Date: 19980730
Docket: T-461-98
BETWEEN:
BARRY W. CEMINCHUK
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
REASONS AND ORDER
WETSTON J.:
[1] The applicant brings a motion for an extension of time and for reconsideration of my order dated May 11, 1998. The motion for an extension of time is allowed. The applicant relies on rule 403 of the Federal Court Rules, 1978 which does not apply in the circumstances. Rule 369(2) of the Federal Court Rules, 1998 provides ten days after service of the motion record to file a respondent"s record. The original motion to strike was brought on April 24, 1998. The order of this Court was issued on May 11, 1998. The applicant filed written representations on May 11, 1998 in Edmonton at 4:40 p.m. The Court did not consider these representations since the order had already been issued earlier that day and the representations could not have been brought to the Court"s attention. It is unfortunate that the applicant"s representations did not come to my attention prior to the issuance of my order dated May 11, 1998. Nevertheless, he did have two weeks to file his representations. I have considered these representations with regard to the request for a reconsideration of my order pursuant to rule 397(1)(b ). In my opinion, nothing has been overlooked or accidentally omitted within the meaning of rule 397(1)(b). Accordingly, the motion for reconsideration is denied.
[2] I did not provide reasons for my order dated May 11, 1998. The following are my reasons for this order.
[3] Rule 174 of the Federal Court Rules, 1998 requires that every pleading shall contain a concise statement of the material facts on which the party relies. Moreover, rule 221 of the Federal Court Rules, 1998 provides, among other things, that a pleading may be struck if it discloses no reasonable cause of action. In my opinion, the statement of claim dated March 20, 1998 may be struck on this ground.
[4] The statement of claim contains bare assertions without any facts that can support the assertions and thus does not disclose a reasonable cause of action. Obviously, as required by rule 174, no material facts are pleaded to support the alleged cause of action.
[5] Moreover, in my opinion, the plaintiff has pleaded no material facts upon which the cause of action is based so that the defendant could answer the claim. In addition, the statement of claim that has been filed makes it virtually impossible for this Court to oversee this action. Given the state of the law, there is no justiciable cause of action disclosed and, as such, there is no possibility of success. Accordingly, the statement of claim dated March 20, 1998 was struck.
[6] I should point out that while I have struck the statement of claim as disclosing no reasonable cause of action I have not dismissed the action.
"Howard I. Wetston"
Judge
Ottawa, Ontario
July 30, 1998
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