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T-388-74
Consolboard, Inc. (Plaintiff) v.
MacMillan Bloedel (Saskatchewan) Limited (Defendant)
Trial Division, Dubé J.—Ottawa, October 6, 1977.
Practice — Application to fix time and place for trial under Rule 483 — No agreement between parties — Motion by defendant seeking oral hearing of plaintiff's application — Plaintiff now seeks to strike defendant's notice of motion — Alternatively, plaintiff seeks oral hearing of his application, and order fixing trial date — Federal Court Rules 325 and 483(5),(6),(7).
Plaintiff filed an application to have a date and place for trial fixed, pursuant to Rule 483(6) and defendant replied by filing a notice of motion, returnable October 24, 1977, for an oral hearing of plaintiffs application. Defendant claims that plead- ings are not complete as it wishes to file an amended statement of claim, while plaintiff asserts that they are complete and no motions are outstanding. Plaintiff's instant notice of motion seeks an order dismissing defendant's motion as being contrary to Rule 483(7), or alternatively, an oral hearing of plaintiff's application, and an order fixing a time and place for trial in accordance with that application.
Held, the instant application is, in part, dismissed. Defend ant's application ought not to be dismissed for it appears to be in accordance with Rule 483, and will be dealt with on October 24. Plaintiff's prayer for an oral hearing will take place at that time. The order fixing the time and place for trial will follow the hearing, but not necessarily in accordance with plaintiffs application.
APPLICATION. COUNSEL:
G. A. Macklin and B. E. Morgan for plaintiff. No one appearing for defendant.
SOLICITORS:
Gowling & Henderson, Ottawa, for plaintiff. Donald F. Sim, Q.C., Toronto, for defendant.
The following are the reasons for order ren dered in English by
DUBÉ J.: On September 23, 1977, plaintiff filed in this Court an application under Rule 483(6) to have a date and place for trial fixed to which is attached a memorandum setting out the reasons for application. The application is dated Septem- ber 21, 1977 and the notice recites that it is to be placed before this Court "forthwith after the ser vice hereof on Solicitors for the defendant on the 22nd day of September 1977".
Defendant replied by filing a notice of motion under Rule 483(7) returnable in Toronto on Octo- ber 24, 1977, for an oral hearing of plaintiff's application. The notice is dated September 30, 1977 and was filed and served on October 3, 1977.
And now this notice of motion by plaintiff dated and filed October 3, 1977, returnable in Ottawa October 6, 1977 is for (1) an order dismissing defendant's motion as being contrary to Rule 483(7), in the alternative (2) an oral hearing of plaintiff's application, and (3) an order fixing the time and place for trial in accordance with plain tiff's application. Defendant did not appear by counsel at the hearing of this application but filed a letter pursuant to Rule 325.
Plaintiff wants a trial in Vancouver in the second half of November 1977. Defendant claims that the pleadings are not complete as it wishes to file an amended statement of defence. Plaintiff asserts that pleadings are complete and that there are no motions outstanding for further amend ments or discoveries.
The relevant paragraphs of Rule 483 read as
follows:
Rule 483... .
(5) Where all parties cannot agree on making a joint application, a written application shall be made by the party desiring to have a date and place for trial or hearing fixed by the Court, or by those of the parties who do agree on making a joint application therefor; and such application shall contain the information, as far as the applicant or applicants are concerned, indicated by the form set out in paragraph (4), to
which shall be attached a memorandum setting out the reasons for the times and places sought by the applicant or applicants.
(6) An application made under paragraph (5) shall be served on the party or parties who do not join in the application under cover of a notice giving the party served 10 days from the date of service to file and serve a written memorandum in answer to the application, which memorandum shall contain, as far as the opposing party is concerned, the information indicat ed by the form set out in paragraph (4). The application shall not be filed until the applicant is able to file at the same time proof or admission of such service.
(7) Any opposing party may, within the 10-day period referred to in paragraph (6) serve a notice of motion returnable in not more than 3 weeks for an oral hearing of the application.
As there was no agreement between the two parties, plaintiff properly made a written applica tion under paragraph (5) served on defendant on September 22, 1977. Within ten days of service, or on October 3, defendant properly served plaintiff with a notice of motion under paragraph (7) returnable in Toronto on October 24, or exactly within three weeks as provided for by paragraph (7).
Defendant's application appears therefore to be in accordance with Rule 483, will be dealt with in Toronto on October 24, 1977 and ought not be dismissed as requested by plaintiff in the first paragraph of his instant application. The oral hearing prayed for in the second paragraph will take place in Toronto on October 24, 1977. The order fixing the time and place for trial will follow the hearing, but not necessarily in accordance with plaintiff's application.
ORDER
The motion is therefore adjourned to be heard in Toronto on October 24, 1977 together with defendant's motion. Costs in the cause.
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