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Federal Court - Motions. Macciacchera (Smoothstreams.tv) v. Bell Media Inc.
In Macciacchera (Smoothstreams.tv) v. Bell Media Inc. (Fed CA, 2023) the Federal Court of Appeal comments of motion practice:[2] Though the notice of motion indicates that it is a motion in writing, Messrs. Macciacchera have requested in a separate letter that a hearing be scheduled to hear oral submissions. Per Rule 369.2, motions before this Court are generally decided on the basis of written submissions. A request that a motion be heard orally should include reasons. Messrs. Macciacchera’s request for an oral hearing does not include reasons. Further, I see no need for an oral hearing. Accordingly, I will decide this motion on the basis of the written submissions. . Heiltsuk Horizon Maritime Services Ltd. v. Atlantic Towing Limited
In Heiltsuk Horizon Maritime Services Ltd. v. Atlantic Towing Limited (Fed CA, 2023) the Federal Court of Appeal criticized the procedural practice of a party responding to a motion with a motion to quash, rather than responding on the merits (SS: the evidence and argument relied upon in either case would have to be similar - see para 7):[4] As a general rule, a responding party should address the substance of the issues raised by the motion (Sandpiper Distributing Inc. v. Ringas, 2020 FC 366, 2020 CarswellNat 1638 (WL Can) at para. 48). Dressing up a response to a motion in the guise of a motion to quash serves no one’s interest—it simply imposes unnecessary costs and delay on all parties, and unduly burdens the Court’s administrative and judicial resources. It is a type of practice that is inconsistent with the modern approach to litigation and the priority courts give to addressing the substance of the issue. Both the Supreme Court and this Court have spoken many times of the need of all participants in the judicial system to enhance accessibility and efficiency (Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para. 28; Sport Maska Inc. v. Bauer Hockey Ltd., 2019 FCA 204, 165 C.P.R. (4th) 381 at para. 32; Sweet Productions Inc. v. Licensing LP International S.À.R.L., 2022 FCA 111, 2022 CarswellNat 2036 (WL Can) at para. 43).
[5] That said, motions to quash can and do play a useful role in the litigation process where they genuinely raise a threshold issue—a knockout punch—that disposes of the motion on the preliminary issue alone (Viiv Healthcare Company v. Gilead Sciences Canada, Inc., 2021 FCA 122, 460 D.L.R. (4th) 272 at para. 20).
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