Digests

Martineau v. M.N.R.

T-1695-01

2002 FCT 85, Blais J.

28/1/02

9 pp.

Motion to quash Prothonotary's decision of December 11, 2001 and ruling that plaintiff could not be compelled by defendant or any party to case to testify therein--In principal action plaintiff sought judgment cancelling notice of ascertained forfeiture issued pursuant to Customs Act--Plaintiff had opportunity to make full presentation of case and submit arguments to Court based on affidavit which he himself signed--Not able to provide reasons or grounds to justify both deposing to affidavit and presenting arguments to Court based on that affidavit himself, contrary to Federal Court Rules, r. 82--Courts broadly in favour of strict application of rule--Inconceivable for plaintiff in action not to be subject of examination for discovery when Minister's decision notice of ascertained forfeiture which can in no way be likened to criminal proceeding, and moreover, criminal proceedings provided by Customs Act, ss. 161 et seq. cannot be brought against plaintiff since prescribed--Allowing plaintiff's arguments would conflict squarely with provisions of r. 236, primary purpose of which for parties to be adequately prepared and allow Court to make reasoned decision--Counsel's affidavit submitted in support of motion on appeal not admissible in circumstances and in view of absence of valid affidavits supporting motion, said motion invalid on its face; and even if said motion supported by valid affidavit, grounds alleged in support thereof do not lead to conclusion order made by Prothonotary clearly wrong, Prothonotary exercised discretion based upon wrong principle or misapprehension of facts or Prothonotary improperly exercised discretion on question vital to final issue of case--Federal Court Rules, 1998, SOR/98-106, rr. 82, 236--Customs Act, R.S.C., 1985 (2nd Supp.), c. 1, s. 161.