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.
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.