Date: 20010123
Docket: T-752-99
MONTREAL, QUEBEC, THIS 23rd DAY OF JANUARY 2001
PRESENT: RICHARD MORNEAU, ESQ., PROTHONOTARY
Between:
CANADIAN BROADCASTING CORPORATION
Applicant
AND
HARRIS TAYLOR
Respondent
AND
CANADIAN HUMAN RIGHTS COMMISSION
Intervenor
REASONS FOR ORDER AND ORDER
RICHARD MORNEAU, ESQ., PROTHONOTARY:
[1] This is a motion under rule 369 on behalf of the Applicant for an Order that paragraphs 28 to 62 inclusive of the amended memorandum of fact and law filed by the Intervenor be struck.
[2] It appears that the crux of the issue raised by the Applicant's motion is whether the submissions made by the Intervenor in the impugned paragraphs of its amended memorandum of fact and law are consistent with the Order of Prothonotary Aronovitch and properly go to the Commission's jurisdiction and the record of its proceedings. The Applicant characterizes the Commission's submissions as a "back-door" or indirect attempt to defend the decision under review and/or to defend against allegations of procedural unfairness.
[3] Even though the Applicant's motion does not refer expressly to the inherent jurisdiction of this Court, it seems to me that it must be addressed under that jurisdiction, as applied by Strayer J.A. in Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al. (1994), 176 N.R. 48, at pages 54-5 ("Pharmacia"). I believe that the principles stated therein apply to this case, even though here the Applicant is seeking to have the Intervenor's memorandum struck out only in part, and not to have the entire memorandum struck out. I would even say that Pharmacia applies here particularly, and therefore a fortiori, since the motion seeks to strike out only a few paragraphs of a document.
[4] In Pharmacia, Strayer J.A. allowed a motion to strike out to be made in a judicial review proceeding only in exceptional cases. At pages 54-5, the Court said:
| This is not to say that there is no jurisdiction in this court inherent or through rule 5 by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. (See e.g. Cyanamid Agricultural de Puerto Rico Inc. v. Commissioner of Patents (1983), 74 C.P.R. (2d) 133 (F.C.T.D.); and the discussion in Vancouver Island Peace Society et al. v. Canada (Minister of National Defence) et al., [1994] 1 F.C. 102; 64 F.T.R. 127, at 120-121 F.C. (T.D.)). Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegation in the notice of motion. |
[5] The same reasoning was followed by Nadon J. of this Court in a decision dated August 13, 1996 (Tom Pac Inc. v. Kem-A-Trix (Lubricants) Inc., file No. T-1238-96, at page 5).
[6] In the instant case, the aspects that the Applicant is seeking to have corrected by making this motion are not, in the circumstances, aspects that, even in the event that the Applicant might be correct, may be seen as so incorrect or unacceptable that we should intervene in the process of an application for judicial review (see the comments of Strayer J.A. in Pharmacia, supra, at pages 54-5). Any motion to strike out that is made in the course of an application for judicial review must be an exception, so that one of the primary objectives of such an application, which is to hear the application on the merits as quickly as possible, may be met.
[7] As Strayer J.A. stated in Pharmacia:
| ... [T]he focus in judicial review is on moving the application along to the hearing stage as quickly as possible. This ensures that objections to the originating notice can be dealt with promptly in the context of consideration of the merits of the case. |
[8] (See also the decisions in Merck Frosst Canada Inc. et al. v. Minister of National Health and Welfare et al. (1994), 58 C.P.R. (3d) 245, at page 248, and Glaxo Wellcome Inc. et al. v. Minister of National Health and Welfare et al., unreported decision of this Court, September 6, 1996, file No. T-793-96.)
[9] The Applicant should satisfy itself by raising with the merit judge the points it raises in the within motion.
[10] Consequently, this motion is denied.
[11] This Order is applicable mutatis mutandis to Court file T-554-99.
Richard Morneau
Prothonotary
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.:
STYLE OF CAUSE:
T-752-99
CANADIAN BROADCASTING CORPORATION
Applicant
AND
HARRIS TAYLOR
Respondent
AND
CANADIAN HUMAN RIGHTS COMMISSION
Intervenor
WRITTEN MOTION EXAMINED IN MONTREAL WITHOUT PERSONAL APPEARANCE OF THE PARTIES
REASONS FOR ORDER BY:Richard Morneau, Esq., Prothonotary
DATE OF REASONS FOR ORDER:January 23, 2001
WRITTEN OBSERVATIONS BY:
| Ms. Suzanne Thibaudeau
|
for the Applicant
|
| Ms. Fiona Keith
|
for the Intervenor
|
SOLICITORS OF RECORD:
| Heenan Blaikie
Montreal, Quebec
|
for the Applicant
|
| Munro Parfitt
Vancouver, B.C.
|
for the Respondent
|
| Ms. Fiona Keith
Ottawa, Ontario
|
for the Intervenor
|
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