Date: 20050412
Docket: T-531-03
Citation: 2005 FC 486
Montréal, Quebec, April 12, 2005
Present: The Honourable Mr. Justice Beaudry
ADMIRALTY ACTION IN REM
BETWEEN:
JPMORGAN CHASE BANK
(formerly The Chase Manhattan Bank),
a body corporate,
and
J.P. MORGAN EUROPE LIMITED
(formerly Chase Manhattan International Limited),
a body corporate
Plaintiffs
and
MYSTRAS MARITIME CORPORATION,
a body Corporate,
and
THE OWNERS AND ALL OTHERS INTERESTED
IN THE SHIP "LANNER"
and
THE SHIP "LANNER"
Defendants
REASONS FOR ORDER AND ORDER
[1] This is a motion to appeal the order of Prothonotary Richard Morneau dated March 17, 2005 which dismissed the motion filed by Kent Trade & Finance Inc., Praxis Energy Agents, S.A., Ashland Specialty Chemical Company and CP3500 International Ltd. (the Claimants) to revoke and alternatively amend two directions of the Prothonotary dated February 22, 2005.
[2] The Prothonotary's directions are as follows:
- The Supplemental affidavit of Mr. Andrew S. de Klerk dated February 18, 2005, shall not be filed for the reasons expressed by the plaintiffs' letter dated February 21 2005. The same applies to the Supplementary written representations signed by Mr. Bangoura of Borden Ladner Gervais LLP dated February 21, 2005.
- For the very reasons contained in the plaintiff's letter dated February 22, 2005, the written direction issued by this Court on February 21, 2005, stands in full and Mr. de Klerk will not be authorized to give direct rebuttal evidence viva voce next Thursday, February 24, 2005.
[3] The Court heard a motion on March 14, 2005 to vacate the Prothonotary's directions and an order was issued dismissing that motion. The present appeal is from that Order of Prothonotary Morneau. Alternatively, the Claimants ask the Court to allow expert oral evidence of foreign law as part of the priorities hearing.
[4] It has to be noted that the Court had already heard arguments regarding the merits and priority of each of the claims at a hearing in Montreal on February 24, 2005 (priorities hearing). It also considered evidence of foreign law and written submissions by the Claimants in the present appeal. The decision has not yet been rendered regarding the rights of the Plaintiffs and each of the remaining claimants against the sale proceeds of the defendant Ship Lanner.
[5] The standard of review applicable to prothonotaries' orders are set out in Merck & Co., Inc. v. Apotex Inc. (2004), 2 F.C.R. 459.
[17] This Court, in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.), set out the standard of review to be applied to discretionary orders of prothonotaries in the following terms (MacGuigan J.A., at pages 462-463): ...
Following in particular Lord Wright in Evans v. Bartlam, [1937] A.C. 473 (H.L.) at page 484, and Lacourcière J.A. in Stoicevski v. Casement (1983), 43 O.R. (2d) 436 (Div. Ct.), discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless:
(a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or
(b) they raise questions vital to the final issue of the case
.....
[19] To avoid the confusion which we have seen from time to time arising from the wording used by MacGuigan J.A., I think it is appropriate to slightly reformulate the test for the standard of review. I will use the occasion to reverse the sequence of the propositions as originally set out, for the practical reason that a judge should logically determine first whether the questions are vital to the final issue: it is only when they are not that the judge effectively needs to engage in the process of determining whether the orders are clearly wrong. The test would now read: "Discretionary orders of prothonotaries ought not be disturbed on appeal to a judge unless: (a) the questions raised in the motion are vital to the final issue of the case, or (b) the orders are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts.
Does the order of Prothonotary Morneau raise a question vital to the final issue?
[6] The answer to that question is negative for the following reasons:
- In fact, I agree with the Plaintiffs that the issue is whether or not the Court should admit and consider the supplemental materials.
- The Order for Directions (September 15, 2004) consented to by the Claimants contained in part the following:
1. The remaining Claimants shall serve and file affidavits of law and written submissions regarding priority of their remaining claims no later than November 1, 2004;
2. The Plaintiffs and all remaining Claimants shall complete all cross-examinations on affidavits of claim and the remaining Claimants' affidavits of law no later than December 10, 2004;
3. The Plaintiffs shall serve and file any materials in response to the remaining Claimants' affidavits of law and written submissions no later than January 7, 2005;
4. The Court shall hold a special sitting at Halifax to determine the rights of the Plaintiffs and all remaining Claimants, and the priority of their respective claims on Wednesday, January 26, 2005 commencing at 9:30 a.m. for a duration not to exceed one day.
(...)
[7] The Claimants filed their affidavit of foreign law on November 1, 2004 and the Plaintiffs filed theirs on January 7, 2005.
[8] Only a few days before the rescheduled hearing date of the priorities hearing held in late February, the Plaintiffs received the supplemental affidavit from the claimants. The Plaintiffs objected to this new material.
[9] No motion was filed by the claimants to seek leave of the Court to admit further expert evidence.
[10] I agree with the Plaintiffs that granting this appeal would incur additional expenses for them to address the late admission of evidence after the priorities hearing since it had already taken place.
Is the Prothonotary's Order clearly wrong?
[11] The answer to that question is also negative. The issues of foreign law were raised in 2003. The Claimants agreed to the form of the Order for Directions (September 15, 2004). They had until December 10, 2004 to file their expert affidavits which they did. No motion was filed to obtain relief from the Court to introduce the supplemental materials. It is only a few days before the rescheduled priorities hearing that the claimants tried to file the supplemental materials. I therefore conclude that the Prothonotary's Order dismissing the motion to vacate its directions is not based on a wrong principle of law.
Request for alternative relief
[12] The Claimants alternatively ask the Court to grant leave to adduce oral evidence of foreign law as part of the priorities hearing. The Plaintiffs filed an objection. In its direction, the Prothonotary agreed with the Plaintiffs. Again, I see no reason to intervene here because the Prothonotary exercised his judicial discretion in a lawful manner due to the factual context of this case. The file shows that the Claimants had an adequate opportunity to adduce relevant evidence to rebut or contradict the evidence from the Plaintiffs (Japan Electrical Manufacturers Association v. A.D.T., 32 D.L.R. (4th) 222).
[13] Therefore, the Court orders that the appeal is dismissed with costs.
ORDER
The appeal is dismissed with costs.
"Michel Beaudry"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-531-03
STYLE OF CAUSE:
JPMORGAN CHASE BANK
(formerly The Chase Manhattan Bank),
a body corporate,
and
J.P. MORGAN EUROPE LIMITED
(formerly Chase Manhattan International Limited),
a body corporate
Plaintiffs
and
MYSTRAS MARITIME CORPORATION,
a body Corporate,
and
THE OWNERS AND ALL OTHERS INTERESTED
IN THE SHIP "LANNER"
and
THE SHIP "LANNER"
Defendants
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 11, 2005
REASONS FOR ORDER AND ORDER : BEAUDRY, J.
DATED: April 12, 2005
APPEARANCES:
Anil K. Mohan FOR PLAINTIFFS
Gassim Bangoura FOR CLAIMANTS,
KENT TRADE & FINANCE INC.,
PRAXIS ENERGY AGENTS S.A.,
ASHLAND SPECIALTY CHEMICAL COMPANY
and CP3500 INTERNATIONAL LTD.
SOLICITORS OF RECORD:
Metcalf & Company FOR PLAINTIFFS
Halifax, Nova Scotia
BORDEN LADNER GERVAIS FOR CLAIMANTS,
Montréal, Quebec KENT TRADE & FINANCE INC.,
PRAXIS ENERGY AGENTS S.A.,
ASHLAND SPECIALTY CHEMICAL COMPANY
and CP3500 INTERNATIONAL LTD.
Robinson Sheppard Shapiro FOR CLAIMANTS,
Montréal, Quebec INTERNATIONAL PAINT INC.,
INTERNATIONAL COATINGS LTD.,
INTERNATIONAL PAINT (HELLAS) S.A. and
HELLAS SUPPLY CO. INC.
De Man, Pilotte FOR CLAIMANT,
Montréal, Quebec CALOGERAS & MASTER SUPPLY INC.
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