Grant Carrier Ltd. v. Canada (Attorney General), 2004 FC 546

Date: 20040408

Docket: T-794-01

Citation: 2004 FC 546

Montréal, Quebec, April 8, 2004

Present:           RICHARD MORNEAU, PROTHONOTARY

BETWEEN:

                                                     GRANT CARRIER LIMITED

a body politic and corporate of Valletta, Malta

and

GRANT MARITIME LTD.

a body politic and corporate of Piraeus, Greece

and

JUGOSLAVENSKA OCEANSKA PLOVIDBA

(JUGOOCEANIJA)

a body politic and corporate of Kotor, Yugoslavia

                                                                                                                                            Plaintiffs

                                                                           and

                                       THE ATTORNEY GENERAL OF CANADA,

                                                                  representing

                                       Her Majesty the Queen in Right of Canada

                                                                                                                                        Defendant

                                            REASONS FOR ORDER AND ORDER

[1]                This is a motion by the defendant to dismiss the plaintiffs' action on the grounds that the terms of the order issued by this Court on July 18, 2003, were not respected by the plaintiffs.

[2]                On July 18, 2003, the Court issued an order directing the plaintiffs to comply, inter alia, with the following steps:

1.             The Plaintiffs are to make all reasonable efforts under Rule 245 to complete their answers to undertakings by October 20, 2003;

2.             If at October 20, 2003 the Plaintiffs still claim that they cannot access their building, they shall serve and file a detailed affidavit to that effect on or before October 30, 2003 and the Defendant shall have a right to cross-examine on said affidavit at a time and place to be agreed between the parties but in any case before December 1, 2003;

[3]                On October 30, 2003, the plaintiffs produced an affidavit from a Michael K. Hope (the Hope affidavit) and he was cross-examined on December 3, 2003.

[4]                One of the grounds to strike raised by the defendant is that Mr. Hope was cross-examined on December 3 and not "before December 1", as required by the order dated July 18, 2003.

[5]                In my view, this default is minor and the defendant did not seem to insist on this point. It will therefore not be accepted.

[6]                The defendant also maintained that the Hope affidavit was, theoretically, inadmissible since the record indicates that the strike at the plaintiff, Jugoslavenska Oceanska Plovidba (hereinafter JOP) ended at the beginning of September 2003, and that therefore the plaintiffs had access to their building by October 20, 2003.

[7]                Even though, strictly and technically, the defendant is right, I do not intend to pull the Hope affidavit from the debate, since it enlightens the Court as to the efforts made by the plaintiffs to fulfill the terms of the order dated July 18, 2003.

[8]                According to the defendant, the plaintiffs' action should also be dismissed since it must be determined that the plaintiffs did not satisfy paragraph 1 of this order which stipulates:

1.             The Plaintiffs are to make all reasonable efforts under Rule 245 to complete their answers to undertakings by October 20, 2003;

[9]                It is obvious from the Hope affidavit that from July 18, 2003, at least, until the beginning of September 2003, a strike affecting JOP's building prevented the plaintiffs' representative, Mr. Petar Popovic, from completing the undertakings contemplated by the order dated July 18, 2003.

[10]            From this period until the end of September 2003, a death in Mr. Popovic's family prevented him from gathering information regarding these undertakings. Afterwards, the plaintiff's counsel had regular contact with this same Mr. Popovic to encourage him to gather the information supporting the undertakings. However, health problems, apparently quite serious, prevented Mr. Popovic from providing this information before January 9, 2004.

[11]            Unlike the defendant, I do not consider, faced with these circumstances, that it must be concluded that the plaintiffs did not make all reasonable efforts to fulfill their undertakings before October 20, 2003, and that the plaintiffs' action must be dismissed accordingly.

[12]            In conclusion and generally speaking, I believe that the Hope affidavit and the developments that have occurred since December 18, 2003, in this case (developments elaborated in the correspondence joined to the plaintiffs' reply record) require that the defendant's motion be dismissed, costs in the cause, and it is so ordered.

[13]            The fact that the Court is now once again dismissing a motion to strike by the defendant must not be perceived by the plaintiffs as the Court's blind acceptance of the delay incurred in this case. The plaintiffs must ensure that this case progresses.

[14]            As for the future steps that the parties must undertake in this case, they must comply with the following schedule:

1.          If the defendant is not satisfied with the substance of the answers given by the plaintiffs regarding the undertakings made and if the defendant is unable to resolve the issue through reasonable discussions with the plaintiffs, the defendant may serve and file a motion to this effect on or before May 10, 2004;

2.          Apart from any motion that could be raised under paragraph 1, the defendant must submit to an examination for discovery at a date and place to be determined by the parties but no later than June 30, 2004.

Certified true translation

Kelley A. Harvey, BA, BCL, LLB

                                     FEDERAL COURT

                             SOLICITORS OF RECORD

DOCKET:

STYLE OF CAUSE:

T-794-01

GRANT CARRIER LIMITED

a body politic and corporate of Valletta, Malta

and

GRANT MARITIME LTD.

a body politic and corporate of Piraeus, Greece

and

JUGOSLAVENSKA OCEANSKA PLOVIDBA (JUGOOCEANIJA)

a body politic and corporate of Kotor, Yugoslavia

                                                                                Plaintiffs

and

THE ATTORNEY GENERAL OF CANADA, representing

HER MAJESTY THE QUEEN IN RIGHT OF CANADA

                                                                             Defendant

PLACE OF HEARING:                     Montréal, Quebec

DATE OF HEARING:                        April 5, 2004

REASONS FOR ORDER:               RICHARD MORNEAU, PROTHONOTARY

DATE OF REASONS:                      April 8, 2004

APPEARANCES:

SOLICITORS OF RECORD: