PRACTICE |
Appeals and New Trials |
Vaughan v. Canada
T-133-99
McGillis J.
10/3/00
15 pp.
Motion to transfer appeal of prothonotary's order to Court of Appeal--Prothonotary striking out statement of claim--Registry refusing to accept notice of appeal for filing in Court of Appeal on basis Federal Court Rules, 1998, r. 51 permitting prothonotary's order to be appealed only to Trial Division--Plaintiff brought motion under r. 51 to appeal prothonotary's decision to Trial Division, together with motion to transfer appeal to Court of Appeal on basis prothonotary's order striking out statement of claim "final judgment" within Federal Court Act, s. 27(1)(a) from which appeal lying directly to Court of Appeal--Historical development of office of prothonotary reviewed--1970 Federal Court Act, s. 12(3) providing powers, duties, functions of prothonotaries determined by Rules--S. 46(1)(h) permitting judges to make rules concerning prothonotaries' jurisdiction--Former Federal Court Rules, R. 336(5) permitting appeal from prothonotary's order to Trial Division if matter in Trial Division and to Court of Appeal if matter in Court of Appeal--1985 Federal Court Act, s. 46(1) permitting rules committee to make general rules, orders--Federal Court Rules, 1998 subordinate legislation, cannot prevail over any provision in Act of Parliament--Given Act, ss. 12(3), 46(1)(h), Rules created framework governing jurisdiction to be exercised by prothonotaries--R. 50(1)(b) expressly prohibiting prothonotaries from hearing motions in Court of Appeal--R. 51 permitting party to appeal prothonotary's order to Trial Division--Under existing legislative scheme in context of historical development, prothonotaries judicial officers whose assistance necessary for efficient performance of Court's work, and whose powers, duties, functions determined by Rules--By virtue of Act, ss. 12(3), 46(1)(h) prothonotaries' jurisdiction defined, circumscribed by Rules--S. 46(1)(h) clearly requiring exercise of authority, jurisdiction by prothonotary must be "subject to supervision of Court"--In conformity with legislative mandate to prescribe not only jurisdiction but also method of supervision of prothonotaries by Court, Federal Court Rules, 1998, rr. 50, 51 enacted--In providing party may appeal prothonotary's order to judge of Trial Division, r. 51(1) constituting "supervision of Court" required by s. 46(1)(h)--In making r. 51(1), rules committee determining, in conformity with s. 46(1)(b), (h) desirable for effectual execution, working of Federal Court Act, attainment of intention, objects to require prothonotaries to be supervised initially on appeal by judges of Trial Division--That first level of appeal or supervision not derogating from right of party to appeal further to Court of Appeal under s. 27(1)--In circumstances, final or interlocutory order of prothonotary not becoming final or interlocutory order of Trial Division, for purposes of appeal to Court of Appeal under s. 27(1), until Trial Division rendering order on appeal of prothonotary's order under r. 51(1)--Alternatively final or interlocutory order of prothonotary not appealable directly to Court of Appeal under s. 27(1) on basis not final or interlocutory order of Trial Division--Prothonotaries not judges, and by virtue of Federal Court Act, ss. 4, 5 not members of either Trial Division or Court of Appeal--As result, prothonotary's order not final order or interlocutory order of Trial Division--Appeal not lying directly to Court of Appeal from prothonotary's order--R. 49 permitting only proceeding commenced in one division of Court to be transferred to other division--"Proceeding" used in context of actions, appeals, applications, all of which commenced by issuance of originating document--"Motion" defined as request to Court under, or to enforce, Rules--Motion therefore not proceeding, but request to Court within context of proceeding--By virtue of r. 51(1), prothonotary's order only appealable by way of motion to judge of Trial Division--Since such motion not proceeding, no jurisdiction to transfer it to Court of Appeal--Motion dismissed--Federal Court Act, R.S.C., 1985, c. F-7, ss. 4, 5, 27(1)(a)--Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 12(3), 46(1)(b), (h)--Federal Court Rules, 1998, SOR/98-106, rr. 49, 50, 51--Federal Court Rules, C.R.C., c. 663, R. 336.