Irving v. Canada, (1987) 15 F.T.R. 40 (TD)

• Judge: Collier, J.
• Court: Federal Court (Canada)
• Case Date: June 15, 1987
• Jurisdiction: Canada (Federal)
• Citations: (1987), 15 F.T.R. 40 (TD)

Irving v. Can. (1987), 15 F.T.R. 40 (TD)

MLB headnote and full text

Michael Anthony Irving (plaintiff) v. Her Majesty The Queen (defendant)

T-403-87

Indexed As: Irving v. Canada

Federal Court of Canada

Trial Division

Collier, J.

June 15, 1987.

Summary:

Irving defaulted on rent due under a Crown lease. An extension was given but Irving did not pay until five or six weeks after the deadline. The Crown claimed that the lease was terminated. Irving commenced an action for reinstatement of the lease and for relief from forfeiture. The Crown moved for judgment under rule 341 of the Federal Court Rules.

The Federal Court of Canada, Trial Division, dismissed the motion for judgment where, inter alia, this was a case that should go to trial to determine whether Irving was entitled to the equitable relief sought.

Landlord and Tenant - Topic 6783

Termination - Forfeiture and re-entry - Relief against forfeiture - Jurisdiction - Federal Court of Canada, Trial Division - Irving defaulted on rent due under a Crown lease - An extension was given but Irving did not pay until several weeks after the deadline - The Crown claimed the lease was terminated - Irving sued for reinstatement of the lease and for relief from forfeiture - The Crown moved for judgment under rule 341 of the Federal Court Rules - The Federal Court of Canada, Trial Division, discussed briefly the scope of the court's jurisdiction to grant judgment under rule 341 and held that this was not a case where interim relief would be granted and the matter should go to trial.

Practice - Topic 5551

Judgments and orders - Judgment on admissions - General - [See Landlord and Tenant - Topic 6783 above].

Cases Noticed:

Cyrus J. Moulton Ltd. v. R., [1976] 1 F.C. 437, refd to. [para. 6].

Holachten Meadows Mobile Home Park Ltd. v. Canada (Minister of Indian Affairs and Northern Development) (1986), 1 F.T.R. 278, refd to. [para. 12].

Statutes Noticed:

Federal Court Rules, rule 341.

Counsel:

Brian C. Duncan, for the plaintiffs;

D. Coulson, for the defendant.

Solicitors of Record:

Hamilton, Duncan & Co., Surrey, British Columbia, for the plaintiffs;

Clark, Wilson, Vancouver, British Columbia, for the defendant.

This motion was heard on June 15, 1987, in Vancouver, British Columbia, before Collier, J., of the Federal Court of Canada, Trial Division, who on the same day delivered orally the following decision: