Date:
20070712
Docket:
T-289-07
Citation:
2007 FC 744
[ENGLISH
TRANSLATION]
Montréal, Quebec, July 12, 2007
PRESENT:
Richard Morneau, Esq., Prothonotary
BETWEEN:
CLAUDE
PLANTE
Applicant
and
LES
ENTREPRISES RÉAL CARON LTÉE
Respondent
REASONS FOR ORDER AND
ORDER
[1]
This
is a motion by the respondent seeking the dismissal of the application for
judicial review (the application) filed by the applicant — who is representing
himself — on the grounds that the application is, upon review, frivolous,
abusive, and a delaying tactic.
[2]
At
the same time, the respondent is seeking the dismissal of exhibits and
appendices that the applicant included with his affidavit under Rule 306 of the
Federal Court Rules (the Rules), as those documents were allegedly not,
as such, filed as evidence before the adjudicator whose decision dated January
15, 2007, is the subject of the application. Those documents, however, were
apparently mentioned in the applicant’s oral arguments before that adjudicator
and were apparently marked by that adjudicator.
[3]
Here,
the respondent is essentially asking that, at the interlocutory stage, we
somewhat literally hear the position that it plans to argue on merit against
the application by inviting the Court to retain the standard of judicial review
that it feels applies to this case and, based on the law and the
comprehensiveness of the decision under review, assess the weakness of the
position developed thus far by the applicant in his notice of application and
the affidavit that he filed under Rule 306.
[4]
Although
it was not filed under that head, it seems to me that the motion under review
must be addressed under the inherent jurisdiction of this court, as applied by
Strayer J. in Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et
al. (1994), 176 N.R. 48, at pages 53 to 55.
[5]
I
feel that the exercise that the respondent is asking us to carry out in this
motion exceeds here the type of exercise that Pharmacia sets forth for
an application for judicial review.
[6]
Any
application to strike as part of an application for judicial review must be
exceptional, in order to promote one of the main objectives of such an
application, that of hearing the application on merit as soon as possible.
[7]
As
indicated by Strayer J. in Pharmacia, at page 53:
…
[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.
(See
also 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 judgment by this Court, September 6, 1996, docket T-793-96.)
[8]
Under
the circumstances, I do not feel that it is appropriate to embark on an
evaluation that must be conducted on merit.
[9]
I
feel that the respondent should and must argue what it sought to argue here in
its affidavit(s) under Rule 307 and its Respondent Record under Rule 310. The
same is true for the documents that it seeks to strike from the applicant’s
affidavit, as it is quite able to identify the circumstances surrounding those
documents and that position can be well brought to the judge’s attention on
time at the stage of Rule 310.
[10]
For
these reasons, the respondent’s motion to dismiss shall be dismissed.
ORDER
This
motion to dismiss is dismissed, with costs in the cause.
The
subsequent timeline to be followed shall be:
1.
The
applicant shall serve and file his Applicant’s Record under Rule 309 on or
before July 25, 2007;
2.
Thereafter,
the normal timelines for Rule 310 et seq. shall apply. The Court reminds
the applicant here that he must be particularly vigilant in respecting the
timeline under paragraph 1 above and the timeline set out in Rule 314.
“Richard Morneau”
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