Cinémas Guzzo inc. v. Canada (Attorney General), 2005 FC 488

Date:  20050412

Docket:  T-37-03

Citation:  2005 FC 488

Montréal, Quebec, April 12, 2005

Present:          RICHARD MORNEAU, PROTHONOTARY

BETWEEN:

                                                     LES CINÉMAS GUZZO INC.

                                                                                                                                            Applicant

                                                                           and

                                             ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]               This case involves a motion by the applicant pursuant to section 75 of the Federal Courts Rules to add a number of conclusions to its application for judicial review, for which a hearing on the merits is to begin in less than a week.

[2]               The only conclusion currently contained in the application for judicial review by the applicant (the application by the applicant) reads as follows:

[TRANSLATION] ISSUE an order requiring the respondent to continue its investigation of the film industry.

[3]               After hearing counsel for both parties, I find that there is no problem in considering the following conclusions to be added to the application by the applicant:

[TRANSLATION] SET ASIDE the decision dated December 12, 2002;

DECLARE THAT section 32 does not apply to this proceeding;

[4]               With regard to the following conclusion, however, the situation is different:

[TRANSLATION] ORDER that the Bureau deliver to the applicant the external economist’s report so that it may respond.

[5]               While I am aware of the liberal approach expressed in Canderel Ltd. v. Canada, [1994] 1 F.C. 3 (C.A.) and Visx Inc. v. Nidek Co., [1998] F.C.J. No. 1766, I believe that it is neither fair nor in the interests of justice in the case at bar to allow this amendment at this stage.  Indeed, although the applicant notes the failure to deliver the report of the external economist in the existing framework of its application, this factual situation is thus presented as a breach of procedure in order to ensure the continuation of the investigation.  To now transform it into an official conclusion turns the report into an end in itself, one that was previously the primary focus of a separate application for judicial review, but which the applicant discontinued.  Any attempt now to bring this remedy back to the forefront is likely to take the opposing party by surprise just a few days before the start of the hearing on the merits and, in fact, to force a postponement of the hearing.

[6]               Furthermore, it will still be possible in future for the applicant to obtain the aforesaid report and challenge any decision against this if it obtains the continuation of the investigation of the film industry.

                                                                       ORDER

THEREFORE, THE COURT ORDERS that the motion by the applicant be granted in part only, with costs in the cause, and that the parties accept that the application by the applicant is deemed to include the following conclusions:

[TRANSLATION]

1.         SET ASIDE the decision dated December 12, 2002;

2.         DECLARE THAT section 32 does not apply to this proceeding;

3.         ISSUE an order requiring the respondent to continue its investigation of the film industry.

Certified true translation

Michael Palles

                                                             FEDERAL COURT

                                                     SOLICITORS OF RECORD

DOCKET:

STYLE OF CAUSE:

T-37-03

LES CINÉMAS GUZZO INC.

                                                                    Applicant

v.

ATTORNEY GENERAL OF CANADA

                                                               Respondent

PLACE OF HEARING:                               Montréal, Quebec

DATE OF HEARING:                                  April 11, 2005    

REASONS FOR ORDER BY:                   RICHARD MORNEAU, PROTHONOTARY

DATED:                                                         April 12, 2005

APPEARANCES:

SOLICITORS OF RECORD: