Date: 20020529
Docket: A-813-00
Neutral citation: 2002 FCA 227
CORAM: LÉTOURNEAU J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
HARRY D. SHIELDS LIMITED
Respondent
Heard at Ottawa, Ontario, on May 29, 2002.
Judgment delivered from the Bench at Ottawa, Ontario, on May 29, 2002.
REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW J.A.
Date: 20020529
Docket: A-813-00
Neutral citation: 2002 FCA 227
CORAM: LÉTOURNEAU J.A.
SEXTON J.A.
SHARLOW J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
HARRY D. SHIELDS LIMITED
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario
on May 29, 2002.)
[1] The Respondent was at one time an importer and distributor of bicycles, bicycle parts and accessories. On December 30, 1981, the Respondent commenced an action against the Crown (T-6485-81) to claim damages and exemplary damages on the basis that its business failed because of certain acts of the Crown which constitute negligence, negligent misrepresentation, discrimination and abuse of public office.
[2] On August 16, 1999, the Crown filed a notice of motion to seek summary judgment dismissing the action. The motion was heard by O'Keefe J. on June 21, 2000. At the hearing, counsel for the Respondent indicated that it was abandoning all claims except those based on abuse of public office.
[3] By order dated November 23, 2000, O'Keefe J. dismissed the motion for summary judgment. The Crown now appeals that decision.
[4] It is conceded that O'Keefe J. should have allowed the motion for summary dismissal in relation to all claims except the claim based on the allegations of abuse of public office. Counsel for the Respondent admitted in this Court that O'Keefe J. was advised at the hearing of the motion that all claims had been abandoned except the claim for abuse of public office.
[5] With respect to the claim for abuse of public office, we are not persuaded that O'Keefe J., in denying the Crown's motion for summary dismissal, made any error that warrants the intervention of this Court. Affidavit evidence was submitted by the Respondent which, if accepted as true, would support the claim. That evidence was not directly contradicted by any evidence submitted by the Crown in support of its motion for summary dismissal.
[6] The appeal will therefore be allowed in part only, to vary the order to reflect the concession of counsel for the Respondent as to the abandoned claims.
"K. Sharlow"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-813-00
STYLE OF CAUSE: HER MAJESTY THE QUEEN and HARRY D. SHIELDS LTD.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: May 29, 2002
REASONS FOR JUDGMENT OF THE COURT (Létourneau, Sexton, Sharlow JJ.A.)
RENDERED FROM THE BENCH BY: Sharlow, J.A.
APPEARANCES:
Mr. Patrick Bendin for the Appellant
Mr. Donald Zaldin for the Respondent
SOLICITORS OF RECORD:
Mr. Morris Rosenberg for the Appellant
Deputy Attorney General of Canada
Mr. Ronald V. Zaldin, Barrister for the Respondent
Toronto, Ontario