Docket: A-536-12
Citation: 2014 FCA 172
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CORAM:
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GAUTHIER J.A.
NEAR J.A.
SCOTT J.A.
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BETWEEN:
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ST. JOHN'S PORT AUTHORITY
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Appellant
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and
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ADVENTURE TOURS INC.
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Respondent
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Heard at St. John's, Newfoundland and Labrador, on June 26, 2014.
Judgment delivered from the Bench at St. John's, Newfoundland and Labrador, on June 26, 2014.
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REASONS FOR JUDGMENT BY:
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THE
COURT
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Docket: A-536-12
Citation:
2014 FCA 172
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CORAM:
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GAUTHIER J.A.
NEAR J.A.
SCOTT J.A.
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BETWEEN:
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ST. JOHN'S PORT AUTHORITY
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Appellant
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and
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ADVENTURE TOURS INC.
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Respondent
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REASONS FOR JUDGMENT BY THE COURT
(Delivered from the Bench at St. John's, Newfoundland and Labrador, on June 26, 2014).
[1]
This is an appeal from an order of Chief Justice
Crampton of the Federal Court (the Judge) dated November 28, 2012 dismissing
the St. John’s Port Authority’s (SJPA) appeal from the order of Prothonotary
Morneau dated May 16, 2012 (2012 FC 592).
[2]
In his order, the Prothonotary dismissed SJPA’s
motion to strike out in its entirety Adventure Tours Inc’s (ATI) Statement of
Claim pursuant to Rules 221(1)(a) and (f) of the Federal Courts Rules,
SOR/98-106.
[3]
SJPA’s motion was based upon two grounds. First,
the Statement of Claim does not disclose a reasonable cause of action because
the claim is time barred (Rule 221(1)(a)). Secondly, in the special
circumstances of this case, the filing of the Statement of Claim constitutes an
abuse of process (Rule 221(1)(f)). This latter ground is not before us as the
decision of the Judge in this respect was not appealed.
[4]
The Judge concluded that the Prothonotary did
not err in determining that it was not plain and obvious that the claim was
time barred. We agree generally for the reasons outlined by the Prothonotary
that the motion to strike on that basis should be dismissed.
[5]
As noted by the Prothonotary, at this stage it
would be inappropriate to strike out the Statement of Claim which has been
filed with leave of this Court in its judgment in file A-307-09 (2011 FCA 198).
SJPA acknowledged before us that this Court never dismissed ATI’s action as a
result of that appeal. In this context, whether or not the Fresh Statement of
Claim is a continuation of the action commenced in February 2008 and thus
benefits from the interruption of the limitation period is in our view not
plain and obvious.
[6]
The appeal will be dismissed with costs.
“Johanne Gauthier”
“D.G. Near”
“A.F. Scott”
FEDERAL
COURT OF APPEAL
NAMES
OF COUNSEL AND SOLICITORS OF RECORD
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DOCKET:
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A-536-12
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STYLE OF CAUSE:
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ST. JOHN'S PORT AUTHORITY v. ADVENTURE TOURS INC.
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PLACE OF
HEARING:
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St. John's, Newfoundland and Labrador
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DATE OF
HEARING:
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June 26, 2014
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REASONS
FOR JUDGMENT OF THE COURT BY:
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GAUTHIER J.A.
NEAR J.A.
SCOTT J.A.
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DELIVERED
FROM THE BENCH BY:
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THE COURT
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APPEARANCES:
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Jamie M. Smith
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For The
Appellant
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Douglas W. Lutz
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For The
Respondent
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SOLICITORS OF RECORD:
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Smith Law Offices
St. John's, Newfoundland and Labrador
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For The
Appellant
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muttarts law firm
Kentville, Nova Scotia
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For The
Respondent
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