PRACTICE |
Pleadings |
Motion to Strike |
Sauve v. Canada
T-70-02
2002 FCT 721, Lemieux J.
2/7/02
9 pp.
Statement of claim virtually identical in terms of material facts, cause of action, relief sought, to statement of claim filed in 1997 and dismissed for delay under Federal Court Rules, 1998, r. 382--After notice of status review because more than 360 days elapsed since filing of statement of claim and no requisition for pre-trial conference filed, Dubé J. ordering plaintiff to file reply to statement of defence within 20 days, and to pursue action in accordance with Rules--Second notice of status review issued--Action dismissed for delay--Court of Appeal upholding that decision--Motion allowed-- Striking out pleading (r. 221) part of Federal Court Rules, 1998 as are case management rules (rr. 380 to 391)--Case law establishing following parameters of doctrine of abuse of process: (1) flexible doctrine, not limited to any set number of categories; (2) purpose is public policy purpose used to bar proceedings inconsistent with purpose; (3) application depends on circumstances and is fact, context driven; (4) aim to protect litigants from abusive, vexatious, frivolous proceedings or otherwise prevent miscarriage of justice; (5) particular scheme of rules of court may provide special setting for application--Applying those principles, notwithstanding that plaintiff's case not adjudicated on merits, refiling of statement of claim after dismissal under case management rules constituting abuse of process--Plaintiff given every reasonable opportunity to advance case on merits, including opportunity to do so by order of Dubé J., but violated order resulting in dismissal of first action--To allow plaintiff to proceed with second action which is simply mirror of first action would make mockery of case management rules--Federal Court Rules, 1998, SOR/98-106, rr. 221, 382.