Date: 20250108
Docket: T-2406-22
Citation: 2025 FC 45
Toronto, Ontario, January 8, 2025
PRESENT: Mr. Associate Judge Michael D. Crinson
BETWEEN:
LaBOUTIQUE REALTY LTD.
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
ORDER
UPON CONFIDENTIAL MOTION on behalf of the Appellant filed September 19, 2023 pursuant to Rule 75 of the Federal Court Rules SOR/98-106 to file an Amended Notice of Appeal in the form attached to the Notice of Motion noted as “Minutes”;
AND UPON noting the Respondent requests that the Appellant’s Motion to amend the Notice of Appeal be dismissed and that the Appeal be struck with costs to the Respondent;
AND UPON noting there is no cross-motion served and filed by the Respondent seeking to strike the Notice of Appeal in its entirety;
AND UPON considering the motion records filed by the parties and the submissions of the parties in writing and at the oral hearing of the motion;
AND UPON recognising and applying the following legal principles:
- Rule 75 of the Rules provides that the Court may, on motion, at any time, allow a party to amend a pleading, on such terms as will protect the rights of all parties.
- The applicable test is whether it is more consonant with the interests of justice that the amendment be permitted or that it be denied (Janssen Inc. v. AbbVie Corporation, 2014 FCA 242, at para. 3).
- A threshold issue is the requirement that the proposed amendment have a reasonable prospect of success (Remo Imports Ltd. v. Jaguar Cars Ltd., 2005 FC 870 at para. 49) as examined, with a realistic view, in the context of the law and the litigation process (Teva Canada Limited v Gilead Sciences Inc, 2016 FCA 176 at para. 30).
- The burden is on the amending party to demonstrate a reasonable prospect of success (Merck & Co Inc v Apotex, 2003 FCA 488 at para 46).
- A pleadings amendment may not be allowed if the amendment would result in an injustice to the other party that is not capable of being compensated by an award of costs (Apotex Inc. v Bristol-Myers Squibb Company, 2011 FCA 34, at para. 4).
- The factors the Court should consider on a motion to amend include 1) the timeliness of the motion to amend, 2) the extent to which the proposed amendments would delay the expeditious hearing of the matter, 3) the extent to which a position taken originally by one party has led another party to follow a course of action in the litigation which it would be difficult or impossible to alter, and, 4) whether the amendments sought will facilitate the Court’s consideration of the true substance of the dispute on its merits to guide the exercise of its discretion. These factors are non-exhaustive and not limiting.
- The relevant factors must be assigned their proper weight in the context of the particular case (Janssen Inc. supra, at para. 3).
AND UPON concluding that the Appellant has failed to establish the proposed amendments have a reasonable prospect of success in light of:
- The bald statements and allegations made in the proposed amendments including the lack of particulars; and
- The prior decisions and findings of the Court in Violator no. 10 v Canada (Attorney General), 2018 FCA 150, and Chateau d’Ivoire Stores Inc. v. The Attorney General of Canada, 2022 FC 405 at para. 28, upheld on appeal 2023 FCA 100:
… The Supreme Court has long recognized that administrative decision-makers are not required to personally perform all of the tasks conferred upon them by the legislation, and that they may delegate to administrative staff certain tasks upon which informed decision-making necessarily depends, such as the gathering and analyzing of evidence: see The Queen v. Harrison, 1976 CanLII 3 (SCC), [1977] 1 S.C.R. 238 at pages 245-246, 66 D.L.R. (3d) 660…
Violator no. 10 v Canada (Attorney General), 2018 FCA 150 at para. 41
and
What is essential is that the person designated to make a decision or his or her delegate personally consider the file and adopt the recommendations that have been made. In other words, the decision-maker designated in the legislation is always responsible for making the final decision after obtaining sufficient knowledge of all aspects of the issue…
Violator no. 10 v Canada (Attorney General), 2018 FCA 150 at para. 43
and
[28] Finally, Château d’Ivoire argues that not all relevant documents were disclosed by the Attorney General, but rather only the relevant documents that the RAU staff had specifically chosen to include in the electronic briefing binder provided to the Director. There is no doubt that the RAU staff had more documents than had been included in the electronic briefing binder 2022 FC 405 Page: 15 to the Director – the fact that FINTRAC modified its response to Château d’Ivoire’s rule 317 request establishes that. However, as stated earlier, relevance alone is not enough to compel disclosure under section 317 of the Rules, even assuming that the documents that did not form part of the electronic briefing binder provided to the Director were relevant to the Decision. The material must be relevant and in the possession of the Director to be captured by section 317 of the Rules. The whole purpose of having staff conduct the initial review and assessment is to ensure an efficient use of the Director’s time. It follows that not all documents reviewed by the staff would be deemed necessary to be inserted in the binder supporting the recommendation.
Chateau d’Ivoire Stores Inc. v. The Attorney General of Canada, 2022 FC 405 at para. 28, upheld on appeal 2023 FCA 100
AND UPON the Appellant not addressing the factors of timeliness of the motion to amend or the extent to which the proposed amendments would delay the expeditious hearing of the matter;
AND UPON concluding the Respondent has not satisfied the high threshold to warrant striking out the original allegations in the Notice of Appeal;
ORDER
THIS COURT ORDERS that:
The Appellant’s motion to amend the Notice of Appeal is dismissed.
The Respondent’s request, that the Notice of Appeal be struck is denied.
The Respondent shall be entitled to its costs of this motion in a lump sum amount of $800 payable forthwith.
"Michael D. Crinson"
Associate Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
T-2406-22
STYLE OF CAUSE:
LaBOUTIQUE REALTY LTD. v ATTORNEY GENERAL OF CANADA
THE MATTER WAS HEARD VIA VIDEOCONFERENCE
DATE OF HEARING:
NOVEMBER 20, 2023
ORDER AND reasons:
CRINSON A.J.
DATED:
January 8, 2025
APPEARANCES:
Jeffrey P. Scouten
For The AppELLANT
Marilou Bordeleau
For The Respondent
SOLICITORS OF RECORD:
Bojm, Funt & Gibbons LLP Barristers and Solicitors Vancouver, BC
For The AppELLANT
The Attorney General of Canada Department of Justice Vancouver, BC
For The Respondent