Federal Court - Christian Aboriginal Infrastructure Developments ...

Page: 152
the court assigned to ensure harmonization in the case of
conflicting decisions, thereby relieving the Supreme Court of
Canada of a substantial volume of work, while reserving it the
option to intervene in those cases that it considers of national
interest.
[594] First, I note that the Defendant did not plead this issue. There is nothing in the further
Defence filed by the Defendant in which she says that the Plaintiffs, or either of them, should have
pursued an administrative law remedy. This issue was raised for the first time by the Defendant in
2010 FC 495 (CanLII)
her closing submissions.
[595] Second, I observe that the Defendant did not move to strike the Statement of Claim on this
basis. Indeed, it verges on the astonishing that at the stage of closing arguments, the Defendant
advanced Grenier as some kind of answer or defence to the Plaintiffs’ action.
[596] The Index of Recorded Entries discloses that on May 29, 2002, the Defendant filed a Notice
of Motion for an Order to strike certain parts of the original Statement of Claim, as well as for an
Order for further and better particulars. That motion was argued before the Court sitting at
Whitehorse on August 16, 2002.
[597] By an Order dated the same day, Prothonotary Hargrave granted the motion in part and the
Plaintiffs were given leave to file an Amended Statement of Claim, deleting any reference to the
discretionary remedy of mandamus which is available only upon an application for judicial review.