PRACTICE |
Pleadings |
Motion to Strike |
Tremblay v. Canada
T-541-02
2002 FCT 1072, Morneau P.
1/11/02
12 p.
Motion under Federal Court Rules, 1998, r. 221(1)(a) to strike out plaintiff's amended statement of claim and dismissal of action on ground statement of claim disclosing no reasonable cause of action--Plaintiff identified triggering factor in action, his retirement, and source or cause of event, namely, provisions of Queen's Regulations and Orders for Canadian Forces (QR & O) dealing with mandatory age of retirement--First, defendants argue plaintiff's action out of time at date of filing, given expiration of six-month period stipulated in National Defence Act, s. 269(1)--Crown cannot avail itself of limitation period in s. 269(1) when sued directly, and, herein Crown Liability and Proceedings Act, s. 24(a) not available to allow Crown to benefit indirectly from limitation period in s. 269(1)--Statement of claim not indicating in any way that Crown is being sued for fault committed by one of its officials--First ground of motion to strike cannot succeed, therefore, as merit not established plainly, obviously--Second, defendants argue plaintiff should have presented conclusions seeking declarations of inoperability and reinstatement in context of application for judicial review, not as action-- Claims for declarations of inoperability directed against statutory provisions, therefore against Crown--But, Crown not "federal board, commission or other tribunal"--Initial remedies plaintiff must obtain, declarations of inoperability, could be obtained in circumstances by way of action-- Damages sought by plaintiff could be obtained only through action--Defendants' motion to strike therefore not receivable, since neither ground for striking out can be allowed under applicable test on motion to strike under r. 221(1)(a)--Motion dismissed--Federal Court Rules, 1998, SOR/98-106, r. 221(1)(a)--Queen's Regulations and Orders for the Canadian Forces (1994 Revision)--National Defence Act, R.S.C., 1985, c. N-5 (as am. by S.C. 1990, c. 8, s. 20), s. 269(1)--Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50, s. 24 (am. by S.C. 1990, c. 8, s. 30; 2001, c. 4, s. 48).