Adventure Tours Inc. v. St. John's Port Authority, 2011 FCA 198

• Judge: Blais, C.J., Dawson and Stratas, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: September 23, 2010
• Jurisdiction: Canada (Federal)
• Citations: 2011 FCA 198;(2011), 420 N.R. 149 (FCA)

Adventure Tours Inc. v. Port Authority (2011), 420 N.R. 149 (FCA)

MLB headnote and full text

Temp. Cite: [2011] N.R. TBEd. JL.018

St. John's Port Authority (appellant) v. Adventure Tours Inc. (respondent)

(A-307-09; 2011 FCA 198)

Indexed As: Adventure Tours Inc. v. St. John's Port Authority

Federal Court of Appeal

Blais, C.J., Dawson and Stratas, JJ.A.

June 10, 2011.

Summary:

The plaintiff's action sought damages for the tort of abuse of public office by the defendant port authority. The defendant moved to strike almost all of the statement of claim.

A Prothonotary of the Federal Court denied the motion. The defendant appealed.

The Federal Court, in a decision reported at [2009] F.T.R. Uned. 440, dismissed the appeal. The defendant appealed.

The Federal Court allowed the appeal, striking the statement of claim with leave to file a fresh statement of claim.

Practice - Topic 1989

Pleadings - Particulars - Particulars of particular matters - Misfeasance in or abuse of public office - The plaintiff's action sought damages for the tort of abuse of public office by the defendant port authority - The Federal Court of Appeal struck the plaintiff's statement of claim, with leave to file a fresh statement of claim, for failing to plead as material facts the identities of the individuals whose actions were said to constitute an abuse of public office - The court also noted that the statement of claim did not plead all of the elements of the tort, particularly the mental state, knowledge and intentions of the defendant - The statement of claim had to identify each action by the defendant that was alleged to constitute the tort and plead, with all necessary material and facts and particularity, each essential element of the tort - There might be a way to group certain actions together or to raise a pattern of conduct, but the requirements of all necessary material facts and particularity still had to be met - See paragraphs 27 to 37.

Practice - Topic 1989

Pleadings - Particulars - Particulars of particular matters - Misfeasance in or abuse of public office - The plaintiff's action sought damages for the tort of abuse of public office by the defendant port authority - The Federal Court of Appeal struck the plaintiff's statement of claim, with leave to file a fresh statement of claim, for failing to plead as material facts the identities of the individuals whose actions were said to constitute an abuse of public office - The court agreed with the defendant's position that, while the tort could lie against a corporate entity, where the tort was alleged against a corporate entity, the pleadings had to identify and attribute such conduct to an individual or natural person whose conduct was that of the corporate entity - See paragraphs 38 to 42.

Practice - Topic 1989

Pleadings - Particulars - Particulars of particular matters - Misfeasance in or abuse of public office - The plaintiff's action sought damages for the tort of abuse of public office - The Federal Court of Appeal struck the plaintiff's statement of claim, with leave to file a fresh statement of claim, for failing to plead as material facts the identities of the individuals whose actions were said to constitute an abuse of public office - The court rejected the plaintiff's assertion that the tort of abuse of public office, when committed by a corporate entity, did not require proof that a particular person associated with the corporate entity had committed acts or had a particular mental state - The court was bound by its decision in Merchant Law Group et al. v. Canada Revenue Agency et al. (2010) - Merchant was not "manifestly wrong", as asserted by the plaintiff - The court cited additional authorities on point and noted that it made sense that the particular public officer engaging in the conduct had to be pled - Corporate entities and public authorities were artificial entities - To the extent that they acted or had mental states, they had those through individuals - This did not place too great a burden on plaintiffs who were attempting to plead the tort - The price of admission to documentary and oral discoveries was the service and filing of an adequately particularized pleading that asserted all of the essential elements of a viable cause of action - See paragraphs 43 to 64.

Practice - Topic 2230.3

Pleadings - Striking out pleadings - Grounds - Failure to plead material facts - [See all Practice - Topic 1989 ].

Cases Noticed:

Merchant Law Group et al. v. Canada Revenue Agency et al. (2010), 405 N.R. 160; 2010 FCA 184, folld. [para. 4].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 6].

Miller v. Canada (Attorney General) (2002), 293 N.R. 391; 220 D.L.R.(4th) 149; 2002 FCA 370, refd to. [para. 7].

A.L. et al. v. Ontario (Minister of Community and Social Services) (2006), 218 O.A.C. 150; 83 O.R.(3d) 512 (C.A.), refd to. [para. 24].

O'Dwyer v. Ontario Racing Commission (2008), 238 O.A.C. 364; 293 D.L.R.(4th) 559 (C.A.), refd to. [para. 24].

Three Rivers District Council et al. v. Bank of England, [2001] 2 All E.R. 513; 257 N.R. 1 (H.L.), refd to. [para. 48].

Longley v. Minister of National Revenue (2000), 138 B.C.A.C. 17; 226 W.A.C. 17; 2000 BCCA 241, affing. (1999), 19 B.C.T.C. 81; 99 D.T.C. 5549 (S.C.), refd to. [para. 50].

Price v. British Columbia, [2001] B.C.T.C. 1494; 2001 BCSC 1494, refd to. [para. 51].

B.K. Tree Services Ltd. v. British Columbia Hydro & Power Authority, [2002] B.C.T.C. 1432; 2002 BCSC 1432, refd to. [para. 51].

Barbour v. University of British Columbia, [2006] B.C.T.C. Uned. C54; 2006 BCSC 1897, refd to. [para. 52].

Jones v. Swansea City Council, [1990] 3 All E.R. 737; 132 N.R. 81 (H.L.), reving. [1989] 3 All E.R. 162 (C.A.), refd to. [para. 53].

Lennard's Carrying Co. v. Asiatic Petroleum Co., [1915] A.C. 705 (H.L.), refd to. [para. 54].

Bolton (H.L.) Engineering Co. v. Graham (T.J.) & Sons Ltd., [1957] 1 Q.B. 159 (C.A.), refd to. [para. 55].

R. v. Canadian Dredge & Dock Co. et al., [1985] 1 S.C.R. 662; 59 N.R. 241; 9 O.A.C. 321, refd to. [para. 56].

Ship Rhone v. Ship Peter A.B. Widener et al., [1993] 1 S.C.R. 497; 148 N.R. 349, refd to. [para. 57].

Counsel:

Jamie M. Smith, for the appellant;

Douglas Lutz, for the respondent.

Solicitors of Record:

Smith Law Offices, St. John's, Newfoundland and Labrador, for the appellant;

McInnes Cooper, Halifax, Nova Scotia, for the respondent.

This appeal was heard on September 23, 2010, at St. John's, Newfoundland and Labrador, by Blais, C.J., Dawson and Stratas, JJ.A., of the Federal Court of Appeal. On June 10, 2011, Stratas, J.A., at Ottawa, Ontario, delivered the following judgment for the court.