SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 09-44274
DATE: 2015/09/15
RE: Clint M. Cole, Applicant
AND
Minister of Public Safety and Emergency Preparedness
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL:
No one for the Applicant (motion unopposed)
Korinda McLaine, for the Respondent
HEARD: Unopposed Motion in Writing
ENDORSEMENT
[1] The respondent brings this motion for an order dismissing an application for delay. The application was commenced in 2009 by Mr. Cole. He seeks declaratory relief with respect to his alleged interest in $217,000 in currency seized by the Canada Border Services Agency at the Cornwall Port of Entry in December 2008. The respondent seeks an order dismissing the application for delay, on the basis that the applicant has done nothing to advance the application. The uncontradicted affidavit evidence on behalf of the respondent is as follows:
• The notice of application was served on the respondent.
• In May 2009, the parties agreed to adjourn the application.
• The applicant has done nothing to advance the application.
Counsel for the applicant has not responded to two letters from counsel for the respondent, one in 2012 and one in 2014, inquiring as to the status of the related criminal matter and requesting an “update” with respect to the application.
[2] For the reasons set out below, the motion is dismissed without prejudice to the respondent to seek alternative relief.
[3] The motion is made pursuant to sub-rule 37.12.1(4) of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194 – opposed motions in writing. The requirements of that sub-rule include that the moving party serve with the notice of motion, a motion record, a draft order, and a factum entitled “factum for a motion in writing” (see sub-rule 37.12.1(4)(b)).
[4] There are a number of deficiencies in the material delivered by the respondent:
a) The respondent did not serve and file a draft order;
b) The title of the only document served and filed, and to which reference is made in the relevant affidavit of service is the “Motion Record of the Respondent”;
c) The affidavit of service does not make mention of service of the notice of motion independent of service of a copy of the notice of motion as incorporated in the motion record;
d) The Motion Record of the Respondent includes, albeit incorrectly, at Tab 3, a document titled “Factum of the Respondent (Motion to Strike)”. Independent of the provisions of sub-rule 37.12.1(4)(b), a factum is to be identified and treated as a document separate from a motion record; and
e) The title of the factum included in the Motion Record of the Respondent does not meet the requirements of the sub-rule.
[5] Rule 38.07 of the Rules of Civil Procedure deals with notices of appearances. My interpretation of that rule is that unless the respondent has filed a notice of appearance, it is not entitled to take a further step, such as to pursue a motion, in the application. The Motion Record of the Respondent does not include a copy of a notice of appearance, if filed. The supporting affidavit does not make reference to a notice of appearance having been filed or delivered. There is no evidence before the Court to satisfy me that the respondent has filed or delivered a notice of appearance and is therefore entitled to pursue a motion within the application.
[6] In addition, I am not satisfied that this Court has the jurisdiction to dismiss an application for delay:
• Rule 38.08 of the Rules of Civil Procedure addresses “Abandoned Applications” and sets out the consequences arising from an application which is abandoned or deemed to be abandoned.
• There is no Rule of Civil Procedure which expressly gives this Court jurisdiction to dismiss an application for delay.
• A number of the case law authorities relied on by the respondent are from Manitoba and refer to Court of Queen’s Bench Rules from that Province. The Manitoba rules specifically provide for an application to be dismissed for delay. The analogy drawn by the respondent to the procedural rules in Manitoba and cases decided based on those rules are not of assistance in this matter. The Manitoba decisions cited by the respondent do not support the respondent’s position that this Court has the jurisdiction, inherent or otherwise, to dismiss an application for delay.
• It is not “necessary” as submitted by the respondent, for this Court to rely upon its inherent jurisdiction and dismiss the application for delay. It is not necessary to do so because the Rules of Civil Procedure provide a mechanism for the relief sought by the respondent – to bring the application to an end. The respondent may bring a motion for an order that the application is deemed to be abandoned.
• The respondent has provided no case law or other authority in support of its position that an application may be dismissed for delay. The respondent has provided a copy of two orders of this Court pursuant to each of which separate applications are dismissed for delay. Both orders were made on unopposed motions in writing. The fact that those orders were made is not sufficient to convince me that this Court has jurisdiction to dismiss an application for delay.
[7] The respondent’s motion is dismissed without costs and without prejudice to the respondent to:
a) Bring a motion for an order that the application be deemed to be abandoned; or
b) Deliver a notice of return of application and on the return of the application seek an order that the application be deemed to be abandoned or such other relief as may be required (the latter in the event the applicant appears on the return of the application).
DATE: September 15, 2015
Justice S. Corthorn
2015 ONSC 5728
COURT FILE NO.: 09-44274
DATE: 2015/09/15
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Clint M. Cole, Applicant
AND
Minister of Public Safety and Emergency Preparedness
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: No one for the Applicant (motion unopposed)
Korinda McLaine, for the Respondent
HEARD: Unopposed Motion in Writing
ENDORSEMENT
Justice S. Corthorn
Released: September 15, 2015