Jerome
A.C.J.:
—
In
this
application
brought
pursuant
to
Rules
474(1)
and
474(2)
of
the
Federal
Court
Rules,
the
plaintiffs
seek
an
Order
striking
paragraph
56
of
the
Amended
Statement
of
Defence
which
refers
to
a
set-off
for
amounts
owing
with
respect
to
the
plaintiffs
non-payment
of
taxes
and
non-
remittance
of
payroll
deductions,
plus
interest
and
penalty.
The
grounds
for
striking
the
Amended
Statement
of
Defence
are
that
this
matter
is
res
judicata,
having
already
gone
before
the
courts
in
a
criminal
proceeding.
By
Order
of
December
4,
1995,
I
set
out
a
schedule
for
filing
material
and
indicated
that
the
matter
would
be
dealt
with
in
accordance
with
Rule
324
unless
an
oral
hearing
was
necessary.
In
Canada
(Minister
of
Employment
&
Immigration)
v.
Chung,
[1993]
2
F.C.
42,
18
Imm.
L.R.
(2d)
151
(C.A.),
the
Federal
Court
of
Appeal
set
out
three
requirements
for
issue
estoppel:
the
same
question
was
to
be
decided
in
each
case,
the
decision
creating
the
estoppel
was
final,
and
the
parties
to
the
proceedings
were
the
same.
The
plaintiffs
allege
that
the
set-off
referred
to
was
“denied
to
the
defendant
in
the
Criminal
Court
Proceedings.”
However,
the
materials
at
tab
6
to
the
affidavit
of
Mary
David,
sworn
November
27,
1995,
indicate
that
criminal
proceedings
were
stayed
at
the
direction
of
counsel
for
the
Attorney
General
of
Canada
and
that
the
matter
was
never
disposed
of
by
any
court.
Therefore,
the
first
requirement
set
out
above
has
not
been
satisfied.
This
motion
to
strike
the
Amended
Statement
of
Defence
is
therefore
dismissed.
Costs
in
the
cause.
Motion
dismissed.
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