Summary of Federal Court Hearing, December 7, 2016

On December 7, 2016, the Federal Court of Appeal heard the appeal from Justice Russell’s second decision, ruling to strike COMER’s statement of claim.

The Federal Court of Appeal, in its terse and non-responsive reasons, dismissed the appeal.

In dismissing the appeal, the Federal Court of Appeal simply:

1. Re-cited the judicial history of the case, namely:

  1. The initial decision from Prothonotary Aalto striking the claim;
  2. The first decision of Justice Russell (on appeal from Prothonotary Aalto) over-turning the striking of the claim;
  3. The first decision of the Federal Court of Appeal dismissing both COMER’s appeal as to the damages portion of the claim, as well as the government’s cross-appeal on the main, declaratory aspects of the claim; and
  4. Justice Russell’s second decision on the amended statement of claim, which struck the claim.

2. The Court of Appeal then simply endorsed the conclusion of Justice Russell, without analysis, and without response to argument made by COMER, with respect to Justice Russell’s 69-page decision.

COMER is therefore filing an application for leave (permission) to the Supreme Court of Canada to appeal the decision of the Federal Court of Appeal.

It goes without saying that COMER views the Federal Court of Appeal decision as wrong in law, for many reasons, the same reasons as Justice Russell’s decision which it echoes without analysis nor response to compelling arguments, which is in effect a “passing of the buck” by the Federal Court of Appeal.