Brar v. Canada
T-1806-96
Giles A.S.P.
14/2/97
5 pp.
Motion for time to apply for reconsideration of order striking out statement of claim, and for reconsideration pursuant to R. 337(5)-Defendant filing notice of motion for order striking out statement of claim, memorandum of fact and law same day-Admission of service by plaintiff's solicitor on notice of motion-Notice of motion filed pursuant to R. 324, permitting motion to be dealt with without personal appearance-Five weeks later, no representation having been received from plaintiff, claim struck out, action dismissed-Plaintiff attempting to file response following week-Federal Court Rules neither indicating when response may be filed, nor that moving party may set time before which response must be filed-R. 324(4) requiring all interested parties have reasonable opportunity to make representations before motion disposed of-Reasonable time depending on manner in which notice of motion served-If service by hand, no appreciable time needed for transmissions-Some regard must also be given to probable complication of preparing response, possibility time needed to obtain affidavit evidence-Ten days or two weeks sufficient to prepare response herein where jurisdiction of Court only matter to be considered-Where not possible to respond within two weeks after service, responding party should notify Registry of intention to respond, indicate why response will be delayed, and for how long-As no response filed, no reasons given for striking statement of claim-R. 337(5)(a) not applicable where no reasons given-R. 337(5)(b) not applicable as plaintiff's memorandum of fact and law could not be overlooked when not before prothonotary-R. 1733 inapplicable-R. 330 could have been considered if argued-Order given in absence of party can only be rescinded at instance of that party, if that party excuses all of delays and also shows arguable case within jurisdiction of Court-Delay in tendering response and more than two months' delay in moving for reconsideration should have been addressed-Federal Court Act, s. 18(1)(a) giving Trial Division exclusive original jurisdiction to issue writ of mandamus-S. 18(3) providing remedies provided for in s. 18(1), (2) may be obtained only on application for judicial review made under s. 18.1-Application under s. 18.1 made by application or originating notice of motion, not by action commenced by statement of claim-In light of precise wording of s. 18(3) and fact Federal Court statutory court without jurisdiction to act without statutory authority, no possible chance action can succeed when started by statement of claim and seeking only mandamus-Motion dismissed-Federal Court Rules, C.R.C., c. 663, RR. 324, 330(b) (as am. by SOR/79-58, s. 1), 337(5), 1733-Federal Court Act, R.S.C., 1985, c. F-7, ss. 17 (as am. by S.C. 1990, c. 8, s. 3), 18 (as am. idem, s. 4), 18.1 (as enacted idem, s. 5)).