Date: 20041004
Docket: T-1150-04
Citation: 2004 FC 1362
Montréal, Quebec, the 4th day of October 2004
Present: Richard Morneau, Prothonotary
BETWEEN:
PIERRE BERGERON
Applicant
and
TÉLÉBEC LIMITÉE
and
ALAIN RIVARD
Respondents
Motion by the respondent to strike the affidavit of Richard Poirier, dated July 12, 2004, and to strike allegations Nos. 6, 7 and 24 in the affidavit of Pierre Bergeron dated July 13, 2004, as well as Exhibits PB2 and PB8 relating thereto.
[Rule 369 of the Federal Court Rules, 1998]
REASONS FOR ORDER AND ORDER
[1] It appears to the Court that the motion at bar, though not submitted in this connection, must be dealt with under the inherent jurisdiction of this Court as applied by Strayer J.A. in Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al. (1994), 176 N.R. 48, at pages 54-5 (Pharmacia). I think the principles we draw from that case apply to the one at bar, although here the respondent is only asking for a partial striking of the applicant's record, namely striking of the affidavit in whole or in part, not striking of the review application as a whole. I would even say that Pharmacia applies here especially, and so a fortiori, as the Court is only being asked to strike a few documents and passages.
[2] In Pharmacia, Strayer J.A. held that a motion to strike in a judicial review proceeding could only be allowed in exceptional cases. At pages 54-5, the Court said the following:
This is not to say that there is no jurisdiction in this Court either inherent or through Rule 5 by analogy to other Rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. (See e.g. Cyanamid Agricultural de Puerto Rico Inc. v. Commissioner of Patents (1983), 74 C.P.R. (2d) 133 (F.C.T.D.); and the discussion in Vancouver Island Peace Society et al. v. Canada (Minister of National Defence) et al., [1994] 1 F.C. 102; 64 F.T.R. 127, at 120-121 F.C. (T.D.)). Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegation in the notice of motion.
(Emphasis added.)
[3] This is the same reasoning applied by Nadon J., as he then was, in a judgment of August 13, 1996 (Tom Pac Inc. v. Kem-A-Trix (Lubricants) Inc., case T-1238-96, at page 5).
[4] In the case at bar, the aspects which the respondent is seeking to amend by this application are not in the circumstances aspects which, in the event the respondent proves to be right, could be seen as so wrong and unacceptable as to make intervention in an application for judicial review necessary (see the comments of Strayer J.A. in Pharmacia, supra, at pages 54-5). Any application to strike in a judicial review proceeding must be exceptional in order to promote the primary purposes of such an application, namely that it be heard on the merits as quickly as possible.
[5] As Strayer J.A. observed in Pharmacia:
...[T]he focus in judicial review is on moving the application along to the hearing stage as quickly as possible. This ensures that objections to the originating notice can be dealt with promptly in the context of consideration of the merits of the case.
(See also Merck Frosst Canada Inc. et al. v. Minister of National Health and Welfare et al. (1994), 58 C.P.R. (3d) 245, at page 248, and Glaxo Wellcome Inc. et al. v. Minister of National Health and Wellfare et al., an unreported judgment of this Court on September 6, 1996, case T-793-96.)
[6] I think that the respondent will have to be content to raise the points noted in its motion through its affidavits and the respondent's record, which it has yet to file.
ORDER
THE COURT ORDERS the following: this motion by the respondent to strike is dismissed, with costs in the cause. On the stages and deadlines to be used in proceeding with the case, the parties will have to consider that the deadlines in Rules 307 et seq. will begin to run from the date of this order. In this connection, the applicant may again file an applicant's record when this stage is reached.
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"Richard Morneau"
Prothonotary |
Certified true translation
Jacques Deschênes, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1150-04
STYLE OF CAUSE: PIERRE BERGERON
Applicant
and
TÉLÉBEC LIMITÉE
and
ALAIN RIVARD
Respondents
WRITTEN MOTION CONSIDERED AT MONTRÉAL WITHOUT APPEARANCE BY PARTIES
REASONS FOR ORDER AND ORDER: RICHARD MORNEAU, PROTHONOTARY
DATED: October 4, 2004
WRITTEN SUBMISSIONS:
Jocelyn Dubé FOR THE APPLICANT
Johanne Cavé FOR THE RESPONDENT
Dominique Benoit FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jocelyn Dubé FOR THE APPLICANT
Montréal, Quebec
Laroche, Legault FOR THE RESPONDENT
Montréal, Quebec