PRACTICE |
Froom v. Canada
T-2040-01
2002 FCT 461, Gibson J.
24/4/02
7 pp.
Directions--Motion to quash "order", "order or directions", "directions" of prothonotary granting leave to defendants to bring motion to strike action--Request for direction asking Court to select date for hearing argument on two motions-- Neither referring to nor requesting leave to bring motions-- Wording of direction capable of two interpretations: direction granting leave as well as fixing return dates, filing dates; or simply granting leave to have motions heard on particular day and fixing hearing date--Only latter interpretation consistent with request--Only interpretation consistent with context that reference to leave in direction referring only to hearing date, not to leave to bring motions themselves--(1) Plaintiff arguing party cannot file motion to strike when in default under Rules--R. 8(1) permitting Court, on motion, to extend, abridge period provided by Rules--R. 8(2) permitting motion for extension of time to be brought before or after end of period sought to be extended--Nothing in r. 8 indicating that until such extension obtained, no further step can be taken-- Such interpretation inconsistent with r. 3, requiring interpretation, application of Rules so as to secure just, most expeditious, least expensive determination of every proceeding on its merits--Clearly where party in default, as here, in filing statement of defence, and also anxious to challenge validity of document instituting proceeding, most expeditious, least expensive method of proceeding to determination on merits, to join together motion to strike, and in alternative, motion for extension of time--(2) Plaintiff submitting direction made on basis of letter without any formal opportunity for submissions--Procedure consistent with r. 35, permitting informal request for special hearing dates to Judicial Administrator--Again r. 3 relied upon, as well as standard practice of Court for Judicial Administrator to informally delegate to individual who will be hearing motion responsibility for fixing date convenient to parties and to self--Direction clearly discretionary power of Court--(3) Plaintiff questioning prothonotary' s authority to issue such directions--R. 47 permitting Court to exercise discretionary power of own initiative--Court including prothonotary--(4) Plaintiff raising issue of prothonotary's jurisdiction where liberty interest at stake--R. 50(1)(f) permitting prothonotary to make necessary orders relating to any motion other than motion relating to liberty of person--Speaking only to motions, resulting orders by prothonotary--Here dealing not with motion, order, but with direction in proper sense of that term, given in response to informal request--Directions of Court neither orders, nor judgments, but guiding instructions for taking procedural steps--Even if dealing with order, liberty interest of person that might be at issue so remote as not to invoke exception to prothonotary's authority provided in r. 50(1)(f)--Motion dismissed--Federal Court Rules, 1998, SOR/98-106, rr. 3, 8, 35, 47, 50(1)(f).