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T-118-79
Zwicker & Company, Limited (Plaintiff)
v.
The Queen (Defendant)
Trial Division, »'alsh J.—Halifax, February 18; Ottawa, February 20, 1980.
Practice — Application for determination of question of law pursuant to Rule 474(1)(a) and (2) — Two stages required under Rule 474(2): (1) application for questions to be deter mined and directions and (2) argument of the questions after preparation by counsel — Order issued stating question to be determined by Court and directions for hearing argument — Federal Court Rule 474(1)(a),(2).
APPLICATION for determination of question of law.
COUNSEL:
K. E. Eaton, Q.C. for plaintiff.
Eileen Mitchell Thomas, Q.C. and H. W.
Gordon for defendant.
SOLICITORS:
Kitz, Matheson, Green & MacIsaac, Halifax, for plaintiff.
Deputy Attorney General of Canada for defendant.
The following are the reasons for judgment rendered in English by
WALSH J.: This application for determination pursuant to Rules 474(1) (a) and 474(2) of ques tions of law set out therein was presented in Hali- fax, Nova Scotia, since the earlier attempt to have the motion granted pursuant to Rule 324 had been refused by Cattanach J. on the basis "that the Court is not satisfied that the proposed questions are proper ones to be answered as they are in form academic and as both questions appear to depend on questions of fact which are not settled by the agreement as to facts." An identical motion based on the same facts was set down for hearing at the same time in case T-5970-78 A. M. Smith & Company, Limited v. The Queen. The decision in this case is also applicable to that action.
The aforementioned Rule 474(1)(a) and (2) now read 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
(2) Upon an application for an order that a question be determined under paragraph (1), the Court shall, if it orders that the question be so determined,
(a) give directions as to the case upon which the question shall be argued,
(b) give directions as to whether or not memoranda shall be filed and served by the parties and, if they are to be filed and served, fix time limits for the filing and service of the memoranda of the respective parties, and
(e) subject to section 15(2) of the Act, fix a time and place for argument of the question.
At an earlier stage in the proceedings counsel for defendant had sought a date to argue the expediency of setting down a question of law for argument under the said Rule. In answer to this Associate Chief Justice Thurlow, as he then was, directed as follows:
1. Please ask counsel what point of law it is sought to have decided under Rule 474.
2. Also, please advise him that Rule 474(2) was made as a result of experience which indicated that it is generally unsatis factory to attempt to deal on a single occasion with the preliminary matters referred to in Rule 474(2) and the argu ment of the point of law. Ask him if it would be possible for counsel to agree on:
(a) a statement of the precise point to be decided;
(b) the facts on which the point is to be decided; and
(c) dates when memoranda of argument should be filed and served.
If so, the application under Rule 474(2) might be made under Rule 324.
3. Also ask counsel to suggest dates in mid-January or later that would be convenient for the argument in the event the application under Rule 474(2) is granted.
The application under Rule 324 then followed and was referred to the Court for oral hearing by Mr. Justice Cattanach as indicated.
It is clear that what was to be decided at that time was (a) whether it was expedient to set down a question of law and if so to determine how the question of law should be worded and (b) give
directions as to how it should be argued in the second stage of proceedings and on the basis of what facts.
At the hearing of the motion counsel for the parties agreed that the facts as set out in the agreement of issues and facts are not in dispute and contain all the material necessary to deter mine the question of law which is to the effect that plaintiff's action may be time barred. In place of the somewhat hypothetical questions set out in the original motion and objected to by Cattanach J. it was agreed that the only question of law which need be submitted would read as follows:
Is the claim of the Plaintiff time-barred by virtue of the provisions of Section 2 of the Statute of Limitations R.S.N.S. 1967, Chapter 168?
Counsel then wished to argue this matter on its merits.
Both the wording of section 474(2) of the Rules and the memorandum of Associate Chief Justice Thurlow, as he then was, indicate clearly that a date would then be set for argument in the event the application under Rule 474(2) was granted. The attention of the Court was directed to the case of The Queen v. Canadian Vickers Limited' in which Associate Chief Justice Thurlow, as he then was, agreed to hear the argument on the question of law forthwith since counsel for both parties had expressed their preference that the question be determined on this basis. In doing so he comment ed however that a proceeding under Rule 474 ordinarily should have two stages and referred to the judgment of Chief Justice Jackett in the case of Jamieson v. Carota 2 in which at page 244 he points out:
I deem it expedient, also, to add that, in my opinion, Rule 474, in the ordinary case, contemplates two stages, viz:
(a) an application for an order that certain questions be determined and for directions as to the time and place for argument of such questions as well, possibly, as to the "case" contemplated by Rule 474(2), and
(b) argument of the questions, after both parties have had an opportunity to prepare for such argument at a time set aside by the Court for such argument.
Not only was the Canadian Vickers case an excep tion to the Rule, as it then read, but I am given to
' [1978] 2 F.C. 675. 2 [1977] 2 F.C. 239.
understand that it was following it that paragraph (2) of Rule 474 was amended to its present read ing so as to make it even more clear that the proceeding is to be done in two stages.
In the present case it is abundantly clear that the question had not yet been determined nor in fact the expediency of permitting this issue to be raised under Rule 474 and it was therefore prema ture to contemplate an argument on the as yet undetermined question of law.
Now that the Court has agreed as to the expedi ency of raising such a question and as to the wording of it, it would appear that the question could be most expeditiously and fully dealt with by the submission of written arguments. Counsel for defendant indicated a preference for oral argu ment however, in which event a date for same will have to be obtained from the Associate Chief Justice.
The following order is therefore made:
ORDER
1. It appears expedient pursuant to Rule 474(1)(a) that the following question of law may be relevant to the decision of the matter:
Is the claim of the Plaintiff time-barred by virtue of the provisions of Section 2 of the Statute of Limitations R.S.N.S. 1967, Chapter 168?
2. Pursuant to Rule 474(2)(a) the case upon which the said questions shall be argued shall be the agreement on issues and facts submitted by the parties.
3. Pursuant to Rule 474(2)(b) written memoranda shall be filed and served by the parties; defendant shall submit her written memoranda, serve same on counsel for plaintiff and file same within 15 days hereof or such further delay as may be extended by consent or by the Court; plaintiff within 15 days after service of the said memoranda or such additional delay as may be granted by order of the Court or by consent shall file and serve a written answer to said memoranda on attorneys for defendant; defendant shall have five (5) days or such further delay as may be granted
by the Court or by consent to file and serve an answer to these memoranda if desired.
4. Pursuant to Rule 474(2)(c), in the event that the parties are not in agreement that the material in written memoranda is sufficient to enable the matter to be dealt with pursuant to Rule 324, they may file a joint application to the Associate Chief Justice to fix a time and place for oral argument on the question.
Costs in the event.
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