Express File Inc. v. HRB Royalty Inc.
The motions for reconsideration were dismissed because the issue of whether Partsource had been argued below was controversial rather than an oversight and the motions were not brought within the 10‑day limit of Rule 397(1) with no excuse for delay; therefore reconsideration was not warranted and costs were awarded...
Source-derived case information.
- Citation
- 2005 FCA 47
- Parties
- Appellant: Express File, Inc.; Respondent: HRB Royalty, Inc.
- Court
- Federal Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 3 February 2005
- Procedural Posture
- Appeal to Federal Court of Appeal / Motion for Reconsideration Following Dismissal of Appeals
- Outcome
- Motions for reconsideration dismissed; costs awarded to respondent.
- Legal Topics
- Reconsideration, Federal Courts Rules Rule 397, Timeliness, Inadvertent Omission
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Express File, Inc.
Appellant
HRB Royalty, Inc.
Respondent
Procedural Posture
Appeal to Federal Court of Appeal / Motion for Reconsideration Following Dismissal of Appeals
Legal Issues
- 1 Whether the Court overlooked an argument based on Canadian Tire Corp. v. P.S. Partsource Inc.
- 2 Whether the motion for reconsideration was brought in time under Rule 397(1)
- 3 Whether the circumstances amount to an oversight or accidental omission warranting reconsideration
Ratio Decidendi
The motions for reconsideration were dismissed because the issue of whether Partsource had been argued below was controversial rather than an oversight and the motions were not brought within the 10‑day limit of Rule 397(1) with no excuse for delay; therefore reconsideration was not warranted and costs were awarded to the respondent.
Court Disposition
Motions for reconsideration dismissed; costs awarded to respondent.
Orders
- Motions for reconsideration dismissed
- One set of costs awarded to respondent
Full Case Text
Judgment text and source record
1 paragraphs
Express File Inc. v. HRB Royalty Inc. Court (s) Database Federal Court of Appeal Decisions Date 2005-02-03 Neutral citation 2005 FCA 47 File numbers A-364-03, A-365-03 Decision Content Date: 20050203 Docket: A-364-03 A-365-03 Citation: 2005 FCA 47 CORAM: NOËL J.A. NADON J.A. PELLETIER J.A. BETWEEN: EXPRESS FILE, INC. Appellant and HRB ROYALTY, INC. Respondent Motion dealt with in writing without the appearance of parties. Order delivered at Ottawa, Ontario, on February 3, 2005. REASONS FOR ORDER BY: NOËL J.A. CONCURRED IN BY: NADON J.A. PELLETIER J.A. Date: 20050203 Docket: A-364-03 A-365-03 Citation: 2005 FCA 47 CORAM: NOËL J.A. NADON J.A. PELLETIER J.A. BETWEEN: EXPRESS FILE, INC. Appellant and HRB ROYALTY, INC. Respondent REASONS FOR ORDER NOËL J.A. [1] The appellant moves to have the Court reconsider the judgments given on October 14, 2004 dismissing its appeals with costs in favour of the respondent. It submits that the Court inadvertently held that an argument based on the decision of this Court in Canadian Tire Corp. v. P.S. Partsource Inc. (2001), 200 F.T.R. 94, 2001 FCA 8, had not been made in the proceedings below. The appellant submits that as a result the judgments should be reconsidered and the appeals granted with one set of costs throughout in favour of the appellant. [2] In our view, the question whether Partsource was or was not argued below is controversial and hence cannot be assimilated to a "matter that ... had been overlooked or accidentally omitted" (Rule 397 (1)(b)). The fact that the written submissions before the protonotary and Martineau J. alluded to Partsource, as the appellant asserts, does not establish that the argument was pursued at the hearing. Indeed, Pelletier J. noted at paragraph [1] of the reasons disposing of the appeals "Before us, the appellant argued a different case, a fact confirmed by counsel for the respondent." [3] In addition, as the motion clearly comes within Rule 397 (1) rather than 397 (2), it had to be brought within 10 days after the issuance of the Judgments. As the respondent points out, it was not and the appellant has provided no reasons to explain the delay. [4] The motions for reconsideration will be dismissed with one set of costs. "Marc Noël" J.A. "I agree. M. Nadon, J.A." "I agree. J.D.Denis Pelletier, J.A." FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKETS: A-364-03 A-365-03 STYLE OF CAUSE: Express File, Inc. v. HRB Royalty, Inc. MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES. REASONS FOR ORDER: Noël J.A. CONCURRED IN BY: Nadon J.A. Pelletier J.A. DATED: February 3, 2005 WRITTEN REPRESENTATIONS BY: Mr. Kenneth D. McKay FOR THE APPELLANT Mr. Stefan Martin FOR THE RESPONDENT SOLICITORS OF RECORD: Sim, Hughes, Ashton & McKay LLP Toronto, Ontario FOR THE APPELLANT Fraser Milner Casgrain LLP Montreal (Quebec) FOR THE RESPONDENT