Date: 20021219
Docket: T-887-02
Neutral citation: 2002 FCT 1316
BETWEEN:
SUCHA SINGH SHERGILL
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
[1] This is an appeal by the Plaintiff, pursuant to Rule 51 of the Federal Court Rules, 1998, of the Orders of Mr. John A. Hargrave, Prothonotary, dated November 7, 2002, which, inter alia, struck out the Plaintiff's Statement of Claim, dismissed the within action with an award of costs on a solicitor-client scale and, as a consequence, declared moot other procedural motions made by the Plaintiff. The appeal is dismissed for the following reasons.
[2] Rule 50 of the Federal Court Rules, 1998, expressly provided the Prothonotary with the jurisdiction to hear the motions made by the parties in the order of his choosing. There is nothing in the latter rules or in the case law that would suggest that the Prothonotary did not have the discretion to hear the Defendant's motion to strike the Statement of Claim first, or that he erred in law in doing so. Furthermore, the decision to hear the Defendant's motion first was a practical and efficient one given such a motion, if successful, had the potential effect of ending the action and rendering all the subsequent motions moot.
[3] The Plaintiff's action, which was struck by the Prothonotary, is clearly estopped by the doctrine of res judicata, given the proceedings and, ultimately, the decision of the Federal Court of Appeal in Pawar v. Canada [1998] F.C.J. 1418 (F.C.T.D.) (QL) and [1999] F.C.J. 1421 (F.C.A.) (QL):
(a) First, the Plaintiff's statement of claim herein raises the identical issue that was raised in Pawar, supra, with the exception that the former concentrates solely on the plight of the Canadian citizen, while the latter focused on "Canadian Citizens or permanent residents". Both actions, however, challenged both the constitutionality of s. 3 of the Old Age Security Act, R.S.C. 1985, c. O-9 (O.A.S.);
(b) Second, Pawar, supra, is a judicial decision that was finally and conclusively decided by the Federal Court - Trial Division, the Federal Court of Appeal, and the Supreme Court of Canada, all courts of competent jurisdiction; and
(c) The class in Pawar, supra, which was a class action, consisted of those persons who resided in Canada and who would be eligible for an O.A.S. pension, but for an inability to meet the ten-year residency requirement. Furthermore, the Plaintiff herein was one among the few in the class who actually gave the Plaintiff, in Pawar, supra, express written consent to act on his behalf.
[4] The solicitor-client cost award by the Prothonotary ought not be disturbed on the basis of the written submissions contained in paragraph 57 to 61 inclusive of the Defendant's (Respondent's) motion record. For essentially the same reasons, the costs of this appeal are adjudicated against the Plaintiff on the same solicitor-client scale.
(Sgd.) "Yvon Pinard"
Judge
Vancouver, B.C.
December 19, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-887-02
STYLE OF CAUSE: Sucha Singh Shergill
v.
Her Majesty the Queen
MOTION IN WRITING WITHOUT APPEARANCE OF COUNSEL
REASONS FOR ORDER: PINARD J.
DATED: December 19, 2002
SOLICITORS OF RECORD:
Sucha Singh Shergill Appellant
Surrey, B.C.
Morris Rosenberg for Respondent
Deputy Attorney General of Canada