Giles,
A.S.P.:—
Before
me
under
Rule
324
is
a
motion
for
judgment
against
the
Crown
in
default
of
defence.
The
statement
of
claim
was
filed
in
the
Toronto
Local
Office
of
the
Registry
of
the
Court
on
August
7,
1992.
It
appears
that
copies
were
transmitted
to
the
office
of
the
Deputy
Attorney
General
of
Canada
on
of
August
17,
1992.
It
appears
from
the
plaintiff's
affidavit
filed
in
support
of
his
motion,
that
he
was
advised
of
the
name
of
counsel
acting
for
the
Crown
by
a
letter
dated
August
25,
1992.
On
September
21
a
motion
for
judgment
in
default
of
defence
was
filed.
On
September
24
a
statement
of
defence
was
filed.
It
appears
that
the
motion
for
judgment
in
default
of
defence
was
never
served
on
the
Crown
although
it
is
apparent
that
a
counsel
for
the
Crown
had
heard
of
the
notice
of
motion
as
early
as
September
24
when
an
attempt
was
made
by
facsimile
transmission
to
requisition
copies
of
the
notice
of
motion
and
supporting
material
from
the
Registry.
I
assume
the
Registry
advised
counsel
for
the
Crown
he
could
attend
at
the
Registry
and
inspect
the
file
himself,
as
any
member
of
the
public
would
have
to,
because
it
was
not
until
October
14
that
submissions
were
filed
by
the
Crown
in
response
to
the
Rule
324
motion.
On
October
29
the
plaintiff
filed
a
reply
to
the
Crown's
response
to
the
324
motion
and
today,
November
4th,
the
Registry
placed
the
file
before
me.
When
the
motion
actually
came
before
me
a
statement
of
claim
had
been
filed
as
noted
above,
on
September
24th.
Rule
402(2)
indicates
that
a
defence
may
be
filed
within
30
days
of
the
service
of
the
statement
of
claim
or
after
the
expiration
of
the
30-day
period
but
before
an
application
has
been
made
for
default
judgment.
Rule
3(1)(b)
provides
in
part,
that
subject
to
Rule
402(3)
the
time
of
long
vacation
shall
not
be
reckoned
in
the
computation
of
the
time
for
filing
or
serving
any
pleading.
Rule
402(3)
deals
with
a
situation
where
the
30-day
period
would
expire
during
vacation
and
therefore
does
not
apply
in
this
case
because
the
30
day
period
calculated
from
either
August
7
or
17
would
expire
in
September
and
not
in
July
or
August.
I
am
of
the
view
that
the
days
in
the
month
of
August
should
not
be
considered
in
calculating
the
30-day
period.
The
statement
of
defence
filed
on
September
24
was
therefore
filed
within
the
30
days
prescribed.
If
I
am
wrong
in
so
deciding,
I
note
that
the
defence
was
filed
before
this
motion
was
placed
before
me.
It
is
my
view
that
an
application
under
Rule
324
is
made
when
the
Court,
in
this
case
me,
starts
to
consider
it
by
reading
the
notice
of
motion.
Therefore
the
statement
of
defence
was
filed
as
permitted
by
Rule
402(2)(b)(i).
When
the
motion
was
considered
by
me
the
defence
had
been
filed
and
the
motion
must
fail.
In
addition
I
note
the
provisions
of
section
25
of
the
Crown
Liability
and
Proceedings
Act,
S.C.
1990,
c.
8,
s.
31,
which
reads:
25.
In
any
proceedings
against
the
Crown,
judgment
shall
not
be
entered
against
the
Crown
in
default
of
appearance
or
pleading
without
leave
of
the
court
obtained
on
an
application
at
least
fourteen
clear
days
notice
of
which
has
been
given
to
the
Deputy
Attorney
General
of
Canada.
There
was
no
application
for
leave
to
this
Court
to
sign
judgment.
If
the
notice
of
motion
was
to
be
considered
an
application
for
leave,
the
14
days
notice
required
would
not
have
expired
until
after
the
statement
of
defence
was
filed.
For
the
foregoing
reasons
the
plaintiff's
application
for
default
judgment
is
dismissed.
Application
dismissed.
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