Judgments

Decision Information

Decision Content

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.
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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.
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MACKAY D.J. concurred.
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