T-1806-96
B E T W E E N:
BASANT SINGH BRAR through his
litigation guardian DAYAL KAUR BRAR
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
GILES, A.S.P.:
The motion requesting reconsideration now before me, raises a matter about which my practice may be of general interest. I am therefore issuing somewhat longer reasons.
| 1. The Statement of Claim was filed on August 2nd, 1996. The relief sought was two writs of mandamus and the usual request for such other relief as the Court might deem just. |
| 2. On September 17th, 1996, the Defendant filed a Notice of Motion seeking an order striking out the Statement of Claim. On the Notice of Motion filed there is an admission of service by the Plaintiff's solicitor dated September 16th, 1996. The Defendant's Memorandum of Fact and Law was filed on the same day. |
| 3. The Notice of Motion indicated that it was filed pursuant to Rule 324, which is the Rule permitting motion to be dealt with without personal appearance. |
| 4. On October 22nd, 1996, no representation having been received from the Plaintiff, I dealt with the Defendant's motion by striking the claim and dismissing the action. |
| 5. On January 10th, 1997, the Plaintiff moved for time to apply for reconsideration of my order and for reconsideration. |
In the affidavit in support of the motion for reconsideration, it is indicated that the Plaintiff responding to the motion to strike attempted to file a response on October 30th, 1996, and found that the motion had been dealt with and that the action had been dismissed over a week earlier.
One of the reasons given by Plaintiff's counsel for failing to attempt to file the responding material sooner, was that no time was mentioned within which to file responding material. The Rules do not indicate when a response may be filed, nor they indicate that a moving party may set a time before which a response must be filed. Rule 324(4) provides, that no motion shall be disposed of under that Rule until the Court is satisfied that all interested parties have had a reasonable opportunity to make representations.
In my view, what would be a reasonable time in a given case, would depend, inter alia, on the manner in which the Notice of Motion was served. If the Notice of Motion was to be served by mail, I presume the responding party might not receive the Notice of Motion for 10 days. If the motion was served by mail, I view that as an invitation to file the responding submissions by mail, which I also presume might take 10 days to reach the Registry.
Where, as in this case, service is made by hand on the party's solicitor, I assume the response would also be filed by hand delivery to the Registry after service and that no appreciable time need be allowed for these transmissions.
Some regard must also be given to the probable complication of preparing a response, and the possibility that time will be necessary to obtain affidavit evidence.
In this case, the only matter to be considered was a question of law, namely, the jurisdiction of this Court to entertain an action for mandamus against the Crown. I would consider 10 days or 2 weeks a sufficient time to prepare a response in this case. When the file was before me for consideration, 5 weeks had been available for the preparation and filing of a response, I considered that to provide a reasonable opportunity to make representations. Because of circumstances explained, the Plaintiff's counsel did not attempt to respond until 6 weeks had past. It is my view, that in a case where it is not possible to respond in 2 weeks after service, the responding party should notify the Registry of the party's intention to respond and indicate why a response will be delayed and for how long.
The Motion for reconsideration is brought under Rule 337(5) which reads as follows:
| (5) Within 10 days of the pronouncement of judgment under paragraph (2)(a), or such further time as the Court may allow, either before or after the expiration of that time, either party may move the Court, as constituted at the time of the pronouncement, to reconsider the terms of the pronouncement, on one or both of the following grounds, and no others: |
| (a) that the pronouncement does not accord with the reasons, if any, that may have been given therefor; |
| (b) that some matter that should have been dealt with has been overlooked or accidentally omitted. |
In this case, no response having been filed, I gave no reasons for striking the Statement of Claim, which no doubt, could be presumed to have been done for the reasons set out in the written submissions of the Crown. Presumed reasons, do not constitute reasons within the meaning of 337(5)(a). 337(5)(a) therefore does not apply. I must now consider what matter should have been dealt with, which has been overlooked or accidentally omitted. In his submissions, counsel for the Plaintiff indicates, that I proceeded in October without the benefit of considering the Memorandum of Fact and Law submitted by the Plaintiff. In my view, I could not overlook a Memorandum which was not before me. 337(5)(b) therefore is also not available to permit reconsideration.
I believe therefore that reconsideration is not available under Rule 337(5). I considered also Rule 1733, not argued, and concluded it was inapplicable. I considered also the possible applicability of Rule 330(b). Labrie v. Uniformes Town & Country Inc., [1992] 141 N.R. 159 (F.C.A.), is authority for the proposition that Rule 330 does not apply to final judgments, but only to orders. In this case, the decision in question was an order. It resulted from an interlocutory motion, but ended in an order which finally disposed of the action. The reasoning of the Court of Appeal does not indicate that the decision was based on any underlying principle, but rather on the precise wording of the Rule. Décary J.A. said at p. 160 "It is clear that the rule applies to orders made on applications and motions. It does not apply to final judgments." Here, we have an order made on motion and I consider Rule 330 could have been considered if argued. I consider that an order given in the absence of a party can only be rescinded at the instance of that party, if that party excuses all of the delays and also shows that an arguable case within the jurisdiction of the Court exists.
Here, there was delay in tendering the response for filing and more than two months delay in moving for reconsideration, both of which should have been addressed. The matter of jurisdiction was raised by the Crown in the original motion to strike, and has been responded to by the Plaintiff in his submissions in support of this motion.
The Plaintiff points out that Federal Court Act ss. 17(1) and (5) give this Court jurisdiction to give relief against the Crown. No doubt this is so, but the only relief sought here is mandamus. Federal Court Act s. 18(1)(a) gives the Trial Division exclusive original jurisdiction to issue a writ of mandamus. Section 18(3) provides that the remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under s. 18.1.
An application for judicial review under s. 18.1 is made by an application or originating notice of motion, not by an action commenced by a Statement of Claim. In the light of the very precise wording of s. 18(3) and the fact that Federal Court is a statutory court without jurisdiction to act without statutory authority, there is no possible chance that an action can succeed when it is started by a Statement of Claim and seeks only writs of mandamus.
Therefore, if I am right, and Rule 330 might be properly considered, it cannot be applied in this case to set aside my order.
ORDER
Motion for reconsideration dismissed.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
February 14, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1806-96
STYLE OF CAUSE: BASANT SINGH BRAR through his
litigation guardian DAYAL KAUR BRAR
- and -
HER MAJESTY THE QUEEN
CONSIDERED AT TORONTO, ONTARIO UNDER THE PROVISION OF RULE 324.
REASONS FOR ORDER
AND ORDER BY: GILES, A.S.P.
DATED: FEBRUARY 14, 1997
SOLICITORS OF RECORD:
Mukesh Bhardwaj
BHARDWAJ & GOSWAMI
Barristers and Solicitors
602 Wilson Avenue
Suite 210
Toronto, Ontario
M3K 1Z3
Solicitor for the Plaintiff
Kathryn Hucal
George Thomson
Deputy Attorney General
of Canada
For the Defendant
FEDERAL COURT OF CANADA
Court No. T-1806-96
Between:
BASANT SINGH BRAR through his
litigation guardian DAYAL KAUR BRAR
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER & ORDER