Elguindy v. M.N.R.
T-1900-93
Reed J.
29/9/93
4 pp.
Appeal from Associate Senior Prothonotary's decision striking out statement of claim for lack of jurisdiction -- On July 19 plaintiff requesting Minister to make decision under Customs Act, s. 131 -- Letter stating if no response within 10 days, would assume Minister upholding seizing officer's decision -- S. 135 providing person requesting decision under s. 131 may appeal within 90 days after being notified of decision -- When no reply received plaintiff filed statement of claim challenging "deemed decision" -- Defendant filing motion to strike or alternatively leave to file conditional appearance to contest Court's jurisdiction -- Leave to file conditional appearance not relevant proceeding -- In order to seek first relief defendant must have already voluntarily appeared and attorned to Court's jurisdiction -- Decision to strike based on R. 419(1)(a), not R. 401 -- Under s. 135 some positive act of notification by Minister required before litigation commenced -- Statement of claim not disclosing reasonable cause of action -- Appeals are from orders, not reasons -- Prothonotary's order not incorrect -- Federal Court Rules, C.R.C., c. 663, RR. 401, 419 -- Customs Act, R.S.C., 1985 (2nd Supp.), c. 1, ss. 131, 135.