PRACTICE |
Pleadings |
Motion to Strike |
Phui v. Canada (Minister of Citizenship and Immigration)
IMM-1474-02
2002 FCT 791, Hargrave P.
15/7/02
4 pp.
Motion pursuant to Federal Court Rules, 1998, r. 399(1)(b) to set aside order striking out judicial review proceeding-- Judicial review proceeding struck as respondent had raised very substantial case ought to be struck, also applicant did not contest motion to strike--Applicant's counsel now presenting evidence file had been lost or misplaced by new staff in counsel's office--Principle that party must not be deprived of rights on account of error of counsel where possible to rectify consequences of such error without injustice to opposing party: Bowen v. City of Montreal, [1979] 1 S.C.R. 511-- Before application struck, must be shown to be doomed due to incurable defect: Bonspille v. Mohawk Council of Kanesatake, T-824-02, 2002 FCT 659--Motion allowed-- Court not prepared to let stand order to strike out application without giving counsel for applicant opportunity to fully contest motion--Applicant ought not, in circumstances herein, to be prejudiced by reason of confusion in office of counsel for applicant, but ought now be allowed to put forward best case to show why application ought not to be struck out--Federal Court Rules, 1998, SOR/98-106, r. 399(1)(b).