Schwarz Hospitality Group Ltd. v. Canada ( Minister of Canadian Heritage )
T-1552-98
Hargrave P.
19/4/99
9 pp.
Motion to strike judicial review proceeding on grounds of late filing, failure to identify when decision first communicated to plaintiff, application not limited to single order as required by r. 302, style of cause naming as respondent tribunal making decision contrary to r. 303(1)(a)-In order to succeed on motion to strike out application, respondent must show both exceptional circumstance, application so clearly improper as to be bereft of any possibility of success-Respondents alleging application filed more than 30 days after applicant notified of decision seeking to challenge, contrary to Federal Court Act, s. 18.1(2)-Plea of limitation not sufficient ground to strike out statement of claim-In case of action, correct procedure to plead limitation, set matter down for summary determination-Same principle should apply to striking out notice of application-Time bar ought to be argued in full before judge-S. 18.1(2) placing limit of 30 days after time decision or order first communicated by tribunal to party directly affected thereby within which to commence judicial review proceedings-Apparently arguable issues as to when, if at all, decision communicated to applicant-Referring to Atlantic Coast Scallop Fishermen's Assn. v. Canada (Minister of Fisheries & Oceans) (1995), 189 N.R. 220 (F.C.A.); Independent Contractors and Business Assn. v. Canada (Minister of Labour), [1998] 3 F.C. D-48 (C.A.) holding s. 18.2(2) requiring tribunal itself by some positive action communicate decision to those directly affected by it-Applicant submitting Minister's decision never communicated, in nature of continuing process-Puccini v. Canada (Director General, Corporate Administrative Services, Agriculture Canada), [1993] 3 F.C. 557 (T.D.) and Hunter v. Canada (Commissioner of Corrections), [1997] 3 F.C. 936 (T.D.) touching upon idea of decision not being static written decision, but rather decision made over time, in nature of continuing process-Given dispute as to when decision, by some positive action communicated, and perhaps when decision made, application not so clearly improper as to be bereft of any possibility of success in so far as time bar submissions concerned-As to submission notice of application not limited to single order, requirement of r. 302, Puccini stating this sort of rule may be construed broadly where number of decisions already made-Applicant's position decisions in nature of continuing process not so forlorn as to be so clearly improper as to be bereft of any possibility of success-As naming of tribunal as respondent not always fatal, situation not so clearly improper as to be bereft of any possibility of success-Motion dismissed-Federal Court Rules, 1998, SOR/98-106, rr. 302, 303(1)(a)-Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(2) (as am. by S.C. 1992, c. 8, s. 5).