Date: 20031119
Docket: T-1836-90
Citation: 2003 FC 1363
BETWEEN:
ELDERS GRAIN COMPANY LIMITED
and
CARLING O'KEEFE BREWERIES OF CANADA LIMITED
Plaintiffs
AND:
THE VESSEL M/V "RALPH MISENER" AND THE OWNERS
AND ALL OTHERS INTERESTED IN THE VESSEL M/V "RALPH MISENER"
and
MISENER HOLDINGS LIMITED
and
MISENER SHIPPING
Defendants
REASONS FOR ORDER
NADON J.
[1] Before me is a motion by the defendants, made pursuant to Rule 397(2) of the Federal Court Rules, 1998, to correct the judgment which I rendered on July 7, 2003. Rule 397 reads as follows:
| 397. (1) Within 10 days after the making of an order, or within such time as the Court may allow, a party may serve and file a notice of motion to request that the Court, as constituted at the time the order was made, reconsider its terms on the ground that
(a) the order does not accord with any reasons given for it; or
(b) a matter that should have been dealt with has been overlooked or accidentally omitted.
(2) Clerical mistakes, errors or omissions in an order may at any time be corrected by the Court.
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397. (1) Dans les 10 après qu'une ordonnance a été rendue en dans tout autre délai accordé par la Cour, une partie peut signifier et déposer un avis de requête demandant à la Cour qui a rendu l'ordonnance, telle qu'elle était constituée à ce moment, d'en examiner de nouveau les termes, mais seulement pour l'une ou l'autre des raisons suivantes:
a) l'ordonnance ne concorde pas avec les motifs qui, le cas échéant, ont été donnés pour la justifier;
b) une question qui aurait dû être traitée a été oubliée ou omise involontairement.
(2) Les fautes de transcription, les erreurs et les omissions contenues dans les ordonnances peuvent être corrigées à tout moment par la Cour.
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[2] By judgment dated July 7, 2003, I dismissed the plaintiffs' action against the defendants and allowed the defendants' counterclaim with interest at the prime bank lending rate from June 9, 1989 to the date of the judgment, as well as post-judgment interest in accordance with subsection 37(1) of the Federal Court Act. With respect to costs, I indicated in my decision that they should be spoken to.
[3] On October 7, 2003, I issued an order which disposed of the costs to which the defendants were entitled.
[4] By their motion, the defendants say that in rendering my decision, I failed to remember that counsel had informed me that costs and interest were to be spoken to. I have now had occasion to go over the handwritten notes which I took during the course of the parties' final submissions made on September 13, 2002. These notes reveal the following entry made at the end of Me Laurendeau's (counsel for the plaintiffs) final submissions in chief:
Parties to speak to costs and interest.
[5] It is therefore obvious that I should not have disposed of the question of interest in my judgment of July 7, 2003. I should have ordered that interest, like costs, was to be spoken to.
[6] In these circumstances, it is appropriate that I correct my July 7, 2003, judgment. The judgment will therefore be corrected to read as follows:
The plaintiffs' action is dismissed and the defendants counterclaim is allowed. The plaintiffs are hereby condemned to pay to the defendants the sum of CDN$91,436.71. Interest, both pre-judgment and post-judgment, and costs shall be spoken to.
[7] I invite counsel to contact me as soon as possible, through the Registry, so that I may fix a hearing date at which time the question of interest shall be addressed.
"M. Nadon"
JUDGE
O T T A W A, Ontario
November 19, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1836-90
STYLE OF CAUSE: ELDERS GRAIN CO. LTD. et al v. THE "RALPH MISENER" et al.
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER : Nadon J.
DATED: November 19, 2003
APPEARANCES:
John G. O'Connor FOR DEFENDANTS
SOLICITORS OF RECORD:
Robinson Sheppard Shapiro FOR PLAINTIFFS
Montreal QC
Langlois Gaudreau O'Connor FOR DEFENDANTS
Quebec City QC
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