Date: 19980511
Dockets: T-316-98
T-379-98
Between :
KHALIL HASAN,
Applicant,
- and -
THE ATTORNEY GENERAL OF CANADA,
Respondent.
REASONS FOR ORDER
MULDOON, J. :
[1] The respondent moves for an order striking out the applicant's originating notice of motion and dismissing his application for judicial review.
[2] The respondent expresses her principal, and only substantive ground for obtaining such an order as:
| there exists no decision or matter which could provide the subject matter or a legal basis for an application for judicial review; |
The respondent does not invoke old rule 419, nor its current, new version, rule 221, which is virtually identical with rule 419. However, the respondent sidles closely up to each rule's paragraph 1(a), which authorizes the Court, on motion to strike out any pleading or anything in a pleading on the ground that it
| (a) discloses no reasonable cause of action or defence, as the case may be, |
| [emphasis not in original text] |
[3] Now, it is clear that a notice of motion whereby the present proceeding was purportedly initiated, is not a pleading; and it is equally clear that this proceeding involves no cause of action or defence. In a word, an application of this sort, itself a summary proceeding, is not to be summarily struck out. Since it may be disposed of summarily, the respondent should focus on the hearing if it or she or he believes that the application will be dismissed. Old rules 2 (action, pleading), 400, 600 and 701(1), together with new rules 2, 62, 63, 169, 171, 300, 301, 358 and 359 all support the above conclusion.
[4] So does the jurisprudence:
| David Bull Laboratories v. Pharmacia Ltd., [1995] 1 F.C. 588, 58 C.P.R. (3d) 209 and 176 N.R. 48 (F.C.A.) "The proper way to contest a groundless originating motion is to argue the point at the hearing of the motion,"; |
| American Cyanamid v. Minister of National Health & Welfare (1994), 81 F.T.R. 175, 55 C.P.R. (3d) 461 (T.D.); |
| Eli Lilly Co. v. Novopharm Ltd. (1994), 81 F.T.R. 313, 55 C.P.R. (3d) 417 (T.D.). |
| The above reported decisions are to be found in the 1997 edition of Federal Court Practice by Sgayias, Kinnear, Rennie and Saunders. |
[5] The respondent relies, in support of her motion, on the Court's decision in Patel v. M.E.I. (1994), 74 F.T.R. 302 at 304 (T.D.). The respondent's solicitors and counsel seem to have overlooked the fact that the originating motion in Patel was not being struck on a motion akin to this present proceeding. It was being argued at its proper hearing, as stated in David Bull Laboratories v. Pharmacia Ltd. above cited.
[6] In what must have been an excess of zeal, or nervousness, the respondent's solicitors and counsel brought an identically same motion in suit no. T-379-98, same style of cause. This seems to constitute a multiplicity of proceedings, a reasonable ground for awarding costs against the offending party, in addition to the ignoring of the jurisprudence above cited. Furthermore both notices of motion seeking to strike out the applicant's originating notice are defective, in that neither refers to his originating motion's notice, either by its date, or date of filing. Perhaps there ought to be a procedure for striking out an originating motion, but the Court and its jurisprudence lean against it. The respondent shall pay to the applicant costs which are hereby fixed at $700.00 plus all proper disbursements, payable forthwith. Both of the respondent's notices of motion are dismissed - files T-316-98 and T-379-98.
[7] Now, a hearing date needs to be fixed for the disposition of the applicant's originating motion. Counsel will look to that matter.
JUDGE
OTTAWA, ONTARIO
May 11, 1998