Date: 19980604
Docket: T-338-98
BETWEEN:
THE ASSOCIATION OF CANADIAN DISTILLERS
Applicant
- AND -
THE MINISTER OF HEALTH
Respondent
REASONS FOR ORDER
NADON J.:
[1] The Minister of Health (the "Minister") seeks an order striking out the judicial review application filed by the Association of Canadian Distillers (the "Association") on March 2, 1998. By its application, the Association is seeking to set aside a decision of the Minister dated November 26, 1997 whereby the Minister refused the Association's request to amend Division 2 of the Food and Drug Regulations, C.R.C., c. 870. The Association is also seeking an order compelling the Minister to publish the amendments sought by the Association in Part I of the Canada Gazette.
[2] The Minister's submission is that, since the Association's application stands no chance of success, it should be struck. In support of this submission, the Minister relies on the decision of the Federal Court of Appeal in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588.
[3] In David Bull, the issue was whether an application to strike an originating notice of motion could be brought under former Rule 419 of the Federal Court Rules[1]. The motions judge, Noël J., in dismissing the application to strike, was doubtful that former Rule 419 could be used to strike an originating notice of motion. Noël J.'s decision was appealed and the Court of Appeal concluded that Noël J. had made no error in dismissing the application to strike. The Court of Appeal then explained why it was of the view that the motions judge "was right in principle" to doubt the applicability of Rule 419. At 596 and 597, Strayer J.A. offers the following explanation:
The basic explanation for the lack of a provision in the Federal Court Rules for striking out notices of motion can be found in the differences between actions and other proceedings. An action involves, once the pleadings are filed, discovery of documents, examinations for discovery, and then trials with viva voce evidence. It is obviously important that parties not be put to the delay and expense involved in taking a matter to trial if it is "plain and obvious" (the test for striking out pleadings) that the pleading in question cannot amount to a cause of action or a defence to a cause of action. Even though it is important both to the parties and the Court that futile claims or defences not be carried forward to trial, it is still the rare case where a judge is prepared to strike out a pleading under Rule 419. Further, the process of striking out is much more feasible in the case of actions because there are numerous rules which require precise pleadings as to the nature of the claim or the defence and the facts upon which it is based. There are no comparable rules with respect to notices of motion. Both Rule 319(1) [as am. by SOR/88-221, s. 4], the general provision with respect to applications to the Court, and Rule 1602(2) [as enacted by SOR/92-43, s. 19], the relevant rule in the present case which involves an application for judicial review, merely require that the notice of motion identify "the precise relief" being sought, and "the grounds intended to be argued." The lack of requirements for precise allegations of fact in notices of motion would make it far more risky for a court to strike such documents. Further, the disposition of an application commenced by originating notice of motion does not involve discovery and trial, matters which can be avoided in actions by a decision to strike. In fact, the disposition of an originating notice proceeds in much the same way that an application to strike the notice of motion would proceed: on the basis of affidavit evidence and argument before a single judge of the Court. Thus the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself. This case well illustrates the waste of resources and time in adding on to what is supposed to be a summary judicial review proceeding the process of an interlocutory motion to strike. This motion to strike has involved a hearing before a trial judge and over one half day before the Court of Appeal, the latter involving the filing of several hundred pages of material, all to no avail. The originating notice of motion itself can and will be dealt with definitively on its merits at a hearing before a judge of the Trial Division now fixed for January 17, 1995.
[4] Then, at 600, Strayer J.A. concludes with the following words:
For these reasons we are satisfied that the Trial Judge properly declined to make an order striking out, under Rule 419 or by means of the "gap" rule, as if this were an action. This is not to say that there is no jurisdiction in the Court either inherent or through Rule 5 by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion.
[5] Strayer J.A. opines that an originating notice of motion shall only be dismissed when that originating notice of motion "is so clearly improper as to be bereft of any possibility of success". These are the words on which the Minister relies in making his submission that the Association's judicial review application should be struck.
[6] I have not been persuaded that the Association's originating notice of motion should be struck. In David Bull, Strayer J.A. stated that, only in exceptional cases, would originating notices of motion be struck. That comment can only be understood by a careful reading of Strayer J.A.'s comments where he explains why the Court should be reluctant to entertain a motion to strike out an originating notice of motion. I wish to emphasize those words at 596 and 597:
... Thus the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself. This case well illustrates the waste of resources and time in adding on to what is supposed to be a summary judicial review proceeding the process of an interlocutory motion to strike.
[7] It is clear from the above that the Court of Appeal is not encouraging respondents to file motions to strike originating notices of motion. The Court of Appeal is saying that the proper way to contest an originating notice of motion, even one where the respondent believes that the applicant has a very weak case, is to file a respondent's record and to argue the matter at the hearing on the merits of the case. To adopt any other procedure would defeat one of the clear purposes of the judicial review process which is designed to provide the parties with a summary procedure to deal with the issues raised in the proceedings.
[8] I have carefully read all of the material filed by the parties for this motion to strike and cannot conclude that the originating notice of motion brought by the Association "is so clearly improper as to be bereft of any possibility of success". This certainly does not mean that I am of the view that the Association will win or that it stands a reasonable chance of succeeding on its motion. I am simply saying that I am of the view that this is not one of the exceptional cases which Strayer J.A. had in mind in David Bull.
[9] In my view, the respondent should have simply filed its application record and then argued before a Trial Judge why the originating notice of motion should be denied. The oral arguments on this motion took 3½ hours. The hearing on the merits after both records have been filed will certainly not take much more time than the motion to strike took.
[10] For these reasons this motion is dismissed.
"MARC NADON"
JUDGE
Ottawa, Ontario
June 4, 1998
[11]
Date: 19980604
Docket: T-338-98
OTTAWA, ONTARIO, THIS 4TH DAY OF JUNE 1998
PRESENT: THE HONOURABLE MR. JUSTICE MARC NADON
BETWEEN:
THE ASSOCIATION OF CANADIAN DISTILLERS
Applicant
- AND -
THE MINISTER OF HEALTH
Respondent
ORDER
This motion is dismissed.
"MARC NADON"
JUDGE
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-338-98
STYLE OF CAUSE:The Association of Canadian Distillers v. The Minister of Health
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: April 30, 1998
REASONS FOR JUDGMENT OF Mr. Justice Nadon DATED: June 4, 1998
APPEARANCES
Mr. Aaron Runbinoff/Ms. Frances Fitzgerald FOR APPLICANT Perley-Robertson, Panet, Hill & McDougall
Ottawa, Ontario
Mr. Frederick Woyiwada FOR RESPONDENT Department of Justice
Ottawa, Ontario
SOLICITORS OF RECORD:
Mr. Aaron Runbinoff/Ms. Frances Fitzgerald FOR APPLICANT Perley-Robertson, Panet, Hill & McDougall
Ottawa, Ontario
Mr. Frederick Woyiwada FOR RESPONDENT Department of Justice
Ottawa, Ontario