Sawatzky v. Canada ( Minister of Agriculture )
T-1439-96
Hargrave P.
13/9/96
8 pp.
Motion to strike out originating notice of motion for judicial review as disclosing no reasonable cause of action-Applicant seeking to overturn decision by Minister of Agriculture to recommend amendment to Canadian Wheat Board Act-Applicant first claiming prothonotaries lacking jurisdiction to strike out proceedings as disposition would be final-Also claiming Court not having jurisdiction to strike out originating notice of motion as, on authority of David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.) proper way to contest originating notice of motion is to appear and argue at hearing of motion itself-On issue of jurisdiction, Federal Court Act, s. 46(1) allows judges of Federal Court to make rules and orders empowering prothonotary to exercise authority of judicial nature-Applications to strike pleadings under R. 419(1) interlocutory applications of judicial nature and within prothonotary's power despite final determination of issue-On issue of striking out original notice of motion, court must be particularly scrupulous and situation must be very exceptional-Motion must be bereft of any possibility of success-Decisions, not recommendations by ministers to Governor in Council exercising regulatory power, may be subject to judicial review-As applicant seeks review of Ministerial recommendation to Governor in Council to amend Canadian Wheat Board Regulations, plain and obvious motion will not succeed-On issue of denying leave to amend, on authority of McMillan v. Canada (1996), 108 F.T.R. 32 (F.C.T.D.), at p. 39, "there must not be a scintilla of a legitimate cause of action for a claim to be struck out without leave to amend"-New section of Regulations cannot be said to in any way fall outside of power of Governor in Council-Governor in Council may properly resort to obtaining advice from staff and government ministers-Originating Notice of Motion dismissed without leave to amend-Federal Court Rules, C.R.C., c. 663, R. 419(1)-Canadian Wheat Board Act, R.S.C., 1985, C-24, s. 46 (as am. by S.C. 1994, c. 4, s. 49)-Federal Court Act, R.S.C., 1985, c. F-7, s. 46(1)(h) (as am. by S.C. 1990, c. 8, s. 14).