Date: 19990803
Docket: T-798-99
BETWEEN:
TIGNEY TECHNOLOGY INCORPORATED,
Applicant,
- and -
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
JOHN A. HARGRAVE,
PROTHONOTARY
[1] These reasons arise out of an order pursuant to the Respondent"s motion to strike out filed 3 July 1999 and to Rule 47 which allows the discretionary powers of the court to be exercised by the court of its own initiative.
[2] The application of Tigney Technology Incorporated ("Tigney") involves an interesting and fairly narrow point as to whether there may be a reassessment under the Excise Act .
[3] The Crown, by motion, seeks to strike out the application of Tigney on the basis of a time bar. In response to that motion, Tigney, instead of filing a motion record as required by Rule 365, filed a document called an application record, which while dealing with the claim as a whole, also expressly touches upon the allegation of time bar and here I refer to pages 40 through 42 of the record, being a portion of the Memorandum of Fact and Law, which sets out what is perhaps an arguable case, based on Krause v. Canada (1999), 236 N.R. 317 (F.C.A.), that no limitation applies in that the relief sought is declaratory. Tigney"s Memorandum of Fact and Law goes on, as an alternative, to seek an extension of time.
[4] Rather than respond within the allocated time the Crown wrote to the Registry noting that the Application Record filed by Tigney did not indicate that it was filed in response to the motion and that it was served and filed out of time. The letter then goes on to request additional time to file a reply to Tigney"s material, permission to file additional affidavit material and an extension of time within which to file and serve the Crown"s record in response to the main application.
[5] As I have said the material filed by Tigney, while in an unfamiliar form, does set out the Applicant"s case on the time bar and on a request for an extension of time. I do not intend to deny Tigney a day in Court merely because its counsel has not bothered to look at and comply with the Rules. However I also see no reason to provide either an extension of time within which the Respondent might file a reply or to allow the Respondent to file further affidavit material. I say this particularly because the parties ought to focus on the hearing itself, not on summary procedure to strike out. Here I will paraphrase what I set out at length in Alcorn v. Commissioner of Corrections , [1998], 156 F.T.R. 235.
[6] For the most part notices of application ought not to be the subject of motions to strike out, but rather should be contested at a full hearing. Mr. Justice Muldoon made a forceful direction to that effect in Hassan v. Canada, [1998] F.T.R. 264, when he directed the Respondents to focus on the hearing itself, not on any summary procedure to strike out. In making this comment he referred to various cases including David Bull Laboratories v. Pharmacia Inc. (1995), 176 N.R 48 (F.C.A.), for the observation that:
| 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. |
[page 52]
Of course Mr. Justice Strayer left it open so that an application might be struck out where it was so clearly improper to be without any possibility of success (ibid, pages 54-55).
[7] In the present instance this is not the very exceptional case referred to by Mr. Justice Strayer at page 55 of David Bull. The application is not "so clearly improper as to bereft of any possibility of success" (loc. cit. ) for Tigney"s argument, against the time bar, falls within the category of a "debatable issue" as referred to by Justice Strayer (loc. cit. ).
[8] In addition, a plea of limitation is insufficient to strike out a statement of claim, in the case of an action, the correct procedure there being to set the matter down as a question of law before trial: see for example BMG Music Canada Inc. v. Vugiatzakis et al. (1996), 67 C.P.R. (3d) 27 at 33-34. As I pointed out in Alcorn (supra, 242), this same principle ought to apply to an originating notice of motion: the time bar is a point which ought to be argued in full before a judge at the hearing of the application.
[9] Finally, the proceeding out not to be struck out without leave to amend. In the present instance, the application deals with an interesting and narrow point which ought to be and can be decided fairly easily. Such an application ought not to be struck out if, in any event, it might be made good by amendment. Here, in the event that counsel for Tigney is wrong and a time limitation does apply, it is in the interest of justice and does not prejudice the Respondent to allow an amendment to the application to indicate that an extension of time is sought, or is sought as an alternative, as Tigney may decide.
[10] The Respondent"s motion to strike out the notice of application is denied. There will, in the Order, be other consequential and necessary relief.
[11] I might have awarded costs in favour of Tigney, but decided not to do so because Tigney has not followed the usual and clear procedure for responding to a motion. Rather, the unorthodox approach of Tigney has complicated the motion for the Respondent: that complication can and is rectified by an award of costs to the Respondent, of $250.00, payable forthwith. Counsel for Tigney should, in future practice in this Court, take the time to become familiar with the Court"s rules and procedures.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
3 August 1999
[12] FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-798-99
STYLE OF CAUSE: Tigney Technology Incorporated
v. Her Majesty the Queen
REASONS FOR ORDER: Mr. John A. Hargrave,
Prothonotary
APPEARANCES:
Motion dealt with in writing pursuant to Rule 369
SOLICITORS OF RECORD:
Priscilla Kennedy
Parlee McLaws for the Applicant
Edmonton, Alberta
Morris A. Rosenberg
Deputy Attorney General of Canada for the Respondent
Deborah Horowitz