Canada v. Néron, 2005 FC 1202

Date:  20050901

Docket:  T-617-05

Citation:  2005 FC 1202

Montréal, Quebec, September  1, 2005

Present:          RICHARD MORNEAU, PROTHONOTARY

BETWEEN:

                              HER MAJESTY THE QUEEN IN RIGHT OF CANADA

                                                                                                                                               Plaintiff

                                                                           and

                                                            STÉPHANE NÉRON

                                                                                                                                           Defendant

Motion by the defendant to appoint Richard Néron as the defendant’s representative and to dismiss the action.

                              [Sections 114, 221, 298 and 369 of the Federal Courts Rules]

Motion by the plaintiff to have the defendant provide the particulars requested.

            [Subsection 181(2), paragraph 298(3)(a) and section 369 of the Federal Courts Rules]

                                             REASONS FOR ODER AND ORDER

Defendant’s Motion

[1]               The defendant’s motion should be dismissed, with costs, for the following reasons.

[2]               With regard to section 298 of the Federal Courts Rules (the Rules), the defendant is relieved of the application of this rule at this time.

[3]               With regard to the appointment of Richard Néron as the defendant’s representative, this remedy is denied, since the defendant has submitted no circumstances allowing an exception to section 119 of the Rules. Mr. Néron cannot be authorized to represent the defendant, as he is not a lawyer and is not covered by professional liability plan.

[4]               With regard to dismissal of the plaintiff’s action because the style of cause in the originating document contains an error in the defendant’s address, this remedy is also denied.  It is a clerical error.  The statement of claim was nevertheless served at the defendant’s proper address, and the defendant subsequently filed his defence to the claim.

[5]               With regard to dismissal of the plaintiff’s action on the ground of prescription, again, this argument should also be dismissed.  As was pointed out by the plaintiff, although not specifically referred to, the defendant’s argument relates to paragraph 221(1)(a) of the Rules, to the effect that the pleadings disclose no reasonable cause of action.

[6]               This Court cannot, therefore, consider the defendant’s written submissions or Exhibit 3 in support of his affidavit, as no evidence is admissible in the context of a motion based on the ground set out in paragraph 221(1)(a) of the Rules.

[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.

[10]           We must therefore conclude that the plaintiff’s statement of action discloses, prima facie, a reasonable cause of action.

Plaintiff’s Motion

[11]           The motion by the plaintiff for particulars is granted with costs for the following reasons.

[12]           The Court validates, to the extent necessary, service on the defendant of the plaintiff’s motion record.

[13]           The plaintiff is entitled to obtain further and more detailed particulars of the allegations contained in paragraphs 2, 5, 6, 7, 8, 11, 13, 17, 24, 25, 27, 30(a), 30(b) and 30(c) of the statement of defence and counterclaim so that, for each of the events alleged, all the information referred to in paragraph 6 of the written submissions filed by the plaintiff on June 6, 2005, in support of its motion is set out.

[14]           It is therefore ordered that the defendant and plaintiff by counterclaim provide the above-described particulars concerning paragraphs 2, 5, 6, 7, 8, 11, 13, 17, 24, 25, 27, 30(a), 30(b) and 30(c) of his defence and counterclaim within a period of thirty (30) days from the date of these reasons for order and order.

[15]           Accordingly, the Court orders the defendant and plaintiff by counterclaim to serve and file an amended, more detailed defence and counterclaim within a period of thirty (30) days from the date of these reasons for order and order.

[16]           The Court grants an extension of time to allow the plaintiff and defendant by counterclaim to serve and file its reply and defence to counterclaim within thirty (30) days of service of the defendant’s amended, more detailed defence and counterclaim.

[17]           Finally, the Court noted in its analysis of the motion under consideration that the defendant indicated in his reply record that [TRANSLATION] “until further notice, any correspondence should be directed to the defendant at the following address:

Stéphane Néron

281 Comtois

Chicoutimi, Quebec

G7G 3Y3

Tel./Fax: 418-543-1347”

Certified true translation

Michael Palles

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:

STYLE OF CAUSE:

T-617-05

HER MAJESTY THE QUEEN IN RIGHT OF CANADA

                                                                         Plaintiff

and

STÉPHANE NÉRON

                                                                     Defendant

MOTION IN WRITING CONSIDERED AT MONTRÉAL WITHOUT APPEARANCE OF THE PARTIES

REASONS FOR ORDER:                           RICHARD MORNEAU, PROTHONOTARY

DATED:                                                         September 1, 2005

WRITTEN SUBMISSIONS BY:

SOLICITORS OF RECORD: