Date: 20000425
Docket: T-398-00
BETWEEN:
BARRY McCABE,
APPLICANT,
- and -
THE ATTORNEY GENERAL OF CANADA,
RESPONDENT.
REASONS FOR ORDER AND ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] These reasons arise out of a motion, brought by the Respondent, to strike the Applicant"s Application for Judicial Review, pursuant to Rule 221.
[2] David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. [1995] 1 F.C. 588, a decision of the Federal Court of Appeal, stands for the proposition that a motion to strike out an application for judicial review, as is here the case, ought generally not to be brought in an interlocutory manner. "Except in the rarest of circumstances, such a motion is not available on an application for judicial review...": Mr. Justice Hugessen here referring to David Bull Laboratories in Agawa v. Hewson, an unreported 18 June 1998 decision in file T-764-98. Rather, judicial review being a summary proceeding, such a point, of want of jurisdiction on the part of the National Parole Board and a consideration of whether it then could act as a federal board, commission or other tribunal, within the meaning of section 18 and 18.1 of the Federal Court Act, ought to proceed to a full hearing.
[3] In the present instance, the issue raised by the Respondent, that of want of a cause of action, specifically that the National Parole Board is not a federal board, commission or tribunal, is open to question. While Steele v. Canada (National Parole Board), an unreported 7 October 1998 decision of Mr. Justice Dubé in file T-1675-97 is on point and favours the Respondent, Steele may well, as the Applicant submits, have been wrongly decided in the light of the Federal Court of Appeal decision in Kruse v. Canada [1999] 2 F.C. 476.
[4] Even where I disposed to find that the present situation falls within a rare circumstance, a specific exception to the general rule, in David Bull Laboratories, the issue of Steele and of Kruse ought not to be decided upon an interlocutory motion to strike out, but should be fully argued, with all the facts available, when the hearing of the judicial review is finally dealt with and here I would again refer to Agawa v. Hewson (supra) at paragraph 5:
| Next, it is the respondents" assertion that the question of law raised by the application for judicial review has been definitively settled by a judgment of this Court. I am far from persuaded that that is indeed the case but even if it were that is something which should be raised on the merits of the application and not by way of a preliminary motion. |
ORDER
| The Respondent"s motion to strike out is denied. The Respondent may have until close of Registry on 19 May 2000, within which to serve and file affidavits. Costs of the motion to the Applicant in any event. |
(Sgd.) "John A. Hargrave"
Prothonotary
April 25, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
| COURT FILE NO.: T-398-00 |
| STYLE OF CAUSE: Barry McCabe |
v.
The Attorney General of Canada
MOTION DEALT WITH IN WRITING PURSUANT TO RULE 369
REASONS FOR ORDER AND ORDER
OF MR. JOHN A. HARGRAVE, PROTHONOTARY
| DATED: April 25, 2000 |
WRITTEN SUBMISSIONS BY:
| Mr. Rod Holloway for the Plaintiff |
| Ms. Valerie Anderson for the Defendant |
SOLICITORS OF RECORD:
Legal Services Society
| Vancouver, BC for the Plaintiff |
Morris Rosenberg
Deputy Attorney General
| of Canada for the Defendant |