Committee for Monetary and Economic Reform et al. v. Canada et al., (2014) 453 F.T.R. 160 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: December 10, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2014), 453 F.T.R. 160 (FC);2014 FC 380

Com. for Monetary & Economic Reform v. Can. (2014), 453 F.T.R. 160 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. JL.057

Committee for Monetary and Economic Reform ("COMER"), William Krehm, and Ann Emmett (plaintiffs) v. Her Majesty the Queen, The Minister of Finance, The Minister of National Revenue, The Bank of Canada and The Attorney General of Canada (defendants)

(T-2010-11; 2014 FC 380; 2014 CF 380)

Indexed As: Committee for Monetary and Economic Reform et al. v. Canada et al.

Federal Court

Russell, J.

April 24, 2014.

Summary:

The plaintiffs brought a proposed class action alleging that the defendants had acted in ways that were unlawful, unconstitutional and tortious in their handling of monetary and budgetary policy and administration in Canada. The plaintiffs sought a number of declarations that the defendants were required by the Constitution and the Bank of Canada Act to take, or refrain from, certain actions relating to their handling of fiscal and monetary matters. They also sought a declaration that the defendants, along with certain international monetary and financial institutions, had "engaged in a conspiracy ... to render impotent the Bank Act, as well as Canadian sovereignty over financial, monetary, and socio-economic policy. On the basis of that alleged tortious conduct, Charter breaches, as well as alleged breaches of the Constitution, the plaintiffs also sought damages in the amount of $10,000 for each plaintiff and, should the action be certified as a class proceeding, $1 for "every Canadian citizen/resident". The defendants moved to strike the claim.

A Prothonotary of the Federal Court, in a decision reported at [2013] F.T.R. Uned. 571, struck the claim in its entirety, without leave to amend. The Prothonotary found, inter alia, that the claim was not justiciable. The plaintiffs appealed.

The Federal Court allowed the appeal in part. The court found that the allegations of breach of statute and constitutional obligations might be justiciable depending upon whether the plaintiffs could establish a reasonable cause of action through appropriate amendments. The court struck the claim in its entirety, but with leave to amend.

Banks and Banking - Topic 101

Interpretation of the Bank Act - General - [See Courts - Topic 2022 ].

Civil Rights - Topic 8589

Canadian Charter of Rights and Freedoms - Practice - Pleadings - The plaintiffs brought a proposed class action alleging that the defendants, Her Majesty the Queen, the Minister of Finance, the Minister of National Revenue, the Bank of Canada and the Attorney General of Canada, had acted in ways that were unlawful, unconstitutional and tortious in their handling of monetary and budgetary policy and administration in Canada - The plaintiffs sought a number of declarations as well as damages - A Prothonotary struck the claim - The plaintiffs appealed - With respect to the Charter claims, the Federal Court stated that "if the Plaintiffs say their ss. 7 and 15 Charter rights have been breached, then they must plead the facts as to what they have suffered and how it can be connected to alleged breaches by the Minister and the Bank. If they want to make assertions about 'all other Canadians,' then they need to plead the facts to support those assertions and allow the Defendants to understand what they need to plead in defence. ... the whole of paragraph 47 has to be struck because, as presently drafted, it is just not possible to understand how the individual Plaintiffs or 'all other Canadians' have been affected by the alleged breaches" - See paragraphs 78 to 81.

Courts - Topic 2022

Jurisdiction - Conditions precedent - Requirement of justiciable issue - The plaintiffs brought a proposed class action alleging that the defendants, Her Majesty the Queen, the Minister of Finance, the Minister of National Revenue, the Bank of Canada and the Attorney General of Canada, had acted in ways that were unlawful, unconstitutional and tortious in their handling of monetary and budgetary policy and administration in Canada - The plaintiffs sought declarations that the defendants were required by the Constitution and the Bank of Canada Act to take, or refrain from, certain actions relating to their handling of fiscal and monetary matters - They also sought a declaration that the defendants, along with certain international monetary and financial institutions, had "engaged in a conspiracy ... to render impotent the Bank Act, as well as Canadian sovereignty over financial, monetary, and socio-economic policy" - The plaintiffs also sought damages on the basis of that alleged tortious conduct, Charter breaches, as well as alleged breaches of the Constitution - A Prothonotary struck the claim - The Prothonotary found that the claim was not justiciable because it was too policy-laden - The plaintiffs appealed - The Federal Court found that the claim might be justiciable depending on whether the plaintiffs could establish a reasonable cause of action through appropriate amendments - In order to reach his conclusion on justiciability, the Prothonotary had decided that s. 18 of the Bank Act had to be read in a permissive way - The court stated that "Prothonotary Aalto felt that 'may' in s. 18 had an obvious literal meaning that could be dealt with on a motion to strike. My reason for differing from the Prothonotary on justiciability is that, in addition to breaches of the Bank Act, the Claim is also based upon other alleged constitutional breaches and, even if s. 18 of the Bank Act is permissive, this does not dispose of the allegations of improper handing-off to international institutions. 'May' is usually permissive, but it is not invariably so, and full legal argument on a full evidentiary record is required before the Court can decide what the Bank Act requires of the Government and those involved in applying and interpreting that statute" - The court struck the claim in its entirety, but with leave to amend - See paragraphs 69 to 76.

Courts - Topic 2583

Registrars and prothonotaries - Appeals from - Scope of review - A Prothonotary granted the defendants' motion to strike the plaintiffs' statement of claim in its entirety without leave to amend - The plaintiffs appealed - The Federal Court stated that "I am required to consider this matter de novo. That is, I am required to take a fresh look at the issues, affording no deference to the findings in the Decision being appealed from. That is because this is an appeal from an order of a Prothonotary on an issue (the striking of a claim) that is vital to the final determination of the case" - See paragraph 25.

Courts - Topic 4043

Federal Court of Canada - Jurisdiction - Federal Court - Declaratory relief - The plaintiffs brought a proposed class action alleging that the defendants, Her Majesty the Queen, the Minister of Finance, the Minister of National Revenue, the Bank of Canada and the Attorney General of Canada, had acted in ways that were unlawful, unconstitutional and tortious in their handling of monetary and budgetary policy and administration in Canada - The plaintiffs sought declarations that the defendants were required by the Constitution and the Bank of Canada Act to take, or refrain from, certain actions relating to their handling of fiscal and monetary matters - They also sought a declaration that the defendants, along with certain international monetary and financial institutions, had "engaged in a conspiracy ... to render impotent the Bank Act, as well as Canadian sovereignty over financial, monetary, and socio-economic policy" - The plaintiffs also sought damages on the basis of this alleged tortious conduct, Charter breaches, as well as alleged breaches of the Constitution - A Prothonotary struck the claim - The plaintiffs appealed - The Federal Court allowed the appeal in part - The court struck the claim, but with leave to amend - With respect to the issue of jurisdiction, the court stated that "in terms of the ITO principles, the Plaintiffs have yet to show a statutory grant of jurisdiction by the federal Parliament that the Court can entertain and rule on the Claim as presently constituted ... and they have yet to cite an existing body of federal law which is essential to the disposition of the case and which nourishes such a statutory grant of jurisdiction. The Plaintiffs do not have any specific rights under the legislation which they cite and they have provided no statutory or other framework for the exercise of any rights. They may be able to do these things with appropriate amendments to the pleadings. As yet, however, I cannot see how the Court acquires the jurisdiction to provide the declaratory relief that is sought" - See paragraphs 82 to 91.

Crown - Topic 1701

Torts by and against Crown - Actions against Crown for breach of statutory duty - General - [See Courts - Topic 2022 ].

Practice - Topic 213

Person who can sue and be sued - Individuals and corporations - Status or standing - Requirement of justiciable issue - [See Courts - Topic 2022 ].

Practice - Topic 221

Persons who can sue and be sued - Individuals and corporations - Status or standing - Public interest standing - [See Practice - Topic 229 ].

Practice - Topic 229

Persons who can sue or be sued - Individuals and corporations - Status or standing - Declaratory actions - The plaintiff, Committee for Monetary and Economic Reform (COMER), was an economic "think-tank" dedicated to research and publications on issues of monetary and economic reform in Canada - The individual plaintiffs were members of COMER - The plaintiffs brought a proposed class action alleging that the defendants, Her Majesty the Queen, the Minister of Finance, the Minister of National Revenue, the Bank of Canada and the Attorney General of Canada, had acted in ways that were unlawful, unconstitutional and tortious in their handling of monetary and budgetary policy and administration in Canada - The plaintiffs sought a number of declarations as well as damages - A Prothonotary struck the claim in its entirety, without leave to amend - The plaintiffs appealed - The Federal Court allowed the appeal in part - The court struck the claim, but with leave to amend - With respect to the issue of standing, the court stated that "It cannot be said on the present pleadings that the Plaintiffs have individual standing but, depending upon how the Claim is amended, it may be that the Plaintiffs can satisfy the criteria for private and/or public interest standing. The issue of standing should be left until the Plaintiffs have had an opportunity to file amendments and may be decided as part of any subsequent motion to strike by the Defendants, or disposed of with the merits of the case" - See paragraphs 92 to 98.

Practice - Topic 2213

Pleadings - Striking out pleadings - With leave to amend - [See Courts - Topic 2022 ].

Practice - Topic 2215

Pleadings - Striking out pleadings - Declaratory actions - [See Courts - Topic 2022 ].

Practice - Topic 2241

Pleadings - Striking out pleadings - Grounds - Lack of jurisdiction (incl. alternative remedy) - [See Courts - Topic 4043 ].

Statutes - Topic 2417

Interpretation - Interpretation of words and phrases - General principles - "May" and "shall" - [See Courts - Topic 2022 ].

Statutes - Topic 4985

Operation and effect - Enabling Acts - Power coupled with duty - Permissive power - "May" - General - [See Courts - Topic 2022 ].

Torts - Topic 5098

Interference with economic relations - Conspiracy - Pleading - [See Torts - Topic 9162 ].

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in or abuse of public office - The plaintiffs brought a proposed class action alleging that the defendants, Her Majesty the Queen, the Minister of Finance, the Minister of National Revenue, the Bank of Canada and the Attorney General of Canada, had acted in ways that were unlawful, unconstitutional and tortious in their handling of monetary and budgetary policy and administration in Canada - The plaintiffs sought a number of declarations as well as damages - A Prothonotary struck the claim in its entirety - Since the claim was found not to be justiciable, the Prothonotary found that leave to amend would not cure its defects, and should therefore not be granted - The plaintiffs appealed - The Federal Court stated, inter alia, that "As regards the tort claims of misfeasance in public office and conspiracy, I am entirely in agreement with what Prothonotary Aalto has to say on these matters. These aspects of the Claim should be struck. They are simply not pleaded in accordance with the rules that govern pleadings. However, because I am of the view that the Claim is justiciable, I think the Plaintiffs must be given an opportunity to amend this aspect of their Claim" - See paragraph 77.

Cases Noticed:

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 14].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 14].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2011] 3 S.C.R. 45; 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 14].

Adventure Tours Inc. v. St. John's Port Authority (2011), 420 N.R. 149; 2011 FCA 198, refd to. [para. 15].

Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396; 412 N.R. 149; 300 B.C.A.C. 120; 509 W.A.C. 120; 2011 SCC 12, refd to. [para. 17].

Canadian Egg Marketing Agency v. Pineview Poultry Products Ltd. et al., [1998] 3 S.C.R. 157; 231 N.R. 201; 223 A.R. 201; 183 W.A.C. 201, refd to. [para. 17].

Canadian Egg Marketing Agency v. Richardson - see Canadian Egg Marketing Agency v. Pineview Poultry Products Ltd. et al.

Blencoe v. Human Rights Commission (B.C.), [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 18].

Gosselin v. Quebec (Procureur général) (2002), 298 N.R. 1; 2002 SCC 84, refd to. [para. 18].

Friends of the Earth v. Canada (Governor-in-Council) et al., [2009] 3 F.C.R. 201; 336 F.T.R. 117; 2008 FC 1183, affd. (2009), 397 N.R. 293; 2009 FCA 297, refd to. [para. 21].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, refd to. [para. 22].

Reference Re Constitutional Question Act (B.C.), [1991] 2 S.C.R. 525; 127 N.R. 161; 1 B.C.A.C. 241; 1 W.A.C. 241; 83 D.L.R.(4th) 297, refd to. [para. 22].

Reference Re Canada Assistance Plan (B.C.) - see Reference Re Constitutional Question Act (B.C.).

Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425; 149 N.R. 273 (F.C.A.), refd to. [para. 25].

Merck & Co. et al. v. Apotex Inc., [2004] 2 F.C.R. 459; 315 N.R. 175; 2003 FCA 488, refd to. [para. 24].

Merck & Co. et al. v. Apotex Inc. et al. (2012), 408 F.T.R. 139; 2012 FC 454, refd to. [para. 25].

Apotex Inc. v. Bristol-Myers Squibb Co. et al. (2011), 414 N.R. 162; 2011 FCA 34, dist. [para. 25].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 25].

Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304, refd to. [para. 30].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161; 60 D.L.R.(4th) 609, refd to. [para. 30].

Dumont et al. v. Canada (Attorney General) and Manitoba (Attorney General), [1990] 1 S.C.R. 279; 105 N.R. 228; 65 Man.R.(2d) 182, refd to. [para. 30].

Trendsetter Developments Ltd. v. Ottawa Financial Corp. (1989), 32 O.A.C. 327 (C.A.), refd to. [para. 30].

Nash v. Ontario (1995), 27 O.R.(3d) 1 (C.A.), refd to. [para. 30].

Arsenault et al. v. Canada (2009), 395 N.R. 377; 2009 FCA 242, refd to. [para. 30].

Hanson v. Bank of Nova Scotia et al. (1994), 74 O.A.C. 145; 19 O.R.(3d) 142 (C.A.), refd to. [para. 30].

Adams-Smith v. Christian Horizons, [1997] O.T.C. Uned. 431; 14 C.P.C.(4th) 78 (Gen. Div.), refd to. [para. 30].

Miller v. Wiwchairyk et al. (1997), 34 O.T.C. 87; 34 O.R.(3d) 640 (Gen. Div.), refd to. [para. 30].

Belanger (R.D.) & Associates Ltd. et al. v. Stadium Corp. of Ontario Ltd. and Bitove Corp. (1991), 57 O.A.C. 81; 5 O.R.(3d) 778 (C.A.), refd to. [para. 30].

Dalex Co. v. Schwartz Levitsky Feldman (1994), 19 O.R.(3d) 463 (Gen. Div.), refd to. [para. 30].

S.G. v. J.C.-G. et al. (2001), 150 O.A.C. 305; 56 O.R.(3d) 215 (C.A.), refd to. [para. 30].

Toronto-Dominion Bank v. Deloitte Haskins & Sells (1991), 5 O.R.(3d) 417 (Gen. Div.), refd to. [para. 30].

Nova Scotia (Attorney General) v. Canada (Attorney General), [1951] S.C.R. 31, refd to. [para. 32].

Canada (Wheat Board) v. Hallet and Carey Ltd., [1951] S.C.R. 81, refd to. [para. 32].

Gray, Re (1918), 57 S.C.R. 150, refd to. [para. 32].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 32].

Ontario English Catholic Teachers' Association et al. v. Ontario (Attorney General) et al., [2001] 1 S.C.R. 470; 267 N.R. 10; 144 O.A.C. 1; 2001 SCC 15, refd to. [para. 33].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 34].

Air Canada v. British Columbia (Attorney General), [1986] 2 S.C.R. 539; 72 N.R. 135, refd to. [para. 34].

Khadr v. Prime Minister (Can.) et al., [2010] 1 S.C.R. 44; 397 N.R. 294; 2010 SCC 3, refd to. [para. 34].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 35].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 35].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 35].

Winner v. SMT (Eastern) Ltd., [1951] S.C.R. 887, refd to. [para. 36].

R. v. Turpin, Siddiqui and Clauzel, [1989] 1 S.C.R. 1296; 96 N.R. 115; 34 O.A.C. 115, refd to. [para. 36].

Anti-Inflation Act, Re, [1976] 2 S.C.R. 373; 9 N.R. 541, refd to. [para. 40].

Finlay v. Canada, [1986] 2 S.C.R. 607; 71 N.R. 338, refd to. [para. 40].

Edwards v. Canada (2000), 181 F.T.R. 219 (T.D.), refd to. [para. 43].

Collins v. Canada, [2011] D.T.C. 5076, refd to. [para. 44].

Simon v. Canada, [2011] D.T.C. 5016, refd to. [para. 44].

Spatling v. Canada (Solicitor General) et al., [2003] F.T.R. Uned. 279; 2003 CarswellNat 1013 (T.D.), refd to. [para. 44].

Larden v. Canada et al. (1998), 145 F.T.R. 140 (T.D.), refd to. [para. 44].

Sivak et al. v. Canada (Minister of Citizenship and Immigration) (2012), 406 F.T.R. 115; 2012 FC 272, refd to. [para. 46].

Carten et al. v. Canada et al. (2009), 358 F.T.R. 118; 2009 FC 1233 (Protho.), refd to. [para. 48].

Benaissa v. Canada (Attorney General), [2005] F.T.R. Uned. A68; 2005 FC 1220, refd to. [para. 49].

Odhavji Estate et al. v. Woodhouse et al. (2003), 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 50].

Leblanc et al. v. Canada et al. (2004), 256 F.T.R. 18; 2004 FC 774, refd to. [para. 50].

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425, refd to. [para. 52].

Holland v. Saskatchewan et al. (2008), 376 N.R. 316; 311 Sask.R. 197; 428 W.A.C. 197; 2008 SCC 42, refd to. [para. 52].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 57].

Boulter et al. v. Nova Scotia Power Inc. et al. (2009), 275 N.S.R.(2d) 214; 877 A.P.R. 214; 2009 NSCA 17, refd to. [para. 57].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 57].

Toussaint v. Canada (Attorney General) (2011), 420 N.R. 364; 2011 FCA 213, refd to. [para. 59].

Chiasson v. Canada (2003), 303 N.R. 54; 226 D.L.R.(4th) 351; 2003 FCA 155, refd to. [para. 60].

Chaudhary v. Canada (Attorney General) et al., [2010] O.T.C. Uned. 6092; 2010 ONSC 6092, refd to. [para. 60].

Archibald et al. v. Canada, [1997] 3 F.C. 335; 129 F.T.R. 81 (T.D.), refd to. [para. 61].

Public Service Alliance of Canada v. Canada, [1987] 1 S.C.R. 424; 75 N.R. 161, refd to. [para. 61].

Laboratoires Servier et al. v. Apotex Inc. et al., [2007] F.T.R. Uned. 833; 2007 FC 837, refd to. [para. 72].

Miida Electronics Inc. v. Mitsui O.S.K. Lines Ltd. and ITO-International Terminal Operators Ltd., [1986] 1 S.C.R. 752; 68 N.R. 241, refd to. [para. 87].

Rasmussen and S/LF Bordoyarvik v. Canadian Saltfish Corp., [1986] 2 F.C. 500; 68 N.R. 379 (F.C.A.), refd to. [para. 88].

Rasmussen v. Breau - see Rasmussen and S/LF Bordoyarvik v. Canadian Saltfish Corp.

Statutes Noticed:

Bank of Canada Act, R.S.C. 1985, c. B-2, sect. 18(i), sect. 18(j), sect. 18(n), sect. 24, sect. 30.1 [para. 26].

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 15(1), sect. 36 [para. 28].

Constitution Act, 1867, sect. 53, sect. 54, sect. 90, sect. 91 [para. 27].

Authors and Works Noticed:

Fridman, Gerald Henry Louis, Introduction to the Canadian Law of Torts (2nd Ed. 2003), ch. 22(4), p. 185 [para. 53].

Counsel:

Rocco Galati, for the plaintiffs;

Peter Hajecek, for the defendants.

Solicitors of Record:

Rocco Galati Law Firm Professional Corporation, Toronto, Ontario, for the plaintiffs;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the defendants.

This appeal was heard on December 10, 2013, at Toronto, Ontario, before Russell, J., of the Federal Court, who delivered the following decision on April 24, 2014.