Date: 20000605
Docket: T-38-99
BETWEEN:
THE ROYAL BANK OF SCOTLAND plc.,
Plaintiff,
- and -
THE OWNERS AND ALL OTHERS
INTERESTED IN THE SHIP "KIMISIS III"
AND MADONNA NAVIGATION (MALTA) LIMITED,
Defendants.
REASONS FOR ORDER AND ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] The time for filing claim affidavits in this matter is fourteen months in the past. The time for production of claim related documents, requested by other parties and claimants, as extended, expired nearly six months ago. The claimant, Proios Maritime S.A., now seeks leave to file a document showing delivery, of the necessaries it supplied, to the ship, a document specifically requested a year ago by the Plaintiff.
[2] The affidavit in support of the motion for late filing, sworn by counsel, sets out that counsel requested further documents from the claimant, Proios, including the document in question, 12 July 1999 and on 13 July 1999 Proios responded that they had no further documents. Then, 29 May 2000, counsel again asked Proios for the document at issue, a document which could be fairly critical to its claim and, by next day, by return telefax, received the document in question. There is no explanation why an important existing document could not have been discovered and provided in a timely manner as requested by another claimant so that all of the other claimants might assess their positions at an early stage.
[3] In Bank of Scotland v. The Nel [1999] 2 F.C. 417, I denied the Bank of Scotland leave to file a supplemental affidavit of claim, raising the amount of the Bank"s claim, on the basis that Rule 492(2) is quite specific as to the timely filing of claims, here referring to the 14 April 1986 decision of the Federal Court of Appeal in the National Bank of Greece S.A. v. The Polar Paraguay , A-39-86. In The Polar Paraguay Mr. Justice Mahoney found that the Trial judge had erred in permitting the intervention of a claimant long after the time for the filing of claims provided by Court order by virtue of Rule 1008(2). Those reasons are brief, consisting of two short paragraphs.
[4] In The Nel I referred to Feoso Oil Ltd. v. The Sarla [1995] 3 F.C. 68 (C.A.) at page 82 for the proposition that in a summary proceeding a party must initially put a best foot forward by producing such evidence as is reasonably available. The summary proceeding in The Sarla was analogous to a summary ship sale priorities hearing.
[5] In The Nel I also considered whether there were special circumstances, pursuant to Rule 55, which might allow me to avoid the effect of Rule 492(2), which bars claims to ship sale proceeds if they are not made in a timely manner:
| 492.(2) Claims Barred " A claim that is not made within the time limited and in the manner prescribed by an order of the Court under subsection (1) is barred, and the Court may proceed to determine other claims and distribute the money among the parties entitled thereto without reference to any claim so barred. |
[6] I have now been referred to a second decision of Mr. Justice Mahoney, Macoil Inc. v. Polar Paraguay, an unreported decision of 26 April 1988 in A-303-86. The decision is also written by Mr. Justice Mahoney, who in the intervening two years has changed his view, for he sets out that the Court of Appeal is of the view that "... the learned trial judge erred in concluding that he had no jurisdiction to enlarge the time fixed for filing claims on the proceeds of the sale of a ship under Rule 1008(2).", there noting that Rule 3(1)(c), the Rule which then allowed the Court to enlarge or abridge time, applied equally to Rule 1008(2). Here I would observe that former Rules 3(1)(c) and 1008(2) have their current equal counterparts in Rules 8 and 492(2).
[7] In Macoil v. Polar Paraguay Mr. Justice Mahoney went on to say that the delay must be satisfactorily accounted for:
| We have not been persuaded that it would be just in the circumstance to accommodate the appellants by such an extension, thereby reinstating claims that have been barred. Their delay has simply not been satisfactorily accounted for. They knew of the direction and failed to comply with it. The failure has not been explained. |
This change of direction in Macoil Inc. v. Polar Paraguay is certainly more equitable than the hard and fast Rule in National Bank of Greece v. The Polar Paraguay. Yet in the present instance it is of no particular assistance to Proios Maritime S.A., who have not explained why the document was overlooked, not only in preparing the initial claim, but also in what was perhaps a cursory overnight search in July of 1999, yet turned up in a similar overnight request and search in May of 2000.
[8] Given that the parties have been working for some time to understand their claims and the claims of others, leading up to a priorities hearing, I am not persuaded that it is just, in the present circumstances, to accommodate Proios Maritime S.A. who now, realizing that the document is of importance to it, suddenly discovers that it had the document all along. This is unfair to other parties. It is contrary to the idea that the purpose of Rule 492(2) is to bring closure to the making of claims so that the operation of dividing up the ship sale proceeds may be concluded within a reasonable time, leading to a just, most expeditious and least expensive determination. To allow in further material at a late date would detract from this end.
[9] This is not to say that there should never be an application to provide further claim material in a ship sale priorities proceeding, but rather there must be special circumstances which are fully explained.
ORDER:
The Motion to file a supplementary affidavit of claim is denied.
(Sgd.) "John A. Hargrave"
Prothonotary
June 5, 2000
Vancouver, British Columbia
I HEREBY CERTIFY that the above document
is a true copy of the original filed of record
in the Registry of the Federal Court of Canada
in the _______ day of ___________ A.D. 20 ____
Dated this _______ day of ____________ 20 ____
________________________
Julia Platt, Registry Officer
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-38-99
STYLE OF CAUSE: THE ROYAL BANK OF SCOTLAND plc.
v.
| THE OWNERS AND ALL OTHERS INTERESTED IN THE SHIP "KIMISIS III" AND MADONNA NAVIGATION (MALTA) LIMITED |
PLACE OF HEARING: VANCOUVER, B.C.
DATE OF HEARING: June 5, 2000
REASONS FOR ORDER AND ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY
DATED: June 5, 2000
APPEARANCES:
Ms. Pauline Gardikiotis FOR PLAINTIFF
| Mr. Chris Giaschi FOR CLAIMANT, PROIOS MARITIME S.A. |
| Mr. Glenn Morgan FOR CLAIMANT TRAMP OIL & MARINE LTD. |
SOLICITORS OF RECORD:
Campney & Murphy
Vancouver, BC FOR PLAINTIFF
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