Tigney Technology Inc. v. Minister of National Revenue (Customs and Excise), (1999) 172 F.T.R. 307 (TD)

• Court: Federal Court (Canada)
• Case Date: August 03, 1999
• Jurisdiction: Canada (Federal)
• Citations: (1999), 172 F.T.R. 307 (TD)

Tigney Tech. Inc. v. MNR (1999), 172 F.T.R. 307 (TD)

MLB headnote and full text

Temp. Cite: [1999] F.T.R. TBEd. AU.080

Tigney Technology Incorporated (applicant) v. Her Majesty the Queen (respondent)

(T-798-99)

Indexed As: Tigney Technology Inc. v. Minister of National Revenue (Customs and Excise)

Federal Court of Canada

Trial Division

Hargrave, Prothonotary

August 3, 1999.

Summary:

Tigney Technology brought an application raising a point as to whether there might be a reassessment under the Excise Act. The Crown moved to strike the application on the basis of a time bar.

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

Practice - Topic 8

Effect of noncompliance with rules - Tig­ney Technology brought an application raising a point as to whether there might be a reassessment under the Excise Act - The Crown moved to strike the application on the basis of a time bar - In response to the Crown's motion, Tigney filed an appli­cation record as opposed to a motion record as required by Federal Court Rule 365 - A Prothonotary of the Federal Court of Canada, Trial Division, stated that he did not intend to deny Tigney a day in court because its counsel did not comply with the Rules - The Prothonotary con­sidered that the material filed by Tigney, while in an unfamiliar form, set out Tig­ney's case on the time bar and on a request for an extension of time - However, the Prothonotary stated that Tigney's unortho­dox approach had complicated the motion for the Crown and that the complication could be rectified by an award of costs of $250 to the Crown even though he dis­missed its motion to strike - See para­graphs 3 to 5 and 11.

Practice - Topic 2494

Writ of summons, endorsements, originat­ing summons and originating notices - Originating notices - Striking out - Tigney Technology brought an application raising a point as to whether there might be a reassessment under the Excise Act - The Crown moved to strike the application on the basis of a time bar - A Prothonotary of the Federal Court of Canada, Trial Divi­sion, dismissed the Crown's motion - The Prothonotary stated that for the most part, notices of application should not be the subject of motions to strike, but rather should be contested at a full hearing - The application was also not bereft of any possibility of success as Tigney's argument against the time bar raised a debatable issue - Further, the time bar was a point which should be argued in full at the hear­ing of the application and Tigney's appli­cation raised an interesting and narrow point and should not be struck out if it could be made good by amendment.

Practice - Topic 7022

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Defective pleading or pro­cedures - [See Practice - Topic 8 ].

Cases Noticed:

Krause et al. v. Canada et al. (1999), 236 N.R. 317 (F.C.A.), refd to. [para. 3].

Alcorn v. Commissioner of Corrections (Can.) et al. (1998), 156 F.T.R. 239 (T.D. Protho.), refd to. [para. 5].

Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al. (1994), 176 N.R. 48 (F.C.A.), refd to. [para. 6].

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

BMG Music Canada Inc. et al. v. Vogiat­zakis et al. (1996), 110 F.T.R. 34; 67 C.P.R.(3d) 27 (T.D.), refd to. [para. 8].

Counsel:

Priscilla Kennedy, for the applicant;

Deborah Horowitz, for the respondent.

Solicitors of Record:

Parlee McLaws, Edmonton, Alberta, for the applicant;

Morris A. Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This motion was dealt with in writing by Hargrave, Prothonotary of the Federal Court of Canada, Trial Division, who delivered the following decision on August 3, 1999.