Date: 20010621
Docket: T-290-99
Neutral Citation: 2001 FCT 692
BETWEEN:
EDWIN PEARSON
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
HANSEN J.
[1] This matter was commenced by Statement of Claim in the Federal Court of Canada, Trial Division on February 24, 1999. There has been no progress in the adjudication of the substantive issues, yet the matter has become procedurally complex, a fact to which the file's fifty six pages of recorded entries attests.
[2] Given this complexity, I will provide a brief procedural history of the facts as they pertain only to the matters currently before this Court, which are as follows: 1) the defendant's motion that the Court hear its motion to strike the plaintiff's Statement of Claim; 2) the defendant's motion to strike the Statement of Claim; and 3) the plaintiff's motion to strike the defendant's Statement of Defence in whole or in part. I will not delve into the numerous other procedural matters at issue in this case.
[3] At the time of filing the Statement of Claim, matters deemed directly relevant to the plaintiff's claim in this action were still before the Quebec Courts. Therefore, in reply to the Statement of Claim, the defendant brought a motion to strike the claim, to contest this Court's jurisdiction in the matter, and, inter alia, to stay the proceedings until the resolution of the matters before the Quebec Courts. This motion was heard by Giles A.S.P. on March 29, 1999, and resulted in an Order dated April 12, 1999. This Order is one of the Orders at the heart of the matter before me. It stays this action until such time as the Quebec Court proceedings have been concluded. The Order itself makes no specific reference to the defendant's motion to strike the plaintiff's Statement of Claim.
[4] However, because this matter is germane to the resolution of the motion now before this Court, the Court has consulted the transcript from the hearing before Giles A.S.P. on March 29, 1999. The relevant passages occur in the last minutes of the hearing when he is giving his decision, and reads as follows:
Now, as I say, what I read the claim to be is for damages for failure to produce evidence in Quebec. Now, there is no way that those damages can be assessed until we know what the final results in Quebec were. Any new evidence, anything of that kind has to be brought into the picture through the Quebec Courts, possibly by rehearing the original trial. Possibly it could be dealt with, I suppose by the Court of Appeal at some stage, or the Court of Appeal might refer it back to a new trial. I don't see how this Court could possibly deal with anything until the Quebec situation is finally completed one way or another.
(page 79, lines 12-26)
...
So, as I say, I am not making any decision at this stage as to in which court a damage action could be brought, I am merely saying it couldn't be brought now. So I am staying the one in this Court until such time as the Quebec proceedings have been finally terminated.
(page 80, lines 23-27)
[5] On April 20, 1999, the plaintiff filed a Notice of Motion returnable May 31, 1999, for an order setting aside the April 12, 1999 Order to stay the proceedings. The defendant also filed a Notice of Motion, which in some places on the record is characterized as an appeal of Giles A.S.P.'s Order, returnable for May 31, 1999; the defendant sought an order striking out the Statement of Claim, and other relief. The defendant's written submissions state as follows at paragraph 1 of the defendant's written representations, filed May 21, 1999:
1. This is an appeal of an order of a Prothonotary pursuant to Rule 51 of the Federal Court Rules, 1998.
[6] This appeal is shown on the "Summary of Recorded Entries" as written representations contained within a Motion Record. The Motion Record was filed on May 21, 1999; subsections 51(1) and 51(2) the Federal Court Rules, 1998, govern appeals of Prothonotaries' Orders as follows:
| 51. (1) An order of a prothonotary may be appealed by a motion to a judge of the Trial Division. Service of appeal 51(2) (2) Notice of a motion under subsection (1) shall be (a) served within 10 days after the day on which the order under appeal was made and at least four days before the day fixed for hearing the motion; and (b) filed not later than two days before the day fixed for the hearing of the motion. |
51. (1) L'ordonnance du protonotaire peut être portée en appel par voie de requête présentée à un juge de la Section de première instance. Signification de l'appel 51(2) (2) L'avis de la requête visée au paragraphe (1) est : a) signifié dans les 10 jours suivant la date de l'ordonnance visée par l'appel et au moins quatre jours avant la date prévue pour l'audition de la requête; |
|
| b) déposé au moins deux jours avant la date de l'audition de la requête. |
||
[7] I make reference to this matter and the relevant provisions, because there is confusion on the record as to whether the defendant brought the same motion to strike on this occasion, or whether the defendant actually appealed the Prothonotary's Order. The plaintiff submits that if the defendant was seeking an appeal of Giles A.S.P.'s Order, he had not met the requirements of the Rules in doing so, since his materials did not meet the time requirements.
[8] Notwithstanding these issues, Richard A.C.J. (as he then was), heard the matters on May 31, 1999 and reserved his decision in both matters. He later issued an Order dated August 16, 1999, with Reasons for Order. This Court concludes that notwithstanding the confusion as to the characterization of the defendant's motion heard on May 31, 1999, the Court, in its discretion, heard and thus admitted the defendant's Motion.
[9] Richard A.C.J.'s Order expressly addresses the plaintiff's appeal and is silent on the defendant's submissions. It states:
UPON an appeal by the plaintiff of an order of Mr. Peter A.K. Giles, Associate Senior Prothonotary, dated April 12, 1999, staying this action;
IT IS ORDERED THAT:
This appeal is dismissed.
[10] However, his Reasons for Order speak to both the plaintiff's motion appealing the Order to stay, and the defendant's submissions with respect to striking the plaintiff's claim. The Reasons for Order explain as follows:
[32] The ultimate issue is the plaintiff's claim that he was deprived of a fair trial before the Quebec Superior Court, contrary to section 11(d) of the Canadian Charter of Rights and Freedoms, by the defendant's failure to disclose material documents and by the suppression of search documents that were material and necessary to a fair trial on the issue of guilt or innocence.
[33] This issue was first raised by the plaintiff in his criminal prosecution before the Quebec courts and it is still pending before the Quebec courts and should first be determined by the Quebec Superior Court and the Quebec Court of Appeal.
[34] In view of the considerable overlap between the issue in this action and the criminal proceeding, an issue which may be resolved in the criminal proceeding, and in the view of the lack of prejudice to the plaintiff in staying the civil action, the action before this Court should be stayed, pending the completion of the criminal proceeding involving the plaintiff in the Quebec courts".
[11] At paragraphs 4 and 5 of these same Reasons for Order, after reviewing the plaintiff's appeal and before continuing to discuss the jurisprudence on stays, Richard A.C.J. adverts to the defendant's submissions as follows:
[4] The defendant also appealed the order of the Prothonotary requesting:
an Order setting aside the aspect of the order of Giles, A.S.P. which dismissed the Crown's motion to strike this action as an abuse of process
an Order striking out the Statement of Claim and dismissing this action as an abuse of process
[5] The defendant's motion to strike and dismiss was adjourned sine die pending disposition of the plaintiff's appeal.
[12] On November 23, 1999, the plaintiff filed a Notice of Motion returnable on November 29, 1999, seeking an order lifting the stay proceedings confirmed by Richard A.C.J. Lafrenière P. heard and dismissed this motion as follows:
The motion is dismissed, without prejudice to the Plaintiff's right to bring another motion upon final determination of his leave application and/or appeal to the Supreme Court of Canada, or the expiration of the time for so doing, whichever date is the latest.
[13] On December 8, 1999, the plaintiff filed a Notice of Motion returnable on December 20, 1999, seeking an order setting aside all Orders staying the proceedings in this matter; setting aside Lafrenière P.'s November 29, 1999 Order; and setting the matter down for trial. This motion was heard by Teitelbaum J.
[14] At that hearing, the plaintiff assured Teitelbaum J. that at that time there were no more proceedings before any Court in the province of Quebec involving criminal issues, and that he had no intention to make an application to the Supreme Court of Canada concerning any decision involving the criminal proceedings referred to by the Associate Chief Justice. Teitelbaum J. asked for and received the plaintiff's sworn affidavit to this effect, and on that basis ordered as follows:
[6] In that there are now no proceedings upon which the stay has been granted, pursuant to s. 50(3) of the Federal Court Act, it is hereby ordered that any stay previously ordered is lifted.
[7] The Defendant shall serve and file its defence within a delay of 45 days of today's date.
[8] This is without prejudice to the Defendant to represent a motion to strike Plaintiff's Statement of Claim upon 10 days' notice.
[15] On January 25, 2000, the plaintiff filed a Notice of Motion returnable January 31, 2000, seeking an order to abridge the times fixed by Teitelbaum J.'s December 20, 1999 Order. The matter was heard, and the reserved decision dismissing the motion was rendered on February 23, 2000.
[16] In the interim, the defendant filed its defence on February 2, 2000. Then, on learning the plaintiff had reinstituted proceedings in the Quebec Courts, the defendant filed a Notice of Motion returnable on March 13, 2000, seeking an order to stay the action for the same reasons it had been stayed until this point, as explained at some length in Richard A.C.J.'s August 16, 1999 Reasons for Order.
[17] By Order dated March 13, 2000, Lafrenière P. again stayed the matter until further order of the Court, noting that: "This Court has on four separate occasions dealt with the question as to whether this action should be stayed pending final determination of the criminal proceedings before the Quebec Courts and before the Supreme Court of Canada." On April 17, 2000, the plaintiff filed a motion returnable on May1, 2000, for an order setting aside this stay Order. Muldoon J. heard and granted the motion on May 2, 2000, thereby setting aside the Prothonotary's Order.
[18] On September 5, 2000, the defendant filed a motion returnable September 18, 2000, for an order striking out the Statement of Claim and dismissing the action. The plaintiff also brought a motion returnable for the same date, seeking an order denying and dismissing the defendant's motion to strike and costs, and allowing the plaintiff to amend his pleadings. Lafrenière P. heard the motion, and his Order rendered September 20, 2000 included the following relevant clauses:
1. The motion of the Defendant is dismissed without prejudice to the Defendant's right to proceed with the outstanding appeal of the decision of the Associate Senior Prothonotary Peter A.K. Giles dated April 12th, 1999, this appeal having been adjourned sine die by Associate Chief Justice J. Richard (as he was then) on August 16, 1999.
2. On consent of the Plaintiff, his motion dated September 5, 2000 is hereby withdrawn.
[19] October 6, 2000, the plaintiff filed a motion returnable October 16, 2000, seeking an order to strike the defendant's Statement of Defence in whole or in part. The defendant sought an order to adjourn the plaintiff's motion. When these motions came before Giles A.S.P. on October 16, 2000, he adjourned them to the October 23, 2000 General Sitting. On October 23, 2000, the matters were, once again, adjourned sine die. The pertinent elements of this Order read as follows:
On August 19, 1999, Associate Chief Justice Richard (as he then was) dismissed an appeal by the Plaintiff from an Order of Associate Senior Prothonotary Giles dated April 12, 1999 staying the action. In his Reasons for Order, Justice Richard points out that the Defendant also appealed the Order of Prothonotary Giles dismissing the Crown's motion to strike the action as an abuse of process and that the said motion "to strike and dismiss" was adjourned sine die pending disposition of the Plaintiff's appeal. The Defendant acknowledges that its motion has yet to be scheduled for hearing before a judge of the Trial Division.
The Plaintiff submits that the Defendant is precluded from raising certain defences in its Statement of Defence on the grounds of res judicata and issue estoppel. The Defendant responds that it has an outstanding appeal and that consequently issue estoppel does not arise. In my view, it would be inappropriate to deal with the Plaintiff's motion until disposition of the Defendant's "appeal" of the decision of the Prothonotary Giles.
To clarify: on the basis that the matter was still before the courts in Quebec, the April 12, 1999 order of Giles A.S.P. granted the defendant's alternative prayer for relief, which was a stay of the action, rather than granting the motion to strike the plaintiff's claim altogether.
The October 23, 2000 Order concludes by ordering:
1. The motion [for an Order to strike the Defendant's defence advanced by the plaintiff] is adjourned sine die to be made returnable by either party after disposition of the Defendant's motion filed on May 21, 1999 [the motion to strike the plaintiff's claim].
2. The Defendant shall make its motion filed on May 21, 1999 returnable no later than November 20, 2000.
[20] Accordingly, and notwithstanding the intervention of another motion on a different matter, the defendant filed its motion returnable November 20, 2000, for an order to proceed with the hearing of the motion to strike the plaintiff's Statement of Claim, originally returnable on May 31, 1999 and previously adjourned sine die by the August 16, 1999 Order of Richard A.C.J. The plaintiff responded with a motion to strike the defendant's Statement of Defence, adjourned from October 23, 2000.
[21] When these matters came before me on November 20, 2000, due to the anticipated length of the arguments, the motions were adjourned to a date to be fixed by the Judicial Administrator. I advised both parties to consider having this matter case managed.
[22] On December 13, 2000, the plaintiff filed a motion for an order setting aside the September 20, 2000 Order of Lafrenière P., which preserved the defendant's right to have his appeal heard, it having been adjourned sine die by Richard A.C.J. on August 16, 1999; and the October 23, 2000 Order of Lafrenière P., which preserved the right of the defendant to bring its motion to strike the plaintiff's Statement of Claim; and an Order of this Court adjourning the matter.
[23] On December 18, 2000, McKeown J. dismissed the plaintiff's motion, noting as follows:
The motion is dismissed. The plaintiff has not made out a prima facie case of fraud. However, upon the return of the hearing of the defendant's motion to strike returnable May 31, 1999 the question of whether it is a valid appeal of Peter Giles, A.S.P.'s order dated April 12, 1999 shall be one of the issues before the Court and the question of jurisdiction of the Court to hear the defendant's motion shall also be before the Court. The plaintiff shall also be granted the right to file the Registrar's notes of May 31, 1999 hearing. No costs.
[24] Lutfy A.C.J., issued the following Direction on December 29, 2000:
The plaintiff's motion record, document 89 [the plaintiff's motion to strike the defendant's defence as matters that should be struck as being contrary to the rules made and provided], and the defendant's motion record, document 113 [an order to proceed with the hearing of the defendant's motion to strike returnable on May 31, 1999 and previously adjourned sine die, by Order of Richard A.C.J.], will be heard before this Court in the City of Toronto, Ontario, on Wednesday, the 21st day of March, 2001 at 9:30 in the forenoon with a duration of 1 day.
[25] Now, to the issues before the Court on March 21, 2001. To reiterate, the Court heard only the defendant's submissions with respect to an order to proceed with its motion to strike the plaintiff's Statement of Claim and the plaintiff's reply.
[26] It is the defendant's position that its motion has not yet been decided on its merits, and that this determination could not be made until the Quebec Courts and the Supreme Court of Canada had dealt with the matters before it, since as Richard A.C.J. noted in his Reasons for Order, there was: "... considerable overlap between the issue in this action and the criminal proceeding, an issue which may be resolved in the criminal proceeding ...".
[27] The plaintiff's main allegations include that this Court does not have jurisdiction to grant the defendant's motion; that Richard A.C.J.'s Order dated August 16, 1999, based on the May 31, 1999 hearing, does not adjourn sine die the defendant's motion to strike the plaintiff's Statement of Claim, that the defendant never did file an appeal of the April 12, 1999 Order, or if he did, it was filed after the allowable time. The plaintiff submits that in any event, the December 20, 1999 Order of Teitelbaum J. subsumes or varies the August 16, 1999 Order of Richard A.C.J. In the plaintiff's view, the defendant cannot bring its motion to strike the Statement of Claim.
[28] In granting the original stay, Giles, A.S.P. granted the defendant's alterative prayer for relief, which was secondary to the defendant's motion for an order to strike the plaintiff's Statement of Claim. Following the May 31, 1999 hearing, Richard A.C.J. confirms the stay was the correct choice in the circumstances, since "This issue was first raised by the plaintiff in his criminal prosecution before the Quebec courts and it is still pending before the Quebec courts and should first be determined by the Quebec Superior Court and the Quebec Court of Appeal."
[29] My review of the file itself, and the Order and Reasons for Order, indicates the plaintiff is correct in a number of his assertions. First, Richard A.C.J. does not include in the Order of August 16, 1999 that the defendant's motion to strike is adjourned sine die. However, Richard A.C.J.'s Order dismisses the plaintiff's motion to lift the stay, since, as his Reasons for Order explain, relevant and overlapping matters were still before the Quebec Courts. Again, at that premature stage, it would have been prejudicial to the plaintiff for the Court to entertain a motion to strike his Statement of Claim for want of cause, when issues at the heart of this very matter were under review by another court. Richard A.C.J.'s Order can only reasonably be interpreted to have given life to his intention, explained in his Reasons for Order, to postpone hearing any proceeding to determine the merit of the plaintiff's Statement of Claim until such time as the Quebec Courts had concluded their deliberations and arrived at a decision. It is my view, that Richard A.C.J.'s August 16, 1999 Reasons for Order make this point clearly at page 2, where he states: "The defendant's motion to strike and dismiss was adjourned sine die pending disposition of the plaintiff's appeal."
[30] The December 20, 1999 Order of Teitelbaum J. made pursuant to the plaintiff's motion to lift the stay explains his decision to grant the motion and speaks to the defendant's continuing right to make a motion to strike the plaintiff's claim, as follows:
[4] The Appellant assured me that at the present time there were no more proceedings before any Court in the Province of Quebec involving criminal issues and that he had no intention to make application to the Supreme Court of Canada concerning any decision involving the criminal proceeding referred to by the Associate Chief Justice.
[5] I asked the Appellant to prepare and sign an affidavit to that effect.
[6] In that there are now no proceedings upon which the stay had been granted, pursuant to s. 50(3) of the Federal Court Act, it is hereby ordered that any stay previously ordered is lifted.
[7] The Defendant shall serve and file its defence within a delay of 45 days of today's date.
[8] This is without prejudice to the Defendant to re-present a motion to strike the Plaintiff's Statement of Claim upon 10 days' notice.
[31] The plaintiff argues this Order subsumes previous orders respecting the defendant's right to bring its motion to strike. In my view, however, Teitelbaum J.'s Order merely confirms the defendant's continuing right to bring a motion to strike the plaintiff's Statement of Claim. It is relevant to note that subsequent to Teitelbaum J.'s Order lifting the stay, and following the defendant's filing of its defence, the plaintiff did indeed revive matters concerning his criminal convictions in the Quebec Courts. As a consequence, the defendant again brought a motion for an order staying the action before this Court, which was granted March 13, 2000, rather than moving forward with the motion to strike, since again, the matters at the heart of the plaintiff's Statement of Claim were under adjudication elsewhere.
[32] At paragraph 39 of the plaintiff's reply to the defendant's motion, filed November 20, 2000, the plaintiff submits: "... that in a blatant abuse of the process of this Honourable Court the Defendant has continued on multiple occasions to advance the identical issues previously denied ..." in bringing forward its motion to strike the plaintiff's Statement of Claim. At paragraph 46 of this same document, the plaintiff notes "Deeply entrenched in a hole of his own making by virtue of its written and oral pleadings the Defendant is unable to extricate herself from the very Orders issued in this action and by which the parties are bound ...".
[33] The plaintiff's observation is an astute one. In my view, however, the multifarious procedural manoeuvres by both parties have compromised the efficient administration of justice, to the detriment of both the parties and this Court.
[34] Notwithstanding the plaintiff's numerous and thoughtful technical arguments with respect to the validity of the defendant's motion to strike the Statement of Claim, I am of the opinion that in these circumstances, to decide this matter on the basis of those individual arguments would constitute a triumph of form over substance. This Court finds that notwithstanding the plaintiff's arguments, the circuitous and convoluted course of events in this matter constitutes a situation of the nature contemplated by the sort of "special circumstances" in which this Court may exercise its jurisdiction pursuant to Rule 55, on which the defendant in this matter relies.
[35] Rule 55 provides that on motion by a party, this Court has power to dispense with compliance with a rule. The moving party must demonstrate special circumstances. Chow v. Canada (Minister of Citizenship and Immigration) (1998), 161 F.T.R. 156 notes that implicit in the concept of special circumstances under Rule 55 is that the order requested would do justice in the circumstances and not prejudice a party.
[36] Each time a stay in this matter has been granted, it was because proceedings relevant to the merits of the plaintiff's Statement of Claim were under adjudication in other courts. It is this Court's view that it would be incongruous, even absurd to suggest that the Court's Orders should be construed to prevent prejudice to the plaintiff's Statement of Claim, by deferring the motion to strike until matters before other courts were resolved, but at the same time, to prejudice the defendant by precluding its right to challenge the Statement of Claim's validity once the Quebec Court rendered its decision. In light of this reasoning, and given the wording of Richard A.C.J.'s Reasons for Order and the rationale it embodies, this Court must conclude he intended to preserve the defendant's right to move to strike the plaintiff's Statement of Claim.
[37] Indeed, this Court finds further justification for allowing the defendant's motion to strike the plaintiff's Statement of Claim in the existence of "special circumstances". In Speedo Knitting Mills Pty., Ltd. v. Christina Canada Inc. (1985), 3 C.P.R. (3d) 360, the plaintiff contests a defendant's right to bring a motion, and the Court notes as follows:
...there is certainly jurisprudence to the effect that it is not desirable to have a multiplicity of motions....
In the Ontario case of Slan et al. v. Beyak et al. (1973), 3. O.R. (2d) 295, the judgment, after reviewing jurisprudence held, at p. 297:
Accordingly, at least in cases where there are no special circumstances, the general rule is that there should be one opportunity only afforded to a party to attack his opponent's pleading...
...
While I uphold the general principle set out in the jurisprudence referred to that there should not be a series of motions with respect to a given pleading ... I believe that there are sufficient special circumstances in the present case to justify the hearing of the present motion which should not be dismissed on procedural grounds.
[38] In support of his argument that the defendant ought not to be able to bring its motion to strike the Statement of Claim, the plaintiff in this action relies onHorii v. Canada, [2000] F.C.J. No. 1712, where the Court notes as follows:
I now turn to relevant case law supporting the general rule that a party should be allowed only one chance to attack an opponent's pleadings, unless there are special circumstances. This rule is at least in part based on the principle that a litigant ought not to be faced with a continuing series of motions on similar subjects. Moreover, there is the judicial economy aspect: motions should be a means of getting expeditiously to the hearing of a case on its merits ...
[39] But Horii, supra is distinguished on its facts from the case at bar. The Court notes in Horii, supra that: "... Moreover, I have been referred to no relevant change of circumstances by which yet a further attack on the pleadings might be justified..." In the present case, however, there is what in my view constitutes a relevant and material change in circumstances, in that since the plaintiff filed his Statement of Claim in this action, the Quebec courts have concluded deliberations with respect to the plaintiff's criminal matters; these matters are in direct relevance here. This is significant because, in the words of Richard A.C.J in his August 16, 1999 Order at paragraph 31 he states as follows:
[31] In spite of the fact that the relief sought in an action for damages in this Court is different from the relief sought in the criminal prosecution, the plaintiff is relying on essentially the same grounds in both proceedings and the issue is the same. As I have said, the civil action is the reciprocal of the plaintiff's defence in the criminal prosecution.
[40] In view of this relevant and material change in circumstances, and in view of the fact that despite that Richard A.C.J.'s Order of August 16, 1999 makes no explicit reference to an adjournment sine die of the defendant's motion to strike the plaintiff's Statement of Claim, at page 2 of his Reasons for Order he summarizes the matters before him and states as follows:
By notice of motion dated 20 April 1999, the plaintiff appealed the decision of the Prothonotary and requesting:
a judgment and Order setting aside or lifting the stay of proceedings, ordered by Mr. P. A. K. Giles, Associate Senior Prothonotary, orally on April12, 1999.
The defendant also appealed the order of Prothonotary requesting:
an Order setting aside the aspect of the order of Giles, A.S.P. which dismissed the Crown's motion to strike this action as an abuse of process;
an Order striking out the Statement of Claim and dismissing this action as an abuse of process.
The defendants motion to strike and dismiss was adjourned sine die pending disposition of the plaintiff's appeal.
[41] Richard A.C.J. then devoted the remainder of page 2 through to the end of the Reasons for Order at page 13 discussing the merits of the plaintiff's appeal of the stay imposed by Giles A.S.P. There was no further reference to or discussion of the defendant's motion. Having regard to the Reasons for Order outlined above with respect to the prejudice that would have been done to the plaintiff on premature consideration of the defendant's position, the only rational conclusion available to me is that the motion remains adjourned sine die.
[42] Although it remains unclear whether the motion that was adjourned sine die was an appeal of Giles A.S.P.'s Order of April 12, 1999 or a motion to strike the Statement of Claim it is clear that it was adjourned sine die.
[43] The motion before this Court now is for "an order to proceed with the hearing of the defendant's motion to strike, returnable on May 31, 1999 and previously adjourned sine die, by Order of Richard A.C.J. on August 16, 1999."
[44] The defendant is entitled to bring forward for hearing a motion previously adjourned sine die. However, having regard to the passage of time, the change in circumstances, the staleness of the record, the fact that the defendant has never had an opportunity to argue the motion on its merits, and in the interest of doing justice between the parties it would be preferable to have the matter heard with a fresh record.
[45] Accordingly, the defendant's motion for an order to proceed with the hearing of the motion returnable May 31, 1999 and adjourned sine die is dismissed with leave to the defendant to bring a fresh motion to strike the Statement of Claim. The Court also orders that this action will continue as a specially managed proceeding.
[46] The cost of this motion will be in the cause.
"Dolores M. Hansen"
J.F.C.C.
Ottawa, Ontario
June 21, 2001