Granville Shipping Co. v. Pegasus Lines Ltd., S.A.
T-293-91
Dubé J.
26/10/94
4 pp.
Plaintiff's motion for summary judgment pursuant to RR. 432.1 to 432.7, memorandum of fact, affidavit in support -- Motion denied -- R. 419 applying only to actions, not applications -- Purpose thereof to strike out any pleadings in course of action -- Cannot strike notice of motion (not pleading), but must argue against motion at hearing: Byer v. Canada (Department of External Affairs), [1987] F.C.J. No. 323 (T.D.) (QL); Eli Lilly and Co. v. Novopharm Ltd., [1994] F.C.J. No. 739 (T.D.) (QL); Pharmacia Inc. v. Canada (Minister of National Health and Welfare), [1994] F.C.J. No. 1312 (T.D.) (QL) -- Usually attack motion by appearing in Court on date set for hearing and presenting arguments as to why motion without merit and should be denied -- Defendants alleging motion not complying with Federal Court Rules, abuse of process, depriving defendants of legitimate right to reply to motion in informed manner -- Listing nine separate grounds vitiating plaintiff's motion, claiming motion should be struck now, without waiting for January hearing -- Although judge hearing plaintiff's motion may decide to dismiss motion for lack of merit, Federal Court Rules not providing for pre-emptive attack on motion to be heard at later date -- Allowing such motions likely to generate plethora of motions attacking one another -- New summary judgment Rules (432.1 and following) not providing for preliminary motion by defendants to attack plaintiff's motion -- Federal Court Rules, C.R.C., c. 664, RR. 419, 432.1 to 432.7 (as enacted by SOR/94-41, s. 5).