Date: 20030424
Docket: T-2191-01
T-2192-01
Neutral citation: 2003 FCT 509
BETWEEN:
D.E. RODWELL INVESTIGATIVE SERVICES LTD.
Plaintiff
and
CHIEF LORNE MORIN, COUNCILLORS J. BLAIR MORIN,
BARNEY WARD, ELAINE PAPIN, KELLY MORIN
GERALD WARD, LAURA MORIN, BEN GROUND
CLARK PEACOCK and HOWARD PEACOCK
as representatives of the
ENOCH CREE NATION INDIAN BAND and
INDIAN LAKES GOLF LIMITED
Defendants
[1] In each of these files the Defendants seek first, removal of the action from the simplified action rules, pursuant to rule 298(3)(a) and second, summary judgment dismissing each action, pursuant to rule 213(2), on the basis of time bar.
[2] Rule 297 provides that "[n]o motion for summary judgment may be brought in a simplified action". Notwithstanding rule 298 that motions in simplified actions are to be returned only at a pre-trial conference, there are specific exceptions, being an objection to jurisdiction, a motion to strike out for want of reasonable cause of action, the release of arrested property and, as is included in the present application, a motion to have an action removed from the operation of the simplified action rules. In each case removal from the ambit of the simplified action rules depends upon the circumstances and is discretionary. In my view only motions which are either basic to the action, or essential to allow the action to proceed, or matters which clearly cannot wait for a pre-trial conference or the hearing of the action, should be entertained before the pre-trial conference: see Grinshpun v. University of British Columbia (1999), 182 F.T.R. 150 (F.C.T.D.) at 152.
[3] In the present instance the application for a rule 213 summary judgment is denied. Leaving aside rule 297, that no motion for summary judgment may be brought in a simplified action, the present motions to remove the action from the operation of simplified action rules is not for a purpose that is essential in order to allow the actions to proceed. This is all the more the situation when the dismissal is based upon a disputed time bar.
[4] As I pointed out in Jawanda v. Canada (Minister of Citizenship and Immigration) (2001), 14 Imm.L.R. (3d) 151 (F.C.T.D.) at 153, a time bar is generally a procedural tool which a party may elect to use at a later date. There may also be an answer to a defence of a time bar. Certainly, a time limitation may be the subject matter of a summary judgment application, however the test is that there be no genuine issue for trial, that is, the case must be so doubtful that it deserves no further consideration. There is a proviso: summary judgment ought not to be granted where the necessary facts cannot be established or where there are serious issues of credibility, but rather the matter should then go to trial. These principles are set out in Granville Shipping Co. v. Pegasus Lines Ltd. S.A., [1996] 2 F.C. 830 (F.C.T.D.) at pages 859 and 860. In the present instance the facts for and against a time bar are in dispute, the Defendants contending that accounts for the amounts owing, about $7,000, are time-barred, with the Plaintiff contending that the claims arise from a continuing contract with the Defendants being invoiced, from time to time, to advise them of their outstanding indebtedness and with a formal demand for payment well within the relevant time period set out in the Limitation Act of Alberta. There has been no cross-examination on any of this.
[5] I have considered all of this, including the simplified action rules and here I include rule 297, barring summary judgment applications and the applicable law to the effect that only motions essential to enable a law suit to proceed should be entertained before the pre-trial conference. I have considered the principles set out in Granville Shipping Co. (supra), including as to whether there is a genuine issue to be tried and whether the necessary facts can be determined without cross-examination. I have concluded that this is not an instance in which there ought to be a summary dismissal of the actions. Both motions are denied, with costs to the Plaintiff in each instance.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
24 April 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
DOCKET: T-2191-01 and T-2192-01
STYLE OF CAUSE: D.E. Rodwell Investigative Services Ltd. v. Chief Lorne Morin et al.
REASONS FOR ORDER OF: Hargrave P.
DATED: 24 April 2003
WRITTEN REPRESENTATIONS BY:
William P Glabb FOR PLAINTIFF
Dennis G Groh, QC FOR DEFENDANTS
SOLICITORS ON THE RECORD:
William P Glabb FOR PLAINTIFF
Barrister and Solicitor
Edmonton, Alberta
Biamonte Cairo & Shortreed FOR DEFENDANTS
Barristers and Solicitors
Edmonton, Alberta