Date: 19990831
Docket: T-923-99
BETWEEN:
JEAN-MICHEL TESSIER
Plaintiff
- and -
CANADA PORTS CORPORATION
Defendant
Notice of motion by counsel for the defendant for an order that the plaintiff"s statement of claim be struck out on the ground that it discloses no reasonable cause of action.
(Rule 221(1) of the Federal Court Rules, 1998)
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] The defendant has filed a motion for an order that the plaintiff"s statement of claim be struck out on the ground that it discloses no reasonable cause of action, in accordance with paragraph 221(1)(a ) of the Federal Court Rules, 1998.
[2] The defendant claims that the amended statement of claim in the action should be struck out on the ground that the different versions of the facts alleged therein, even if they were considered as true, do not include any investitive facts which would give rise to the amounts claimed by the plaintiff.
[3] Counsel for the plaintiff recalled the facts, namely that the defendant issued a cheque in the amount of $366,243.12, dated June 8, 1995, to the order of the Receiver General for Canada, Superannuation Directorate, in order to buy back the plaintiff"s years of service for pension purposes.
[4] The defendant stated that through its counsel, it notified the Department of Public Works, which is responsible for managing pensions, that it had not authorized the payment and asked it to retain the money until further notice.
[5] Both parties agree that Public Works Canada subsequently returned the amount of $366,243.12 to the defendant on November 1, 1996.
[6] Counsel for the defendant argues that the statement of claim must be dismissed immediately because the plaintiff, Jean-Michel Tessier, has not provided any reason or ground for suffering any damages as a result of the cheque for $366,243.12 paid by Public Works Canada to Canada Ports Corporation.
[7] Moreover, counsel for the defendant submits that the plaintiff, Jean-Michel Tessier, claims to have suffered damages estimated at $100,000, without indicating the source of these alleged damages.
[8] Counsel for plaintiff Jean-Michel Tessier submits that, according to the letter from Marie-Michèle Robichaud, Director of Personnel, to George Petrellis, Assistant Vice-President, Finance and Administration of Canada Ports Corporation, the Director of Personnel asked that a payment of $366,243.12 be made to the Receiver General for Canada with respect to the buy back of service with Canadian Pacific by Jean-Michel Tessier. This letter also makes reference to a summary included with that letter, which was unfortunately not filed by the defendant in support of the case.
[9] Counsel for plaintiff Jean-Michel Tessier submits that this letter establishes that the payment by Canada Ports Corporation to the Department of Public Works was made properly and for a specific purpose.
[10] Counsel for plaintiff Jean-Michel Tessier also submits that the defendant has not established why Public Works Canada issued a cheque for $366,243.12 to Canada Ports Corporation to reverse the previous transaction, according to the letter of June 5, 1995.
[11] Neither counsel for the plaintiff nor for the defendant offered conclusive evidence as to why two cheques of $366,243.12 should be issued one after the other.
[12] Counsel for the defendant claims that Canada Ports Corporation should not have issued the cheque for $366,243.12, dated June 8, 1995 and filed as exhibit P-3, and counsel for plaintiff Jean-Michel Tessier alleges that Public Works Canada had no reason to issue a cheque to Canada Ports Corporation for the same amount, $366,243.12, in November 1996.
[13] According to Mr. Justice Teitlebaum"s decision in Joint Stock Society "Oceangeotechnology" v. 1201 (The),1 at page 269:
| Therefore, in determining the issue of whether or not to strike a statement of claim, the facts alleged in the relevant pleadings are |
| to be considered as true and the applicant (defendants in this case) must show that it is clear and obvious that the pleading shows no reasonable cause of action, that is, that it is clear and obvious that the plaintiff could not succeed in its action. |
[14] The Court considers that at this point, the evidence before the Court is contradictory and the examinations to be made, documents to be filed and possible affidavits in support of the pleadings should lead to a better understanding of the facts which led to the commencement of this action.
[15] At this point, I do not believe the defendant has met its burden of establishing that the action commenced in this matter disclosed no reasonable cause of action.
[16] For these reasons, this motion to strike the plaintiff"s statement of claim is dismissed, costs in the cause.
[17] As the parties indicated they needed time to perfect their pleadings, the Court allows the defendant 60 days from the date of this order to file its defence.
Pierre Blais Judge
OTTAWA, ONTARIO
August 31, 1999
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-923-99
| STYLE OF CAUSE: JEAN-MICHEL TESSIER v. CANADA PORTS CORPORATION |
PLACE OF HEARING: QUÉBEC, QUEBEC
DATE OF HEARING: AUGUST 13, 1999
REASONS FOR ORDER AND ORDER OF BLAIS J.
DATED: September 31, 1999
APPEARANCES:
Louis Masson FOR THE PLAINTIFF
Patrick Vézina FOR THE DEFENDANT
SOLICITORS OF RECORD:
Louis Masson FOR THE PLAINTIFF
Michel Miller FOR THE DEFENDANT
Justice Canada
__________________