CP Ships Trucking Ltd. et al. v. Kuntze et al., (2006) 303 F.T.R. 54 (FC)

• Judge: Teitelbaum, J.
• Court: Federal Court (Canada)
• Case Date: September 12, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2006), 303 F.T.R. 54 (FC);2006 FC 1174

CP Ships Trucking Ltd. v. Kuntze (2006), 303 F.T.R. 54 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2006] F.T.R. TBEd. OC.023

CP Ships Trucking Ltd. (anciennement connue sous le nom de Cast Transport Inc.) (demanderesse) v. Gunter M. Kuntze et Entreprise Gunter M. Kuntze & Fils Inc. (défendeurs)

(T-1469-05; 2006 CF 1174; 2006 FC 1174)

Indexed As: CP Ships Trucking Ltd. et al. v. Kuntze et al.

Federal Court

Teitelbaum, J.

October 31, 2006.

Summary:

The applicant applied for judicial review. The first respondent moved to set aside and dismiss the application for judicial review for failure to comply with the Federal Courts Rules.

A Prothonotary of the Federal Court, in a decision reported at [2006] F.T.R. Uned. 129, granted the respondent's motion, set aside the application for judicial review and ruled that this also carried with it dismissal of the application respecting the second respondent. The applicant appealed.

The Federal Court allowed the appeal, but ordered $1,500 costs to the respondents where the issue resulted from the failure of the applicant's counsel to understand the Federal Courts Rules.

Courts - Topic 2583

Registrars and prothonotaries - Appeals from - Scope of review - A Prothonotary set aside the applicant's application for judicial review for failure to comply with the Federal Courts Rules - The applicant had not filed its rule 306 affidavits on time because of its lawyers' omissions - The applicant appealed - The Federal Court held that the order was vital to the final issue of the case and therefore it had to exercise its discretion de novo - Although this was not an application for an extension of time to file the applicant's affidavit because the applicant was seeking the court's leave to file an affidavit, the criteria applicable to an extension of time would be of assistance - The court allowed the appeal and exercised its discretion under rule 59 to authorize the applicant to correct the irregularity where, inter alia, the applicant had demonstrated a continuing intention to pursue its application and there was no evidence of prejudice to the respondent on account of the delay - See paragraphs 1 to 92.

Practice - Topic 10

General principles and definitions - Extension of time under rules - [See Courts - Topic 2583 ].

Practice - Topic 3680

Evidence - Affidavits - Use of - Leave to offer affidavit evidence (incl. extension of time) - [See Courts - Topic 2583 ].

Practice - Topic 7040

Costs - Party and party costs - Entitlement to party and party costs - Unsuccessful party - The applicant applied for judicial review - The first respondent moved to set aside and dismiss the application for judicial review for failure to comply with the Federal Courts Rules - A Prothonotary granted the respondent's motion, set aside the application for judicial review and ruled that this also carried with it dismissal of the application respecting the second respondent - The applicant appealed - The Federal Court allowed the appeal, but ordered $1,500 costs to the respondents where the issue resulted from the failure of the applicant's counsel to understand the Federal Courts Rules - See paragraph 93.

Cases Noticed:

Lassonde (A.) Inc. v. Sun Pac Foods Ltd. (2000), 191 F.T.R. 290 (T.D.), refd to. [para. 21].

Chin v. Minister of Employment and Immigration (1993), 69 F.T.R. 77 (T.D.), refd to. [para. 28].

Muhammed v. Canada (Minister of Citizenship and Immigration) (2003), 237 F.T.R. 8; 2003 FC 828, refd to. [para. 33].

Mathon v. Ministre de l'Emploi et de l'Immigration (1988), 28 F.T.R. 217 (T.D.), refd to. [para. 33].

Lewis v. Canada (Minister of Citizenship and Immigration) (2001), 206 F.T.R. 313; 2001 FCT 676 (Protho.), refd to. [para. 42].

Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425; 149 N.R. 273 (F.C.A.), refd to. [para. 44].

Merck & Co. et al. v. Apotex Inc. (2003), 315 N.R. 175; 2003 FCA 488, refd to. [para. 44].

Sim v. Canada (1996), 114 F.T.R. 98 (T.D. Protho.), refd to. [para. 53].

Apotex Inc. v. Wellcome Foundation Ltd. et al. (2003), 241 F.T.R. 174 (F.C.), refd to. [para. 63].

Dynamex Canada Inc. v. Mamona et al. (2003), 305 N.R. 295 (F.C.A.), refd to. [para. 64].

Augier v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 777; 2002 FCT 1185, refd to. [para. 73].

Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399 (F.C.A.), refd to. [para. 84].

J.E.M. v. Canada et al. (2002), 289 N.R. 187; 2002 FCA 172, refd to. [para. 88].

Grewal v. Minister of Employment and Immigration (1985), 63 N.R. 106 (F.C.A.), appld. [para. 91].

Counsel:

Benito Aloe and Hubert Larose, for the applicant;

Benoit Laurin, for the respondents.

Solicitors of Record:

Hubert Larose, Montreal, Quebec, for the applicant;

Benoit Laurin, Montreal, Quebec, for the respondents.

This appeal was heard at Montreal, Quebec, on September 12, 2006, by Teitelbaum, J., of the Federal Court, who delivered the following decision on October 31, 2006.