[1] This is an appeal from an Order made by Madam Justice Tremblay-Lamer on May 7, 2002 whereby she granted the respondent's motion to quash the appellant's statement of claim on the basis that no reasonable cause of action for the claim of $13,250,000.00, plus punitive damages, was disclosed. The reasons for judgment are cited as 2002 FCT 518 and reported at [2002] F.C.J. No. 672.

[2] We fully agree with the learned Motions Judge that the respondent's alleged failure to follow the Treasury Board Secretariat's "Policy on Claims and Ex Gratia Payments" was not in and by itself sufficient to engage Her liability.

[3] The appeal should be dismissed with costs. In the circumstances, considering particularly the amount claimed and the futility of the appeal, the Court is of the view that costs should be assessed at the upper end of Column III of Tariff B and that a lump sum of $3,000.00, inclusive of disbursements, should be paid in lieu of assessed costs by the appellant to the respondent.

"Robert Décary"

J.A.

"I agree.

M. Nadon, J.A."

"I agree.

B. Malone, J.A."

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-249-02

STYLE OF CAUSE: Stephen M. Byer v. Her Majesty the Queen in Right of Canada

PLACE OF HEARING: Ottawa, Ontario

DATE OF HEARING: November 5, 2002

REASONS FOR JUDGMENT BY: Décary J.A.

CONCURRED IN BY: Nadon J.A.

Malone J.A.

DATED: November 8, 2002

APPEARANCES:

Mr. Stephen M. Byer ON HIS OWN BEHALF

Mr. Daniel Latulippe FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mr. Stephen M. Byer

Verdun, Quebec ON HIS OWN BEHALF

Mr. Morris Rosenberg

Deputy Attorney General of Canada FOR THE RESPONDENT

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