PRACTICE |
Pleadings |
Motion to Strike |
Chiasson v. Canada
T-1326-00
2001 FCT 1409, Blanchard J.
19/12/01
10 pp.
Motion pursuant to r. 51 appealing Prothonotary's decision ([ 2001] 4 F.C. 66 (T.D.)) dismissing defendant's motion to strike statement of claim pursuant to r. 221(a), (c), (f)--In March 2000, respondent nominated his father and three other merchant marines for Canadian Bravery Decoration for having rescued 8 American sailors from stricken U.S. vessel off Nova Scotia in severe weather conditions in January 1943-- However, nomination form providing consideration only given to incidents less than 2 years prior to date of submission-- Respondent advised submission would not be presented to Canadian Bravery Decorations Advisory Committee--2-year rule not part of Canadian Bravery Decorations Regulations-- Respondent commenced action challenging 2-year rule, seeking mandamus to compel submission of his application to Committee for determination on merits--Crown filed motion to strike on basis claim not justiciable as seeking to review exercise of Crown prerogative in relation to granting of honours--Motion to strike dismissed by Prothonotary on basis subject-matter of claim not bestowal of honours by Crown but rather legality of imposing time bar on bestowal of honours, adding question relating to exercise of prerogative powers ought not to be dealt with summarily--Applicable standard of review established in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.)--Motion dismissed--Not plain and obvious claim disclosing no reasonable cause of action--Principal issue raised herein calling for determination of scope of Committee's power by reference to Letters Patent and Regulations--Not plain and obvious that issue not justiciable--Matter should be disposed of by judge with benefit of full and complete hearing on merits--Prothonotary did not err by misapplying principles applicable to mootness --Application not considered on its merits, whether within Committee' powers to decline further consideration of application based on 2-year rule going to heart of claim-- Prothonotary did not err in law in granting respondent leave to bring motion to convert action to application for judicial review and extension of time--Appropriate case for conver-sion under r. 57--Federal Court Rules, 1998, SOR/98-106, rr. 51, 57, 221(a), (c), (f).