Dubé,
J.:—The
plaintiff
appeals
the
decision
of
the
Senior
Prothonotary,
dated
November
28,
1989,
allowing
the
defendant
to
file
a
conditional
appearance
"to
object
to
the
manner
in
which
these
proceedings
were
instituted
and
to
object
to
the
jurisdiction
of
the
Court
on
the
grounds
of
the
written
submissions
of
the
defendant".
The
written
submissions
in
question,
filed
by
the
defendant
before
the
Senior
Prothonotary,
contend,
inter
alia,
that
the
action
was
commenced
prematurely,
that
is
prior
to
the
Minister
of
National
Revenue's
decision
pursuant
to
section
163
of
the
Customs
Act\
This
section
entitles
the
Minister
to
decide
in
matters
of
seizure,
penalty,
or
forfeiture
under
the
Act.
The
action
was
commenced
in
August
1982.
The
Minister's
decision
was
made
on
November
4,
1985
declaring
the
sum
of
$6,522,133.01
as
forfeited
to
the
Crown,
an
amount
of
$1,577,976.55
to
be
remitted
to
the
defendant,
(leaving
a
balance
of
unremitted
forfeiture
of
$4,944,156.46).
The
defendant
claims
that,
prior
to
the
decision,
the
Court
had
no
jurisdiction
to
hear
the
matter
(the
statement
of
claim
has
since
been
amended
to
reflect
the
decision).
Under
Rule
401,
a
defendant
may,
by
leave
of
the
Court,
file
a
conditional
appearance
for
the
purpose
of
objecting
either
to
the
irregularity
of
the
commencement
of
a
proceeding,
or
to
the
jurisdiction
of
the
Court.
It
is
on
the
latter
ground
that
the
defendant
herein
relies.
The
jurisprudence
has
clearly
established
that
leave
to
file
a
conditional
appearance
is
a
matter
of
discretion
and
that
such
leave
ought
to
be
granted
where
the
defendant
has
prima
facie
raised
sufficient
doubt
as
to
the
jurisdiction
ratione
personae
of
the
Court.
As
to
the
jurisdiction
ratione
materiae
of
the
Court
(as
in
the
instant
case),
it
may
be
made
at
a
later
stage
in
the
proceedings
and
the
Court
may
properly
deny
leave
(see
Antares
Shipping
Corp.
v.
The
Capricorn
).
However,
there
still
remains
a
discretion
in
the
Court
to
grant
leave
to
challenge
the
jurisdiction
ratione
materiae
and
the
Senior
Prothonotary
has
seen
fit
to
exercise
his
discretion
as
he
did.
He
undoubtedly
felt
there
was
a
sufficient
prima
facie
doubt
as
to
the
jurisdiction
of
the
Court
to
grant
the
leave
prayed
for
by
the
defendant.
It
is
not
for
me,
in
the
instant
proceedings
under
Rule
336(5),
to
state
whether
or
not
I
share
the
Senior
Prothonotary's
doubt.
It
is
sufficient
at
this
stage
to
say
that
I
cannot
find
that
he
has
wrongly
exercised
his
discretion
or
that
he
has
otherwise
erred
in
law.
The
plaintiff
also
raised
the
argument
that
the
defendant
did
not
apply
for
leave
within
a
reasonable
time.
In
the
absence
of
any
specified
requirement,
what
is
a
reasonable
time
varies
in
each
particular
case.
This
matter
has
been
actively
pursued
through
several
appeals
since
the
filing
of
the
initial
statement
of
claim
and
there
appears
to
have
been
much
consensual
delay.
I
should
also
point
out
that
the
plaintiff
has
not
stated
the
grounds
of
his
appeal
in
his
notice
of
appeal,
contrary
to
the
requirements
of
Rule
336(5).
In
Algonquin
Mercantile
v.
Dart
such
an
appeal
was
dismissed
out
of
hand
because
of
this
deficiency.
The
filing
of
a
conditional
appearance
under
Rule
401
is
merely
the
first
of
two
steps.
The
second
step
is
a
hearing
where
the
question
of
the
jurisdiction
of
the
Court
is
to
be
fully
argued
and
resolved.
In
my
view,
the
parties
ought
to
advance
to
that
second
step.
Consequently,
the
appeal
is
denied.
Costs
in
the
cause.
Appeal
dismissed.
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