This
motion
is
for
an
order
that:
1.
The
statement
of
claim
dated
January
21,
1991
and
filed
on
behalf
of
the
plaintiffs,
or
alternatively,
portions
therof,
be
struck
out
or
summarily
dismissed;
2.
Such
further
and
other
relief
as
counsel
may
advise
and
this
Honourable
Court
may
permit.
Grounds
of
the
motion
1.
This
honourable
Court
lacks
jurisdiction
to
entertain
this
proceeding
or,
alternatively,
portions
thereof
by
virtue
of
section
29
of
the
Federal
Court
Act;
2.
In
the
alternative,
the
proceeding
herein
or,
alternatively,
portions
thereof
disclose
no
reasonable
cause
of
action,
are
scandalous,
frivolous
or
vexatious,
or
may
prejudice,
embarrass
or
delay
the
fair
trial
of
the
action,
or
are
otherwise
an
abuse
of
the
process
of
this
Honourable
Court.
Analysis
To
the
extent
that
it
is
based
on
paragraph
(a)
of
Rule
419(1),
the
motion
is
subject
to
the
restriction
imposed
by
Rule
419(2)
and
therefore,
the
Court
ought
not
to
consider
the
affidavit
of
John
Gregory
Proudman
referred
to
by
counsel
for
the
defendant
in
his
memorandum.
Thus,
without
considering
the
evidence
contained
in
that
affidavit,
the
Court
is
not
able
to
conclude
at
this
time
that
it
lacks
jurisdiction
to
entertain
the
plaintiffs
action,
nor
that
the
said
action
discloses
no
reasonable
cause
of
action.
As
we
stated
in
Inuit
Tapirsat
of
Canada
v.
Canada
(A.G.),
[1980]
2
S.C.R.
735,
the
Court
will
only
strike
pleadings
in
plain
and
obvious
cases
where
the
case
is
beyond
doubt,
which
is
not
the
case
here.
In
so
far
as
the
motion
is
based
on
the
other
paragraphs
of
Rule
419(1),
counsel
for
the
defendant
has
also
failed
to
meet
the
heavy
burden
of
showing
that
it
is
clear
and
obvious
that
the
plaintiffs'
proceeding
or
portions
thereof
are
scandalous,
frivolous
or
vexatious,
or
may
prejudice,
embarrass
or
delay
the
fair
trial
of
the
action,
or
otherwise
are
an
abuse
of
the
process
of
the
Court.
It
may
well
be
that
the
plaintiffs'
case
is
not
as
reasonably
arguable
with
respect
to
others;
indeed,
section
29
of
the
Federal
Court
Act
may
well
prevent
some
of
the
plaintiffs
from
obtaining
the
relief
sought
for
the
taxation
years
in
which
assessments
were
made
by
the
Minister
of
National
Revenue
and
from
which
no
appeals
therefrom
were
launched;
this,
however,
would
not
necessarily
apply
to
the
relief
sought
for
the
years
in
which
income
tax
was
paid
without
any
income
tax
returns
being
filed
as
well
as
for
future
years.
In
my
view,
in
order
to
clearly
make
the
necessary
distinctions,
all
these
matters
ought
to
be
dealt
with
together
at
trial.
Decision
Consequently,
it
will
be
ordered
that
the
motion
be
dismissed,
costs
in
the
Cause.
Motion
dismissed.
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