Date: 20030506
Docket: T-192-98
Neutral citation: 2003 FCT 562
BETWEEN:
RADIL BROS. FISHING CO. LTD.
Plaintiff
- and -
HER MAJESTY THE QUEEN,
as represented by the DIRECTOR GENERAL
OF THE DEPARTMENT OF FISHERIES
AND OCEANS, PACIFIC REGION, and
BRITISH COLUMBIA PACKERS LIMITED
AND TITAN FISHING LTD.
Defendants
[1] These reasons arise out of the hearing at Vancouver on Monday, the 5th of May, 2003, of a motion brought on behalf of the Defendant, Her Majesty the Queen in Right of Canada, as represented by the Regional Director General of the Department of Fisheries and Oceans, Pacific Region, in the nature of an appeal of an order of Prothonotary John A. Hargrave, dated the 24th of January, 2003.
[2] On the appeal by way of motion, the Applicant seeks an order setting aside, striking out and summarily dismissing the Plaintiff's originating notice of motion filed the 4th of February, 1998, the amended statement of claim filed the 18th of December, 1998, and the further amended statement of claim filed the 30th of January, 2003. The Applicant also seeks costs of the motion.
[3] The Plaintiff, the respondent on the motion, seeks dismissal of the motion with costs on a solicitor and client basis.
[4] The Defendants British Columbia Packers Limited and Titan Fishing Ltd. filed no materials on the appeal by way of motion, and did not appear on the hearing of the motion.
[5] Prothonotary Hargrave, who acts as case management prothonotary in respect of this proceeding, provided extensive reasons in support of his order that is under appeal. Those reasons analyse the issues that were before him in light of the rather complex and extended history of the proceeding. He concluded his reasons in the following terms:
The argument and material presented on this motion, which consisted of submissions, written argument, documentary material and case material, on behalf of the Plaintiff, DFO and Titan Fishing Ltd. was of a very substantial length and volume. Much of it was interesting. However, considering it all in the context of striking out the Amended Statement of Claim and the proposed 2001 Statement of Claim, much of it was either irrelevant, or not persuasively on point, or of little weight in convincing me that all of the 2001 Statement of Claim, or even all of the proposed amendments resulting in a 2001 Statement of Claim, ought to be struck out. In the result, the Plaintiff may file a further amended statement of claim, that is the 2001 Statement of Claim, edited so as to remove paragraphs 39, 40 and 41.
[6] The Plaintiff filed its further amended statement of claim, in response to the foregoing, that being the further amended statement of claim filed the 30th of January, 2003.
[7] In reasons following the hearing of another appeal from a prothonotary acting as case management judge, Remo Imports Ltd. v. Jaguar Cars Ltd.[1], I wrote at paragraphs 11 to 13:
[11] In Sawridge Band v. Canada, Justice Rothstein, for the Court, wrote at paragraph 11 of the Court's reasons:
We would take this opportunity to state the position of this Court on appeals from orders of case management judges. Case management judges must be given latitude to manage cases. This Court will interfere only in the clearest case of a misuse of judicial discretion.
[12] In further reasons issued contemporaneously with the reasons from which the foregoing quote is extracted, Justice Rothstein, once again for the Court, and by reference to the reasons from which the foregoing quotation is drawn, wrote at paragraph [4]:
Questions of joinder and severance are quintessential subject matters of case management. Such questions are to be decided by the exercise of discretion by a case management judge familiar with the proceedings. On appeal, a court would interfere with such decisions only where there is demonstrated a clear misuse of judicial discretion. ...
[citation omitted]
[13] I extended the same principles to the role of case management prothonotaries and to the relationship between case management prothonotaries and judges of the Trial Division of this Court sitting on appeal from their decisions. At pages 16 and 17 of the cited report of my reasons, [Microfibres Inc. v. Annabel Canada Inc. (2001), 16 C.P.R. (4th) 12], I wrote:
Case Management prothonotaries, like Case Management judges, are familiar with the proceedings that they are managing to a degree that a trial judge, sitting on appeal from a prothonotary's discretionary decision in such a context, usually cannot be.
While some may have regarded such an "extension" as superfluous since "case management judge" id defined in Rule 2 of the Federal Court Rules, 1998 to include a case management prothonotary, I did not share that view since Justice Rothstein was writing for the Court of Appeal and appeals from case management prothonotaries are taken to a judge of the Trial Division and not to the Court of Appeal.
[citation omitted]
[8] At the close of hearing of the appeal before me, I indicated to counsel that I would adopt the same position on this appeal and dismiss the appeal. Prothonotary Hargrave's reasons issued following an extensive hearing before him. I am satisfied, having reviewed those reasons in detail in the light of the arguments presented before me, that they are comprehensive and sound, incorporating as they do, a firm grasp of the rather extended and complex history of this proceeding and, as well, a clear and correct understanding of the applicable law. Following the hearing before me, I found no basis whatsoever, considering the matter de novo as I am required to do[2], to reach a conclusion different from that reached by Prothonotary Hargrave. I further indicated to counsel that I would adopt the reasons of Prothonotary Hargrave as my own and I now do so.
[9] In the result, an order will go dismissing the appeal by way of motion that was before me in this matter. The Plaintiff, respondent on the appeal by way of motion before me, is entitled to its costs as against the Defendant, Her Majesty the Queen, as represented by the Director General of the Department of Fisheries and Oceans, Pacific Region, such costs to be determined on the ordinary scale and to be payable in any event of the cause. I find no special circumstances that would justify costs on a solicitor and client scale, as sought on behalf of the Plaintiff.
[10] There will be no order as to costs for or against the Defendants British Columbia Packers Limited and Titan Fishing Ltd.
(Sgd.) "Frederick E. Gibson"
Judge
Vancouver, B.C.
May 6, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-192-98
STYLE OF CAUSE: RADIL BROS. FISHING CO. LTD. v.
HER MAJESTY THE QUEEN et al.
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: May 5, 2003
REASONS FOR ORDER: GIBSON J.
DATED: May 6, 2003
APPEARANCES:
Mr. J. Raymond Pollard FOR PLAINTIFF
Mr. Paul F. Partridge FOR DEFENDANT HMTQ
SOLICITORS OF RECORD:
Richards Buell Sutton FOR PLAINTIFF
Vancouver, B.C.
Morris Rosenberg FOR DEFENDANT HMTQ
Deputy Attorney General of Canada
Mr. David Brown FOR DEFENDANTS
Stikeman, Elliott British Columbia Packers
Vancouver, B.C. Limited and Titan Fishing Ltd.
[1] [2003] F.C.J. 93, (Q.L.), (T.D.); notice of appeal filed February 3, 2003, Court file A-65-03.
[2] Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.).