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.
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.