A-583-595-75
Lorraine Wall, Ronald Bluestein, Gary Bluestein,
Jack Wall, Victor Prousky, Nadper Holdings
Limited, Jill Wright and Anna May Williams
(Applicants)
v.
Interprovincial Pipe Line Limited (Respondent)
Court of Appeal, Thurlow and Urie JJ. and
MacKay D.J.—Toronto, November 4 and 5, 1975.
Judicial review—Motion to quash—Whether frivolous—
Delay which would result from awaiting final disposition
might be prejudicial to respondent, but not to applicants—
Motion granted—Dissenting reasons by Thurlow J.—Railway
Act, R.S.C. 1970, c. R-2, ss. 181, 182.
JUDICIAL review.
COUNSEL:
H. Bliss for applicants.
J. Garrow, Q.C., for respondent.
K. Braid for Attorney General of Canada.
SOLICITORS:
Bliss, Kirsh & Tonello, Toronto, for
applicants.
Blake, Cassels & Graydon, Toronto, for
respondent.
Deputy Attorney General of Canada for
Attorney General of Canada.
The following are the reasons for judgment
delivered orally in English by
THURLOW J. (dissenting): I am not persuaded
that these applications under section 28 of the
Federal Court Act are so forlorn that they ought
to be quashed under section 52(a) of that Act as
not being brought in good faith and as I am
inclined to think, having regard to the judgments
of the Supreme Court in The Canadian Northern
Ontario Railway Company v. Smith' and Puerto
Rico v. Hernandez 2 , that this. Court has jurisdic
tion to entertain the applications, I would refuse to
' (1914-15) 50 S.C.R. 476.
2 [1975] 1 S.C.R. 228.
quash them and would make an order for direc
tions for the conduct of the proceedings.
* * *
The following are the reasons for judgment
delivered orally in English by
URIE J.: I regret to say that I am unable to
agree with my brother Thurlow that the motion to
quash should be dismissed.
After considering all of the arguments advanced
by counsel for the applicants, and with due defer
ence thereto, I have only slight hesitancy in
describing the section 28 application as frivolous,
but I have no such hesitation in concluding that it
has little, if any, merit or hope of success. In
reaching this conclusion, I am cognizant of the
unqualified finding of the learned Judge that when
he granted the warrant of possession to the
respondent the matter was, on the evidence before
him, urgent. I am also satisfied that proper notice
of the hearing had been given and that the Judge
had before him evidence upon which he could have
determined the quantum of security for compensa
tion and costs that he eventually fixed. That being
so, he was obliged to exercise the discretion con
ferred upon him by sections 181 and 182 of the
Railway Act.
As to whether the section 28 application should
be quashed at this stage, it seems to me that while
the delay which would be the result of awaiting the
final disposition of what I conceive to be a hopeless
section 28 application, clearly might be prejudicial
to the respondent, I apprehend no prejudice of
corresponding magnitude to the applicants.
They will have ample opportunity to adduce
evidence before an arbitrator to support the only
complaint that, in substance, they make against
the warrant having been granted, namely, that the
quantum of compensation and costs fixed by the
Judge for the purpose of determining the security
to be paid into Court by the respondent, was
inadequate. All of the above leads me to the
conclusion then, that the motion to quash the
section 28 application should be allowed.
In reaching this conclusion, I express no opinion
as to whether the order granting the warrant of
possession is an order or decision of a , federal
board, commission or other tribunal and thus
properly the subject of a section 28 application.
* *
MACKAY D.J. concurred.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.