T-1029-76
Clifford Burnell (Plaintiff)
v.
The International Joint Commission (Defendant)
Trial Division, Mahoney J.—Ottawa, June 3,
1976.
Practice—Defendant moving for leave to file conditional
appearance and for stay in order to object to jurisdiction—
Counsel for defendant not prepared to proceed with question of
jurisdiction—Appearance required in another Court—Order of
Court peremptorily setting hearing—Admonition of Court.
MOTION.
COUNSEL:
F. J. McDonald and C. A. Murphy for
plaintiff.
E. Binavince for defendant.
SOLICITORS:
Hewitt, Hewitt, Nesbitt, Reid, McDonald &
Tierney, Ottawa, for plaintiff.
Gowling & Henderson, Ottawa, for
defendant.
The following are the reasons for order ren
dered in English by
MAHONEY J.: The defendant filed a notice of
motion, returnable June 3, 1976, for leave to file a
conditional appearance and a stay of proceedings
under Rule 401, for the purpose of permitting it to
object to the jurisdiction of the Court. The defend
ant's counsel was not prepared to proceed to deal
with the question of jurisdiction, having an obliga
tion in another court conflicting with the presenta
tion of his motion in this Court at a time chosen by
himself.
An applicant for leave to file a conditional
appearance ought, when his motion is returned, as
a matter of course, to be prepared to deal with the
substance of the basis upon which such leave is
sought unless there are very good reasons for not
doing so or unless there is agreement on another
arrangement. If the applicant and respondent are
in accord on another arrangement, there is no
reason why that cannot be dealt with under Rule
324. Otherwise, a proliferation of motions with
concomitant costs will be the result.
There was no good reason, in this case, for not
proceeding to deal with the substance of the chal
lenge to this Court's jurisdiction; neither was there
agreement, on the plaintiff's part, not to proceed.
Plaintiff's counsel was prepared to proceed. The
fact remains that the notice of motion was limited
to the matters of leave for filing a conditional
appearance and a stay of proceedings.
ORDER
The defendant has leave to file a conditional
appearance and proceedings are stayed pending
disposition of its objection to the jurisdiction of
this Court to entertain this action. That objection
is peremptorily set down for hearing before the
judge of this Court sitting in Chambers in Ottawa
on Tuesday, June 22, 1976, at 10:30 a.m.
The plaintiff is entitled to its costs of the
application, which are fixed at $200, in lieu of
taxation, payable forthwith.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.