Federal Court - Christian Aboriginal Infrastructure Developments ...
Federal Court - Christian Aboriginal Infrastructure Developments ... Federal Court - Christian Aboriginal Infrastructure Developments ...
Page: 364 b. It is submitted that the venturers have continued these proceedings in the comfort that, as the plaintiffs are broke, they can run up the costs of this action. c. This Court should be hesitant to permit litigants to act in this manner. d. A finding of partnership will act as a deterrent for other likeminded “joint venturers”. [1364] These reasons for requesting a finding of partnership do not relate to the liability or a 2010 FC 495 (CanLII) defence from the causes of action, nor is it a finding that is necessary for costs. As there is no requirement to make such a finding, I decline to do so. [1365] It appears on the face of the Defendant’s argument that this finding is sought so that she could seek recovery for the anticipated costs of this action, from the other alleged partners, in a separate cause of action. The authority to recover a debt against another partner arises from the Partnership and Business Names Act, R.S.Y. 2002, c. 166. However, that will be a private action between two private parties and is a question properly for the Courts of Yukon. There is no jurisdiction for this Court to make such a finding. [1366] As well, the Defendant is asking the court to find a partnership among four separate legal personalities. The consequence of a finding of partnership brings with it significant legal obligations, and potentially severe consequences. It is for that reason that a determination of partnership relies primarily on the intention of the alleged partners; see Perreault v. Churchill, [1994] Y.J. No. 121 (S.C.)(Q.L.).
Page: 365 [1367] However, two of the four alleged partners are not parties to this action. The absence of two parties supports my decision to decline to answer this question. [1368] That is not to say that the Court cannot award costs against non-parties. It can do so on the basis of its inherent jurisdiction of the Court to prevent an abuse of process; see Richardson International Ltd. v. Ship Mys Chikhacheva et al. (2002), 220 F.T.R. 81 (T.D.) and Lower 2010 FC 495 (CanLII) Similkameem Indian Band v. Allison et al. (1995), 99 F.T.R. 305 (T.D.), both decisions of the late Prothonotary Hargrave. However, such an order does not require a finding of partnership. It is simply not necessary to make a finding that has such serious and far-reaching effects without the benefit of hearing from the other parties and in the correct forum, in order to protect the rights of the litigants in this proceeding. [1369] In summary on this point, I will make one comment about this request from the Crown. It is clear from all of the evidence that the alleged partners include LPL, SYFC, 18232 Yukon Inc. and KFR. It is also clear that the Crown “pushed” KFR into the joint venture. It is shocking to me that at this juncture the Crown would seek a finding that would allow recovery against KFR under those circumstances and without an opportunity to present argument. 10. The Counterclaim [1370] The Defendant filed a Counterclaim on February 26, 2003 against the Plaintiff SYFC, advancing various claims relative to certain lands next to the Alaska Highway in the Yukon Territory, pursuant to a lease that was entered into on October 21, 1992 between the Defendant and
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Page: 364<br />
b. It is submitted that the venturers have continued these<br />
proceedings in the comfort that, as the plaintiffs are broke,<br />
they can run up the costs of this action.<br />
c. This <strong>Court</strong> should be hesitant to permit litigants to act in this<br />
manner.<br />
d. A finding of partnership will act as a deterrent for other likeminded<br />
“joint venturers”.<br />
[1364] These reasons for requesting a finding of partnership do not relate to the liability or a<br />
2010 FC 495 (CanLII)<br />
defence from the causes of action, nor is it a finding that is necessary for costs. As there is no<br />
requirement to make such a finding, I decline to do so.<br />
[1365] It appears on the face of the Defendant’s argument that this finding is sought so that she<br />
could seek recovery for the anticipated costs of this action, from the other alleged partners, in a<br />
separate cause of action. The authority to recover a debt against another partner arises from the<br />
Partnership and Business Names Act, R.S.Y. 2002, c. 166. However, that will be a private action<br />
between two private parties and is a question properly for the <strong>Court</strong>s of Yukon. There is no<br />
jurisdiction for this <strong>Court</strong> to make such a finding.<br />
[1366] As well, the Defendant is asking the court to find a partnership among four separate legal<br />
personalities. The consequence of a finding of partnership brings with it significant legal<br />
obligations, and potentially severe consequences. It is for that reason that a determination of<br />
partnership relies primarily on the intention of the alleged partners; see Perreault v. Churchill,<br />
[1994] Y.J. No. 121 (S.C.)(Q.L.).
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