Schwarz Hospitality Group Ltd. v. Canada (Minister of Canadian Heritage) et al., (1999) 167 F.T.R. 288 (TD)

• Court: Federal Court (Canada)
• Case Date: April 19, 1999
• Jurisdiction: Canada (Federal)
• Citations: (1999), 167 F.T.R. 288 (TD)

Schwarz Hospitality Group v. Can. (1999), 167 F.T.R. 288 (TD)

MLB headnote and full text

Temp. Cite: [1999] F.T.R. TBEd. JN.017

The Schwarz Hospitality Group Limited (applicant) v. The Minister of Canadian Heritage and Superintendent Banff National Park (respondents)

(T-1552-98)

Indexed As: Schwarz Hospitality Group Ltd. v. Canada (Minister of Canadian Heritage) et al.

Federal Court of Canada

Trial Division

Hargrave, Prothonotary

April 19, 1999.

Summary:

Respondents moved to strike out judicial review proceedings on a number of grounds, including late filing and that the style of cause named the tribunal making the deci­sion as a respondent contrary to Federal Court Rule 303(1)(a).

A Prothonotary of the Federal Court of Canada, Trial Division, dismissed the motion.

Administrative Law - Topic 3306

Judicial review - General - Bars - Delay - Respondents moved to strike out judicial review proceedings on the basis that, inter alia, it was filed more than 30 days after the applicant was notified of the impugned decision - (Federal Court Act, s. 18.1(2)) - A Prothonotary of the Federal Court of Canada, Trial Division, dismissed the motion, stating that the time bar was a point which the parties should argue in full at the judicial review hearing - The cor­rect procedure was to plead the limitation and set the matter down for summary determi­nation - To move to strike out a judicial review proceeding, a procedure designed to be summary in nature, was a waste of time and resources - See para­graphs 5 to 7.

Administrative Law - Topic 3342

Judicial review - General - Practice - Limi­tation period - [See Administrative Law -Topic 3306 ].

Administrative Law - Topic 3347

Judicial review - General - Practice - Parties (incl. standing) - Respondents moved to strike out judicial review pro­ceedings, asserting that the notice of appli­cation named the tribunal making the impugned decision as a respondent con­trary to Federal Court Rule 303(1)(a) - A Prothonotary of the Federal Court of Canada, Trial Division, dismissed the motion, where the situation was not so clearly improper as to be bereft of any possibility of success - See paragraphs 14 to 16.

Administrative Law - Topic 3357

Judicial review - General - Practice - Inter­locutory proceedings to strike judicial review application (incl. stay of) - [See Administrative Law - Topic 3306 ].

Administrative Law - Topic 7052

Judicial review - Bars - Statuory - Limi­tation period - [See Administrative Law -Topic 3306 ].

Practice - Topic 2242

Pleadings - Striking out pleadings - Appeals, applications or originating motions - [See Administrative Law - Topic 3306 ].

Practice - Topic 2242

Pleadings - Striking out pleadings - Appeals, applications or originating mo­tions - A Prothonotary of the Federal Court of Canada, Trial Division, stated that notices of application should not ordinarily be attacked and struck out on a motion, but should be contested at their hearing - In order to succeed on a motion to strike out an application, the respondent must show both an exceptional circumstance and that the application was "so clearly improper as to be bereft of any possibility of success" -See paragraphs 2 to 4.

Practice - Topic 2494

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

Cases Noticed:

Hasan v. Canada (Attorney General), [1998] F.T.R. Uned. 264 (T.D.), refd to. [para. 3].

Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al. (1994), 176 N.R. 48 (F.C.A.), refd to. [para. 3].

Pharmacia Inc. et al. v. Canada (Minister of National Health and Welfare) - see Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al.

Canadian Pasta Manufacturers' Association v. Aurora Importing & Distributing Ltd. et al., [1997] N.R. Uned. 49 (F.C.A.), refd to. [para. 4].

Brown v. Canada (Attorney General) (1998), 148 F.T.R. 50 (T.D. Protho.), refd to. [para. 4].

BMG Music Canada Inc. et al. v. Vogiatzakis et al. (1996), 110 F.T.R. 34; 67 C.P.R.(3d) 27 (T.D. Protho.), refd to. [para. 6].

Atlantic Coast Scallop Fishermen's Asso­ciation et al. v. Canada (Minister of Fisheries and Oceans) (1995), 189 N.R. 220 (F.C.A.), refd to. [para. 9].

Independent Contractors and Business Association et al. v. Canada (Minister of Labour) et al. (1998), 225 N.R. 19 (F.C.A.), refd to. [para. 9].

Puccini v. Director General, Corporate Administrative Services, Agriculture Canada (1993), 65 F.T.R. 127 (T.D.), refd to. [para. 11].

Hunter et al. v. Commissioner of Correc­tions (Can.) et al. (1997), 134 F.T.R. 81 (T.D.), refd to. [para. 11].

Canadian Human Rights Commission v. Canada (Attorney General) and Bernard, [1994] 2 F.C. 447; 164 N.R. 361 (F.C.A.), refd to. [para. 14].

Zündel v. Canada (Minister of Citizenship and Immigration) et al. (1996), 117 F.T.R. 129 (T.D.), refd to. [para. 14].

Vancouver Island Peace Society et al. v. Canada (Minister of National Defence) et al. (1993), 64 F.T.R. 127 (T.D.), refd to. [para. 15].

Counsel:

Kirk N. Lambrecht, made written repre­sentations for the respondents.

Solicitors of Record:

Judson E. Virtue, MacLeod Dixon, Calgary, Alberta, for the applicant

Kirk N. Lambrecht, Department of Justice, Edmonton, Alberta, for the respondents.

This motion was dealt with by Hargrave, Prothonotary, of the Federal Court of Canada, Trial Division, who received written submissions from the respondent and delivered the following reasons for order on April 19, 1999.