American Cyanamid Co. et al. v. Canada (Minister of National Health and Welfare) et al., (1994) 81 F.T.R. 174 (TD)

• Judge: Pinard, J.
• Court: Federal Court (Canada)
• Case Date: May 05, 1994
• Jurisdiction: Canada (Federal)
• Citations: (1994), 81 F.T.R. 174 (TD)

Am. Cyanamid Co. v. Can. (1994), 81 F.T.R. 174 (TD)

MLB headnote and full text

American Cyanamid Company and Cyanamid Canada Inc. (applicants) v. The Minister of National Health and Welfare and Bio Agri Mix Ltd. (respondents)

(T-2315-93)

Indexed As: American Cyanamid Co. et al. v. Canada (Minister of National Health and Welfare) et al.

Federal Court of Canada

Trial Division

Pinard, J.

May 6, 1994.

Summary:

The respondent Bio Agri Mix sought an order to dismiss the applicants' summary proceeding Originating Notice of Motion for prohibition.

The Federal Court of Canada, Trial Division, dismissed the application.

Practice - Topic 14

Procedures not provided for in rules - A respondent sought to dismiss an Originating Notice of Motion and relied on Federal Court Rules 419, 432.1 and 432.3 - The Federal Court of Canada, Trial Division, held that an Originating Notice of Motion was not an action to which those rules referred in providing for applications to strike or motions for summary judgment - However, the court held that by virtue of rule 5 (Federal Court Rules), the practice and procedure could be determined by analogy to the practice and procedure in Ontario, namely Ontario Civil Procedure rule 14.09, which provided that an originating process could be struck out or amended in the same manner as a pleading - Consequently the application was to be dealt with within the spirit of Federal Court Rule 419.

Practice - Topic 2494

Writ of summons - Endorsements - Originating summons and originating notices - Originating notices - Striking out - [See Practice - Topic 14 ].

Practice - Topic 2494

Writ of summons - Endorsements - Originating summons and originating notices - Originating notices - Striking out - A respondent sought an order to dismiss the applicants' summary proceeding Originating Notice of Motion for prohibition, on the ground that there was no basis for the Originating Notice of Motion - The Federal Court of Canada, Trial Division, dismissed the application - The matter involved the application of new regulations, the parties did not agree on the facts in the case and it was not clear and obvious that the applicants had no chance of success.

Cases Noticed:

Merck Frosst Canada Inc. et al. v. Canada (Minister of Health and Welfare) et al. (1994), 77 F.T.R. 81 (T.D.), refd to. [para. 2, footnote 1].

Deprenyl Research Ltd. et al. v. Apotex Inc. et al. (1994), 77 F.T.R. 62 (T.D.), refd to. [para. 2, footnote 1].

Statutes Noticed:

Civil Procedure Rules (Ont.) - see Rules of Civil Procedure (Ont.).

Federal Court Rules, rule 5 [para. 3]; rule 419(1)(b), rule 419(1)(c), rule 419(1)(f), rule 432.1, rule 432.3 [para. 2].

Rules of Civil Procedure (Ont.), rule 14.09 [para. 3].

Rules of Court, Federal Court - see Federal Court Rules.

Counsel:

Michael D. Manson, for the applicants;

G. Alexander Macklin, for the respondent, Bio Agri Mix Ltd.;

Frederick Woyiwada, for the respondent, Minister of National Health and Welfare.

Solicitors of Record:

Smart & Biggar, Ottawa, Ontario, for the applicants;

Gowling, Strathy & Henderson, Ottawa, Ontario, for the respondent, Bio Agri Mix Ltd.;

Deputy Attorney General of Canada, for the respondent Minister of National Health and Welfare.

This application was heard on May 5, 1994, at Ottawa, Ontario, before Pinard, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on May 6, 1994.