PRACTICE |
Judgments and orders |
Summary Judgment |
D.E. Rodwell Investigative Services Ltd. v. Enoch Cree Nation Indian Band
T-2191-01, T-2192-01
Hargrave P.
24/4/03
3 pp.
Motion for removal of action from simplified action rules, pursuant to Federal Court Rules, 1998, r. 298(3); for summary judgment dismissing each action, pursuant to r. 213(2)-- Removal from ambit of simplified action rules depends upon circumstances, discretionary--Only motions which are either basic to the action, or essential to allow action to proceed, or matters which clearly cannot wait for pre-trial conference or hearing of action should be entertained before pre-trial conference--Application for r. 213 summary judgment denied --Leaving aside r. 297 that no motion for summary judgment may be brought in simplified action, present motions to remove action from operation of simplified action rules not for purpose essential in order to allow to proceed, especially when dismissal based upon time bar--Time bar generally procedural tool which party may elect to use at later date-- May also be answer to defence of time bar--Test is that there be no genuine issue for trial--However, summary judgment ought not to be granted where necessary facts cannot be established--Application of principles set out in Granville Shipping Co. v. Pegassus Lines Ltd., [1996] 2 F.C. 853 (T.D.)--Here, facts for and against time bar in dispute--Both motions denied--Federal Court Rules, 1998, SOR/98-106, rr. 213, 297, 298.