771112 Alberta Ltd. v. Canada, 2010 FC 739

Date: 20100708

Docket: T-736-10

Citation: 2010 FC 739

Vancouver, British Columbia, July 8, 2010

PRESENT:     Roger R. Lafrenière, Esquire

                        Prothonotary

BETWEEN:

771112 ALBERTA LTD.

Plaintiff

and

HER MAJESTY THE QUEEN

Defendant

REASONS FOR ORDER AND ORDER

[1]               A case management conference was held this day by teleconference with counsel for the parties to address appropriate procedural steps and timing of those steps.

[2]               By way of background, the Plaintiff seeks by way of statement of claim to appeal an assessment of penalties and interest pursuant to section 63(3) of the Canada Petroleum Resource Act, R.S.C. 1985, c. 36 (CPRA). The Defendant submits that the wrong originating document was issued and that the Plaintiff should instead have filed a notice of appeal. The Defendant also maintains that the procedure set out in Part 6 of the Federal Courts Rules (FCR) should govern the proceeding.

[3]               As a general rule, an appeal is commenced by the issuance of a notice of appeal: Rule 63(1)(e) of the FCR. However, subsection 63(1) of the CPRA provides that the interest holder may appeal to this Court “in the manner set out in section 48 of the Federal Courts Act” to have the assessment varied or vacated. Similar wording regarding the procedure to be used to appeal an assessment can be found at section 81.28 of the Excise Tax Act, R.S.C. 1985, c. E-15.

[4]               Subsection 48(1) of the Federal Courts Act, R.S., 1985, c. F-7, s. 1; 2002, c. 8, s. 14 (FCA) specifies that a proceeding against the Crown shall be instituted by filing “a document that may be in the form set out in the schedule.” The schedule to the FCA simply reproduces the form of a statement of claim. Since the CPRA prescribes only one form to bring an appeal under ss. 63(1), I am satisfied that the proper originating document was used by the Plaintiff in commencing the present proceeding.

[5]               Where a statute requires a proceeding to be commenced by an originating document different from that prescribed by Rule 63(1), the rules applicable to the originating document apply in respect of that document: Rule 63(2). The appeal having been instituted by way of statement of claim as required by subsection 63(1) of the CPRA, it follows that the present proceeding must be governed by Part 4 of the FCR. This is consistent with the procedure adopted by this Court in an earlier proceeding brought under ss. 63(1) of the CPRA bearing Court File No. T-85-03.

ORDER

            THIS COURT ORDERS that the parties shall submit, either jointly or separately, and no later than July 21, 2010, a proposed schedule for completion of the next steps in accordance with Part 4 of the Federal Courts Rules.

“Roger R. Lafrenière”

SOLICITORS OF RECORD

DOCKET:                                          T-736-10

STYLE OF CAUSE:                          771112 ALBERTA LTD. v.

                                                            HER MAJESTY THE QUEEN

CASE MANAGEMENT CONFERENCE HELD

VIA TELECONFERENCE ON JULY 8, 2010

FROM CALGARY, ALBERTA AND VANCOUVER, BRITISH COLUMBIA

REASONS FOR ORDER

AND ORDER:                                   LAFRENIÈRE P.

DATED:                                             July 8, 2010

ORAL REPRESENTATIONS BY:

SOLICITORS OF RECORD: