Date: 19990224
Docket: T-2946-92
BETWEEN:
THE GREENS AT TAM O"SHANTER INC.
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
(Rendered orally at a teleconference in Ottawa, Ontario,
Wednesday, February 24, 1999)
HUGESSEN J.
[1] The defendant has moved for directions with respect to a motion brought by the plaintiff seeking to compel answers to a number of questions which were refused on an examination for discovery and to compel as well the production of certain documents which was equally refused.
[2] The basis for the defendant"s motion is the inadequacy of the written representations which were filed with the plaintiff"s motion as required by Rule 364(2)(e ) of the Federal Court Rules, 1998.
[3] Let me say at the outset that it is, in my view, clear that the purpose of requiring written representations to accompany motions, a new requirement of the Federal Court Rules, 1998, is double.
[4] First, it is intended that the moving party should fairly inform the opposite party of the legal and factual basis of the motion that is being brought. Such information is not only a requirement of fairness but may also in fact contribute to a saving of the Court"s time, in that the motion may well be agreed to by the party responding thereto. There may be a substantial saving of costs as well. The Rules also make special provision for the awarding of costs against a party who opposes a motion that should not have been opposed.1
[5] The other, I think, obvious purpose of written representations is to inform the Court and to assist it in the disposition of the motion. These points are both taken by the defendant in the presentation of the motion this morning and I think they are well taken.
[6] Let me also say that the written representations filed by the plaintiff in connection with its motion to compel answers are certainly sparse in the extreme. I also think that, in the exchange of correspondence between the solicitors for the two parties which preceded the bringing of the present motion, the plaintiff"s solicitor was wrong to assert that he is justified in refusing to make a fuller disclosure of his argument because to do so would be, so to speak, to give his opponent advance notice of the argument. Trial by ambush is not part of a sensible modern procedure.
[7] That said, however, it is my view that I am not the proper person to decide the adequacy of the written representations which have been filed by the plaintiff. In the first place, I do not have before me the plaintiff"s motion to compel answers and while, as I have already said, I think the written representations are sparse, I really am not in a position to determine whether they adequately inform either the defendant or the Court of the basis of the motion.
[8] In the second place, and in the same interests of a sensible modern procedure, I think parties should be discouraged from bringing motions with respect to other motions. Motions should be opposed on their merits and should not be made the subject matter of further procedural motions. We risk building endless pyramids of motion materials if we do not enforce such a rule.
[9] Indeed, in this very case, it seems to me that, if the defendant is right in its suggestion that the plaintiff"s motion materials are inadequate, and in particular that the written representations are inadequate, there are a number of remedies which are available that the defendant may seek at the return of the plaintiff"s motion. The Court which hears the motion will be able to do any one of a number of things if it finds that the plaintiff"s motion materials were inadequate and unhelpful. It may, of course, as Mr. Prothonotary Hargrave suggested he might have done in the recent and unreported case of The Wuskwi Sipihk Cree Nation2 simply dismiss the motion which is not properly supported. It may, alternatively as was done in a number of cases which have been cited to me that arose prior to the coming into force of the Federal Court Rules, 1998, require that fuller written representations be filed and adjourn the case for that purpose to be decided on the basis of those representations. Thirdly and this remedy may, of course, be in addition to either of the other two, it may make an award of costs either on column 5 or on a solicitor and client basis against the party who has offended against the requirement of Rule 364(2)(e) by filing inadequate written representations.
[10] Any or all of those remedies are, it seems to me, adequate to meet any but the most extraordinary circumstances. I do not see extraordinary circumstances existing in the present case.
[11] Accordingly, I am going to dismiss the motion for directions. The matter of the adequacy of the written representations may be spoken to again upon the return of the plaintiff"s motion. The remedies that I have suggested may be sought and may, if the Court so decides, be imposed. I will make no order as to costs with respect to today"s motion.
"James K. Hugessen"
Judge
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1 See Rule 401.
2 The Wuskwi Sipihk Cree Nation v. Canada (Minister of National Health and Welfare) (January 21, 1999), (F.C.T.D.) T-383-98 [unreported]
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