PRACTICE |
Commencement of Proceedings |
Pfeiffer v. Canada (Superintendent of Bankruptcy)
A-695-02
2004 FCA 192, Desjardins J.A.
21/5/04
15 pp.
Appeal from Motions Judge's decision striking judicial review application on basis appellants had not filed affidavits in timely fashion according to Federal Court Rules, 1998, r. 306 and had joined two distinct orders in one application contrary to r. 302--Judicial review application in respect of respondents' decision to investigate appellants, issue conservatory measures--Application requested certain documents from respondents--When respondents refused to provide documents applicants filed motion for direction under r. 318 and for extension of time to file evidence--R. 318 motion adjourned sine die--Motions Judge rejected argument that since r. 318 motion pending, applicants relieved of obligation to file supporting affidavits--Motion to strike allowed on ground decision to investigate distinct from decision to issue conservatory measures and should not have been joined in one application--Although no specific ruling on r. 306 motion, implicitly rejected by granting motion to strike--Obligation on appellants under r. 306 independent from that imposed on respondents by r. 318--Obligation under r. 306 not conditional on fulfilment of obligation under r. 318--If necessary for applicant to obtain documents from board prior to filing of affidavits, motion requesting extension of time must detail reasons why such fulfilment necessary-- Appellants' motion devoid of reasons indicating link between requested documents and evidence supporting notice of application so as to justify delay in filing necessary affidavits --However, since appellants given two documents at hearing of motion, Motions Judge should have extended time for filing affidavits so as to allow appellants to examine documents--As to alleged violation under r. 302, conservatory measures not necessarily pronounced in course of every investigation, but pronounced for protection of estate which presupposes assets in state of danger--Under r. 302, application for judicial review limited to single order in respect of which relief sought --Two applications should therefore have been filed-- Remedy in case of violation of r. 302 not granting of motion to quash but extension of time to file two judicial review applications in replacement of one filed earlier--As to use by respondents of r. 221, r. 221 in Part 4 of Rules-- According to r. 169, Part 4 applies to all proceedings not applications or appeals--R. 221 should therefore not have been used in circumstances of this case--Even though in exceptional circumstances there is jurisdiction to dismiss notice of application in summary manner if so clearly improper as to be bereft of any possibility of success, such not case herein-- Motion under r. 58 more appropriate--R. 56 providing non-compliance with any rule not rendering proceeding void-- Appeal allowed--Federal Court Rules, 1998, SOR/98-106, rr. 56, 58, 169, 221, 302, 306, 318.