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Federal Court - Orders

. Koch v. Borgatti Estate

In Koch v. Borgatti Estate (Fed CA, 2022) the Federal Court of Appeal considered when a procedural order is peremptory:
A. Was paragraph 7 of the July 2021 Orders Peremptory?

[41] In my view, the Federal Court erred when it determined that paragraph 7 of the July orders is peremptory.

[42] In asking itself whether paragraph 7 was peremptory, the Federal Court focussed only on the language of paragraph 7 and, in particular, the consequence of missing the deadline—a party who fails to make the filing on time "“shall be forever barred from claiming”" and "“any right of action shall be extinguished”". Nothing in its speaking orders suggests the Federal Court considered the circumstances in which the July orders were issued or the language of the July orders as a whole. This was an error of law.

[43] While there is no definition per se of a peremptory order, the jurisprudence teaches that a peremptory order is an order of last resort. As explained in Inmates of Mountain Prison v. R., [1998] F.C.J. No. 1064, 81 A.C.W.S. (3d) 765 [Inmates] at para. 4:
Peremptory or “unless” orders are generally only made when a party has already failed to comply with a requirement, rule or order and the court is satisfied that the time already allowed is sufficient in the circumstances.
[44] Consistent with this jurisprudence in the Federal Court and in this Court peremptory orders are typically made only after repeated failures to meet deadlines established by the Court or the Rules. See, for example, Woo v. Canada (National Parole Board), 1998 CanLII 8274 (FC), [1998] F.C.J. No. 1248, 153 F.T.R. 147; Symbol Yachts Ltd. v. Pearson, 1996 CanLII 4020 (FC), [1996] 2 FC 391, 107 FTR 295; LS Entertainment Group Inc. v. Kalos Vision Ltd. and Kalos Ltd., 2001 FCT 1000; Canadian National Railway Co. v Norango (The), [1976] 2 F.C. 264, 1976 CanLII 2384 (FCA); Commercial Union Assurance Co. plc. v. M. T. Fishing Co., [1999] F.C.J. No. 1405, 91 A.C.W.S. (3d) 511; Lewis v. Canada (Correctional Service), 2015 FC 118; Canada (Attorney General) v. Fabrikant, 2019 FCA 174; and Smithkline Beecham Corporation v. Pierre Fabre Médicament, 2004 FCA 441.


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Last modified: 07-01-23
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