The Queen (Appellant)
v.
Wilfrid Nadeau Inc. (Respondent)
Court of Appeal, Jackett C.J., Choquette and
Lacroix D.JJ.—Quebec, November 6, 1973.
Practice—Appeal from dismissal of application to strike
out declaration for disclosing no cause of action—Federal
Court Rule 419.
It is a very rare case in which the Court of Appeal will
reverse a decision of the Trial Judge dismissing an applica
tion under Rule 419 to strike out the Declaration on the
ground that it does not disclose a cause of action. It is a
matter for the judge of first instance, in the exercise of his
discretion, to decide whether a question of law can most
conveniently be decided on a Rule 419 application, and as
the applicant has other remedies available to him (e.g.
proceeding under Rule 474), the Court will not ordinarily
substitute its discretion for his.
Drummond-Jackson v. British Medical Association
[1970] 1 W.L.R. 688; Attorney-General of the Duchy of
Lancaster v. London and North Western Rly. [1892] 3
Ch. 274; Hubbuck & Sons, Ltd. v. Wilkinson, Heywood
& Clark, Ltd. [1899] 1 Q.B. 86, compared.
APPEAL.
COUNSEL:
J. C. Rue!land for appellant.
Raynold Belanger for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Raynold Belanger, Quebec, for respondent.
The judgment of the Court was delivered by
JACKETT C.J.—This is an appeal from a deci
sion dismissing an application under Rule 419 1
to strike out the Declaration in this action on the
ground that it does not disclose a cause of
action.
At the end of the opening argument for the
appellant, we informed counsel for the respond
ent that we did not require to hear him, that the
appeal would be dismissed and that our reasons
would be given later.
It must be a very rare case in which this
Court will reverse a decision by a judge of first
instance dismissing such an application. We say
this because there is a more formal alternative
procedure available under Rule 474 2 for decid
ing the question raised by such an application.'
Whether a question of law should be dealt with
under Rule 419 or Rule 474 or is left to trial is a
matter that should ordinarily be left to the judge
of first instance. In any event, it should, in the
absence of extraordinary circumstances, not
only be clear and obvious, 4 but should be obvi
ous without elaborate argument, that the Decla
ration discloses no cause of action before the
Court of Appeal interferes with the discretion of
the judge of first instance not to strike out a
Declaration under Rule 419.
There are aspects of this particular matter
that are not pleaded precisely and that the
respondent, in the circumstances of this case,
cannot be expected to plead precisely until after
it has had discovery.' When the respondent has
had discovery, it may, or may not, turn out that
what it has pleaded constitutes an arguable case
of "faute" under Article 1053 of the Civil
Code. 6 It must at least be arguable that a person
who has been misled into becoming a bidder for
a construction contract in a competition that
had been "fixed" from the outset has a claim
under Article 1053 for any expenses or losses
directly resulting from his having been invited
to become a bidder in such a "fixed"
competition? That being so it cannot be said
that it is obvious that the allegations in the
Declaration in this case disclose no cause of
action.
In addition, the question as to whether section
7(2) of the Government Contracts Regulations, 8
which requires Treasury Board authority "to
pass by the lowest tender", confers some right
on the lowest tenderer is also a question that a
judge of first instance might properly regard as
one that should not be dealt with on a simple
motion to strike out under Rule 419 because the
correct answer to that question is not obvious
until after more elaborate argument than that
presented to him . 9
For the above reasons, we concluded that this
appeal should be dismissed with costs.
1 Rule 419 reads, in part, as follows:
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, ... .
2 Rule 474 reads as follows:
Rule 474. (1) The Court may, upon application, if it deems it
expedient so to do,
(a) determine any question of law that may be relevant to
the decision of a matter, or
(b) determine any question as to the admissibility of any
evidence (including any document or other exhibit),
and any such determination shall be final and conclusive for
the purposes of the action subject to being varied upon
appeal.
(2) Upon application, the Court may give directions as to
the case upon which a question to be decided under para
graph (1) shall be argued.
3 These procedures are referred to in a passage in Bokor
v. The Queen [1969], Ex.C. (unreported), reading as follows:
An application to strike out a statement of claim or other
pleading whereby a claim for relief is pleaded should only be
granted where it can be clearly seen that the claim is on the
face of it "obviously unsustainable." (Compare Attorney-
General of the Duchy of Lancaster v. London and North
Western Railway [1892] 3 Ch. 274.) If there is a point of law
that requires serious discussion, an objection should be
taken on the pleadings and the point of law set down for
hearing and for disposal before trial under Rule 149, or the
matter should be allowed to go to trial, according to the
circumstances. (Compare Hubbuck & Sons, Ltd. v. Wilkin-
son, Heywood & Clark, Ltd. [1899] 1 Q.B. 86.)
4 Cf. Drummond-Jackson v. British Medical Association
[1970] 1 W.L.R. 688, per Lord Pearson at pages 695-96.
5 Cf. Page v. Churchill Falls (Labrador) Corporation Lim
ited [1972] F.C. 1141.
6 At that time it may be required to give particulars of the
allegations in the Declaration and an application under Rule
474 might be appropriate after he has given such particulars.
7 Compare W. I. Bishop Ltd. v. James Maclaren Co.
[1937] 2 D.L.R. 625 (P.C.), per Lord Roche at pages 634-35.
8 Section 7(2) of the Government Contracts Regulations
reads as follows:
(2) Where tenders have been obtained pursuant to subsec
tion (1) and it appears to the contracting authority not to be
expedient to let the contract to the lowest tenderer, the
contracting authority shall obtain the approval of the Treas
ury Board to pass by the lowest tender.
9 This is not to say that it would not be proper for the
judge of first instance, in an exceptional case, to accord to a
Rule 419 application "a relatively long and elaborate instead
of a short and summary hearing". Compare Drummond-
Jackson v. British Medical Association [1970] 1 W.L.R.
688, per Lord Pearson at pages 695-96. It would be within
his discretion to arrange for such a hearing where it seemed
expedient so to do. See Ronde! v. Worsley [1969] 1 A.C.
191; Wiseman v. Borneman [1969] 3 W.L.R. 706; Roy v.
Prior [1970] 1 Q.B. 283; and Schmidt v. Home Office [1969]
2 Ch. 149, referred to by Lord Pearson in this connection.
What we are saying is that it is primarily a matter for the
judge of first instance, in the exercise of his discretion, to
decide whether a question of law can most conveniently be
decided on a Rule 419 application, and, as the applicant has
other remedies available to him, the Court of Appeal will not
ordinarily substitute its discretion for his.
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.