Date:
20070501
Docket:
T-1927-06
Citation:
2007 FC 467
[ENGLISH
TRANSLATION]
Montréal, Quebec, May 1, 2007
PRESENT:
Richard Morneau, Esq., Prothonotary
ADMIRALTY
ACTION IN PERSONAM
BETWEEN:
A.P.
MOLLER - MAERSK A/S TRADING AS MAERSK SEALAND
Plaintiff
and
MARITIME-ONTARIO
FREIGHT LINES LIMITED
Defendant
REASONS FOR ORDER AND
ORDER
[1]
GIVEN
this
motion by the defendant (hereinafter Maritime-Ontario) under Rule 105(b) of the
Federal Court Rules (the Rules) to have a stay ordered in this case
until the outcome of the action in docket T-2143-04 is determined;
[2]
GIVEN that the relationship
between this docket, T-1927-06 and docket
T-2143-04 has thus been summarized by the Court in its decision on February 7,
2007, when it refused to consolidate the two dockets:
[2] In
this docket, T-1927-06, Maersk is acting as a plaintiff and commenced an action
against Maritime-Ontario on November 3, 2006, so that the latter corporation
would ultimately be held responsible for damages that Maersk might suffer due
the action commenced by Lagoon Seafood in docket T-2143-04.
[3] In
docket T-2143-04, it should essentially be known that Lagoon Seafood accuses
Maersk of ultimately having delivered a shipment of fish in a damaged state.
Maersk considers that it is because of the shipment inspection conducted by
Maritime-Ontario that that shipment deteriorated. Hence Maersk’s action in T-1927-06.
[3]
GIVEN that the
consolidation of the two dockets was dismissed because, among other things,
docket T-2143-04 was virtually ready for trial (and was in fact held on June
18, 2007), the application to combine the dockets was filed late and this docket,
T-1927-06, had to develop normally;
[4]
GIVEN that, at the hearing
for the motion by Maersk regarding the consolidation of the two files,
Maritime-Ontario did not indicate its intent to appeal under Rule 105(b)
and did not submit its motion record under review until April 11, 2007;
[5]
GIVEN, therefore, that this
motion by Maritime-Ontario is essentially late and that the Court cannot retain
any valid and serious reasons that would explain why this motion was not filed
earlier;
[6]
GIVEN that a stay in this
docket would prevent this docket from proceeding to its current stage, i.e.
examination for discovery;
[7]
GIVEN that avoiding
examination on discovery of the Maritime-Ontario representative would
essentially represent financial savings if this action were not pursued as a
result of the outcome of the action in docket T-2143-04;
[8]
GIVEN that the Court cannot
see here that Maritime-Ontario would be prejudiced to the extent of an
injustice or oppression (see the criteria retained by this Court in situations
presenting aspects similar to this case, in Compulife Software Inc. v. Compuoffice
Software Inc. (1997), 143 F.T.R. 19, at para 15; Mon-Oil Ltd. v. R.
1989 CarswellNat 153, at para 4), if it were to comply now — before the
proceedings in docket T-2143-04 — at the stage of examination for discovery;
[9]
GIVEN the reasons above,
the following order is issued:
ORDER
1.
The
motion by Maritime-Ontario under Rule 105(b) is dismissed, with costs.
2.
Maritime-Ontario
shall submit its representative to examination for discovery at a location in
Montréal and on a date to be decided on consent between the parties, but that
must nonetheless be on or before May 11, 2007.
“Richard
Morneau”
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