Pfeiffer & Pfeiffer Inc. v. Lafontaine, 2003 FCA 391

Date: 20031022

Dockets: A-607-02

A-609-02

Citation: 2003 FCA 391

CORAM:        LÉTOURNEAU J.A.

NADON J.A.

PELLETIER J.A.

BETWEEN:

                                                    PFEIFFER & PFEIFFER INC.

and

SYDNEY H. PFEIFFER

                                                                                                                                          Appellants

                                                                           and

                                                          ALAIN LAFONTAINE,

                                        Deputy Superintendent - Programs Standards

                                                           and Regulatory Affairs

                                                                                                                                        Respondent

                                       Heard at Montréal, Quebec, on October 22, 2003.

                  Judgment delivered from the Bench at Montréal, Quebec, on October 22, 2003.

REASONS FOR JUDGMENT OF THE COURT BY:                                              PELLETIER J.A.

Date: 20031022

Dockets: A-607-02

A-609-02

Citation: 2003 FCA 391

CORAM:        LÉTOURNEAU J.A.

NADON J.A.

PELLETIER J.A.

BETWEEN:

                                                    PFEIFFER & PFEIFFER INC.

and

SYDNEY H. PFEIFFER

                                                                                                                                          Appellants

                                                                           and

                                                          ALAIN LAFONTAINE,

                                        Deputy Superintendent - Programs Standards

                                                           and Regulatory Affairs

                                                                                                                                        Respondent

                                     REASONS FOR JUDGMENT OF THE COURT

                    (Delivered from the Bench at Montréal, Quebec, on October 22, 2003)

PELLETIER J.A.

[1]                These are appeals of two orders of Pinard J. in which he allowed the respondent's motion to strike the appellants' motion seeking among other things a review of ex parte order granting the respondent access to the appellants' premises.

[2]                The elucidation of the underlying issues was made more complex by the fact that the appellants' motion to review the ex parte orders claimed relief which was not available in the appellants' motions namely mounting a collateral attack on the conservatory orders made by the respondent.

[3]                That overreaching, however, would not justify the dismissal of the motions, though it might support an order striking the relief which is not available.

[4]                The relief which the appellants were entitled to seek was an order setting aside the ex parte orders. The grounds which they alleged support such a motion were that 1) the respondent did not make full disclosure when he obtained the original order; and 2) the order was made without jurisdiction.

[5]                The difficulty which the appellants have created for themselves is that there is no affidavit in support of their motions. Rule 363 requires that a party to a motion must set out in an affidavit facts which do not appear in the court record. In this case, the court record contains two affidavits submitted in support of the ex parte motion.

[6]                Those are the facts in the court record. If the appellants wish to contradict them, they must do so by affidavit. They may well uncover further proof of the facts alleged in their affidavit by cross-examining the respondent's affiants but this does not detract from the obligation to provide an affidavit.

[7]                As for second ground, lack of jurisdiction, this question was decided by the Quebec Court of Appeal in National Fruit 2000 Inc. (Proposition de) [2002] R.J.Q. 1 (C.A.).

[8]                In the end, the Motions Judge was entitled to strike the appellants' motion as he did.

[9]                The appeal will be dismissed with one set of costs and disbursements in both files.

           "J. D. Denis Pelletier"           

                                                                                                                                                      J.A.

                                                  FEDERAL COURT OF APPEAL

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKETS:                                       A-607-02 and A-609-02

(APPEAL FROM AN ORDER OF THE FEDERAL COURT DATED OCTOBER 7, 2002 IN COURT FILE NO. T-1031-02)

STYLE OF CAUSE:                         

PFEIFFER & PFEIFFER INC.

and

SYDNEY H. PFEIFFER

                                                                                                                                          Appellants

and

ALAIN LAFONTAINE,

Deputy Superintendent - Programs Standards

                                                           and Regulatory Affairs

                                                                                                                                        Respondent

PLACE OF HEARING:                                                         Montréal, Quebec

DATE OF HEARING:                                                           October 22, 2003

REASONS FOR JUDGMENT OF THE COURT:              (LÉTOURNEAU, NADON, PELLETIER, JJ.A.)

DELIVERED FROM THE BENCH BY:                             PELLETIER J.A.

APPEARANCES:

SOLICITORS OF RECORD: