Date: 20010417
Docket: T-1805-98
Neutral citation: 2001 FCT 334
BETWEEN:
REVEREND BROTHER WALTER A. TUCKER
AND REVEREND BROTHER MICHAEL J. BALDASARO
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
[1] Her Majesty the Queen (the "Defendant") in this action, has brought a motion in writing under Rule 369 of the Federal Court Rules, 1998 (the "Rules"), seeking an order pursuant to Rule 397(1)(b) of the Rules, seeking reconsideration of the Order dated March 7, 2001.
[2] Specifically, the Defendant is seeking reconsideration of the terms of that Order and the grounds for the Notice of Motion are as follows:
(a) the Defendant's submission that the Plaintiffs would not be prejudiced by a stay of the action herein was overlooked or accidentally omitted when the Order of Madam Justice Heneghan was made;
(b) Rule 397(1)(b) of the Federal Court Rules.
[3] The Defendant relies on the Affidavit of Eric Nobel, one of her counsel in support of this motion. The Affidavit of Mr. Nobel contains, as attachments, both the written submissions filed in support of the Defendant's motion for a stay and the text prepared by Mr. Nobel for his oral submissions on the hearing of the stay motion heard February 26, 2001.
[4] The Defendant has also filed written submissions on this motion to reconsider. The general thrust of those submissions is that I, as the presiding judge on March 7, 2001, misunderstood the submissions of the Defendant, particularly those submissions addressed to the question of prejudice, a factor to be considered upon the Defendant's motion for a stay of these proceedings.
[5] The Plaintiffs have been given the opportunity to respond to the Defendant's motion for reconsideration and have filed brief written submissions. In their submissions, the Plaintiffs support the Order which was delivered on March 7, 2001 and argue that the issue of prejudice was fully argued before me on February 26, 2001.
[6] As noted above, the Defendant brings the present motion for reconsideration pursuant to Rule 397(1)(b). That rule provides as follows:
| 397. (1) Within 10 days after the making of an order, or within such other time as the Court may allow, a party may serve and file a notice of motion to request that the Court, as constituted at the time the order was made, reconsider its terms on the ground that
(b) a matter that should have been dealt with has been overlooked or accidentally omitted. |
397. (1) Dans les 10 jours après qu'une ordonnance a été rendue ou dans tout autre délai accordé par la Cour, une partie peut signifier et déposer un avis de requête demandant à la Cour qui a rendu l'ordonnance, telle qu'elle était constituée à ce moment, d'en examiner de nouveau les termes, mais seulement pour l'une ou l'autre des raisons suivantes : b) une question qui aurait dû être traitée a été oubliée ou omise involontairement. |
|
[7] Rule 397(1)(b) is a technical rule, designed to address situations where a matter which should have been addressed was overlooked or accidentally omitted. In my opinion, that is not the situation here.
[8] The question of prejudice was specifically addressed and considered in my reasons for order. Despite the Defendant's attempt to characterize the present motion as being one for reconsideration of the terms of an order, it seems to me that the Defendant is effectively asking me to reconsider my reasons for order.
[9] That is not the purpose of Rule 397(1)(b). As noted in Procter & Gamble Co. v. Kimberly-Clark of Canada Ltd. (1990), 28 C.P.R. (3d) 564 (F.T.D.), the reconsideration power relates exclusively to judgments and not to reasons separately filed.
[10] It is inappropriate for the Court to engage in a debate with counsel as to notes taken during a hearing. It is equally inappropriate for the Defendant to invite the Court to sit in review of its own reasons. The power of reconsideration is not meant to act as a disguised method of appeal; see Kibale v. Canada (Transport Canada) (1989), 103 N.R. 387 (F.C.A.).
[11] If the Defendant is dissatisfied with the reasons filed on March 7, 2001, her remedy lies in an appeal. The file shows a Notice of Appeal was filed on March 19, 2001.
ORDER
[12] The motion is dismissed, no order as to costs.
"E. Heneghan"
Toronto, Ontario
April 17, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1805-98
STYLE OF CAUSE: REVEREND BROTHER WALTER A. TUCKER AND REVEREND BROTHER MICHAEL J. BALDASARO
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO RULE 369
REASONS FOR ORDER AND
ORDER BY: HENEGHAN J.
DATED: TUESDAY, APRIL 17, 2001
WRITTEN SUBMISSIONS BY: Reverend Brother Walter A. Tucker, and
Reverend Brother Michael J. Baldasaro
For the Plaintiffs, on their own behalf
Mr. Sean Gaudet
For the Defendant
SOLICITORS OF RECORD: Reverend Brother Walter A. Tucker, and
Reverend Brother Michael J. Baldasaro
Phoenix Mission of God
The Assembly of the Church of the Universe
534 Barton Street
Hamilton, Ontario
L8L 2Y9
For the Plaintiffs, on their own behalf
Morris Rosenberg
Deputy Attorney General of Canada
For the Defendant
FEDERAL COURT OF CANADA
Date: 20010417
Docket: T-1805-98
Between:
REVEREND BROTHER WALTER A. TUCKER AND REVEREND BROTHER MICHAEL J. BALDASARO
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
AND ORDER