T-2554-84
Enviro-Clear Company, Inc. (Plaintiff)
v.
Baker International (Canada) Ltd., Rio Algom
Limited and Denison Mines Limited (Defendants)
INDEXED AS: ENVIRO-CLEAR CO. v. BAKER INTERNATIONAL
(CANADA) LTD.
Trial Division, Giles A.S.P.—Toronto, April 16,
1987.
Practice — Motions in writing — R. 324 request to have
motion for confidentiality order disposed of without appear
ance of counsel — Respondents (defendants) opposing request
on ground R. 324 limited to circumstances not controversial —
R. 324 giving Court or Prothonotary discretion to dispose of
motion with or without personal appearance — R. 324 not
permitting respondent to require applicant to make motion
orally — Fact motion controversial not determining factor —
Viking and Molson cases distinguished — Circumstances of
those cases requiring oral argument; no suggestion R. 324
requiring it — In instant case, given complexity of matters, not
expedient to dispose of application without oral argument —
However, applicant may reapply for disposition without per
sonal appearance and, if so, respondents may make written
submissions or apply under R. 324(3) to be heard orally —
Motion adjourned sine die — Federal Court Rules, C.R.C., c.
663, R. 324.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Viking Corp. v. Aquatic Fire Protection Ltd. (1985), 5
C.P.R. (3d) 51 (F.C.T.D.); Molson Cos. Ltd. v. Registrar
of Trade Marks et al. (1985), 7 C.P.R. (3d) 421
(F.C.T.D.).
SOLICITORS:
Riches, McKenzie & Herbert, Toronto, for
plaintiff.
Sim, Hughes, Dimock, Toronto, for defen
dants.
The following are the reasons for order ren
dered in English by
GILES A.S.P.: Before me is a notice of motion
for a confidentiality order, together with the writ-
ten submissions and supplementary written sub
missions of the applicant [plaintiff] and a request
by the applicant that the matter be disposed of
without personal appearance pursuant to Rule 324
[Federal Court Rules, C.R.C., c. 663]. Also before
me is a letter from the solicitors for the respon-
dents/defendants putting forward the proposition
that "the application of the provisions of Rule 324
enabling a motion to be heard without appearance
of counsel should be limited to those circumstances
which are not controversial. Viking Corp. v.
Aquatic Fire Protection Ltd. (1985), 5 C.P.R.
(3d) 51 (F.C.T.D.), at page 57 per Reed J.;
Molson Cos. Ltd. v. Registrar of Trade Marks et
al. (1985), 7 C.P.R. (3d) 421 (F.C.T.D.), at page
423.
We therefore respectfully request, pursuant to
the provisions of Rule 324(3), that the plaintiff be
requested, if so advised, to reapply by way of
notice of motion to be heard in the usual course
upon such evidence as it deems appropriate in the
circumstances, as was done in the Viking case."
Rule 324 reads as follows:
Rule 324. (1) A motion on behalf of any party may, if the
party, by letter addressed to the Registry, so requests, and if
the Court or a prothonotary, as the case may be, considers it
expedient, be disposed of without personal appearance of that
party or an attorney or solicitor on his behalf and upon
consideration of such representations as are submitted in writ
ing on his behalf or of a consent executed by each other party.
(2) A copy of the request to have the motion considered
without personal appearance and a copy of the written
representations shall be served on each opposing party with the
copy of the notice of motion that is served on him.
(3) A party who opposes a motion under paragraph (1) may
send representations in writing to the Registry and to each
other party or he may file an application in writing for an oral
hearing and send a copy thereof to the other side.
(4) No motion under paragraph (1) shall be disposed of until
the Court is satisfied that all interested parties have had a
reasonable opportunity to make representations either in writ
ing or orally.
Rule 324(1) provides, in effect, that if the party
moving so requests and if the Court or a prothono-
tary considers it expedient the motion may be
disposed of without the personal appearance of
that party or a solicitor on his behalf upon con
sideration of that party's submissions. The final
words "or of a consent executed by each other
party" indicates an occasion when it is not neces
sary for the moving party to make submissions.
Rule 324(3) provides in effect that an opposing
party may reply by representation in writing or
may apply to be heard orally. I do not read the
Rule as permitting an application by a respondent
to require the moving party to make his motion
orally. Viking was a case involving contempt of
Court, when on the facts it was necessary that the
Judge hearing the motion be in a position to assess
the credibility of the parties. Full argument by
counsel was also deemed necessary. Molson
involved an apparently novel point of practice to
decide which I deemed argument by counsel would
be helpful. In neither case was it suggested that
the Rule required oral argument but rather that
the circumstances required such argument.
In my view, a controversial motion may be
disposed of without the personal appearance of the
moving party or his solicitor, if the Court or a
prothonotary deems it expedient.
If an opposing party wishes to be heard orally,
he has the right under Rule 324(3) to apply to be
so heard. Such an oral hearing of a party may be
permitted without the appearance of the moving
party if the moving party so wishes and the Court
or a prothonotary deems it expedient.
The applicant's motion in this case appears to
involve matters of some complexity. The applicant
has indicated what it believes the probable position
of the respondents to be. If that were indeed the
position taken by the respondents, I would not
deem it expedient to dispose of the application
without oral argument by counsel. I therefore
intend to adjourn disposition of this motion sine
die. The applicant may again apply for it to be
disposed of without personal appearance of the
applicant or may serve notice of motion to be
heard on a regular motions day or, by arrangement
with the Registry, on a special day. If the appli
cant brings on this motion again under Rule
324(1) the respondents have of course the right to
make written submissions or to apply under Rule
324(3) to be heard orally.
ORDER
Motion adjourned sine die.
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.