Creighton v. Franko et al., (1998) 155 F.T.R. 303 (TD)

• Judge: Reed, J.
• Court: Federal Court (Canada)
• Case Date: July 27, 1998
• Jurisdiction: Canada (Federal)
• Citations: (1998), 155 F.T.R. 303 (TD)

Creighton v. Franko (1998), 155 F.T.R. 303 (TD)

MLB headnote and full text

Temp. Cite: [1998] F.T.R. TBEd. SE.018

Daniel P. Creighton (applicant) v. Stefan Franko, David & Susan Grant, Canadian Imperial Bank of Commerce, Mary, Frederick and Kathleen Boychuck, Cambridge Western Leaseholds Limited, Edmund and Sylvia Moroshkyn (respondents)

(T-646-98)

Indexed As: Creighton v. Franko et al.

Federal Court of Canada

Trial Division

Reed, J.

July 28, 1998.

Summary:

The applicant Creighton, through his com­pany Creighton Holdings Ltd., formerly held land in Saskatchewan and British Col­umbia between 1974 and 1989. After financial diffi­culties, the land was sold by judicial sales in Saskatchewan and British Columbia. Creighton became the subject of vexatious litigant orders of the B.C. Supreme Court, the B.C. Court of Appeal and the Saskatchewan Court of Queen's Bench. Creighton commenced four actions in the Federal Court. He discontinued the first and third actions and the second one was dis­missed for want of jurisdiction. In a fourth action he sought, by originating notice of motion, an order directing the registrars of the Saskatoon and Kamloops land title offices to cancel existing certificates of title over the land in Saskatchewan and British Columbia and to issue new certifi­cates of title, free and clear of mortgages given by the present owners, in the name of Creighton Hold­ings Ltd. The respondents moved to strike out the orig­inating notice of motion on the basis of want of jurisdiction and of res judicata.

A Prothonotary of the Federal Court of Canada, Trial Division, in a decision report­ed 151 F.T.R. 21, struck out the pro­ceeding. Creighton appealed.

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

Editor's note: for related proceedings see (1994), 72 F.T.R. 78 and [1998] F.T.R. Uned. 284.

Courts - Topic 2521

Registrars and prothonotaries - Jurisdiction - General - [See first Practice - Topic 2242 ].

Courts - Topic 4021

Federal Court of Canada - Jurisdiction - Trial Division - Relief against federal boards, commissions or tribunals - Creighton sought an order directing the registrars of the Saska­toon and Kamloops land title offices to reinstate title to certain parcels of land back into his company's name - The Federal Court of Canada, Trial Divi­sion, held that there was simply no jurisdiction to entertain Creighton's appli­cation - Judicial review was available for decisions of federal boards, commissions or tribunals - Provincial land registry offices were not of this nature - See para­graph 7.

Courts - Topic 4038

Federal Court of Canada - Jurisdiction - Trial Division - Where no other Canadian court has jurisdiction - Creighton sought an order directing the registrars of the Saska­toon and Kamloops land title offices to reinstate title to certain parcels of land back into his company's name - Section 25 of the Federal Court Act gave the Federal Court jurisdiction if no other Can­adian court had jurisdiction - Creighton argued that because two parcels of land in two different provinces were involved, the Federal Court must have jurisdiction because no other court could deal with the matter - The Federal Court of Canada, Trial Divi­sion, held that this was not an appropriate interpretation of s. 25 - The Saskatchewan Court of Queen's Bench and British Columbia Supreme Court had jurisdiction to deal with the land in their respective provinces and had done so - See paragraph 7.

Practice - Topic 2242

Pleadings - Striking out pleadings - Appeals, applications or originating motions - Respondents moved to strike out Creighton's originating notice of motion - A prothonotary struck out the proceeding -Creighton appealed arguing that the prothonotary had no jurisdiction to strike an originating document since such an order affected the substantive rights of the parties and this was not within a prothono­tary's jurisdiction - The Federal Court of Canada, Trial Division, rejected the argu­ment - A prothonotary had the requisite authority under Federal Court Rule 50 - See paragraphs 3 and 4.

Practice - Topic 2242

Pleadings - Striking out pleadings - Appeals, applications or originating motions - Respondents moved to strike out Creighton's originating notice of motion - A prothonotary struck out the proceeding -Creighton appealed arguing that there was no jurisdiction to strike an originating notice of motion - The proper procedure was to proceed to a hearing on the merits of the application - The Federal Court of Canada, Trial Division, stated that gen­erally originating notices of motion seeking judicial review would not be struck out - However, they could be when the applica­tion was clearly without merit and it would be a waste of time and resources to require the parties to proceed with the preparation of application records and related docu­mentation - Creighton's application fell within that description - See paragraphs 3, 5 and 6.

Practice - Topic 2494

Writ of summons, endorsements, originat­ing summons and originating notices - Originating notices - Striking out - [See both Practice - Topic 2242 ].

Practice - Topic 3133

Applications and motions - Motions - Motion to strike a motion - [See both Practice - Topic 2242 ].

Statutes Noticed:

Federal Court Act, R.S.C, 1985, c. F-7, sect. 25 [para. 7].

Counsel:

Daniel P. Creighton, on his own behalf;

Brenda Brown, for CIBC;

Gordon Phillips, for Cambridge Western Leaseholds Ltd.

Solicitors of Record:

Davis & Company, Vancouver, British Columbia, for CIBC;

Stikeman, Elliott, Vancouver, British Col­umbia, for Cambridge Western Lease­holds Ltd.

This appeal was heard on July 27, 1998, at Vancouver, British Columbia, before Reed, J., of the Federal Court of Canada, Trial Division, who released the following reasons for order on July 28, 1998.