National Capital Commission (Appellant)
v.
Édouard Bourque and Paul J. Bourque
(Respondents)
Court of Appeal, Jackett C.J., Cameron and
Sweet D.JJ.—Ottawa, April 25, 1972.
National Capital Commission—Action by—Expropria-
tion—Practice—Action brought in Commission's name—
Impropriety of—Award by Court—Federal Court Rule
604—Motion for directions, procedure—National Capital
Act, R.S.C. 1970, c. N-3, s. 4(4).
The National Capital Commission brought action in the
Exchequer Court to determine the compensation payable
for land expropriated. The Court adjudged defendants enti
tled to $142,000 plus interest and costs upon supplying
releases of all claims arising out of the expropriation.
Subsequently the Deputy Attorney General of Canada on
behalf of the National Capital Commission applied to the
Trial Division of this Court for directions as to whom and in
what amounts the balance owing on the judgment should be
paid. In a supporting affidavit deponent gave the names of
various persons who according to his information had inter
ests in the land expropriated or had claims against one or
both of the defendants in the action.
Held, the Trial Division was right in dismissing the motion
for directions.
1. Section 4(4) of the National Capital Act does not
authorize the Commission to be a party to an action in this
Court in respect of rights or obligations acquired or incurred
by the Commission on behalf of Her Majesty. In this Court
such proceedings must be brought in the name of Her
Majesty.
2. The material before the Trial Division was inadequate.
Proceedings on an interlocutory motion under section 17(3)
of the Federal Court Act must comply with Rule 604, and
hence a motion for directions should be accompanied by a
draft of the proposed order and be supported by affidavits
setting out the facts and supporting the opinion of the
Deputy Attorney General. Moreover the motion for direc
tions should not be entitled in the expropriation action.
APPEAL from Trial Division.
George Ainslie, Q.C. and Eileen Mitchell
Thomas, Q.C. for appellant.
H. Soloway, Q.C. for respondents.
The judgment of the Court was delivered by
JACKETT C.J. (orally)—This is an appeal from
a judgment of the Trial Division dismissing an
application on behalf of the National Capital
Commission, made in an expropriation action,
for directions pursuant to section 17(3)(c) of the
Federal Court Act "as to whom and in what
amounts the balance owing on the Judgment" in
that action should be paid.
To understand the problem raised by this
appeal it is necessary first to examine some
aspects of the law applicable to the National
Capital Commission.
The National Capital Commission is a corpo
ration created by section 3 of the National
Capital Act (R.S.C. 1970, c. N-3). The Commis
sion is made, by the statute, "an agent of Her
Majesty" for all purposes of the Act and its
powers under that Act may be exercised "only
as an agent of Her Majesty" (s. 4). It follows
that any right acquired by the Commission is
acquired by it as agent and is therefore a right
of Her Majesty and not a right of the Commis
sion and that, similarly, any obligation incurred
by the Commission is an obligation incurred by
it as agent and is an obligation of Her Majesty
and not an obligation of the Commission. As a
general rule, rights and obligations must be liti
gated in the name of the principal and not of the
agent. However, in the case of rights or obliga
tions acquired or incurred by the National Capi
tal Commission as agent of Her Majesty, there
is an alternative. An action in respect of any
such right or obligation may be brought or taken
by or against the Commission "in any court that
would have jurisdiction if the Commission were
not an agent of Her Majesty" (s. 4(1)). In addi
tion, the Commission has authority to take or
acquire lands without the consent of the owner,
and it was, prior to June 1, 1971, provided that
claims against the Commission for compensa
tion or damage for lands so taken could be
heard and determined in the Exchequer Court'
(s. 13(1) & (3)).
The action in the Exchequer Court of Nation
al Capital Commission v. Édouard Bourque and
Paul J. Bourque (B-2072) was an action under
section 13(3) of the National Capital Act to
determine the compensation payable in respect
of land expropriated by the National Capital
Commission on behalf of Her Majesty. By the
judgment in that action, it was adjudicated that
"The defendants are entitled, upon supplying to
the plaintiff releases of all claims arising out of
the expropriation, to be paid the sum of $142,-
000" plus interest computed in a certain manner
and costs to be taxed.
In August 1971, the Deputy Attorney General
of Canada, as solicitor for the National Capital
Commission, gave notice in the expropriation
action of an application to be made, on behalf
of the National Capital Commission, "for Direc
tions pursuant to Section 17(3)(c) of the Federal
Court Act as to whom and in what amounts the
balance owing on the Judgment herein and the
costs herein should be paid." The notice of
motion further gave notice that in support of
the motion would be read the judgment, the
pleadings and an affidavit of one William
Oliver, which affidavit reads as follows:
I, WILLIAM OLIVER, of the City of Ottawa, in the
Regional Municipality of Ottawa-Carleton, Appraisal Con
sultant MAKE OATH AND SAY:
(1) That I am an Appraisal Consultant for the National
Capital Commission and have knowledge of the within
matter and that I attended throughout the trial of the
within action' in the Exchequer Court of Canada.
(2) That the Judgment rendered herein on the 9th day
of June, 1970 awarded to the Defendants the sum of
$142,000.00 less the amounts already advanced, plus
interest on the unadvanced portion thereof from the 3rd
day of November, 1966 to the said date of Judgment.
(3) That the advance payments totalling $105,000.00
had been made to the Defendants as follows:
5 May, 1967 $70,000.00
11 October, 1967 $35,000.00
and it is my information and belief that the said advances
were used to complete the agreement entered into by the
Defendants, prior to expropriation, to purchase the subject
land and for other expenses incurred by the Defendants
prior to expropriation.
(4) That to the best of my knowledge, information and
belief there remains owing on the Judgment the sum of
$37,000.00 and interest in the amount of $10,054.53 and
the costs of the Defendants to be taxed.
(5) That paragraph 2 of the Statement of Defence filed
on the 31st day of June, 1968 sets out that on November
3, 1966, the date of expropriation, the Defendants owned
the subject property as trustees for the benefit of
(1) Edouard Bourque
(2) Paul J. Bourque
(3) Bernard Bourque
(4) Pierre Bourque, and
(5) Lyall Haines
(6) That during the course of the trial of this action I
recall that evidence was given by Edouard Bourque to the
effect that the said beneficieries were interested in the
land in the following proportional shares.
75%—among—
(1) Edouard Bourque-1/6
(2) Paul J. Bourque-3/6
(3) Bernard Bourque-1/6
(4) Pierre Bourque and-1/6
25%—Lyall Haines.
(7) That during the course of the trial of this action I
recall that evidence was given by Paul Bourque to the
effect that on the date of expropriation each of the
following had a quarter interest in the subject property.
Edouard Bourque-25%, Paul J. Bourque-25%
Pierre Bourque-25%, and Lyall Haines-25%.
(8) That I am informed that since the date of Judgment
the Sheriff of the Regional Municipality of Ottawa-Carle-
ton has served upon the Plaintiff Writs of Fieri Facias on
behalf of the following named Judgment Creditors who
claim from any monies payable to Paul J. Bourque the
sums set forth.
Raoul Lacroix $2,069.72
M. Loeb Limited $1,661.12
Wilfred Brady $992.52
(9) That I am further informed that the Department of
National Revenue has filed a claim against monies pay
able to the said Paul J. Bourque in the sum of $475.57.
(10) That I am further informed that there is a Judg
ment in the Provincial Court of the Province of Quebec
against the said Paul J. Bourque in favour of Raoul
Lacroix in the amount of $1,754.40.
(11) I am also informed that there is pending in the
Superior Court of Quebec an action by Gerard Langlais
represented by Albert Verreoulst, Trustee in Bankruptcy
in which the said Plaintiff claims a one-third share in the
compensation payable as a result of the Expropriation of
the subject property.
(12) I am further informed that there is an action
pending in the Ontario Courts on behalf of Maclntyre
Realties Limited which claims to be entitled to the sum of
$1,157.52 of the compensation monies for Appraisal
services rendered to the Defendant in connection with the
subject property.
It is further to be noted that the notice of
motion appears to have been served on various
firms of solicitors who are described as solici
tors' for various persons who are not parties to
the expropriation action. There does not appear
to be any affidavit of personal service on any
one.
The motion in question was duly made and,
by judgment of the Trial Division, was dis
missed on August 23, 1971.
This is an appeal from the judgment dismiss
ing the motion.
Section 17(3)(c) of the Federal Court Act
reads as follows:
(3) The Trial Division has exclusive original jurisdiction
to hear and determine the following matters:
(c) proceedings to determine disputes where the Crown is
or may be under an obligation, in respect of which there
are or may be conflicting claims.
We have concluded that the motion for direc
tions made by the National Capital Commission
in the expropriation action was rightly
dismissed.
In the first place, it should be said that, as
appears from the outline of the relevant provi
sions of the National Capital Act at the outset
of these reasons, we are of the view that the
judgment in the expropriation action in favour
of the defendants in that action is an adjudica
tion as to an obligation of Her Majesty in right
of Canada to be paid out of monies of Her
Majesty administered by the National Capital
Commission.
However, that is not sufficient to support the
application that was made to the Trial Division.
We have no doubt that the Court has jurisdic
tion, by virtue of section 17(3)(c) to determine a
dispute where the Crown is under an obligation
incurred under the National Capital Act in
respect of which there are conflicting claims.
We are of the view, however, that this appeal
must fail
(a) because the National Capital Commission
had no status to make the motion in the Trial
Division, and
(b) because the jurisdiction cannot be
invoked by a simple motion in an existing
action but must be invoked by new proceed
ings under Rule 604 of the Federal Court
Rules.
With reference to the question of the status
of the National Capital Commission, it will be
remembered that the Commission functions
only as an agent of Her Majesty and in the
absence of special statutory authority, would
therefore have no status as a party to a pro
ceeding to enforce a right or obligation of Her
Majesty. Its status in such litigation is therefore
limited to the special statutory authority con
ferred on it. In our view, section 4(4) of the
National Capital Act makes it possible for the
National Capital Commission to be a party to
proceedings "in respect of any right or obliga
tion acquired or incurred by the Commission on
behalf of Her Majesty" in any court "that
would have jurisdiction if the Commission were
not an agent of Her Majesty." This is obviously
designed to provide for litigation in the courts
that would have jurisdiction if the Commission
were carrying on its activities on its own behalf
and not as an agent of Her Majesty. It does not
authorize the Commission to be a party to an
action in this Court in respect of rights or
obligations acquired or incurred by the Com
mission on behalf of Her Majesty. 2 In this
Court such proceedings, in our view, must be
conducted in the name of Her Majesty.
It should be said that, if that were the only
objection to the application, we should be
inclined to seek some way to remedy the defect.
Compare Sociedad Transoceanica Canopus
S.A. v. National Harbours Board [1968] 2
Ex.C.R. 330 at p. 346. However, in our view,
the second objection to granting the motion is
insurmountable.
Granting that the Court has jurisdiction in a
matter by virtue of a jurisdictional provision
such as section 17(3)(c), a party must conform
with the Rules in order to invoke that jurisdic
tion. Normally one party seeks relief against
another and the jurisdiction is invoked by
launching an action under Rule 400. There are
special provisions, usually in statutes, for
launching proceedings in some other form. A
failure to resort to one form or another in such
a case might not be too important and could
generally be rectified under Rule 302. However,
an interpleader proceeding is a very special type
of proceeding. One party is asking the Court to
determine conflicts that have arisen so as to
affect other persons. To do that, some way
must be found of giving a fair opportunity to
each of such other persons to come in and
assert and defend his position. Rule 604, which
follows the general scheme of section 24 of the
Exchequer Court Act, has been designed to
accomplish that purpose. Until the various steps
set out therein have been taken, the Court is in
no position to adjudicate on the problems that
have arisen. The material put before the Trial
Division in this matter is quite inadequate for
the purpose.
Furthermore, it should be emphasized that a
motion made under Rule 604(1) for directions
should be for an order in the form of a draft
that has been previously prepared, having
regard to Rule 604(2) and (3), and that is pre
sented to the Court for consideration and
should be supported by affidavit material put
ting before the Court in definitive and compre
hensive form a picture of the facts giving rise to
the application and the necessary opinion of the
Deputy Attorney General.
It should finally be noted that there is no
justification for bringing the interpleader matter
into the expropriation action as that action is at
an end once the incidentals to the judgment,
such as taxation of costs, have been completed
and that we can find no basis in this matter for
failure to effect personal service of both the
notice of motion in the Trial Division and of the
notice of appeal to this Court.
We have concluded that the appeal should be
dismissed but, as it was not opposed, without
costs.
' Such compensation is paid by the Commission out of
monies appropriated by Parliament from the Consolidated
Revenue Fund. See sections 16, 17 and 13(3) of the Nation
al Capital Act. Although section 13(3) requires such pay
ments to be made "by the Commission", having regard to
the other provisions of the statute, it is clear that the
Commission makes such payments as agent of Her Majesty
in respect of obligations of Her Majesty. The Commission is
in no case the principal debtor.
2 Compare Canadian National Railway v. North-West
Telephone Company [1961] S.C.R. 178.
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.