Dubé,
J.:—This
motion
turns
out
to
be
an
application
for
the
determination
of
a
specific
question
of
law
under
Rule
474
and
not
a
motion
to
strike
out
under
Rule
419.
Rule
474
contemplates
two
stages:
Firstly,
an
application
for
an
order
that
a
specific
question
be
determined
and
directions
as
to
the
time
and
place
for
arguments
and
the
case
to
be
presented;
this
normally
includes
an
agreement
as
to
the
basic
relevant
facts
and
the
question
to
be
put.
Secondly,
the
hearing
of
the
arguments
in
the
matter.
See
Carota
v.
Jamieson
et
al.,
[1977]
2
F.C.
239.
The
purpose
of
the
rule
is
that
a
question
of
law
should
be
set
down
for
determination
only
if
the
determination
will
dispose
of
the
entire
action
(see
Honeywell
Inc.
v.
Litton
Systems
Canada
Ltd.
(1982),
67
C.P.R.
(2d)
129
(F.C.T.D.)).
Rule
474
can
only
be
used
where
(1)
all
the
essential
facts
are
admitted,
(2)
the
question
is
one
of
law
and
(3)
the
decision
to
be
rendered
is
likely
to
finally
dispose
of
the
matter
or
at
least
a
substantial
part
of
the
action.
The
procedure
is
only
appropriate
where
there
is
a
consensus
between
the
parties
and
the
Court
on
the
need
for
preliminary
determination.
See
Sibo
Inc.
et
al.
v.
Posi-Slope
Enterprises
Inc.
(1984),
5
C.P.R.
(3d)
111
(F.C.T.D.).
In
Beloit
Canada
Lteé
v.
Valmet
OY
(1986),
4
W.D.C.P.
320
(F.C.T.D.)
the
Court
declined
to
direct
that
there
be
a
trial
of
a
single,
but
contested,
issue
in
the
absence
of
consent
by
all
parties,
where
it
was
urged
that
the
single
issue
might
be
dispositive
of
the
whole
action.
In
the
instant
action,
counsel
for
the
plaintiff
had
not
consulted
counsel
for
the
defendant
on
this
motion,
there
was
no
agreement
on
the
basic
facts
involved
and
it
seems
obvious
to
me
that
even
if
a
question
could
be
put
and
answered
by
the
Court,
the
answer
would
not
finally
dispose
of
the
matter:
a
trial
would
still
have
to
be
held.
Under
the
circumstances,
as
I
informed
counsel
from
the
bench,
this
is
not
a
proper
matter
for
a
Rule
474
determination
of
law.
The
motion
is
denied,
with
costs
in
the
cause.
Motion
denied.
Email this Content