Construction Djl Inc. v. Elisabeth (The), 2001 FCT 171

Date: 20010309

Docket: T-1263-97

Neutral Citation: 2001 FCT 171

MONTREAL, QUEBEC, THIS 9^th DAY OF MARCH 2001

PRESENT:            RICHARD MORNEAU, ESQ., PROTHONOTARY

Action in rem against the vessel "ELISABETH" and in personam against the owners of the vessel "ELISABETH", REDERIET ELISABETH A/S, ORION REDERIERNE A/S and SAINT-PIERRE RO RO SERVICE and ARMEMENT PATUREL - DAGORT

BETWEEN:

                             CONSTRUCTION DJL INC.

                                                                                               Plaintiff

                                                  AND

                            THE VESSEL "ELISABETH",

           THE OWNERS OF THE VESSEL "ELISABETH",

                             REDERIET ELISABETH A/S

                           c/o ORION REDERIERNE A/S,

                     SAINT-PIERRE RO RO SERVICE and

                      ARMEMENT PATUREL - DAGORT

                                                                                         Defendants

                    REASONS FOR ORDER AND ORDER

RICHARD MORNEAU, ESQ., PROTHONOTARY

[1]    This is a motion by the Plaintiff for an Order striking the Statement of Defence of the Defendants Saint-Pierre Ro Ro Service and Armement Paturel-Dagort (the Defendants) and granting judgment by default against the Defendants for failure to fully comply with the Orders of this Court dated August 22, 2000 and December 21, 2000.

[2]    The Order of this Court dated August 22, 2000 stipulated that both parties shall complete final undertakings on or before November 30, 2000. The Order also stipulated that said deadline, which reflected an extension of time, shall be sufficient.

[3]    The Defendants were in default of complying with said Order.

[4]    Pursuant to rule 97, it was considered that there was misconduct by the Defendants since the Defendants failed to:

           (i)         answer proper undertakings to questions made during the examination of Mr. Paturel; and

           (ii)        produce documents or other material required to be produced pursuant to the aforesaid undertakings, despite being put on notice to do so; and

           (iii)       indicate the steps taken by Mr. Paturel to inform himself.

[5]                In light of the foregoing, the Plaintiff filed a motion to strike the defence of the Defendants for failure to provide answers to their undertakings, and this Court issued an Order dated December 21, 2000.

[6]                Said Order stipulated, inter alia, that:

1.             The Defendants shall, on or before February 15, 2001, serve on the Plaintiff answers to all undertakings given during the Examination on Discovery of Philippe Paturel held July 25, 2000;

2.             Wherever the information and/or any document sought by any undertaking is unknown, not available or, for any reason, is not provided, the Defendants shall, in addition, provide, by way of an affidavit from one of its representatives, Mr. Philippe Paturel, a full and detailed explanation of the steps which have been taken to fulfil such undertaking, the result of each such steps, and the reason why the undertaking cannot or has not been fully fulfilled. Such affidavit, if any, shall be served as part of the Answers to Undertakings, on or before February 15, 2001;

3.             The Plaintiff shall have the right to cross-examine the affiant on any affidavit served pursuant to the present Order.

4.             The Plaintiff has leave to re-apply to strike the Defence of the Defendants should the Defendants fail to fully comply with the present Order ...

               (my underlining)

[7]                Although the Defendants forwarded some information on February 13, 2001, they did not, at that time or ever since, support their responses by an affidavit from Mr. Paturel providing a full and detailed explanation of the steps taken to fulfil the undertakings, the result of each such step and the reason why the undertakings cannot be or have not been fully fulfilled, despite the fact that the affidavit requirement was made part and parcel of the Order dated December 21, 2000.

[8]                Striking out a Statement of Defence is a harsh and drastic measure but in this instance, the Defendants are in clear breach of a second Order of this Court. The Order of this Court dated December 21, 2000 clearly warned the Defendants that the Plaintiff had "leave to re-apply to strike the Defence of the Defendants should the Defendants fail to fully comply with the present Order ...". Upon hearing counsel for the Defendants, I am not satisfied that any order from this Court other than the striking out requested would be in the interests of the administration of justice and would move this matter forward.

[9]                Consequently, the Statement of Defence of the Defendants Saint-Pierre Ro Ro Service and Armement Paturel-Dagort is struck out and the Plaintiff is hereby ordered to proceed to prove entitlement to the judgment claimed.

[10]            Costs of this motion to the Plaintiff.

Richard Morneau      

                                  Prothonotary

                                           FEDERAL COURT OF CANADA

                      NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:

STYLE OF CAUSE:

T-1263-97

Action in rem against the vessel "ELISABETH" and in personam against the owners of the vessel "ELISABETH", REDERIET ELISABETH A/S, ORION REDERIERNE A/S and SAINT-PIERRE RO RO SERVICE and ARMEMENT PATUREL -DAGORT

BETWEEN:

CONSTRUCTION DJL INC.

                                                                         Plaintiff

AND

THE VESSEL "ELISABETH",

THE OWNERS OF THE VESSEL "ELISABETH",

REDERIET ELISABETH A/S

C/O ORION REDERIERNE A/S,

SAINT-PIERRE RO RO SERVICE and

ARMEMENT PATUREL - DAGORT

                                                                    Defendants

HEARING BY TELECONFERENCE FROM:Montreal, Quebec

DATE OF HEARING:March 5, 2001

REASONS FOR ORDER BY RICHARD MORNEAU, ESQ., PROTHONOTARY

DATE OF REASONS FOR ORDER:March 9, 2001

APPEARANCES:

SOLICITORS OF RECORD: