PENSIONS
Pleadings
Motion to Strike
Appeal from case management Prothonotary’s order (2007 FC 114) striking out judicial review application on ground of abuse of process as based on same facts, issues as earlier discontinued application, new application attempt to evade procedural order in earlier application to convert application to action—Cases on abuse of process reviewed—Open to Prothonotary, in exercise of discretion, to find abuse of process—Z.I. Pompey Industrie v. ECU-Line N.V., [2003] 1 S.C.R. 450 not changing law concerning standard of review of discretionary decisions of prothonotaries—Standard as originally stated in Aqua Gem revisited, restated in Merck & Co., Inc. v. Apotex Inc., [2004] 2 F.C.R. 459 (F.C.A.)—As dismissal of application going too far as matter of judicial policy, application converted to action.
Jazz Air LP v. Toronto Port Authority (T-1427-06, 2007 FC 624, Hugessen J., order dated 12/6/07, 24 pp.)
Appeal from Prothonotary’s dismissal of motion to strike statement of claim dismissed—De novo review required only when Prothonotary’s order determinative of final issues: Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.)—“[Q]uestions raised in motion” in reformulation of rule in Merck & Co. Inc. v. Apotex, [2004] 2 F.C.R. 459 (F.C.A.) referring to motion before judge on appeal, not motion before Prothonotary—Barring exceptional circumstances, Prothonotary’s decision not to strike out statement of claim not determinative of final issue—Action for breach of contract, not disguised attack on administrative decision not to grant business licence—Canada v. Grenier, [2006] 2 F.C.R. 287 (F.C.A.) not suggesting every Crown official’s decision not to respect employer’s contractual obligation must be attacked by judicial review before bringing action for damages.
Peter G. White Management Ltd. v. Canada (T-363-01, 2007 FC 686, Hugessen J., order dated 28/6/07, 4 pp.)