Gilling v. Canada (Minister of Transport), 2004 FC 1572

Date: 20041108

Docket: T-109-97

Citation: 2004 FC 1572

Montréal, Quebec, November 8, 2004

Present:           RICHARD MORNEAU, ESQ., PROTHONOTARY                                 

                   Action in rem against the Ship "SEPTEMBER" (a.k.a. DESPERADO)

BETWEEN:

                                                            DOUGLAS GILLING

                                                                                                                                               Plaintiff

                                                                           and

HER MAJESTY THE QUEEN IN RIGHT OF CANADA

Represented by THE MINISTER OF TRANSPORT

and

DENISE SHEPPARD

and

ALLEN COX

and

THE OWNERS AND ALL OTHERS

INTERESTED IN THE SHIP

SEPTEMBER (A.K.A. DESPERADO)

                                                                                                                                         Defendants

Motion in writing on behalf of the defendant Allen Cox for an order postponing the trial, or an order requiring the plaintiff to pay the defendant Cox's travel expenses or an order allowing the defendant Cox the right to defend the claim against him in writing without personal appearance.

                                            REASONS FOR ORDER AND ORDER

[1]                Upon considering the Direction of this Court dated November 2, 2004 and the written representations filed by the plaintiff and the defendant Cox in relation thereto (and despite the service difficulties experienced by the plaintiff in relation to the service on the defendant Cox of his motion record in response), for the reasons set forth hereunder, none of the above demands of the defendant Cox are granted and, consequently, the defendant Cox's motion is denied, with costs in the cause.

[2]                With respect to the defendant Cox's demand for a postponement of the trial scheduled in this case to begin on November 15, 2004, one must remember that the said trial has been scheduled to proceed on that date by an order dated December 15, 2003. None of the various reasons raised by the defendant Cox are correctly evidenced or are of such an exceptional nature or truly recent to warrant the extraordinary measure of postponing the trial in this case.

[3]                As for the demand that the plaintiff pay the defendant Cox's travel expenses, said avenue is most unprecedented. Additionally, although the unsworn allegations submitted by the defendant allude to the fact that the defendant Cox appears to be in a difficult financial situation, the defendant Cox has presented no evidence which could lead this Court to grant the defendant the remedy sought for.

[4]                With respect to granting the defendant the right to defend the claim against him in writing without personal appearance, again the said remedy or demand cannot be met since there are no provisions in the Federal Court Rules, 1998 for a trial to be heard or judged on the basis of written representations.

                                                             FEDERAL COURT

                                                     SOLICITORS OF RECORD

DOCKET NO.:

STYLE OF CAUSE:

T-109-97

Action in rem against the Ship "SEPTEMBER" (a.k.a. DESPERADO)

BETWEEN:

DOUGLAS GILLING

                                                                                   Plaintiff

AND

HER MAJESTY THE QUEEN IN RIGHT OF CANADA

Represented by THE MINISTER OF TRANSPORT

and

DENISE SHEPPARD

and

ALLEN COX

and

THE OWNERS AND ALL OTHERS INTERESTED IN THE SHIP SEPTEMBER (A.K.A. DESPERADO)

                                                                            Defendants

WRITTEN MOTION EXAMINED IN MONTRÉAL WITHOUT PERSONAL APPEARANCE OF THE PARTIES

REASONS FOR ORDER :Richard Morneau, Prothonotary

DATE OF REASONS FOR ORDER:November 8, 2004

WRITTEN OBSERVATIONS:

SOLICITORS OF RECORD: