Norasia Shipping Services S.A. v. Baltic Marine Agencies Ltd., 2004 FC 183

Date: 20040209

Docket: T-725-00

Citation: 2004 FC 183

BETWEEN:

                                               NORASIA SHIPPING SERVICES, S.A.

                                                                                                                                                          Plaintiff

                                                                                 and

                                             BALTIC MARINE AGENCIES LIMITED,

                                             MDS-BALTIC EXPRESS/MDS-CANADA,

                                               and THE BALTIC EXPRESS LIMITED

                                                                                                                                                    Defendants

                                                            REASONS FOR ORDER

LUTFY, C.J.

[1]                 Ms. Virgina Rushkene, a representative of the defendants, is charged with contempt of court, pursuant to Rule 466(b), for having disobeyed the order of Prothonotary Lafrenière, dated November 21, 2002 ("the order of Prothonotary Lafrenière").

[2]                 The substantive part of Prothonotary Lafrenière's order stated:

Ms. Virginia Rushkene shall attend at the Defendants' expense and submit to an examination in aid of execution, at the time and place specified in the Direction to attend to be served by the Plaintiff in accordance with Rule 91 of the Federal Court Rules, 1998.

[3]                    The defendants have not been represented by counsel since 2001.

[4]                 Although directed to do so by the plaintiff, Ms. Rushkene never attended the examination in aid of execution of the default judgment against the defendants.

[5]                 Ms. Rushkene was personally served with the order issued pursuant to Rule 467(1) requiring her to attend the contempt of court hearing. However, she did not appear at the contempt hearing nor was she represented by counsel.

[6]                 The principal issue in this proceeding is whether the plaintiff has established, beyond a reasonable doubt, that Ms. Rushkene had personal knowledge of the order of Prothonotary Lafrenière which she is charged with having disobeyed.

[7]                 The common law has always required personal service or actual personal knowledge of a court order as a precondition to liability in contempt: Bhatnager v. Canada (Minister of Employment and Immigration), [1990] 2 S.C.R. 217 at 225.

[8]                 On November 22, 2002 the plaintiff sent a copy of the order of Prothonotary Lafrenière to Ms. Rushkene by regular mail. There is no evidence that Ms. Rushkene received the order as a result of this mailing.

[9]                 On March 29, 2003, after Ms. Rushkene had failed to attend an examination in aid of execution on more than one occasion, the plaintiff served on her personally the motion record seeking an order under Rule 467(1). The order of Prothonotary Lafrenière was under the fourteenth of the nineteen tabs included in this motion record.

[10]            Service of this motion record may constitute evidence that Ms. Rushkene received delivery of the order of Prothonotary Lafrenière among a bundle of other documents. There is no evidence, however, that his order was brought to the attention of Ms. Rushkene. In the circumstances, I am not satisfied that the service of the motion record on March 29, 2003 establishes that Ms. Rushkene had actual knowledge of the order of Prothonotary Lafrenière.

[11]            On May 8, 2003, an articling student representing the plaintiff had a telephone conversation with Ms. Rushkene to discuss her failure to attend the examination in aid of execution. The articling student testified that she "...explained to [Ms. Rushkene] the previous notice to attend, that she had received, and that she was required to attend by Court Order." In my view, this testimony is too general to substantiate that Ms. Rushkene was aware of the order of Prothonotary Lafrenière, let alone its specific contents.

[12]            The process server who attended upon Ms. Rushkene on several occasions in this proceeding described her as "belligerent and abusive and just evading service". The process server did not state that he brought the order of Prothonotary Lafrenière to the attention of Ms. Rushkene in any of his exchanges with her.

[13]            In summary, the service of the motion record, which included the order of Prothonotary Lafrenière, and the testimony of both the articling student and the process server do not establish, either separately or cumulatively, that Ms. Rushkene had actual knowledge of the court order.

[14]            As I am not satisfied that actual knowledge of the court order has been established beyond a reasonable doubt, it is not necessary to consider the other elements necessary to prove contempt of court. Accordingly, the motion for contempt of court will be dismissed. There will be no order as to costs.

                                                                                                                                                    "Allan Lutfy"                         

                                                                                                                                                                  C.J.

Ottawa, Ontario

February 9, 2004

                                                                 FEDERAL COURT

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             T-725-00

STYLE OF CAUSE:                           Norasia Shipping Services, S.A.

                                                                                                                                                            Plaintiff

and

Baltic Marine Agencies Limited,

MDS-Baltic Express/MDS-Canada,

and the Baltic Express Limited

                                                                                                                                                      Defendants

PLACE OF HEARING:                     Toronto

DATE OF HEARING:                       October 20, 2003

REASONS FOR ORDER :             Lutfy C.J.

DATED:                                                February 9, 2004

APPEARANCES:

Shane Rayman                                                                               FOR PLAINTIFF / APPLICANT

none                                                                                                 FOR DEFENDANT/ RESPONDENT

SOLICITORS OF RECORD:

Borden Ladner Gervais LLP                                                          FOR PLAINTIFF/APPLICANT

Scotia Plaza

40 King Street West

Toronto, M5H 3Y4

Virginia Rushkene                                                                           FOR DEFENDANT/

1484 Torrington Drive, Unit 64                                                     RESPONDENT

Mississauga, L5V 1Y2