Date: 20050729
Docket: T-877-05
Citation: 2005 FC 1049
Montréal, Quebec, July 29, 2005
Present: RICHARD MORNEAU, PROTHONOTARY
BETWEEN:
CITY OF MONTRÉAL
Plaintiff
and
MONTRÉAL PORT AUTHORITY
Defendant
Written motion by the defendant to strike the plaintiff's statement of claim and dismiss its action.
[Paragraph 221(1)(a) and section 369 of the Federal Courts Rules]
REASONS FOR ORDER AND ORDER
[1] ON the defendant's motion and the written representations filed by both parties;
[2] GIVEN that it is plain and obvious that the amount claimed by the City of Montréal cannot constitute an amount owed under a statute or regulation and that the nature of a payment in lieu of taxes bars proceeding by action before a court for a payment that was not made or that was credited (seeSt-Romuald (Town) v. Attorney General of Canada, [1997] F.C.J. No. 1553 and City of Montréal v. Montréal Port Authority, January 21, 2005, under docket numbers 500-09-014682-041 and 500-09-014706-048, currently under application for leave to appeal to the Supreme Court of Canada);
[3] GIVEN that the regulations relied on by the plaintiff clearly do not confer on it a right to a payment and therefore subject the defendant to a legal obligation to pay the amounts claimed by the City of Montréal;
[4] GIVEN that the regulations only set out the terms and conditions for determining the payments that can be made under the Act and given that they cannot transform an option to make a payment "in lieu of taxes" equivalent to a grant to a municipal body into a legal obligation;
[5] GIVEN that there is of course no difference between the treatment, for the purposes of the Act in question (Payments in Lieu of Taxes Act, S.C. 1985, c. M-13, as amended), given to federal property that remains under the administration of the minister and federal property or immovables the administration of which was conferred by letters patent on a port authority like the defendant MPA; the treatment is identical and any argument differentiating one from the other is unfounded in law;
[6] GIVEN that only an application for judicial review could have been made, but in the instant case was not made in time for the 2001, 2002 and 2003 fiscal years;
[7] THE COURT, hereby and under the applicable case law in a motion such as this, orders that the plaintiff's statement of claim be struck and its action dismissed, with costs.
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"Richard Morneau" |
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Prothonotary |
Certified true translation
Aveta Graham
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
STYLE OF CAUSE:
T-877-05
CITY OF MONTRÉAL
Plaintiff
and
MONTRÉAL PORT AUTHORITY
Defendant
WRITTEN MOTION DECIDED AT MONTRÉAL WITHOUT APPEARANCE BY THE PARTIES
REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY
DATED: July 29, 2005
WRITTEN REPRESENTATIONS BY:
| Luc Lamarre |
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FOR THE PLAINTIFF |
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| Gilles Fafard |
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FOR THE DEFENDANT |
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SOLICITORS OF RECORD:
| Brunet, Lamarre Montréal, Quebec |
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FOR THE PLAINTIFF |
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| de Grandpré Chait Montréal, Quebec |
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FOR THE DEFENDANT |