T-1511-91
William Cairns, Patricia Cairns and Eagleton
Dairies Ltd., Maximillian Englot, Gerald Blerot
and Alfred Froese, Glen Hainsworth and Jocelyn
Hainsworth, Jerry Kosheluk, Kenneth Botterill,
Norman Jean Botterill, Delbert Leader, Charles
E. Sutcliffe, Brian R. Wilson, Clarence A. Mennie,
Norman Desrochers, Donald Monastyrski,
Reginald Englot, Kenneth Cairns, Gary and
Shirley Granger, Kenneth Pedde, Marcel
Bouchard and Hart Haidn, in their personal
capacity and representing Past, Present and
Future, Borrowers from the Farm Credit
Corporation (Plaintiffs)
v.
The Farm Credit Corporation, The Honourable
William McKnight, The Farm Debt Review Board
(Defendants)
INDEXED AS: CAIRNS V. FARM CREDIT CoRP. (TD.)
Trial Division, Denault J.—Toronto, October 16;
Ottawa, November 19, 1991.
Federal Court jurisdiction — Trial Division — Application
for interlocutory injunction restraining Farm Credit Corpora
tion (F.C.C.) from realizing upon security until providing lists
of rules, regulations and policies (1) governing dealings with
clients and (2) detailing manner, conditions and criteria by
which F.C.C. obtaining funds from Farm Debt Review Fund—
F.C.C. not `federal board, commission or other tribunal"
within definition in Federal Court Act, .c. 2(g) — Definition not
including private powers exercisable by ordinary corporation
created under federal statute which are merely incidents of
authorized business — Necessary to examine circumstances of
each case — Plaintiffs seeking review of private powers of
F.C.C. which are incidents of authorized business of commer
cial lending — F.D.R.B. not `federal board, commission or
other tribunal" as mere mediator without decision-making
authority.
Agriculture — Federal Court, Trial Division lacking juris
diction to try action against Farm Credit Corporation, Farm
Debt Review Board as neither organization "federal board,
commission or other tribunal" — Method of accessing F.D.R.
Fund — Fund not directly accessible by farmers — F.C.C.
granting concessions on same basis as commercial lenders —
No intervention by government — Nature of F.D.R.B.'s powers
— Latter merely mediating negotiations between F.C.C. and
financially distressed clients.
Practice — Parties — Class action to force Farm Credit
Corporation, Farm Debt Review Board to provide to borrow
ers in financial difficulty lists of rules, regulations and policies
(1) governing dealings with clients and (2) detailing manner,
conditions and criteria by which Farm Credit Corporation
(F.C.C.) obtaining funds from Farm Debt Review Fund — Cir
cumstances inappropriate for class action under R. 1711
"Same interest" in proceeding in R. 1711 meaning same inter
est in outcome of judgment — As plaintiffs at different stages in
dealing with F.C.C., varying interests in obtaining lists
Relief sought by class of plaintiffs must have practical impact
on each member of class — Minister struck as defendant as no
allegation against him relating to acts done in personal capac
ity.
This was a motion for an interlocutory injunction to restrain
the Farm Credit Corporation (F.C.C.) from realizing upon its
security, acquiring lands by voluntary transfer, or disposing of
lands that it holds until it has provided to all its borrowers in
financial difficulty the lists sought in the main action. The
main action was a class action to force the defendants to pro
vide a list of the rules, regulations and policies which govern
the F.C.C. in its dealings with its clients in financial difficulty,
and a list outlining the rules, regulations and policies detailing
the manner, conditions and criteria by which the F.C.C. may
obtain funds from the Farm Debt Review Fund (F.D.R. Fund).
The plaintiffs are Canadian farmers who borrowed money
from the F.C.C., subsequently fell into arrears on their pay
ments and were dissatisfied with the settlement options offered
to them by the F.C.C. Although each plaintiff's situation is dif
ferent, they are generally alleging that they were treated
unfairly and dealt with in an inconsistent fashion by the F.C.C.
during negotiations regarding their outstanding loans. The
defendants moved to strike the statement of claim for failing to
disclose a reasonable cause of action. They argued that the
Court lacked jurisdiction to grant the relief sought. The issues
were whether The Honourable William McKnight was a
proper party; whether the action can properly form the subject-
matter of a class action; and whether the Court had jurisdiction.
Held, the motion to strike should be allowed; the motion for
an interlocutory injunction and the action should be dismissed.
A minister cannot be sued either in a representative or per
sonal capacity unless the allegations against him relate to acts
done in a personal capacity. As no claim was made against the
Minister in his personal capacity, his name was struck as a
defendant.
The circumstances were inappropriate for a class action
within Rule 1711. Persons instituting a class action must have
a common interest and a common grievance. The relief must
be beneficial to all members of the class. Rule 1711 requires
that the plaintiffs and those they seek to represent have the
same interest in the proceedings. This has been interpreted as
meaning the same interest in the outcome of the judgment. The
plaintiffs are at varying stages in their dealings with the F.C.C.
The individual members of the class have varying interests in
obtaining the lists of rules, regulations and policies. The pur
pose of a class action is not to allow a group of plaintiffs to
seek numerous forms of relief in an attempt to satisfy the vary
ing needs of all of its members. In order to satisfy the require
ment of having the same interest in the outcome of the judg
ment, the relief sought by a class of plaintiffs must have a
practical impact on each of the members of the class.
While the F.C.C. exercises statutory powers and would
appear to fall under Federal Court jurisdiction, the particular
circumstances of a case had to be examined by the Court prior
to making a determination. It has been held that the definition
"federal board, commission or other tribunal" in Federal Court
Act, paragraph 2(g) does not extend to those private powers
exercisable by an ordinary corporation created by statute
which are merely incidents of its legal personality or author
ized business. Thus, both the C.B.C. and the Canada Council
fall outside the definition. The plaintiffs misunderstood the
method of accessing the F.D.R. Fund. To do so, the F.C.C.
must be convinced either of the future viability of the farming
operation or that a farmer is in need of assistance to preserve
his equity while he phases out of farming operations. In either
case, the F.C.C. must ensure that any concession granted is
made on a sound commercial basis. The Fund is not directly
accessible by the farmers. That determination is made in the
course of its authorized business, that is, commercial lending.
That being the case, the F.C.C. has none of the attributes of a
federal board, commission or tribunal, since all commercial
lenders are required to make the very same determinations.
The government in no way controls the criteria to be used by
the F.C.C. in determining who should benefit from specific
compromise arrangements or concessions. In addition, the
Farm Credit Act grants absolute discretion to the F.C.C. in
developing its own standards in order to carry out its mandate.
Nor was the F.D.R. a "federal board, commission or other tri
bunal". It has neither access to the F.D.R. Fund nor authority
over decisions made by the F.C.C. Other than its authority to
extend or terminate a stay of proceedings by creditors, the
F.D.R.B. has no decision-making power whatsoever. The
F.D.R.B. was merely called upon to mediate negotiations
between the F.C.C. and its financially distressed clients. A
Board which acts only as a mediator and which has no deci-
sion-making authority is not a "board, commission or other tri
bunal" within the Act.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Department of Agriculture Act, R.S.C., 1970, c. A-10, s.
5(2).
Farm Credit Act, R.S.C., 1985, c. F-2, ss. 3(1), 11, 20, 25,
34, 40.
Farm Debt Review Act, R.S.C., 1985, c. F-2.3 ss. 26, 29.
Farm Syndicates Credit Act, R.S.C., 1985, c. F-5.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2(g), 18.
Federal Court Rules, C.R.C., c. 663, RR. 401, 419, 1711.
Financial Administration Act, R.S.C., 1985, c. F-I1,
Schedule III, Part I.
CASES JUDICIALLY CONSIDERED
APPLIED:
Canada Metal Co. Ltd. et al. v. Canadian Broadcasting
Corp. et al. (No. 2) (1975), 11 O.R. (2d) 167; 65 D.L.R.
(3d) 231; 29 C.C.C. (2d) 325 (C.A.); Wilcox v. Canadian
Broadcasting Corporation, [1980] 1 F.C. 326; (1979),
101 D.L.R. (3d) 484 (T.D.); Aeric, Inc. v. Chairman of the
Board of Directors, Canada Post Corporation, [1985] 1
F.C. 127; (1985), 16 D.L.R. (4th) 686; 56 N.R. 289
(C.A.); Toronto Independent Dance Enterprise v. Canada
Council, [1989] 3 F.C. 516; (1989), 60 D.L.R. (4th) 503;
38 Admin. L.R. 231; 30 F.T.R. 20 (T.D.).
CONSIDERED:
General Motors of Canada Ltd. v. Naken et al., [1983] 1
S.C.R. 72; (1983), 144 D.L.R. (3d) 385; 22 C.P.C. 138;
46 N.R. 139.
REFERRED TO:
Air India Flight 182 Disaster Claimants v. Air India
(1987), 62 O.R. (2d) 130; 44 D.L.R. (4th) 317 (H.C.);
Bedford (Duke of) v. Ellis, [1901] A.C. 1 (H.L.); Kiist v.
Canadian Pacific Railway Co., [1982] 1 F.C. 361; (1981),
123 D.L.R. (3d) 434; 37 N.R. 91 (C.A.); Copeland v. Mr.
Justice McDonald, [1978] 2 F.C. 815; (1978), 88 D.L.R.
(3d) 724; 42 C.C.C. (2d) 334 (T.D.); Hamilton (City of) v.
Hamilton Harbour Commissioners, [1972] 3 O.R. 61;
(1972), 27 D.L.R. (3d) 385 (C.A.); Concept Omega Corp.
v. Logiciels KLM Ltée (1987), 15 C.I.P.R. 312; 12 F.T.R.
291 (F.C.T.D.).
COUNSEL:
Lawrence D. Ryder for plaintiffs.
Debra McAllister and Jonathan Keene for
defendants.
SOLICITORS:
Ryder & Planz, Port Elgin, Ontario, for plain
tiffs.
Deputy Attorney General of Canada for defend
ants.
The following are the reasons for order rendered in
English by
DENAULT J.:
The Facts:
The plaintiffs in this action are Canadian farmers
who borrowed money from the Farm Credit Corpora
tion (hereinafter "F.C.C."), subsequently fell into
arrears on their payments, and were dissatisfied with
the settlement options offered to them by the F.C.C.
Although each plaintiff's fact situation is different,
they are generally alleging that they were treated
unfairly and dealt with in an inconsistent fashion by
the F.C.C. during negotiations regarding their out
standing loans. They claim that during the course of
these negotiations, F.C.C. representatives led them to
believe that the only option available to such finan
cially distressed farmers, other than a buy out, was
the voluntary transfer of the title to their mortgaged
farm lands, with a lease back of the same, in satisfac
tion of their debt.
The Action:
The plaintiffs have instituted a class action against
the F.C.C., the Farm Debt Review Board (hereinafter
"F.D.R.B.") and the Honourable William McKnight
in an effort to force the F.C.C. and the F.D.R.B. to
promulgate and provide to F.C.C.'s financially dis
tressed clients, a list of the rules, regulations, and pol
icies which govern the F.C.C. in its dealings with its
clients in financial difficulty, as well as a second list
outlining the rules, regulations and policies detailing
the manner, conditions and criteria by which the
F.C.C. may obtain funds from the Farm Debt Review
Fund (hereinafter "F.D.R. Fund"). They are also
seeking a number of injunctive and declaratory forms
of relief which relate to these lists.
The Motions:
By way of motion before this Court, the plaintiffs
are seeking an interlocutory injunction against the
defendant F.C.C. More specifically, the plaintiffs are
requesting an order restraining the F.C.C. from auc
tioning, selling or realizing upon its security, acquir
ing lands by voluntary transfer, or disposing of lands
that it presently holds, until it has promulgated and
provided to all its borrowers in financial difficulty,
essentially the same lists sought in the principle
action against the defendants.
The defendants have presented a motion to strike
the plaintiffs' statement of claim in its entirety on the
grounds that it discloses no reasonable cause of
action. They submit that this Court lacks jurisdiction
to grant the relief sought by the plaintiffs in their
action against the defendants. They further seek to
have the Honourable William McKnight struck as a
party to this action.
I will deal with these two motions concurrently as
the same principles of law are at issue. Before pro
ceeding to a discussion involving this Court's juris
diction to entertain these matters, I wish to comment
on some preliminary considerations involving form.
Matters relating to Form:
The Minister of Agriculture:
The plaintiffs have named the Honourable William
McKnight as a defendant in this action. A Minister of
the Crown cannot be sued in his representative capac
ity, nor can he be sued in his personal capacity unless
the allegations against him relate to acts done in his
personal capacity (Air India Flight 182 Disaster
Claimants v. Air India (1987), 62 O.R. (2d) 130
(H.C.)). As the plaintiffs have made no claims against
the Minister relating to actions done in his personal
capacity, the Honourable William McKnight must be
struck as a party to the action.
Requirements for a Class Action:
Can the plaintiffs' action, as it is framed, properly
form the subject-matter of a class action within the
meaning of Rule 1711 of the Federal Court Rules
[C.R.C., c. 663]? Paragraph (1) of Rule 1711 reads as
follows:
Rule 1711.(1) Where numerous persons have the same interest
in any proceeding, the proceeding may be begun, and, unless
the Court otherwise orders, continued, by or against any one or
more of them as representing all or as representing all except
one or more of them.
The plaintiffs' statement of claim describes the
proposed class of plaintiffs to this action as including
all "farmers, borrowers from the F.C.C. who have
been, are or may be in financial difficulty".
For a matter to be appropriate for the institution of
a class action, the persons in the class must have a
common interest and a common grievance. Further
more, the relief sought must in its nature be benefi
cial to all members of the class, or as it has some
times been described, "if the plaintiffs win, all win"
(Bedford (Duke of) v. Ellis, [1901] A.C. 1 (H.L.);
General Motors of Canada Ltd. v. Naken et al.,
[1983] 1 S.C.R. 72; Kiist v. Canadian Pacific Rail
way Co., [1982] 1 F.C. 361 (C.A.); Copeland v. Mr.
Justice McDonald, [ 1978] 2 F.C. 815 (T.D.)).
Rule 1711 requires that the plaintiffs and those
they seek to represent have the "same interest" in the
proceedings. In the case of General Motors of
Canada Ltd. v. Naken et al., [1983] 1 S.C.R. 72, the
Supreme Court of Canada interpreted this term to
mean that the plaintiffs must all have the same inter
est in the outcome of the judgment.
In the present case, the plaintiffs are currently at
greatly varying stages in their dealings with the
F.C.C. Several plaintiffs have voluntarily transferred
their farms to the F.C.C. and are operating under a
lease-back arrangement; whereas others are still
attempting to negotiate a settlement agreement.
While some plaintiffs have seen their farm lands sold
to a third party, others face the execution of a final
provincial court order for the judicial sale of their
property. As a result, the individual members of the
class have varying interests in obtaining the lists of
rules, regulations and policies described in the state
ment of claim.
Many of the plaintiffs are certainly hoping to find,
in these lists, an undivulged option which would
allow them to keep their land. However, those who
face final provincial court orders or whose lands have
already been sold can receive no "practical" benefit
from the distribution of these lists. This may explain
why the plaintiffs are also seeking additional forms
of relief such as "an order declaring voidable all
transfers of land to the F.C.C. from farmers, by way
of transfer or legal action, prior to the production of
the [lists]" and "an order to prohibit the F.C.C. from
selling any land which it now holds and which was
obtained ... by way of legal action or transfer until
60 days after [the distribution of the lists]". Unfortu
nately, the purpose of a class action is not to allow a
group of plaintiffs to seek numerous forms of relief
in an attempt to satisfy the varying needs of all of its
members. It is the opinion of this Court that, in order
to satisfy the requirement of having "the same inter
est in the outcome of the judgment", the relief sought
by a class of plaintiffs must, at the very least, have a
practical impact on each of the members of the class.
For the above reasons, the plaintiffs cannot he per
mitted to pursue their action as it is currently framed
since it does not properly form the subject-matter of a
class action within the meaning of Rule 1711.
Since this action may not proceed as a class action,
any reference to the "plaintiffs' motion" shall be
directed at the motion presented solely by William
Cairns, Patricia Cairns and Eagleton Dairies Limited
(as it was in fact constructed).
Jurisdiction:
One of the issues to be determined in this matter is
whether this Court has the jurisdiction to entertain the
plaintiffs' motion for injunction and the principal
action against the defendants.
Section 18 of the Federal Court Act [R.S.C., 1985,
c. F-7] confers on this Court an exclusive review
jurisdiction over federal boards, commissions or
other tribunals by the prerogative and extraordinary
remedies outlined in the section. Section 18 reads as
follows:
18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibi
tion, writ of mandamus or writ of quo warranto, or grant
declaratory relief, against any federal board, commission or
other tribunal; and
(b) to hear and determine any application or other proceed
ing for relief in the nature of relief contemplated by para
graph (a), including any proceeding brought against the
Attorney General of Canada, to obtain relief against a fed
eral board, commission or other tribunal.
The expression "federal board, commission or other
tribunal" is defined in paragraph 2(g) of the Federal
Court Act as follows:
2. In this Act,
"federal board, commission or other tribunal" means any body
or any person or persons having, exercising or pur
porting to exercise jurisdiction or powers conferred
by or under an Act of Parliament, other than any such
body constituted or established by or under a law of a
province or any such person or persons appointed
under or in accordance with a law of a province or
under section 96 of the Constitution Act, 1867;
Therefore, this Court must determine whether the
F.C.C. and the F.D.R.B. are "federal board[s], com
mission[s] or other tribunal[s]" upon which this
Court, in these circumstances, has jurisdiction.
The F.C.C. is a corporation which was established
pursuant to subsection 3(1) of the Farm Credit Act,
R.S.C., 1985, c. F-2. The F.C.C. is also an agent of
the Crown and is listed in Part I of Schedule III to the
Financial Administration Act, R.S.C., 1985, c. F-11,
which lists parent Crown corporations which are
wholly owned by the federal Crown.
The F.C.C. makes, administers and supervises
farm loans under the Farm Credit Act and the Farm
Syndicates Credit Act, R.S.C., 1985, c. F-5. F.C.C.'s
role is to provide mortgage credit and complementary
financial services to Canadian farmers on a break-
even basis. F.C.C. loan products, interest rates and
risk parameters are developed on a national basis.
However, since it is felt that the regional offices are
better suited to take into account local conditions, the
strength of the market for the farm product, as well as
the impact of provincial legislation on lending opera
tions, loan decisions and debt settlements are nor
mally made at the local level.
In order to advance a loan, the F.C.C. must be sat
isfied that a farmer has significant potential for com
mercial viability (Farm Credit Act, section 25). If the
F.C.C. declines a loan or approves a lesser amount
than that which was applied for, a farmer may have
his loan application reviewed by an appeal board
established pursuant to F.C.C. by-laws. Recommen
dations made by the appeal board are not binding on
the F.C.C.
F.C.C. accounts which are in arrears are also dealt
with at the local level. The F.C.C. has the power to
enter into compositions or arrangements, grant exten
sions of time, substitute security and renegotiate
mortgages or other agreements (Farm Credit Act,
section 11). If negotiations between the F.C.C. and
the borrower to deal with arrears are unsuccessful,
the assistance of the F.D.R.B. may be sought.
The Farm Debt Review Act, R.S.C., 1985, c. F-2.3
establishes an F.D.R.B. for each province or region
of Canada. The Farm Debt Review Act allows both
"farmers in financial difficulty" and "insolvent farm
ers" to apply to the F.D.R.B. for a review of their
financial affairs or for assistance in facilitating
arrangements with their creditors. Insolvent farmers
may apply to the F.D.R.B. for a stay of any proceed-
ings by their creditors. However, apart from this lim
ited power, the F.D.R.B. has no decision-making or
enforcement authority.
Privy Council Minute P.C. 1986-1/2914, issued on
December 18, 1986, on the recommendation of the
Minister of Agriculture and the Treasury Board pur
suant to subsection 5(2) of the Department of Agri
culture Act, R.S.C. 1970, c. A-10, established what
has come to be known as the F.D.R. Fund. The Privy
Council Minute (and its subsequent amended ver
sions) provides that concessions granted to eligible
farmers in financial difficulty, through the F.D.R.B.
negotiation process, will be reimbursed to the F.C.C.
by Agriculture Canada. Schedules A and B to the
Privy Council Minute set out the terms, conditions
and principles governing the F.C.C.'s participation in
this reimbursement arrangement, as well as the types
of assistance that the F.C.C. may provide. Specifi
cally, the F.C.C. is authorized to provide the follow
ing forms of assistance to its eligible farm clients:
a) postponement of payments to the end of the mortgage
contract;
b) refinancing with other F.C.C. loans i.e. regular loans,
shared-risk mortgages and C.B.L. loans;
c) reamortization of loans (including arrears);
d) loans for debt consolidation;
e) leases of up to five years;
f) debt set asides, defined as stopping future interest
accrual on a portion of debt for a period of time;
g) forgiving interest in arrears;
h) sale-back of building sites to exiting farmers;
i) stopping the accrual of interest to allow for a reasonable
period of time to sell assets for exiting farmers; and
j) other methods resulting from Farm Debt Review Board
hearings.
As I understand it, this list of options is among the
information which the plaintiffs wish to have distrib
uted to all of the F.C.C.'s financially distressed farm
clients. Unfortunately, the plaintiffs appear to have
misunderstood the method used to access this Fund.
In order to do so, the F.C.C. must be convinced either
of the future viability of the farming operation or that
a farmer is in need of assistance in order to preserve
his equity while he phases out of farming operations.
In either case, the F.C.C. must ensure that any con
cession granted, through the F.D.R.B. process, is
made on a sound commercial basis. The F.D.R. Fund
is not directly accessible by the farmers themselves
and the determination of a farmer/borrower's eligibil
ity for a particular concession is to be made by the
F.C.C.
Under section 18 of the Federal Court Act, Parlia
ment granted exclusive jurisdiction on the Trial Divi
sion of the Federal Court to provide the type of
injunctive and declaratory relief sought by the plain
tiffs. However, in order to obtain relief under section
18, the defendants against whom such relief is sought
must come within the definition of a "federal board,
commission or other tribunal" set out in paragraph
2(g) of the Federal Court Act (Hamilton (City of) v.
Hamilton Harbour Commissioners, [1972] 3 O.R. 61
(C.A.)). Although in principle, both the F.C.C. and
the F.D.R.B. are bodies which exercise jurisdiction or
powers conferred by an Act of Parliament and, there
fore, appear to fall under the Federal Court's jurisdic
tion, the Court must examine the particular circum
stances of a case before making such a
determination.
In the case of Canada Metal Co. Ltd. et al. v.
Canadian Broadcasting Corp. et al. (No. 2) (1975),
11 O.R. (2d) 167 (C.A.), MacKinnon J.A., writing
for a unanimous Ontario Court of Appeal, held that
the Canadian Broadcasting Corporation, a body
which exercises powers conferred by an Act of Par
liament, is not a "federal board, commission or other
tribunal", within the meaning of paragraph 2(g) of
the Federal Court Act, when it is carrying on the bus
iness of broadcasting. The Court established that a
corporate entity carrying on its business purpose and
having, in such circumstances, none of the attributes
of a federal board, commission or tribunal, does not
fall within the definition set out in paragraph 2(g).
In Wilcox v. Canadian Broadcasting Corporation,
[1980] 1 F.C. 326 (T.D.), Thurlow A.C.J. (as he then
was) examined the Federal Court's jurisdiction in
light of an application for a declaration against the
C.B.C. In that decision, Mr. Justice Thurlow held that
the expression contained in paragraph 2(g) does not
include the private powers exercisable by an ordinary
corporation created under a federal statute which are
merely incidents of its legal personality or its author
ized business.
This interpretation was later applied by the Federal
Court of Appeal in Aeric, Inc. v. Chairman of the
Board of Directors, Canada Post Corporation,
[1985] 1 F.C. 127 (C.A.) and by Rouleau J. in
Toronto Independent Dance Enterprise v. Canada
Council, [1989] 3 F.C. 516 (T.D.). In the latter case,
Rouleau J. was called upon to consider whether the
Canada Council, as a public body created by an Act
of Parliament and distributing government funds,
should be subject to a duty of fairness to the potential
recipients of these funds. In arriving at the conclusion
that the Federal Court did not have jurisdiction as the
Canada Council was not a "board, commission or
other tribunal" within the meaning of paragraph 2(g)
of the Federal Court Act, my brother Rouleau (at
page 525) considered factors such as the absence of
government control over the Council's allocation of
funds and the absolute discretion granted to the
Council in developing its own standards and proce
dures in order to carry out its mandate. He also added
that "Creation by government and distribution of
public funds is not by itself determinative".
Decisions regarding the most commercially sound
compromise arrangement to be reached with a client
or the most appropriate remedy to be exercised
against a borrower whose loan payments are in
arrears are made by the F.C.C. in the course of its
authorized business, that is, commercial lending. In
such circumstances, the F.C.C. has none of the attrib
utes of a "federal board, commission or tribunal", as
all commercial lenders are required to make precisely
these determinations. The government in no way
controls the criteria to be used by the F.C.C. in deter-
mining who should benefit from specific compromise
arrangements or concessions. In addition, the Farm
Credit Act grants absolute discretion to the F.C.C. in
developing its own standards in order to carry out its
mandate (see specifically sections 11, 20, 25, 34 and
40).
The plaintiffs are asking this Court to review the
private powers of the F.C.C. which are incidents of
its authorized business of commercial lending. Fol
lowing the Wilcox decision, this Court does not have
jurisdiction to entertain either the plaintiffs' present
motion or its principal action against the defendants
since, in these circumstances, the F.C.C. does not fall
within the definition of a "federal board, commission
or other tribunal" contained in paragraph 2(g) of the
Federal Court Act.
With respect to the F.D.R.B., the circumstances
surrounding its involvement in these matters also
make it impossible to characterize this organization
as a "federal board, commission or other tribunal"
falling within the scope of paragraph 2(g). The
F.D.R.B. has no access to or control over the F.D.R.
Fund. It exercises no authority over decisions made
by the F.C.C. In fact, other than its authority to
extend or terminate a stay of proceedings by creditors
pursuant to sections 26 and 29 of the F.D.R. Act
(which is not at issue here), the F.D.R.B. has no deci-
sion-making power whatsoever. With regards to its
involvement with the plaintiffs in this case, the
F.D.R.B. was only called upon to mediate negotia
tions between the F.C.C. and its financially distressed
farm clients. In my opinion, a board, which acts only
as a mediator and which has no decision-making
authority, is not a "board, commission or other tribu
nal" within the meaning of the Federal Court Act.
Accordingly, this Court also lacks jurisdiction to
entertain an application for relief against the
F.D.R.B.
Conclusion:
Although Rule 401 was intended to deal with ques
tions involving the Court's jurisdiction and Rule
419(1)(a) was meant to deal with whether there exists
a reasonable cause of action assuming that the matter
falls within the Court's jurisdiction, a failure to set
forth the correct Rule does not defeat the substance
of the motion (Concept Omega Corp. v. Logiciels
KLM Ltée (1987), 15 C.LP.R. 312 (F.C.T.D.)). As
this Court does not have the jurisdiction to grant the
relief sought by the plaintiffs in these circumstances,
I must grant the defendants' motion to strike, and dis
miss the plaintiffs' motion as well as its action
against the defendants, with costs.
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