Date: 20020221
Docket: T-16-01
Neutral citation: 2002 FCT 193
ACTION IN REM AGAINST THE SHIP "AQUARIUS", THE SHIP "SAGRAN"
and THE SHIP "ADMIRAL ARCISZEWSKI" AND IN PERSONAM
BETWEEN:
GLOBAL ENTERPRISES INTERNATIONAL INC.
Plaintiff
and
THE OWNERS AND ALL OTHERS INTERESTED IN THE
SHIPS "AQUARIUS", "SAGRAN" AND "ADMIRAL
ARCISZEWSKI", THE SAID SHIPS "AQUARIUS",
"SAGRAN" and "ADMIRAL ARCISZEWSKI", THE SAID
SISTERSHIPS "AQUARIUS", "SAGRAN" and "ADMIRAL
ARCISZEWSKI" and GRYF DEEP SEA FISHING COMPANY
Defendants
and
SK SHIPPING CO. LTD., and
COLTRANE TRADING LIMITED
Intervenors
REASONS FOR ORDER
HARGRAVE P.
BACKGROUND
[1] This matter involves the sale of three ships. The entitlements to the proceeds of sale of the ships are to be determined at a seven-day priorities hearing scheduled to begin 19 March 2002.
[2] These reasons arise primarily out of an Order and Reasons of 19 November 2001, whereby the affidavit of claim of the Trustee of the estate in bankruptcy of Gryf Deep Sea Fishing Company, the Trustee, who is also referred to as the "Syndic", was struck out for want of jurisdiction. The Syndic decided to appeal that Order and two others, doing so by motions dated 26 November 2001.
[3] In opposing the Syndic's present motion, which is for an extension of time, within which to file the initial extension of time material, by which, in turn, to file the appeal materials in proper form, counsel for the parties and claimants make two general submissions. First, they say that the motion is flawed at law. Second, the present motion is said to be part of a pattern which includes not only a prejudicial blatant disregard for the rules, procedure and practice of the Court, but also a failure to abide by earlier directions, in all amounting to an abuse.
[4] The allegations of general disregard for the process of the Court and of disregard of directions requires some background as to the actions of the Syndic. Here counsel and I are both handicapped, to some extent, for some of the material filed by the Syndic has been virtually incomprehensible, a factor compounded by an absence of both evidence on which counsel might examine and of written representations which might assist in explaining the motions.
[5] I would begin by observing that the Syndic, the Polish trustee in bankruptcy, who himself acts for the estate of Gryf Deep Sea Fishing Company, has had much difficulty with the rules and the procedure of this Court, notwithstanding many suggestions and directions designed to assist him and material and advice sent to him by the Ottawa Registry on two occasions and by the Vancouver Registry on at least one occasion. I would also refer to a passage from my 28 November 2001 reasons:
. . . It is unfortunate both that the material which the Syndic has sent to the Court and to the parties by facsimile is irrelevant in that it does not meet the points raised in the motion record of SK Shipping and that the Syndic, who has gone through either two or three lawyers here in Canada, did not see fit to appoint counsel or at least get some professional advice, for the Syndic may, as Mr. Justice Rouleau suggested in his 18 October 2001 order, end up without any standing before the Court and indeed, as I have found, without any claim.
This lack of both counsel and of professional advice has handicapped the Syndic for many months. Indeed, the Syndic's 26 November 2001 motion, which on inspection appears to be a Notice of Appeal, referred to above, was rejected, on 7 December 2001, by the direction of Mr. Justice Pinard, as having been improperly addressed. However Mr. Justice Pinard went on to observe that, in any event, the 26 November Notice of Appeal would be unacceptable for filing both by reason of a lack of affidavit material and because the Syndic was not represented by anyone qualified to practise before the Federal Court:
Even if the motion had been brought under the Trial Division, as it should have been, it would have been unacceptable for filing as it is not supported by affidavit material and as it appears that the Trustee, who does not intend to represent himself, would not be represented by counsel qualified to practice before the Federal Court of Canada.
[6] The Syndic, on 10 December 2001, then submitted three Notices of Appeal, first, a Notice appealing an indefinite adjournment of a challenge of what seemed to be a non-existent motion of a claimant to the sale proceeds; second, an appeal of an Order denying a request both that the Court appointed pro bono counsel for the estate in bankruptcy of Gryf Deep Sea Fishing Co. Ltd. and that the Syndic be insulated from any costs in this proceeding; and third, appealing the 19 November 2001 Order striking out the affidavit of claim. This material, because it was in unacceptable form, resulted in a direction of 17 December 2001.
[7] The direction 17 December 2001, pursuant to Rule 72(2), provided for conditional acceptance of the three Notices of Appeal. More specifically, Rule 72(2) provides that an irregular document may be accepted for filing, upon the direction of a judge or prothonotary, ". . . subject to conditions as to the making of any corrections or the fulfilling of any conditions precedent.". In this instance I set a number of conditions precedent, so that the Syndic might have the benefit of his material and would not have to begin all over again. These conditions, and here I paraphrase, were that:
1. The Syndic was to provide affidavits of service to demonstrate that the appeal material had, in fact, been served upon other counsel of record within the required 10-day time limit; and
2. That if the material had not been served within the time required, the Syndic must then apply for an extension of time within which to serve and file the appeal material.
In keeping with this second requirement, the possibility of the need for a time extension, I suggested to the Syndic, in the directions, the procedure for obtaining an extension of time:
. . . The requirements of a time extension, for the purposes of an appeal, have been set out in various cases, including in Noel v. Lewis Holdings and Waryk v. Canada (1986) 5 F.T.R. 166 at 168 - 169, a decision of Madam Justice Reed. See also Leblanc v. National Bank of Canada [1994] 1 F.C. 81, a decision of Mr. Justice McKay and Can-am Realty v. The Queen [1997] 2 C.T.C. 152, (1997) 126 F.T.R. 127, in which the six-part test from Noel and Lewis is set out and then applied. An application for an extension must be by motion, again with all interested parties being served. Assuming that the Syndic does not intend to speak to the motion, it should be designated as a motion in writing.
As further conditions precedent I required that the Syndic:
3. Authorize the Registry to delete from the material the reference to "Appeal Division", so that the appeals might be directed to a judge of the Trial Division;
4. Advise all counsel whether the appeals were to be spoken to, or dealt with as motions in writing.
Most important I also brought to the attention of the Syndic that a motion in writing must be based on the proper evidentiary record, referring, among other things, to the need for affidavits:
Finally, the Syndic must recognize that a motion in writing does not dispense with the fundamental requirement that the appeal be based on a proper evidentiary record. Subject to Rule 364(1) a person bringing a motion shall serve a motion record, the contents of which are set out in Rule 364(2). In this instance the Syndic therefore must, by motion, either obtain a Rule 364(1) dispensation so that the motion record need not be filed, or obtain permission, again by a motion, to add suitable material (for example affidavits) to the bare argument which forms a part of the so-called motions of appeal.
The 17 December direction, which was sent to the Syndic by facsimile required, in the penultimate paragraph, that the conditions precedent be complied with not later than close of Registry on 25 January 2002.
[8] On 18 January 2002 the Syndic forwarded to the Court and to counsel involved, by facsimile, a motion for both an extension of time within which to serve and file his Notices of Appeal, and an Order dispensing with the filing of a motion record. The Notice of Motion, dated 18 January 2002, refers to an affidavit in support to be sworn 21 January 2002. That affidavit was never received by the Court nor, apparently, any of counsel. The motion set out that it was returnable, in Vancouver, 23 January 2002.
[9] The 18 January 2002 motion was shortly followed by a second similar motion from the Syndic, received 23 January 2002, requested to be heard 28 January 2002, that motion being accompanied by an affidavit of service.
[10] On 28 January I was asked by the Registry to provide directions, there being some ambiguity, specifically, two similar motions and one of two covering letters indicating that the appeals should be dealt with in writing. However none of the material indicated how the time extension motions ought to be dealt with. Both the 23rd of January and the 28th of January then having come and gone, without anyone appearing on behalf of the Trustee and the motions being bare motions, unsupported by anything other than an affidavit of service, I directed that the Trustee, not later than 1 February 2002, fax to the Registry the affidavit in support referred to in the motion, together with written representations and that the material was also to go counsel. Counsel for the other parties were then to have until 11 February 2002 within which to respond.
[11] The matter did not end there, for the Syndic then provided a motion record containing a bare motion, dated 4 February 2002, seeking a reconsideration of my 28 January 2002 direction and specifically as to the 1 February 2002 deadline for service of any material which was then in existence and which support the Trustee's time extension motion. As I said in a direction of 8 February 2002, I was concerned that some parties might have been served with material in support of the motion, but that other parties and the Court perhaps did not have all of the material. I made it clear in that direction that the opportunity to serve material was not specifically, on the one hand, designed to extend to additional new material, but on the other hand, did not bar material by which to supplement the bare motion for a time extension, so long as it was done without delay.
[12] I concluded the 8 February 2002 direction by authorizing the acceptance of the most recent motion, that of 4 February 2002, setting out that I would deal with it, as a motion in writing, on 15 February 2002.
[13] Midway through the preparation of these reasons, on 20 February 2002, the Court received written representations from the Syndic, in response to the 11 February 2002 reply record of Bank Polska Kasa Opieki SA. These representations seem not to deal directly with the motion of the estate in bankruptcy of Gryf Deep Sea Fishing Company for a time extension, but rather are a reply and thus do not constitute a splitting of the case by the Trustee. The written representations do not constitute evidence but rather, to the extent relevant, may in part be argument. However, I would note that the Trustee still casts aspersions on the sale of the vessels by this Court. I would refer to my letter of 22 June 2001, distributed to all counsel, the letter being as a result of the Trustee's advertisement in Lloyd's, which set out that the sale of the three ships by this Court was illegal, thus clouding title and damping the Court ordered sale. As I pointed out in that letter a similar advertisement casting aspersions on the jurisdiction of the Court was dealt with Mr. Justice Sheen in The "Cerro Colorado" [1993] 1 Lloyd's 58. Mr. Justice Sheen pointed out that such tactics ". . . may be treated as a contempt of court, as tending to interfere with the administration of justice.". It would seem that the Trustee not only has not learned from the folly of his initial excursion into this area but also, and here is an inconsistency, still looks to this Court for a remedy. This is inappropriate.
[14] The Trustee seems, in this most recent material, to take objection to the participation in these proceedings of Bank Polska Kasa Opieki SA. The Trustee appears to be saying either that the Bank will be paid out of the bankruptcy proceedings in Poland, or already has received some money from those proceedings. However not only is there no affidavit evidence on point, but also, this is completely irrelevant in the context of the present motion for a time extension. Moreover, one can be quite certain that the parties and other claimants have fully explored the Bank's claim and will, if the Trustee's allegations have any substance, deal with that topic, in its proper place, at the priorities hearing.
[15] The written reply representations of 20 February, to the extent that they might constitute evidence, are of no weight, particularly in that they invite cross-examination, but being made as argument, cannot be cross-examined upon. I have, however, taken note of some points of argument, but not of evidence, which applied to the responding motion record of Bank Polska Kasa Opieki SA.
CONSIDERATION
[16] I have now had the opportunity to consider the 4 February 2002 motion, for a further time extension, on its merits. As set out in the reasons which follow, I have denied that motion. The 4 February 2002 motion being denied, I have gone on to observe that the conditions precedent to the acceptance of the three Notices of Appeal not being met, they are to be returned to the Syndic. Before turning to the merits of the motion I should touch on the position of the Syndic as advocate in this Court.
[17] Some of counsel have questioned whether the Syndic, as someone not authorized to practise before the Federal Court in Canada, ought to be allowed to represent the estate of Gryf Deep Sea Fishing Company. That is not before the Court as a motion and therefore, notwithstanding an apparent breach of the Federal Court Rules, requiring a corporation be represented by counsel and here I would refer to the representation of Gryf Deep Sea Fishing Company, the status quo shall remain until one of the parties, intervenors, or claimants brings a motion to require the appointment by the Syndic of counsel who may practise before the Federal Court.
[18] The Syndic's motion for a further extension of time, within which to complete the Rule 72(2) conditions precedent, beyond the 25 January 2002 date specified in the 17 December 2001 direction and then beyond the 1 February 2002 date set out in the 28 January 2002 direction, is, as I have said, a bare motion. It is supported by neither an affidavit nor written representations, however some skeletal grounds are set out in the 4 February 2002 motion. Paraphrased, they are first, that the Trustee's e-mail equipment in Poland is not compatible with the Federal Court of Canada's equipment and thus the 28 January 2002 direction was not received in a timely manner; second, that the 1 February 2002 letter from the Trustee, or his office, noted that the Trustee "is not present for a longer time in Szczecin, being his registered place of business"; third, that only the Trustee is able to sign material related to these proceedings; fourth, that the Trustee will be away until 11 February 2002; and finally, that the affidavits must be sworn at the Canadian Embassy in Warsaw, which requires time.
[19] These five points illustrate the practical difficulties not only of a lay person trying to conduct Federal Court litigation from offshore, but also of a breach of Rule 2 which defines an address for service of an entity not represented by counsel as an address in Canada. Moreover, as Mr. Justice Cattanach pointed out, in Jelin Investments Ltd. v. Signtech Inc. (1984) 9 D.L.R. (4th) 197 at 206, then Rule 2 eliminated any address beyond the territorial boundaries of Canada as an address for service: the applicable portion of Rule 2 has since been amended, however Rule 66(2)(c) now requires an address for service in Canada. Moreover, section 11 of the Federal Court Act, limiting practise before this Court to barristers, advocates, attorneys and solicitors able to practise in provincial courts has a similar effect.
[20] The list of grounds for the motion are not impressive. I would comment, however, that the Syndic, just as in the case of counsel in this Court, ought not to take on more work than he can handle: see Bellefeuille v. Canadian Human Rights Commission (1994) 66 F.T.R. 1 at 4 (F.C.T.D.) and Chin v. M.E.I. (1994) 69 F.T.R. 77 at 79-80 (F.C.T.D.). Further, a practical solution to any difficulties in swearing affidavits in Poland was dealt with in my reasons of 28 November 2001. However, I ought, in any event, to give no weight to such unsworn grounds as evidence on this motion. I now turn to some applicable law.
Some Applicable Law
[21] Counsel for the claimant, Bank Polska Kasa Opieki SA, has gone to a good deal of effort to deal with what appear to be the issues. Counsel observes that disobedience to a process or order of the Court may be contempt under Federal Court Rule 466(b), however here contempt, per se, is not an issue. Rather, I think, the thrust of this reference is whether someone in breach of various orders ought still to be permitted to bring motions to the Court.
[22] More pertinent is that there be a motion record. While a motion record normally contains affidavit material, that requirement is not necessarily absolute where there are facts on the record of the Court which provide a basis for allowing a motion. This was a point made by Mr. Justice of Appeal Pratte, in Mountainbell Co. Ltd. v. W.T.C. Air Freight (H.K.) Ltd. (1990) 128 N.R. 75 at 76. There Mr. Justice Pratt observed that an application might be summarily dismissed, in the absence of an affidavit, ". . . in cases where the facts entered in the record of the court provide no basis for allowing it.".
[23] Absent affidavit material one would expect at least adequate written representations in order to explain where to find facts in the Court's record. Indeed, this was a point made by Mr. Justice Hugessen in Greens At Tam O'Shanter Inc. v. Canada (1999) 163 F.T.R. 311. There he also discusses the purpose of written representations and the possible results in there absence:
[9] Indeed, in this very case, it seems to me that, if the defendant is right in its suggestion that the plaintiff's motion materials are inadequate, and in particular that the written representations are inadequate, there are a number of remedies which are available that the defendant may seek at the return of the plaintiff's motion. The Court which hears the motion will be able to do any one of a number of things if it finds that the plaintiff's motion materials were inadequate and unhelpful. It may, of course, as Mr. Prothonotary Hargrave suggested he might have done in the recent and unreported case of Wuskwi Sipihk Cree Nation et al. v. Canada (Minister of National Health and Welfare) [(1999), 164 F.T.R. 276 (T.D.)] simply dismiss the motion which is not properly supported. It may, alternatively as was done in a number of cases which have been cited to me that arose prior to the coming into force of the Federal Court Rules, 1998, require that fuller written representations be filed and adjourn the case for that purpose to be decided on the basis of those representations. Thirdly and this remedy may, of course, be in addition to either of the other two, it may make an award of costs either on column 5 or on a solicitor and client basis against the party who has offended against the requirement of Rule 364(2)(e) by filing inadequate written representations.
In the present instance I have not lost sight of the written reply representations filed by the Trustee of the estate in bankruptcy of Gryf Deep Sea Fishing Company, however, as I have indicated, they are neither evidence nor do they, for the most part, refer to material that forms part of the record of the Court, but rather are argument or material which, if it were in affidavit form, would invite cross-examination.
[24] There are a number of cases which set out what a party, seeking an extension of time, must establish. In my direction 17 December 2001 I set out, as a guide to the Syndic, three cases, Noel v. Lewis Holdings and Waryk v. Canada (1986) 5 F.T.R. 166 at 168 - 169, Leblanc v. National Bank of Canada [1994] 1 F.C. 81 and Can-am Realty v. The Queen [1997] 2 C.T.C. 152, (1997) 126 F.T.R. 127. In my reasons of 6 June 2001, in this proceeding, I set out at length the tests for a time extension, including that in Canada v. Hennelly (1999) 244 N.R. 399. The Trustee might easily have sought guidance from those directions and reasons. All of the authorities referred to have their basis in Grewal v. Minister of Employment and Immigration [1985] 2 F.C. 263, a decision of the Federal Court of Appeal. Turning again to the Court of Appeal decision in Canada v. Hennelly (supra), at 399-400 the Court makes clear the preferred test for an extension of time:
The proper test is whether the applicant has demonstrated
1. a continuing intention to pursue his or her application;
2 that the application has some merit;
3. that no prejudice to the respondent arises from the delay; and
4. that a reasonable explanation for the delay exists.
One should keep in mind that the applicant must satisfy all four elements, however, on the basis of Grewal (supra) at page 282 there must be a balancing of the various factors so that, for example, an explanation for the delay, which is compelling, may balance a weak case on the merits.
Analysis
Participation by the Trustee
[25] I shall first deal with the submission of counsel for the claimant, Bank Polska Kasa Opieki SA, that the Trustee has disqualified himself from participation. The submission is that the Trustee ought not to be permitted to participate by reason of breaches of my order of 19 November 2001 and my directions of 17 December 2001 and 28 January 2002. However, the underlying appeals are of three 19 November 2001 orders. That the Trustee has failed to retain counsel is unfortunate, however that requirement was specifically with reference to an order or a motion which seemed not to exist. The failure to retain counsel is, overall, unfortunate but, as worded in the relevant 19 November 2001 order, is not a bar in itself to the Trustee taking further steps.
[26] That the Trustee has failed both to file affidavit material and written representations in support of his motion (as opposed to representations in response to a reply) is to the detriment of all and perhaps to the prejudice of some, but is not fatal as to participation by the Trustee.
Absence of Material in Support of the 4 February 2002 Motion
[27] Counsel for Bank Polska Kasa Opieki SA submits out that, despite various directions and the general legal requirements of an evidentiary basis for motions, the Trustee has yet to support any of his motions with an affidavit. Counsel then goes on to point out that, without either affidavit material or written representations in support of the motion, it is difficult for opposing counsel to deal with the motion and indeed leave opposing counsel at a disadvantage. In the result, counsel submits that I ought not to grant any relief.
[28] This conclusion, given the inadequate initial written representation in support of the motion and the fact that the reply representations do not directly support the motion, is certainly in line with the Greens At Tam O'Shanter case (supra), however that case does not prevent me from considering the motion on its merits, here looking at the grounds set out in the motion, for while it may be difficult to understand some of the material and to cope with inadequate or non-existing material, there is no ambush. Indeed, in Wuskwi Sipihk Cree Nation v. Canada (1999) 164 F.T.R. 276, referred to by Mr. Justice Hugessen in Greens At Tam O'Shanter, I considered the application on its merits for there, as in this instance, there was a substantive answer why the relief ought to be denied.
Extension of Time
[29] The Trustee requests an extension of time and relief from the Rule 364 requirement of a motion record. I have no difficulty with the latter, however that dispensation does not relieve a moving party of the burden of making plain his or her position by means of clear written representations and sufficient relevant evidence.
[30] The law, as to what a party seeking a time extension must establish, is referred to generally in the 17 December 2001 direction and was specifically set out, elaborated upon and analyzed in my reasons of 6 June 2001. The latter reasons arose out of a motion, brought on behalf of the Trustee, by his first counsel, for an extension of time. There I set out and followed Hennelly.
[31] The first requirement, set out in the Hennelly case, is that the Trustee must demonstrate a continuing intention to pursue the present motion. There is no evidence from the Trustee as to a continuing intention to pursue the present motion for a time extension. However, a measure of intent is the lack of effort put into filing material in support of the motion. In the present instance it is as if the Trustee had decided that the game was not worth the candle, thus the thin, missing and unsubstantiated material in support. This is an indication of no real continuing intent to pursue the motion. The delay, without explanation, in perfecting the motions of appeal, which were accepted conditionally, is also an indication of lack of both interest and intent.
[32] Second, I must consider whether the Trustee has an arguable case on the merits. Here, there are three underlying appeals. One involves an order or a motion which seems not to exist. The second involves the appointment of pro bono counsel, by the Court, for the Trustee and an order that the Trustee be held harmless from any obligation to bear costs. The third is an appeal of an order striking out the claim of the Trustee in bankruptcy of the estate of Gryf Deep Sea Fishing Company.
[33] The first Notice of Appeal, to strike out an order, or perhaps a motion, which no one can show exists, is doomed to failure.
[34] The second Notice of Appeal is of an order denying the appointment by the Court, of a pro bono lawyer to assist the Trustee and for a declaration that the Trustee be released from any obligation to bear costs in these proceedings. This appeal rests on very unstable ground, for the Trustee, in his written representations in reply, makes the point, in paragraph 8, that there have already been funds paid out of the estate in bankruptcy of Gryf Deep Sea Fishing Company in Szczecin: that representation is not, in itself, evidence, but I think it may be an estoppel preventing the Trustee from seeking public funds, here in Canada, by which to provide representation. This leads to the common law in Canada as to the right to counsel.
[35] In Henry v. Canada (1988) 15 F.T.R. 29, Madam Justice Reed considered the appointment of counsel and payment of counsel. She acknowledge that section 611 of the Criminal Code provided for the assignment of counsel by the Court, however, aside from the possibility that there might be some circumstances under the Canadian Charter of Rights and Freedoms, which might lead to the requirement that a court appoint and the government pay for counsel, she could find no absolute right to counsel under the common law, here adopting an extended passage from the opposing party's submission. In Halm v. Minister of Employment and Immigration (1995) 91 F.T.R. 106, Madam Justice Reed acknowledged that a litigant might have a reasonable amount of time to retain and instruct counsel and to make financial arrangements, however she stated that "the jurisprudence has established that the right to counsel does not include the right to counsel who is paid at public expense.". In Halm the Canadian Charter of Rights and Freedoms was involved, as was the Criminal Code, neither of which are applicable here. Finally, in Jimenez-Beza v. Canada (1997) 123 F.T.R. 317, Mr. Justice Cullen noted that the Federal Court was without jurisdiction to appoint state-funded legal counsel (page 320). I am unaware of cases to the contrary thus, while no litigation is ever certain, the Trustee has a very weak to non-existent case for appointment of counsel funded by the Canadian taxpayer.
[36] The third Notice of Appeal is of the order striking out the affidavit of claim of the Trustee in bankruptcy of the estate of Gryf Deep Sea Fishing Company. There the affidavit was struck out on the basis of case law establishing that it must be plain, obvious and beyond doubt that the claim, to the ship sale proceeds, or any part of them, could not succeed. The reasons in that instance were substantial. No material has now been presented by the Trustee, even in the written representations in reply to the material of Bank Polska Kasa Opieki SA, to indicate why that decision might be incorrect or how the Trustee might have an arguable case.
[37] In each of the three instances there is nothing to show that the appeals have some merit. I now turn to the issue of prejudice.
[38] The third requirement in Hennelly is that there be no prejudice to the other side. Counsel for Bank Polska Kasa Opieki SA, with the concurrence of a number of other counsel, submits that the delay of almost three months, in appealing the three orders and the proximity to the hearing of the claims to priority, scheduled for 19 March 2002, can do nothing other than cause prejudice to all parties and claimants. This is so, in the sense that should the hearing have to be adjourned it would in all likelihood be many months before the hearing could be rescheduled. In some instances such delay might be compensated for in costs. Here I doubt that could possibly be the case in that the Trustee not only seeks pro bono counsel, but also seeks an order that he not be responsible for any costs in these proceedings.
[39] Finally, as set out in Hennelly, there is the matter of an explanation for the present delay. Among the grounds for the motion, set out on the motion itself, signed by Mr. Wutke, assistant of the Trustee and here I note this is not evidence, is that the Trustee, who is the only person authorized to sign affidavits or any other material in this action, ". . . is not present for a longer time in Szczecin, being his registered place of business . . ." and that he would be back in his office by the 11th of February 2002. This is an unacceptable excuse for delay: see, for example, the Bellefeuille and Chin cases, referred to above. Further, it leaves unanswered why the Trustee was unable to meet the fairly generous initial deadline which ran from 17 December 2001 through 25 January 2002. The delay during that time span is not dealt with in the Trustee's material.
CONCLUSION
[40] The essence of a time extension is referred to by the Court of Appeal in Grewal (supra). It is that the applicant for a time extension must show that he or she displayed due diligence: see for example Council of Canadians v. Director of Investigation (1997) 212 N.R. 254 at 255 (F.C.A.). Here, not only have the elements which are required by the test in Hennelly not been met in any substantial way, but also the Trustee of the estate in bankruptcy of Gryf Deep Sea Fishing Company has failed to established the exercise of due diligence. Thus the motion is dismissed.
[41] Given the dismissal of the 4 February 2002 motion for an extension of time within which to perfect the Rule 72(2) conditions for registration of the three 10 December 2001 Notices of Appeal, they are to be removed from the Court's file and returned to the Trustee.
[42] Counsel for Bank Polska Kasa Opieki SA seeks costs. The other counsel involved do not seek costs on behalf of their clients and that is appropriate, for their basic position was to support the position of the Bank.
[43] In that counsel for the Bank put substantial effort into his material, it is appropriate that the Bank have costs toward the upper end of Column 4 of Tariff B. Here I have taken into consideration that while the legal issues were fairly straightforward, assembling material has obviously been time consuming. Further, preparing the submissions must have been frustrating, for it is apparent that counsel has had to guess at and deal with all the possibilities in the Trustee's ill-explained case for an extension. Therefore I would set costs in a lump sum, keeping in mind that it ought to reflect the upper end of costs under Column 4, at $700.00 payable forthwith.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
21 February 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-16-01
STYLE OF CAUSE: Global Enterprises International Inc. v. The Ships" Aquarius", "Sagran" and "Admiral Arciszewski" et al.
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER OF HARGRAVE P.
DATED: 21 February 2002
SOLICITORS OF RECORD:
Campney & Murphy FOR PLAINTIFF
Vancouver, British Columbia
Giaschi & Margolis FOR INTERVENOR
Vancouver, British Columbia SK Shipping Co. Ltd.
Faskin Martineau DuMoulin FOR INTERVENOR
Vancouver, British Columbia Coltrane Trading Limited
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