Date: 20051212
Docket: T-617-05
Citation: 2005 FC 1680
BETWEEN:
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
Plaintiff
- and -
STÉPHANE NÉRON
Defendant
REASONS FOR ORDER
PINARD J.
[1] In his motion to strike the plaintiff's action, the defendant is relying on paragraphs 221(1)(b) and (f) of the Federal Courts Rules, SOR/98-106 (the Rules), alleging essentially that the plaintiff's action [TRANSLATION] "must be struck out in that it is out of time and therefore immaterial and is an abuse of process".
[2] On June 1, 2005, in this case, the defendant filed a motion for the appointment of a representative as well as for the dismissal of the plaintiff's action, based on paragraph 221(1)(a) of the Rules, on the grounds that it was out of time. The grounds raised by the defendant, in this motion as well as in the motion dated June 1, 2005, are essentially the same with respect to the limitation period.
[3] Prothonotary Morneau did not accept those arguments when he dismissed the motion dated June 1, 2005, by order dated September 1, 2005. Prothonotary Morneau stated the following, inter alia, with respect to the limitation period raised:
[7] As is noted in paragraphs 12 and 13 of the statement of claim, the plaintiff asserts that its right of action arose out of the decision of the Chief of Defence Staff dated June 25, 2003.
[8] In such a case, the period for exercising a right arising from a decision dated June 25, 2003 would end on June 25, 2006.
[9] Thus, on the face of it, the prescription argument raised by the defendant does not stand since, prima facie, the prescription has not taken effect.
[4] This motion, even though it is based on paragraphs 221(1)(b) and (f) of the Rules, is not supported by any affidavit. There is therefore no evidence that the plaintiff's action is immaterial or redundant, or that is otherwise an abuse of process. With respect to the argument of the limitation period per se, which under the circumstances can only be based on paragraph 221(1)(a) of the Rules, no evidence in any event is admissible on that point in view of subsection 221(2) of the Rules. Taking into account, therefore, paragraphs 12 and 13 of the plaintiff's statement of claim, referred to by Prothonotary Morneau in the passage cited above from his Order, the limitation period argument resulting in the dismissal of the action is unfounded at this stage.
[5] Accordingly, the plaintiff's motion is dismissed, with costs.
"Yvon Pinard"
JUDGE
MONTRÉAL, QUEBEC
December 12, 2005
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
Docket: T-617-05
STYLE OF CAUSE: HER MAJESTY THE QUEEN IN RIGHT OF CANADA v. STÉPHANE NÉRON
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 5, 2005
REASONS FOR ORDER: The Honourable Mr. Justice Pinard
DATE OF REASONS: December 12, 2005
APPEARANCES:
Antoine Lippé FOR THE PLAINTIFF
Stéphane Néron THE DEFENDANT, REPRESENTING HIMSELF
SOLICITORS OF RECORD:
John H. Sims, Q.C. FOR THE PLAINTIFF
Deputy Attorney General of Canada
Stéphane Néron THE DEFENDANT, REPRESENTING HIMSELF
Montréal, Quebec
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