Excise Tax Act ( Canada ) ( Re )
T-1419-97
Hargrave P.
17/11/98
9 pp.
Motion for order extending time within which to serve statement of claim seeking return of pick-up truck seized by Crown-Statement of claim 15 months old-Not served as result of counsel's oversight-Plaintiff unaware of oversight until after time for service expired-Always intended to proceed with action, but preoccupied with criminal proceedings brought against him by Crown-Acquitted of criminal charges in March 1998-Crown appealing acquittal-Under Federal Court Rules in force when issued, statement of claim should have been served by August 1, 1998-Crown, as defendant, not having vested substantive right to have motion determined under former Rules-Application of Federal Court Rules, 1998 doing no injustice-Present rule for service, r. 203, requiring service within 60 days-Present r. 8 allowing extension of time, but not specifying factors to be considered-That drafters of new Rules omitted requirement plaintiff show "sufficient reason" in order to obtain extension of time within which to serve statement of claim clearly seems to allow exercise of discretion going beyond that circumscribed in May & Baker (Canada) Ltd. v. The Oak, [1979] 1 F.C. 401 (C.A.)-Under new rule, extension of time for service of statement of claim similar to other time extensions-Necessary to look at whether continuing intention to pursue claim, what evidence might be as to arguable case-Arguable case implied from initial acquittal on criminal charges-Plaintiff need not show certain case, or more likely than not to succeed-Need show merely arguable case-Neither element of prejudice by surprise nor any other variety of prejudice not compensable by costs-Refusal to renew would do obvious injustice to plaintiff-Failure to serve not due to any neglect, oversight by plaintiff himself-Federal Court Rules, 1998, SOR/98-106, rr. 8, 203-Federal Court Rules, C.R.C., c. 663, R. 306.