Kenmont Management Inc. v. SoSweet (Ship), 2002 FCT 1132

Date: 20021101

Docket: T-1137-02

Neutral citation: 2002 FCT 1132

Montréal, Quebec, November 1, 2002

Before:            RICHARD MORNEAU, PROTHONOTARY

Action in rem and in personam in admiralty against SUNSATION POWER CAT LTD., THE SHIP "SoSWEET" and THE OWNERS AND ALL PERSONS HAVING AN INTEREST IN THE SHIP "SoSWEET"

BETWEEN:

                                                KENMONT MANAGEMENT INC.

                                                                                                                                               Plaintiff

                                                                           and

SUNSATION POWER CAT LTD.

THE SHIP "SoSWEET" and

THE OWNERS AND ALL PERSONS

HAVING AN INTEREST IN THE

SHIP "SoSWEET"

                                                                                                                                         Defendants

                                            REASONS FOR ORDER AND ORDER

[1]                This motion by the plaintiff under Rule 106 is dismissed, with costs to follow, for two reasons.

[2]                First, the motion is made in connection with a simplified action and I am not persuaded that it is proper to disregard the prohibition contained in Rule 298 here.

[3]                Second, even if this Rule 298 were disregarded, I would have considered that the situation as the plaintiff sees it is not distinct enough in the evidence at this stage to warrant partial severance of the counterclaim.

[4]                As mentioned earlier, therefore, the motion at bar must be dismissed, with costs to follow, subject to the plaintiff's right to bring a motion again at the time of the pre-trial conference if the situation requires it.

[5]                The plaintiff will also have to serve and file its reply and defence to the counterclaim within 20 days of this order. The Court further notes that the defendants are not challenging the fact that the plaintiff may be represented on the theft aspect of the counterclaim by separate counsel.

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

                                                 FEDERAL COURT OF CANADA

                                                              TRIAL DIVISION

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

FILE:                                             T-1137-02

STYLE OF CAUSE:                     Action in rem and in personam in admiralty against SUNSATION POWER CAT LTD., THE SHIP "SoSWEET" and THE OWNERS AND ALL PERSONS HAVING AN INTEREST IN THE SHIP "SoSWEET"

BETWEEN:                                  KENMONT MANAGEMENT INC.

                                                                                                                                                 Plaintiff

and

SUNSATION POWER CAT LTD.

THE SHIP "SoSWEET" and

THE OWNERS AND ALL PERSONS HAVING AN INTEREST IN THE SHIP "SoSWEET"

                                                                                                                                           Defendants

PLACE OF HEARING:               Montréal, Quebec

DATE OF HEARING:                 October 28, 2002

REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY

DATED:                                        November 1, 2002

APPEARANCES:

Christine Kark for the plaintiff

Jean-François Bilodeau

Robert Caron                                                                for the defendants

SOLICITORS OF RECORD:

Borden, Ladner, Gervais                                                for the plaintiff

Montréal, Quebec

Flynn, Rivard                                                                 for the plaintiff

Montréal, Quebec

Spiegel, Sohmer                                                            for the defendants

Montréal, Quebec