A-774-96
CORAM: STONE J.A.
DESJARDINS J.A.
McDONALD J.A.
B E T W E E N :
DAIRN OWEN
SHANE
Appellant
-
and -
HER MAJESTY
THE QUEEN
Respondent
HEARD at Vancouver, British Columbia, Friday,
October 3, 1997.
Judgment rendered from the Bench at Vancouver,
British Columbia, on Friday, October 3, 1997.
REASONS FOR JUDGMENT OF THE COURT: STONE
J.A.
A-774-96
CORAM: STONE J.A.
DESJARDINS J.A.
McDONALD J.A.
B E T W E E N :
DAIRN OWEN
SHANE
Appellant
-
and -
HER MAJESTY
THE QUEEN
Respondent
REASONS FOR JUDGMENT
OF THE COURT
(Delivered from the Bench at Vancouver,
B.C., Friday, October 3, 1997)
STONE J.A.
This
is an appeal from an order of the Trial Division of October 8, 1996, by which
the appellant's Statement of Claim was struck pursuant to Rule 419 as
disclosing no reasonable cause of action and as being frivolous and vexatious.
A ground of appeal is that the appellant was denied natural justice below
because he was not given the opportunity of making oral submissions in response
to the submissions of the respondent.
In
paragraph 10 of her Memorandum of Fact and Law, the respondent concedes:
10. The Respondent therefore
submits that this appeal should be allowed without costs, that the Order of the
motions judge dated October 8, 1996 should be quashed, and the matter referred
back to the Federal Court Trial Division to be reheard by a different judge on
the merits.
We
agree that the appeal should be allowed but that in the circumstances the
appellant should have his out-of-pocket disbursements in a fixed amount. It is
evident that disbursements were outlaid by the appellant before the respondent
made and communicated the above concession.
The
appeal will therefore be allowed, the order of the Trial Division set aside and
the motion referred to another judge of the Trial Division for hearing and
disposition on the merits. The appellant shall have his out-of-pocket
disbursements which are fixed at $250, payable forthwith.
"A.J. STONE"
J.A.
FEDERAL
COURT OF CANADA
Court No. A-774-96
BETWEEN:
DAIRN
OWEN SHANE
-
and -
HER MAJESTY THE QUEEN
________________________________________
REASONS FOR
JUDGMENT
________________________________________
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