Schemmann v. Gluppe
T-1676-98
Hargrave P.
18/11/98
4 pp.
Practice-Motion would have effect of turning action into application for judicial review-Motion dismissed as neither Federal Court Act nor Rules give Court discretion to treat action as application for judicial review-Claim relating to plaintiff being required to take mandatory sex offender treatment program, to findings of parole violation, to complaints as to travel restrictions and to revocation of plaintiff's statutory release-Plaintiff claimed damages of $690,000-After defendants filed defence, plaintiff filed motions for interlocutory injunctions against Correctional Service and National Parole Board-Plaintiff wishes Court to deem three motions to stand as notice of application for judicial review under r. 301-Clear under Federal Court Act, s. 18(3) that extraordinary remedies, against federal boards, commissions or other tribunals, remedies which include injunctions, may only be obtained on application for judicial review under Act, s. 18.1-Clear injunctions herein cannot be by way of statement of claim-Effect of present motion to seek transmutation of present action into judicial review proceeding-Requirement that judicial review applications be made by originating notice of motion, and now application, not merely procedural and technical requirement, but important to nature of proceeding itself; while Act did grant Court discretion to treat judicial review application as action, Court did not have converse discretion to treat action as judicial review application: Lameman v. Peoples Government (1995), 95 F.T.R. 220 (F.C.T.D.) and Lake Babine Band v. Williams (1996), 194 N.R. 44 (F.C.A.)-Federal Court Rules, 1998, SOR/98-106, r. 301-Federal Court Act, R.S.C., 1985, c. F-7, ss. 18(3) (as am. by S.C. 1990, c. 8, s. 4), 18.1 (as enacted idem, s. 5).