Collier, J [ORALLY]:—The motion to strike out the statement of claim is refused.
The president of the plaintiff company filed the statement of claim on August 25, 1983. This was just within the 120-day period for an appeal to this Court from the decision of the Tax Review Board.
The plaintiff did not commence the action through an attorney or solicitor as provided by Rule 300(2). There was, in that sense, non-compliance with the rules of court. In the circumstances, I exercise my discretion in favour of the plaintiff and apply the curative and beneficial provisions of Rule 302(b):
Rule 302. The following provisions apply with reference to formal objections and failures to comply with the requirements of these Rules:
(b) Non-compliance with any of these rules or with any rule of practice for the time being in force, shall not render any proceedings void unless the court shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the court shall think fit.
The defendant contends the statement of claim is a nullity; it is not a “proceeding”, because it was not launched in accordance with Rule 300(2).
I cannot accept that submission.
The filing of the statement of claim was, to my mind, unquestionably a proceeding. There was a mere irregularity, or non-compliance, in that the proceeding was not commenced by a solicitor or attorney. The same argument could be made in respect of misnomers where the courts have allowed amendment. Nowhere, has it ever been held, in those cases, that the failure to commence the action with the proper plaintiff was not a “proceeding”.
In these circumstances, I decline to direct that the proceedings are void.
The action will be stayed until the plaintiff has filed a notice appointing a solicitor to represent it, and to carry on this action. That notice must be filed within 30 days of the date of this order. Once that is done the stay will be vacated.
The defendant will have 30 days from the date of service of the notice appointing a solicitor within which to file a defence.
There are no costs of this motion.