PRACTICE |
Shergill v. Canada
A-723-02
2003 FCA 468, Strayer J.A.
4/12/03
5 pp.
Appeal from decision of Motions Judge dismissing appeal from decision of Protonotary striking out statement of claim on ground of estoppel--Motions Judge correct in finding no reviewable error in Prothonotary's decision to hear motion on day fixed by Associate Chief Justice--At request of respondent, Associate Chief Justice by order had set hearing date of intended motion to strike for November 6, 2002--On September 13, 2002 respondent filed motion to strike statement of claim--On September 16, 2002 appellant filed motion to strike statement of defence--Clearly within Prothonotary's discretion to proceed in order he did-- Motions Judge also correct in confirming decision of Prothonotary to strike statement of claim on basis of estoppel --Parties and issues all same, as in Pawar v. Canada, [1999] 1 F.C. 158 (T.D.), confirmed on appeal (1999), 67 C.R.R. (2d) 284 (F.C.A.) and that decision final--Neither Prothonotary nor Motions Judge referred to discretion which Prothonotary should still exercise in deciding whether to apply principle of issue of estoppel--However, even if Motions Judge had set aside Prothonotary's order for this reason, he should then have exercised de novo discretion of Prothonotary--Setting aside Motions Judge's order would result in obligation to exercise discretion he should have exercised and in circumstances here, that discretion would be exercised to strike out statement of claim--Appeal dismissed.