Ainsworth Lumber Co. v. Canada (Attorney General) et al., (2003) 181 B.C.A.C. 256 (CA)

• Judge: Donald, Low and Thackray, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 19, 2003
• Jurisdiction: British Columbia
• Citations: (2003), 181 B.C.A.C. 256 (CA);2003 BCCA 239

Ainsworth Lumber v. Can. (A.G.) (2003), 181 B.C.A.C. 256 (CA);

    298 W.A.C. 256

MLB headnote and full text

Temp. Cite: [2003] B.C.A.C. TBEd. AP.061

Ainsworth Lumber Co. Ltd. (respondent/plaintiff) v. The Attorney General of Canada and Paul Martin (appellants/defendants)

(CA029212)

Ainsworth Lumber Co. Ltd. (appellant/plaintiff) v. The Attorney General of Canada and Paul Martin (respondents/defendants)

(CA029217)

(2003 BCCA 239)

Indexed As: Ainsworth Lumber Co. v. Canada (Attorney General) et al.

British Columbia Court of Appeal

Donald, Low and Thackray, JJ.A.

April 23, 2003.

Summary:

The plaintiff bid on, was awarded and be­gan a certain construction project in the belief that it would qualify for a special investment tax credit. Before construction, the federal Minister of Finance had an­nounced the discontinuance of the tax credit, but with a transition period which the plain­tiff believed applied to it. After con­struction, the government bill used a differ­ent wording than previously announced, resulting in the plaintiff's dis­qualification for the transitional relief. The plaintiff sued the government and the fed­eral Minister in the B.C. courts for dam­ages for negligent mis­representation. Meanwhile, the plaintiff's claim to the tax credit was disallowed. It appealed to the Tax Court. The defendants applied for a tempo­rary stay of the B.C. proceedings pending determination of the litigation in the Tax Court.

The British Columbia Supreme Court, in a decision reported at [2000] B.C.T.C. 694, dismissed the application for a stay of the B.C. action. The court found that the de­fen­dants would not be prejudiced in their ability to defend the B.C. action or the Tax Court action. The two actions were not determina­tive of the same matter. Further, the parties in the two actions were not the same. The added costs involved in having the two actions was not per se an abuse of process. The result in the Tax Court action would only affect the possible damages in the B.C. action. The Tax Court was not an appropri­ate forum to determine the plain­tiff's dam­ages dispute. Therefore, the pro­ceedings were not "parallel". The plaintiff would suffer a juridical disadvantage of not having its claims resolved if the B.C. action was stayed. The defendants appealed, with leave.

The British Columbia Court of Appeal, in a decision reported in 149 B.C.A.C. 263; 244 W.A.C. 263, allowed the appeal and stayed the B.C. action until a decision was rendered by the Tax Court.

The defendants applied to strike the plain­tiff's amended statement of claim under rules 19(24)(a) and 19(24)(b). The plaintiff ap­plied to strike the statement of defence of the defendant federal Minister on the ground that he failed, without lawful excuse, to attend for his examination for discovery. Alternatively, the plaintiff sought to have the action continue as if the defendant Minister had filed no statement of defence.

The British Columbia Supreme Court dis­missed the defendants' application to strike the pleadings. The defendants ap­pealed.

The British Columbia Supreme Court also dis­missed the plaintiff's application to strike the statement of defence. The plaintiff ap­pealed. The appeals were heard together.

The British Columbia Court of Appeal dismissed the defendants' appeal, but allowed the plaintiff's appeal and remitted the matter to the Chambers judge to exercise his discretion under rule 2(5)(g).

Editor's Note: For other related cases, see [2000] B.C.A.C. Uned. 226, and [2001] B.C.T.C. 225.

Crown - Topic 2207

Crown privilege or prerogative - General - Parliamentary privilege - The British Columbia­ Court of Appeal held that a Parlia­mentarian could claim parliamentary privi­lege to justify not obeying a subpoena to attend as a witness in court only while Parliament was in session - The court rejected the notion that the privilege extended to periods of 40 days before and after the end of each session of Parliament - The court held that the Parliamentarian ought not to claim the privilege unless he or she was actually engaged in parliamen­tary work on the date of return of the subpoena or ap­pointment - The member should take up the matter with the Speaker of the House - See paragraphs 41 to 68.

Crown - Topic 2207

Crown privilege or prerogative - General - Parliamentary privilege - The plaintiff sued, among others, the federal Minister of Finance - The Minister, claiming Parlia­mentary privilege as a lawful excuse, failed to appear for his examination for discovery on January 12, 2001 - The 36th Parliament had dissolved on October 22, 2000 - The Minister was re-elected fol­lowing a general election later that year - On January 29, 2001, the first session of the 37th Parlia­ment opened - The Minis­ter's counsel received the appointment date well before December 22, 2000 but did not claim the privilege until well after Decem­ber 19, 2000 - The British Columbia Court of Appeal held that the privilege claimed by the Minister was not available to him on January 12, 2001 - See para­graphs 21 to 69.

Cases Noticed:

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321; 74 D.L.R.(4th) 321, refd to. [para. 12].

New Brunswick Broadcasting Co. and Canadian Broadcasting Corp. v. Speaker of the House of Assembly (N.S.) et al. (1993), 146 N.R. 161; 118 N.S.R.(2d) 181; 327 A.P.R. 181 (S.C.C.), consd. [para. 47].

R. v. Boulton (1852), 9 U.C.R. 146, consd. [para. 48].

Cox v. Prior (1899), 18 Ont. Pr. Rep. 492, consd. [para. 63].

Lewis v. Mullally (1953), The Times, refd to. [para. 66].

Statutes Noticed:

Rules of Court (B.C.), Supreme Court Rules, rule 2(5)(g) [para. 21]; rule 19(24) [para. 5].

Authors and Works Noticed:

Bourinot, J.G., Parliamentary Procedure and Practice in the Dominion of Canada (4th Ed. 1916), pp. 45, 46 [para. 59].

Dawson, Robert MacGregor, The Govern­ment of Canada (6th Ed. 1987), p. 115 [para. 60].

Halsbury's Laws of England (1997) (4th Ed. - Reissue), vol. 34, p. 561, para. 1013 [para. 53].

Maingot, Joseph, P., Parliamentary Privi­lege in Canada (1982), pp. 128 [para. 49]; 131 [paras. 46, 50]; 134 [para. 51]; 136 [para. 52]; 137 [para. 46].

Marleau, Robert, and Montpetit, Camille, House of Commons Procedure and Prac­tice (1st Ed. 2000), p. 79 [para. 61].

May, Thomas Erskine, Treatise on the Law, Privileges, Proceedings and Usage of Parliament (21st Ed. 1989), generally [para. 53].

United Kingdom, House of Commons Debates (1953-54), pp. 957, 958 [para. 65].

Counsel:

M. Ciavaglia and S. Pereira, for the appel­lants;

M. Storrow, Q.C., and D. Neave, for the respondent.

These appeals were heard before Donald, Low and Thackray, JJ.A., of the British Columbia Court of Appeal, at Vancouver, British Columbia, on February 19, 2003. The decision of the court was delivered on April 23, 2003, by Low, J.A.