Date: 20050930
Docket: A-683-04
Citation: 2005 FCA 312
Present: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
ONWARD MANUFACTURING COMPANY LIMITED
Applicant
and
ATTORNEY GENERAL OF CANADA, GOVERNMENT OF THE PEOPLE'S
REPUBLIC OF CHINA, WINNERS PRODUCTS ENGINEERING LTD., S.R.
POTTEN ENTERPRISES LIMITED, GRAND HALL ENTERPRISE CO. LIMITED,
CANADIAN TIRE CORPORATION, LTD., TEST-RIGHT INTERNATIONAL CO.
LTD., WAL-MART CANADA CORP., FIESTA BARBEQUES LIMITED, LOBLAWS
INC., CFM CORPORATION, W.C. BRADLEY CO., LUCAS INNOVATIONS,
JIN WONIU INDUSTRIAL COMPANY and NAPOLEON APPLIANCE
CORPORATION
Respondents
"Dealt with in writing without appearance of parties."
Order delivered at Ottawa, Ontario, on September 30, 2005.
REASONS FOR ORDER BY: PELLETIER J.A.
Date: 20050930
Docket: A-683-04
Citation: 2005 FCA 312
Present: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
ONWARD MANUFACTURING COMPANY LIMITED
Applicant
and
ATTORNEY GENERAL OF CANADA, GOVERNMENT OF THE PEOPLE'S
REPUBLIC OF CHINA, WINNERS PRODUCTS ENGINEERING LTD., S.R.
POTTEN ENTERPRISES LIMITED, GRAND HALL ENTERPRISE CO. LIMITED,
CANADIAN TIRE CORPORATION, LTD., TEST-RIGHT INTERNATIONAL CO.
LTD., WAL-MART CANADA CORP., FIESTA BARBEQUES LIMITED, LOBLAWS
INC., CFM CORPORATION, W.C. BRADLEY CO., LUCAS INNOVATIONS,
JIN WONIU INDUSTRIAL COMPANY and NAPOLEON APPLIANCE
CORPORATION
Respondents
REASONS FOR ORDER
[1] The applicant Onward Manufacturing Company Limited has brought an application with respect to a decision of the Canada Border Services Agency which made a finding of dumping of outdoor barbecues into the Canadian market. The applicant chose to name the Government of the People's Republic of China as a respondent. The Government of the People's Republic of China instructed counsel who filed a Notice of Appearance on its behalf. The same counsel now brings a Notice of Motion seeking an order that the Notice of Appearance filed on behalf of the Government of the People's Republic of China "be and is hereby withdrawn without costs".
[2] The Notice of Motion is accompanied by an affidavit of service attesting to service of the motion by fax on the Federal Court of Canada, the Canada Border Services Agency and counsel for the respondents, as verified by the transmission reports which are attached to the affidavit. The difficulty is that four of the transmission reports show that the transmission was not completed. The Canada Border Services Agency was not served but it was not entitled to be served. Counsel for the applicant did not receive the fax transmission but he obviously received the material since his consent is included in the Notice of Motion. However, counsel for two of the parties were not served, namely Messrs. Bedard and Dattu. The motion is therefore irregular.
[3] The larger problem, however, is the relief sought in the motion. The motion seeks an order that the notice of appearance be withdrawn. Without wishing to descend to casuistry, it seems to me that only the person who has filed a document may withdraw it. The Court cannot order it withdrawn. Assuming that the motion seeks an order granting leave to withdraw the notice of appearance, I note that the Rules do not provide for such an eventuality. Nor have I been able to find any jurisprudence in which a court either struck a notice of appearance or allowed a party to withdraw it.
[4] In the normal course, where a plaintiff and a defendant agree that an action will not be maintained against the defendant, the matter is resolved by a notice of discontinuance or by a consent dismissal. That course of action is open here. However, given that the respondent in question is a sovereign state, the problem may not be one that a notice of discontinuance can fix. By the terms of the State Immunity Act, R.S.C. 1985, c. S-18, a sovereign state is immune from the jurisdiction of any court in Canada, unless it waives its immunity by, among other things, taking any step in the proceedings before the Court. It may be that this notice of motion is designed to remove from the record a waiver, or the appearance of a waiver, of state immunity.
[5] There may be good reasons for granting such a motion but the consent of the applicant is not one of them. Given the irregular service of the notice of motion, as well as the absence of any supporting material in favour of the relief sought other than the consent of the applicant, the motion is dismissed with leave to bring another motion seeking the same relief, or relief to the same effect, upon proper service, supported by a memorandum of fact and law which deals in a substantive way with the authority for granting the relief sought.
[6] The motion is dismissed.
"J.D. Denis Pelletier"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-683-04
STYLE OF CAUSE:
ONWARD MANUFACTURING COMPANY LIMITED
and
ATTORNEY GENERAL OF CANADA et al
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: THE HONOURABLE MR. JUSTICE PELLETIER
DATED: SEPTEMBER 30, 2005
WRITTEN REPRESENTATIONS BY:
|
Mr. Dean A. Peroff |
For the respondent Government of the People's Republic of China (moving party) |
|
Mr. Geoffrey C. Kubrick |
For the applicant Onward Manufacturing Company Limited |
SOLICITORS OF RECORD:
|
Toronto, Ontario
|
For the respondent Government of the People's Republic of China (moving party) |
|
Flavell Kubrick LLP Ottawa, Ontario |
For the applicant Onward Manufacturing Company Limited |