[1993] 1 F.C. 32
A-345-91
Her Majesty the Queen (Appellant) (Defendant)
v.
Clifford Robert Olson (Respondent) (Plaintiff)
Indexed as: Olson v. Canada (C.A.)
Court of Appeal, MacGuigan, Létourneau and Robertson JJ.A.—Ottawa, October 27 and 28, 1992.
Practice — Motions disposed of in writing — Appeal from Trial Judge’s order dismissing application to strike out statement of claim without personal appearance under R. 324 and ordering oral hearing — Reasoning in case between same parties misunderstood by Trial Judge — Irrelevant to issue in case at bar — R. 324 motion within discretion of Court or prothonotary if considers it expedient — Both parties must be heard by personal appearance or by paper — Purpose of R. 324 explained — Trial Judge not implicitly considering it expedient to require oral hearing — Appeal allowed.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Rules, C.R.C., c. 663, R. 324.
CASES JUDICIALLY CONSIDERED
APPLIED:
Enviro-Clear Co. v. Baker International (Canada) Ltd., [1987] 3 F.C. 268 (1987), 13 F.T.R. 244 (T.D.); Hawker Industries Ltd. v. Santa Maria Shipowning and Trading Co., S.A., [1978] 1 F.C. 617 (1977), 17 N.R. 349 (C.A.).
DISTINGUISHED:
Olson v. The Queen, T-2603-89, Strayer J., order dated 12/10/90, F.C.T.D., not yet reported.
APPEAL from an order (rendered orally, dated 15/2/91, T-2487-90) dismissing an application to strike out the statement of claim without personal appearance under Rule 324 and ordering that the application be disposed of by an oral hearing. Appeal allowed.
COUNSEL:
John B. Edmond for appellant (defendant).
Fergus J. O’Connor for respondent (plaintiff).
SOLICITORS:
Deputy Attorney General of Canada for appellant (defendant).
Fergus J. O’Connor, Kingston, for respondent (plaintiff).
The following are the reasons for judgment rendered in English by
MacGuigan J.A.: This is an appeal from an interlocutory order by which the Trial Judge denied the appellant’s application to strike out the respondent’s statement of claim without personal appearance under Rule 324 [Federal Court Rules, C.R.C., c. 663] and ordered that the application be disposed of by an oral hearing.
The Trial Judge’s whole reason for his decision is as follows (Amended Appeal Book at page 111):
It is HEREBY ORDERED that, for the same reasons as given by Strayer J. in Clifford Robert Olson v. Her Majesty The Queen in Right of Canada, Court No. T-2603-89, on October 12, 1990, this application be disposed of by an oral hearing at which the plaintiff shall be represented by counsel.
In Olson v. The Queen, Strayer J. held as follows [at page 2], T-2603-89, October 12, 1990 [not yet reported]:
The determination of an application on the basis of the written record pursuant to Rule 324 is a procedure not available unless the applicant so agrees.
This is an obviously correct reading of Rule 324(1), which provides as follows:
Rule 324.(1) A motion on behalf of any party may, if the party, by letter addressed to the Registry, so requests, and if the Court or a prothonotary, as the case may be, considers it expedient, be disposed of without personal appearance of that party or an attorney or solicitor on his behalf and upon consideration of such representations as are submitted in writing on his behalf or of a consent executed by each other party.
However, in my view the Trial Judge in the case at bar has completely misunderstood Strayer J.’s holding. It is the applicant on the application for a Rule 324 procedure who must agree to it, not an applicant on a judicial review proceedings (or a plaintiff) though in that case both were the same party (hence the superficial ambiguity). Strayer J.’s impeccable reasoning is thus wholly irrelevant to the issue in the case at bar.
I am also unable to agree with the respondent’s argument that a respondent on a Rule 324 motion has a right of veto over it. Rule 324(1) explicitly provides that a motion to dispense with an oral hearing is in the discretion of the Court or prothonotary if he “considers it expedient”. In my view that governs even when the motion may result in a final judgment. Literally, it is true, as the respondent argued, that Rule 324(1) applies the Court’s discretion to the personal appearance “of that party”, i.e., of the applicant on the motion. But one cannot sever the issue of a “paper hearing” for the applicant from the same question in relation to the respondent. The hearing must be by personal appearance for both parties or by paper for both. Except with the express consent of the applicant, as was theoretically contemplated by Giles A.S.P. in Enviro-Clear Co. v. Baker International (Canada) Ltd., [1987] 3 F.C. 268(T.D.), it would be unfair to a Rule 324 applicant to order that only the respondent should be heard orally. Whatever the wishes of the parties, the discretion of the Court must govern — save for the exception noted by Strayer J. that such a motion must have a proposer.
The obiter dictum of Jackett C.J. in Hawker Industries Ltd. v. Santa Maria Shipowning and Trading Co., S.A., [1978] 1 F.C. 617(C.A.) at page 621 that “an order cannot be made against the ‘opposing party’ based on the submissions in writing, if he exercises his option (Rule 324(3)) for an ‘oral hearing’” must be read as subject to the discretion of the court as provided for by Rule 324(1). Otherwise, Rule 324 would not fulfil the objective set out for it by Jackett C.J. in the same obiter dictum (at page 620):
[T]he provision in Rule 324 for motions in writing serves the very useful purpose of enabling interlocutory work of the Court to be dealt with more expeditiously and with much less expenditure of public money than would otherwise be the case. It is also, I believe, in many instances, more economical from the point of view of the parties.
Since the Trial Judge chose not to give any other reason for his decision, we find ourselves unable to hold that it is implicit in the reasons given by the Trial Judge that he considered it expedient in all the circumstances to require an oral hearing.
The appeal must be allowed with costs, the order of the Trial Division dated February 15, 1991, set aside, and the matter referred back to the Trial Division for determination on the basis that the Court is to consider whether it is expedient to dispose of the application under Rule 324.
Létourneau J.A.: I concur.
Robertson J.A.: I concur.