Olympia Interiors Ltd. v. Canada
T-1436-92
Gibson J.
22/7/93
28 pp.
Application for 1) order for summary judgment on action; 2) order striking out certain paragraphs from statement of claim; 3) stay of action pending appeal to Ontario Court of Justice; 4) order for security for costs -- Respondent Olympia liable to pay federal sales tax on selling price of window coverings -- Failing to submit monthly federal sales tax returns for first two months of 1985 -- Search warrant executed against Olympia's premises in August 1986 -- Both respondents charged with 73 counts under Excise Tax Act -- Trial on criminal charges commenced in October 1989 -- Action taken by respondents against applicant for breach of duty under Excise Tax Act and, on behalf of corporate respondent, for deprivation of entitlement under Act -- Ontario Court of Justice, General Division, refusing to grant summary judgments dismissing plaintiff's claims, or stay of proceedings in actions-Respondents' action based on malicious prosecution -- Application for summary judgment dismissed as pleadings and other documents disclosing serious issue to go to trial -- Ontario Court of Justice, Divisional Court, finding claims of personal respondent statute barred under Ontario Public Authorities Protection Act, s. 7 or Excise Tax Act, s. 112(1) -- Statement of claim out of time under both Acts -- No dispute as to public nature of actions taken by applicant -- Parliament's intention in enacting Crown Liability and Proceedings Act, s. 32 that relevant provincial limitation periods apply to federal Crown in situations involving limitation periods -- Allegations in statement of claim of most serious nature -- Proof of malicious prosecution cannot be made without discoveries and benefit of trial -- Inappropriate to bar continuation of action based on statutory limitation period applicable or not depending upon whether mala fides proven at trial -- Court will only strike pleadings in plain and obvious cases where case beyond doubt -- Questions at issue different-Striking of paragraphs in question would decimate respondent's claim -- Impugned paragraphs supportive of allegations of malicious prosecution -- Stay of proceedings before Ontario Court of Justice denied -- Application dismissed -- Public Authorities Protection Act, R.S.O. 1990, c. P-38, s. 7 -- Excise Tax Act, R.S.C., 1985, c. E-15, ss. 111, 112 -- Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50, s. 32 (as am. by S.C. 1990, c. 8, s. 31).