a reference to the order in pursuance of which the
amendment is made, and
(b) the date on which the amendment is made;
and the amendment must be made within such period as
may be specified in the order or, if no period is so specified,
within 15 days after the making of the order.
(4) Where an order is made under this Rule, it shall
contain directions as to consequential pleadings or other
proceedings; and any interested party may apply for supple
mentary directions.
It will be observed that the wording of this
Rule differs from that of its English counterpart
and from that of the earlier Exchequer Court
Rule 3E which was considered in Merck & Co.
v. Sherman & Ulster [1970] Ex.C.R. 662. As
presently worded the Rule appears to apply to
actions only and not to other types of proceed
ings. Here the mandamus proceeding was com
menced by a notice of motion supported by an
affidavit and was an originating motion brought
under Rule 603(b). That such a motion is not an
action within the meaning of the Rules appears
from the definition of "action" in Rule 2(b)
which reads:
RULE 2. (1) In these Rules, unless the contrary other
wise appears,
(b) "action" means a proceeding in the Trial Division
other than an appeal, an application or an originating
motion, and includes such a proceeding by or against the
Crown or any person acting for or on behalf of the
Crown,
As I see it therefore the proceeding is not an
action and Rule 1716 is not applicable.
It may, however, bear on the determination to
be made to the extent that the Court may deter
mine that the principles for joinder of parties
which it prescribes should be applied by analo
gy pursuant to Rule 5. It may be noted at this
point that the Federal Court Act contains no
provision corresponding to the provision of the
Ontario and Manitoba Judicature Acts to which
reference was made both in Ottawa Separate
School Trustees v. Quebec Bank (1917) 39
O.L.R. 118, and in Nolan v. Hallet & Carey
Ltd. [1948] 4 D.L.R. 447, respectively.
Rule 5 provides:
RULE 5. In any proceeding in the Court where any
matter arises not otherwise provided for by any provision in
any Act of the Parliament of Canada or by any general rule
or order of the Court (except this rule), the practice and
procedure shall be determined by the Court (either on a
preliminary motion for directions, or after the event if no
such motion has been made) for the particular matter by
analogy
(a) to the other provisions of these Rules, or
(b) to the practice and procedure in force for similar
proceedings in the courts of that province to which the
subject matter of the proceedings most particularly
relates,
whichever is, in the opinion of the Court, most appropriate
in the circumstances.
Turning to the Rules referred to in Rule
603(b) Rule 319 refers to "an adverse party"
and to "any other party" but save for referring
to the "party making the motion" it does not
identify who such parties are.
Rule 321(1) provides for service on "all other
parties" and reads:
RULE 321. (1) Unless authorized by these Rules to be
made ex parte, motions are to be on notice to all other
parties, which notice shall show, in addition to the subject
of the motion, the date, time and place of the hearing,
unless the Court thinks fit in the interest of justice to
dispense with notice to any or all such parties.
Rule 322 further provides that:
RULE 322. If, on the hearing of a motion the Court is of
opinion that any person to whom notice has not been given
ought to have or to have had such notice, the Court may
either dismiss the motion or adjourn the hearing thereof, in
order that such notice may be given, upon such terms, if
any, as to the Court seem appropriate. Where the person
who should otherwise be notified is dead, the Court may
direct that his personal representatives be notified in his
place.
It will be observed that while these Rules
prescribe the procedure to be followed on
motions, whether made in the course of an
action or otherwise, there is in them no pre
scription as to who are necessary or proper
parties to an originating motion save in so far as
it may be inferred that persons to whom notice
of the motion is given and persons to whom
notice is required by the Court to be given
under Rule 322 are entitled to be heard on the
motion and are parties thereto. Such proceed
ings are, however, summary and in general less
formal than procedure by action.
In the English practice under Order 59 the
Rule with respect to who may be heard in
opposition to a motion for a mandamus as set
out in the 1966 Annual Practice at page 1732 is
Rule 7. It provides:
7. On the hearing of any such motion or summons as
aforesaid, any person who desires to be heard in opposition
to the motion or summons and appears to the Court or
Judge to be a proper person to be heard shall be heard,
notwithstanding that he has not been served with the notice
or summons.
The notes to Rule 5 on the same page of the
Annual Practice include the following:
Persons directly affected.—In addition to the Court whose
proceedings are in question, the notice of motion or sum
mons should also bear the name, as respondent, of the other
party to the proceedings before it, and the affidavit of
service should show that he has been served—for example,
the police (R. v. Hereford JJ., L.T. Jo., 4 Dec. 1943, pp.
203-4), or, in cases concerning a Rent Tribunal, the tenant
or landlord, as the case may be (R. v. St. Helens Rent
Tribunal, ex. p. Pickavance, 12 Feb. 1952).
In Ontario the practice is provided for by Rules
629 to 631 which read:
629. Mandamus, prohibition and certiorari may be grant
ed upon a summary application by originating notice.
630. No writ of mandamus, prohibition or certiorari shall
be issued, but all necessary provisions shall be made in the
judgment or order (Forms 88 and 89).
631. The court may require notice to be given to any
person claiming any right or interest in the subject-matter of
the application.
In R. v. York Township ex parte 125 Varsity
Road Ltd. [1960] O.R. 238, which concerned
the refusal by a municipal authority to issue a
building permit for construction on certain
lands the Court granted an order adding as
respondents to the motion the owners of abut
ting lands who were objecting to the proposed
use of the lands in question.
The substance of these English and Ontario
provisions does not appear to me to differ much
from what is provided for in the Rules of this
Court, and there seems to me to be no reason
for departing from the practice which has been
established under them.
In the present case notice of the motion was
neither given nor required by the Court to be
given to the appellant but it is common ground
that the appellant was represented at the hear
ing and was heard on the merits of the applica
tion. As the application itself concerned the
effect of a prohibition against the importation
of footwear bearing a trade mark consisting of
three parallel stripes which formed part of a
judgment of the Exchequer Court in an action
in which the appellant was one of the two
plaintiffs, I should have thought the appellant
was a person to whom notice ought to have
been given and if not given might well have
been required to be given under Rule 322 if it
had not appeared and been heard. I also think
that the fact that the appellant was heard by its
counsel on the hearing of the motion, apparent
ly without objection on the part of the appli
cant, indicates recognition on the part of the
applicant of the interest of the appellant in the
application and of its right to be heard thereon.
The order granted by Mr. Justice Gibson, how
ever, does not mention the appellant as a party
or as having appeared and been heard and since
its application to be formally joined was dis
missed the record at present discloses nothing
to indicate that it has or ever had a status in the
proceeding to take or pursue an appeal from the
order. Moreover, the respondent Skoro on the
argument of the present appeal took the posi
tion that the appellant though heard on the man-
damus application, was not a party thereto. We
were informed by counsel for Skoro that he did
not object to the joinder of the appellant before
Gibson J. but he nevertheless sought to uphold
the dismissal of the appellant's application.
In my view it is not necessary to the determi
nation of the present problem to decide whether
the appellant is already a party under the Rules
in view of its having appeared and been heard
or whether it is bound by the order of the Court
on the application or has a right of appeal
therefrom, for if the answer to any of these
questions is affirmative no harm or prejudice
can result to either of the other parties by
formally making the appellant a party so that
there can be no question on that account of its
right to pursue any appeal or other remedy it
may have. On the other hand if the appellant is
not a party and not formally bound by the order
and cannot on that account assert a right of
appeal therefrom it seems to me that the fact
that its supposed rights under the judgment of
the Exchequer Court are adversely affected by
the mandamus order gave to it an interest in the
mandamus proceeding to such an extent that
justice requires that it be formally made a party
to that proceeding so that it can pursue what
ever remedy may be open to it by way of appeal
therefrom.
I would allow the appeal in part and order
that the appellant be formally joined as a party
respondent to the mandamus proceeding. In all
other respects I would dismiss the appeal. I
would direct that the costs of this appeal should
abide the result of any appeal that may be
perfected by the appellant from the mandamus
order and that if no such appeal is perfected
within sixty days the costs of this appeal be
paid by the appellant.
While reaching this conclusion with respect
to the narrow point involved in the appeal I
think I should add that in my view the question
of the merits of the appellant's proposed appeal
is not germane to the problem in the present
appeal and I have therefore neither reached any
conclusion on it nor taken any impression I may
have of it into consideration.
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.