PRACTICE |
Pearson v. Canada
T-290-99
2001 FCT 692, Hansen J.
21/6/01
18 pp.
Special circumstances--Motion for order to proceed with hearing of motion to strike statement of claim; motion to strike statement of defence--At time of filing statement of claim (alleging plaintiff deprived of fair trial before Quebec Superior Court by defendant's failure to disclose material documents) matters deemed directly relevant to plaintiff's claim in action still before Quebec courts--By order dated April 12, 1999 action stayed until Quebec Court proceedings concluded--On August 16, 1999 Richard A.C.J. expressly dismissing plaintiff's appeal therefrom in view of considerable overlap between issue herein and criminal proceeding, but silent as to defendant's motion to strike--On receipt of plaintiff's affidavit swearing no more proceedings before Quebec courts involving criminal issues, and no intention to apply to Supreme Court of Canada concerning any decision involving criminal proceedings, Teitelbaum J. lifting any previous stays on December 20, 1999--Defendant filing statement of defence, but on learning plaintiff reinstituted proceedings in Quebec courts, filed motion for order to stay action--Action stayed, but that order set aside--Motion to strike statement of claim dismissed; motion to strike statement of defence adjourned sine die--Defendant now seeking order to proceed with hearing of motion to strike statement of claim--Motion dismissed--August 16, 1999 order not adjourning defendant's motion to strike sine die--At that premature stage would have been prejudicial to plaintiff for Court to entertain motion to strike statement of claim when issues at heart of matter under review by another court--Order can only be interpreted to have given life to intention explained in reasons to postpone hearing proceeding to determine merit of statement of claim until Quebec courts concluded deliberations--Teitelbaum J.'s order merely confirms defendant's continuing right to bring motion to strike statement of claim--Plaintiff's reply to defendant's motion herein submitting, in bringing forward motion to strike statement of claim, defendant continuing to advance identical issues previously denied, in blatant abuse of Court's process--Although Court agreeing with plaintiff's observation defendant unable to extricate herself from orders issued, Court noting multifarious procedural manoeuvres by both parties compromised efficient administration of justice, to detriment of both parties--In these circumstances, to decide matter on basis of arguments as to validity of motion to strike would constitute triumph of form over substance--Circuitous, convoluted course of events in this matter constituting situation of nature contemplated by sort of "special circumstances" in which Court may exercise jurisdiction pursuant to Federal Court Rules, 1998, r. 55--R. 55 permitting Court to dispense with compliance with rule on motion by party--Moving party must demonstrate special circumstances--That order requested would do justice in circumstances and not prejudice party implicit in concept of special circumstances: Chow v. Canada (Minister of Citizenship and Immigration) (1998), 161 F.T.R. 156 (F.C.T.D.)--Stays granted because proceedings relevant to merits of statement of claim under adjudication in other courts--Incongruous to suggest Court's orders should be construed to prevent prejudice to statement of claim, by deferring motion to strike until matters before other courts resolved, but at same time to prejudice defendant by precluding right to challenge statement of claim's validity once Quebec Court rendering decision--August 16 order must have been intended to preserve defendant's right to move to strike statement of claim--Further justification for allowing motion to strike statement of claim found in existence of "special circumstances"--In Speedo Knitting Mills Pty., Ltd. v. Christina Canada Inc. (1985), 3 C.P.R. (3d) 360 (F.C.T.D.) plaintiff contesting defendant's right to bring motion and Court noting general principle should not be series of motions with respect to given pleading, but sufficient special circumstances therein to justify hearing of present motion which should not be dismissed on procedural grounds--Plaintiff relying on Horii v. Canada, [2000] F.C.J. No. 1712 (T.D.) (QL) in support of argument defendant should not be able to bring motion to strike statement of claim--But Horii distinguishable in that no special circumstances therein justifying further attack on pleadings, but in present case, fact Quebec courts concluded deliberations with respect to plaintiff's criminal matters constituting relevant and material change in circumstances--Having regard to passage of time, change in circumstances, staleness of record, fact defendant never having opportunity to argue motion on merits, and in interest of doing justice between parties, preferable to have matter heard with fresh record--Federal Court Rules, 1998, SOR/98-106, r. 55.