Sapporo Kanihonke Co. v. Asl Sanderling (The), docket T-1780-98

    

     Date: 20001114

     Docket: T-1780-98

OTTAWA, ONTARIO, TUESDAY, THE 14^TH DAY OF NOVEMBER, 2000

PRESENT: THE HONOURABLE EDMOND P. BLANCHARD

BETWEEN:

SAPPORO KANIHONKE CO. LTD and

ORION SEAFOOD INTERNATIONAL INC.

    

     Plaintiffs

     - and -

     OCEANEX INC., OCEANEX (1997) INC.,

THE SHIP "ASL SANDERLING",

HER OWNERS AND ALL OTHERS

INTERESTED IN THE "ASL SANDERLING", and

ROBERT HERRING, MASTER OF THE "ASL SANDERLING"

     Defendants

     REASONS FOR ORDER AND ORDER

     (Reasons given orally from the Bench)

BLANCHARD J.:

[1]      As stated by Chief Justice Isaac of the Federal Court of Appeal which is unanimous on this point in the Aqua-Gem decision:

[T]he proper standard of review of discretionary orders of prothonotaries in this Court should be the same as that which was laid down in Stoicevski for masters in Ontario. I am of the opinion that such orders ought to be disturbed on appeal only where it has been made to appear that

(a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or

(b) in making them, the prothonotary improperly exercised his discretion on a question vital to the final issue of the case.1

[2]      Moreover, Chief Justice Isaac went on to conclude that even if a discretionary order of a prothonotary raises questions vital to the final issue, the usage of discretion by the prothonotary is entitled to some deference by the judge of the Federal Court Trial Division².

[3]      However, the standard of review of a discretionary order of a prothonotary on a matter which is not vital to the final issue of the case is similar to the standard exercised by the Federal Court of Appeal when considering a discretionary decision of a judge of the Federal Court Trial Division³.

[4]      Hence the error, which must be material must emanate from a misunderstanding of the facts, misapplication of law or otherwise raises issues fundamental to the final outcome of the case. This principle was reaffirmed by Justice Reed in James River Corporation of Virginia when he stated that:

I understand the Aqua-Gem decision to state that a trial judge should show deference to a prothonotary's decision, in a manner similar to that exercised by courts of appeal in the case of discretionary decisions by trial judges.2 Such deference should be shown unless the prothonotary's decision is: (1) clearly wrong in the sense that the

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decision was based on either a wrong principle of law or a misapprehension of the facts; or (2) deals with a matter vital to the final issues of the case.4

    

[5]      I accept the reasons of Prothonotary Morneau when he states:

Even if it is admitted for argument's sake that the defendant Herring's position raises a serious question to be tried, it does not seem to me that it would cause the defendant irreparable harm to have to be subject to an examination for discovery. Furthermore, for the past year the defendant Herring has been saying that he intends to file a motion for summary judgement without ever doing so. Even if the various obstacles that the plaintiffs may have raised to block, or at least delay, the filing of said motion are considered for an instant, given the amount of time that as passed it would be unreasonable to further delay the progress of this case in the hope that this motion would be evetually file.5

[6]      As for the participation in the examination for discovery, I will respect Prothonotary Morneau's decision giving standing to the Plaintiffs Sapporo Kanihonke co. Ltd and Orion Seafood International inc. and Defendantss Maersk Line in file T-1777-98 and Zim Israel Navigation Company Limited in file T-1785-98.

[7]      Based on the arguments presented before me, I do not believe that allowing an examination for discovery will cause irreparable harm to the Defendant, Robert Herring.

[8]      Moreover, as stated by this Court, the decision of the prothonotary should not be disturbed unless it is clearly wrong.

[9]      After reviewing the Prothonotary's decision and weighing the arguments before me, I come to the conclusion that the decision of the Prothonotary is not clearly wrong.

[10]      For these reasons, the appeal brought by the defendant, Robert Herring, before me is dismissed with costs. I am prepared to order discovery on December 11 and 12, 2000.

ORDER

     THIS COURT ORDERS:

1.      The defendant Robert Herring, Master of the "ASL Sanderling", shall attend for examination for discovery at the Federal Court of Canada, Montréal, Quebec, on December 11 and 12, 2000.

2.      This order is also applicable to files T-1777-98 and T-1785-98.

3.      In that regard, I am satisfied, with the Prothonotary's decision that the defendant carrying on business as Maersk Line in file T-1777-98 and the defendant Zim Israel Navigation Company Limited in file 1785-98 can attend and participate in the discovery of Robert Herring.

4.      Costs in the cause.

     "Edmond P. Blanchard"

     Judge

__________________

¹      Canada v. Aqua-Gem Investments Limited, [1993] 2 F.C. 425 (F.C.A.) at p. 463.

²      Ibid., at p. 464

³      James River Corp. of Virginia v. Hallmark Cards Inc. (1997), 126 F.T.R. 1 (F.C.T.D.) at p. 3.

⁴      Ibid.

⁵      Prothonotary's decision, at p. 4.