Date: 19980616
Docket: T-459-98
BETWEEN:
SANDE LAZAR
Applicant
and
THE ATTORNEY GENERAL OF CANADA,
HUMAN RESOURCES DEVELOPMENT CANADA,
MINISTER OF NATIONAL REVENUE,
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Respondents
ORDER AND REASONS FOR ORDER
RICHARD, J.
Upon motion dated the 20th day of April, 1998, by counsel on behalf of one of the Respondents for an order:
1.to dismiss the Originating Notice of Application
2.that the Respondents be accorded their solicitor-clients costs and any further and other relief as this Court deems just.
IT IS HEREBY ORDERED THAT:
The motion to strike the applicant's notice of application made under Rule 301, which seeks mainly declaratory relief is dismissed.
The Minister of Human Resources Development, one of the Respondents, brought the motion because the Applicant failed to pursue adequate alternative remedies.
Part 5 of the Federal Court Rules, 1998 provides for a summary and expeditious disposition of applications for judicial review. I cannot conclude at this stage of the proceeding that the notice of application is so clearly improper as to be bereft of any possibility of success. Striking out a notice of application under Rule 301 should only be exercised in exceptional circumstances and cannot include cases such as the present where there is a debatable issue. (see: David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. [1995] 1 F.C. 588 at p. 600).
The applicant for judicial review has raised the issue of the availability of an adequate alternative remedy in the circumstances of this application based on the interpretation of the governing statute and has also raised the issue of the independence of the decision maker under section 7 of the Charter.
At this preliminary stage of the proceeding, I am satisfied that there is a debatable issue raised here by the applicant where an initial application for disability benefits was granted, benefits were paid and such benefits were later found not to be payable resulting in a demand for repayment of the benefits. It should be left to the judge hearing the application for judicial review to determine the availability and the adequacy of the appeal procedures in the Canada Pension Plan, R.S.C. 1985, c. C-8, as amended.
No costs are awarded.
"John D. Richard"
Judge
Toronto, Ontario
June 16, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-459-98
STYLE OF CAUSE: SANDE LAZAR
- and -
THE ATTORNEY GENERAL OF CANADA ET AL.
DATE OF HEARING: JUNE 15, 1998
PLACE OF HEARING: TORONTO, ONTARIO
ORDER AND REASONS FOR
ORDER BY: RICHARD, J.
DATED: JUNE 16, 1998
APPEARANCES:
Mr. Rocco Galati
For the Applicant
Mr. Daniel Roussy
For the Respondents
SOLICITORS OF RECORD:
Rocco Galati
637 College Street
Suite 203
Toronto, Ontario
M6G 1B5
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondents
FEDERAL COURT OF CANADA
Date: 19980616
Docket: T-459-98
Between:
SANDE LAZAR
Applicant
- and -
THE ATTORNEY GENERAL OF
CANADA ET AL.
Respondents
REASONS FOR ORDER
AND ORDER