Date: 19990712
Docket: T-733-99
BETWEEN:
IAN VERNER MACDONALD
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO,
THE ATTORNEY GENERAL OF ONTARIO,
THE HONOURABLE CHARLES HARNICK,
WILLIAM MALCOLM BISHOP,
TERRANCE STERLING BISHOP
MICHAEL CHINKIWSKY and
S. BERGAU
Defendants
REASONS FOR ORDER
LEMIEUX J.:
[1] These brief reasons for order deal with three separate motions to strike and dismiss this action.
[2] The defendants in this action are separately represented. Her Majesty The Queen in Right of Ontario, the Attorney General of Ontario, the Honourable Charles Harnick and S. Bergau, are represented by the Crown Law Office-Civil of the Ministry of the Attorney General. The Bishops are represented by an Ottawa law firm as is Michael Chinkiwsky.
[3] The defendants, in three separate motions, all based on the same grounds, move for an order from this Court, pursuant to sections 3 and 17 of the Federal Court Act and rules 208, 221 and 369(1) of the Federal Court Rules, 1998 for orders striking out the statement of claim for want of jurisdiction and dismissing the action. These reasons for order deal with all three motions moved by the defendants.
[4] The statement of claim issued by the plaintiff on April 27, 1999, solely concerns private property in the Province of Ontario. The plaintiff alleges the purchase of private property in the Township of Osgoode from Greta McKeown, the mortgage back of that property to the vendor, the death of the vendor, the transfer of the mortgage to the Bishops, the non-refinancing of that mortgage and the foreclosure on that mortgage which was signed by the defendant S. Bergau, Local Registrar of the Ontario Court (General Division) on March 22, 1999. The allegation against Michael Chinkiwsky is somewhat unspecified; he is a lawyer practising in Ottawa and acted on behalf of the Bishops in connection with the mortgage and its foreclosure.
[5] The plaintiff's essential allegation, as a result of the transactions described above, is that:
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On or about 22 March 1999, without any prior notice to the Plaintiff to vacate the land, the Bishops and all of the Defendants in this Action willfully, fraudulently, maliciously and in bad faith, robbed the Plaintiff of the Plaintiff's land. |
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[6] All of the defendants, in their moving records, say that this Court is without jurisdiction on the basis of the principles established by the Supreme Court of Canada in ITO International Terminal Operators Limited v. Miida Electronics Inc., [1986] 1 S.C.R. 752 at 766 where the Court held the essential requirements to support a finding of jurisdiction from the Federal Court were as follows:
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1. There must be a statutory grant of jurisdiction by the federal Parliament. |
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2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction. |
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3. The law on which the case is based must be "a law of Canada" as the phrase is used in s. 101 of the Constitution Act, 1867. |
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[7] The plaintiff did not file a record opposing the defendant's moving records.
[8] In my view, it is plain and obvious that all of the defendants' submissions are sound that the statement of claim should be struck and the action dismissed with costs. Clearly, there is no statutory grant of jurisdiction to the Federal Court. There is no federal interest involved. There is no existing body of federal law which is essential to the disposition of this case. Only provincial law relating to private property in Ontario is involved.
[9] For all of these reasons, all motions are granted, the statement of claim is struck in respect of all defendants and the action is dismissed in respect of all defendants with costs.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
JULY 12, 1999
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