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T-756-76
The Queen (Plaintiff) v.
La Garantie, Compagnie d'assurance de l'Amé- rique du Nord (Defendant) (Applicant)
and
Economic Structural Steel Inc. (Third Party)
Trial Division, Marceau J.—Montreal, June 7; Ottawa, June 8, 1976.
Practice—Third party notice—Application for direction under Rule 1729—No jurisdiction over third party proceed- ings—Third party notice dismissed—Federal Court Rule 1729.
The Queen v. F. E. Cummings Construction Co. [1974] 2 F.C. 9, followed.
APPLICATION for directions. COUNSEL:
A. Coté-Pistono for plaintiff.
R. D. LeMoyne for defendant, applicant.
C. Therrien for third party.
SOLICITORS:
Deputy Attorney General of Canada for plaintiff.
Doheny, Mackenzie, Grivakes, Gervais and LeMoyne, Montreal, for defendant, applicant.
Ray, Jolicoeur and Therrien, Montreal, for third party.
The following is the English version of the reasons for order rendered by
MARCEAU J.: Defendant was sued as surety consequent upon the failure of the principal debtor to fulfil its commitments as a tenderer, following a call for tenders for the granting of a public works contract; it served a third party notice on the latter and submitted this application for directions under Rule 1729 of the Rules of this Court. Plaintiff contests the granting of this application, and argues that this Court lacks jurisdiction to decide cases which may bring defendant and the third party for which it stood surety into conflict.
In a recent decision, The Queen v. F. E. Cum- mings Construction Co. Ltd. [1974] 2 F.C. 9, my colleague Collier J. undertook to re-examine the principles involved here and to make a review of the principal relevant previous decisions. I need only refer to that decision.
I believe that plaintiff's objection is justified. The fact that the third party could have been sued as joint and sole* debtor on the obligation alleged in the action could not confer jurisdiction on this Court to decide which means of redress defendant may use against the third party. Moreover, noth ing requires that the principal debtor be a party to an action, in order for its grounds of defence to be pleaded by its surety. A third party notice is equivalent to a writ of summons and in itself gives rise to an action: in the case at bar, this action does not come under the jurisdiction of this Court.
The third party notice should therefore be dis missed and struck out, and the third party exclud ed from the action.
* Translator's note: "Solitaire"?
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