Emile Couture (Suppliant)
v.
The Queen (Respondent)
Trial Division, Pratte J.—Montreal, May 1;
Ottawa, May 18, 1972.
Practice—Pleadings—Jurisdiction—Judgment delayed for
30 days after trial to permit application to amend claim—
Prescription interrupted by institution of action—Rules 424,
496(2).
Following the trial of a petition of right for damages
against the Crown on the ground of negligence by
employees of the CRTC, the trial judge held that the negli
gence pleaded was not established, but instead of dismissing
the petition gave the suppliant thirty days in which to apply
for leave to amend his petition by alleging negligence other
than that pleaded.
Held, rejecting an objection to the suppliant's application:
1. The order granting suppliant leave to amend his plead
ing was authorized by Federal Court Rule 496(2).
2. While Federal Court Rule 424 does not permit an
amendment which sets up a new cause of action after
expiration of the delay for prescription under Quebec law,
prescription in this case was interrupted by the institution of
the action.
MOTION.
William Hesler for suppliant.
Paul Coderre, Q.C., for respondent.
PRATTE J.—Suppliant seeks leave to amend
his petition of right and have the trial reopened
in a case which was tried before me last
December.
In his petition of right suppliant seeks com
pensation for the loss which certain of respond
ent's employees allegedly caused him by mis
representing to him that he had the licence
required by law to operate a commercial radio
and television receiving station. He alleged
therein various letters sent to him by respond
ent's employee, and he indicated that he had
been arrested as a result of the negligence
allegedly committed by employees of the
Canadian Radio-Television Commission (the
CRTC) in writing him a letter dated May 7,
1968. At the hearing all correspondence
exchanged between the parties was filed but
counsel for both parties at all times assumed
that the only negligence on which the action
was founded was that allegedly committed by
respondent's employees in sending the letter of
May 7 to suppliant.
On April 7, 1972 I signed and filed with the
Registrar reasons for a judgment in which I
expressed the opinion that the mistake of which
suppliant was the victim was not caused by the
letter sent to him on May 7 by the CRTC. I did
not then, as I might have done, dismiss suppli
ant's petition of right. I felt it could be reason
ably contended that suppliant's mistake was due
to negligence by respondent's employees other
than that specifically alleged in the pleadings. I
therefore concluded by saying that I would not
give judgment for thirty days so that suppliant
might, if he saw fit, request leave to amend his
petition of right and have the hearing reopened.
Suppliant has exercised this option by submit
ting the motion now before the Court.
Counsel for the respondent objected to the
motion. He first submitted, if I understood him
correctly, that I exceeded the powers conferred
on me by Rule 496(2) in suggesting to suppliant
that he seek leave to amend his pleadings. In
reply to that argument I need only say that if I
expressed myself as I did in the reasons which I
filed with the Registrar on April 7 last, it was
because I felt after due consideration that Rule
496(2) authorized me to act in that way. Coun
sel for the respondent has not persuaded me I
was mistaken.
Counsel for the respondent raised a second
objection to the motion. He stated that suppli
ant is seeking leave to amend his petition of
right by adding new causes of action to it (that
is, acts of negligence which were not specifical
ly alleged in the original petition). Such leave
should not be granted because the remedy
resulting from these new facts, he contends, has
long been prescribed. According to counsel, the
cause of action in this case having arisen in the
Province of Quebec, the Court is bound, under
section 38 of the Federal Court Act, to apply
the rules of Quebec law as to prescription. It is
established that under Quebec law an action
like that of suppliant is subject to a short two-
year prescription period, the effect of which
according to Art. 2267 of the Civil Code, is to
extinguish the action, so that "no action can be
maintained after the delay for prescription has
expired". As the Rule enacting this prescription
is not a mere rule of procedure, counsel for the
respondent submitted that the Court could not
use Rule 424 as authority to allow an amend
ment adding a new cause of action after the
delay for prescription had expired; for it cannot
be said, he submitted, that the Court could,
merely through rules of practice, alter substan
tive rules such as those relating to prescription.
Before proceeding further I should make cer
tain observations on the scope of Rule 424.
That Rule reads as follows:
Rule 424. Where an application to the Court for leave to
make an amendment mentioned in Rule 425, 426 or 427 is
made after any relevant period of limitation current at the
date of commencement of the action has expired, the Court
may, nevertheless, grant such leave in the circumstances
mentioned in that Rule if it seems just to do so.
The validity of that Rule, in so far as it
enables the Court to authorize an amendment
after a period of limitation has expired, appears
beyond any doubt (Rodriguez v. Parker [1967] 1
Q.B. 116). Under section 46 of the Federal
Court Act the Court has the power to regulate
practice and procedure, and the rules concern
ing limitation of actions are, at least in theory,
rules of procedure. However, the rules of
Quebec law relating to short prescriptions are
not rules of procedure, and because of this,
when they are applicable under section 38 of
the Act, their effect cannot be altered by Rule
424. Further, the English text of this rule refers
only to amendments made after the expiry of a
period of limitation, not to those made after the
prescription has been acquired. I therefore feel
that in a case where Quebec law must be
applied, the Court cannot base itself on Rule
424 in permitting an amendment after the pre
scription has come into effect.
This does not mean, however, that the motion
to amend now before me must be dismissed.
Indeed, even if I assume that the law of Quebec
on prescription must be applied here (which
may be doubted since most of the acts of negli
gence alleged against respondent's servants
appear to have been committed in Ontario), that
law in my opinion is not a bar to granting the
motion.
If suppliant had not sued respondent within
two years following the date on which the
CRTC refused to grant him a licence, he would
then, because of his inaction, have lost the right
to claim compensation for the loss which he
allegedly has suffered. By bringing an action
suppliant interrupted the prescription; in other
words, he took the necessary step to protect the
claim which by his petition of right he is seeking
to have enforced. Suppliant is not seeking to
amend his petition of right so as to assert a right
other than that on which prescription was inter
rupted; he only wants to allege new facts estab
lishing the existence of the same right.
For these reasons, the motion is allowed.
However, suppliant will pay the costs of this
motion as well as all costs resulting from this
amendment.
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.