Montréal (City) v. Montréal Port Authority, 2005 FC 1049

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.

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:

SOLICITORS OF RECORD: