Date: 20020516
Docket: T-2157-01
Neutral Citation: 2002 FCT 572
SIMPLIFIED ACTION
BETWEEN:
DONALD JAMES WHYTE and
D.J.D. INDUSTRIES LTD.
Plaintiffs
-and-
THE OWNERS, EDWARD MASKALL and
ALL OTHERS INTERESTED IN THE DREDGE
"SANDPIPER VI"AND EQUIPMENT
ITS TENDER-TUG AND "A"FRAME,
ISLAND DREDGING CORP. and
ISLAND SAND PIPING CORP.,
formerly called ISLAND SAND SALES LTD.
Defendants
REASONS FOR ORDER AND ORDER
HENEGHAN J.
INTRODUCTION
[1] Mr. Donald James Whyte and D.J.D. Industries Ltd. (the "Plaintiffs") bring a Notice of Motion pursuant to the Federal Court Rules, 1998 (the "Rules"), for an order that the Defendants show cause why they should not be found in contempt of court. This motion arises from an order made on March 11, 2002 by Prothonotary Hargrave which provides as follows:
THIS COURT ORDERS that:
1. Leave is granted to bring this motion on short notice and to remove this action from the ambit of the simplified action rules, pursuant to Rule 298(3), for the purpose of this motion.
2. The Plaintiff may, within 14 days, serve and file an Amended Statement of Claim to correct the errors in the calculation of damages.
4. The issue of return of the pipeline, if necessary, is to be dealt with by the judge on 25 March 2002.
5. Service of this Order and accompanying reasons shall be effected by the Court by registered mail to Edward Maskall at 5500 Woodwards Road, Richmond, B.C. V7E 1H1, provided that the Registry shall use best efforts to reach Mr. Maskall at 604-277-6361 to also advise him of this Order and accompanying reasons.
6. This action shall be returned to the status of a simplified action once this contempt proceeding has run its course, provided that no other steps, outside of what is permitted in a simplified action shall be taken during that period.
[2] The present motion was heard on March 25, 2002. In the course of the hearing and following the introduction of evidence by the Plaintiffs, a further order was made pursuant to rule 467 of the Rules, specifically including the allegation of removal of the arrest warrant from the Defendant ship, as a further ground upon which the Defendants could be found in contempt.
THE EVIDENCE
[3] The Plaintiff Mr. Whyte is a professional heavy duty marine diesel mechanic and engineer who repairs heavy equipment. He testified that work was done on the Defendant's dredge in 1999 and 2000, including repairs to the main engine, repair and replacement of valves, and other miscellaneous work on the hydraulics and pumps. He summarized this work as being repair and maintenance to keep the dredge operating.
[4] The bill for the work remained unpaid and on December 11, 2001 this action in rem was commenced. A statement of claim was issued, and an affidavit to lead warrant was filed, leading to the issuance of a warrant of arrest for the arrest of the dredge, its equipment, tug and "A" frame. According to Mr. Whyte, the warrant of arrest was served on the dredge by the bailiff shortly after it was issued, that is in December 2001. He testified that he was present when the bailiff served the documents and that the warrant of arrest was attached to the dredge, the tug and the "A" frame with sticky red tape. No Affidavit of Service was filed prior to this hearing.
[5] Mr. Whyte testified that he spoke with the Defendant Mr. Maskall on January 30, 2002 and asked what he was going to do about the arrest of the dredge. In the face of Mr. Maskall's inquiry as to what he meant, Mr. Whyte said that he told Mr. Maskall that the dredge had been arrested and asked if it would be sold to pay the amount for labour and materials. Mr. Maskall reportedly replied to the effect that he did not consider the dredge to be under arrest since he had not been personally served with any process.
[6] On or about February 28, 2002, Mr. Whyte learned that pipeline belonging to the dredge was being used by Fraser River Pile and Dredging Ltd. ("Fraser River"). He testified that he spoke with Mr. Les Gordain of Fraser River who confirmed that his company was using a pipeline owned by the Defendants to carry out a dredging job near Morey Channel Bridge. According to the Plaintiff, Fraser River Pile and Dredge was unaware that the pipeline was under arrest, until informed by him about that fact. At the request of Mr. Gordain, Mr. Whyte forwarded a copy of the warrant to him. Mr. Gordain offered to stop using the pipeline but the Plaintiff did not require that.
[7] He then called Mr. Edward Maskall on the following day and proposed a settlement to resolve the matter. No settlement was achieved and Mr. Whyte filed a motion for contempt. That motion was heard by Prothonotary Hargrave who issued an order on March 11, 2002.
[8] Mr. Whyte testified that the steel pipeline being used by Fraser River belonged to the Defendant dredge. The steel pipeline lies on floats and is connected to the dredge when the dredge is operating. No pipeline is connected to the dredge when it is tied up. The dredge was tied up at the time of its arrest, lying at the foot of Trites Road, Steveston Harbour.
[9] Around the same time that he became aware that the pipeline was being used by Fraser River, the Plaintiff testified that he was told that the warrant of arrest had been torn off the dredge, "A" frame and the tender-tug. Subsequently, he took photographs of the dredge, "A" frame, tug and pipeline, on March 12, 2002. Nine photographs were entered as exhibits at the hearing. He testified that he had no other proof that the warrant was removed or by whom, but he pointed out that certain photographs showed the red tape with which the warrant had been attached and the absence of the warrant.
[10] Counsel for the Defendants objected to the introduction of any evidence about the removal of the warrant on the grounds that the order by Prothonotary Hargrave set out the basis upon which the contempt hearing would proceed, that is the allegation that the pipeline had been moved. He argued that the Defendants were entitled to know the basis upon which the hearing would proceed. In the absence of anything in the order of Prothonotary Hargrave about removal of the warrant, he argued that the introduction of such evidence was improper, on the basis that it was equivalent to the introduction of a new "charge" against the Defendants.
[11] The Prothonotary's order refers to "possible disobedience of the arrest process of this Court" and more particularly, to movement of the pipeline.
[12] Upon reviewing Rule 467(1) together with Rules 3, 47 and 53, I issued an order ex proprio motu for the purpose of including the alleged removal of the warrant of arrest as a ground for the contempt alleged against the Defendants. At the same time, the Defendants were offered a postponement of the hearing, if necessary, to prepare their defence to this additional ground of contempt. That offer was declined.
[13] Mr. Hargrave, in his Reasons for Order dated March 11, 2002, referred to removal of a warrant of arrest as being a ground of contempt. The Reasons suggest that reference was made to such an act during the hearing of the motion before him. Rule 3 of the Rules sets out the general principle governing proceedings in this Court, as follows:
| 3. These Rules shall be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits.
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3. Les présentes règles sont interprétées et appliquées de façon à permettre d'apporter une solution au litige qui soit juste et la plus expéditive et économique possible.
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[14] Rule 47 authorizes the court to make an order on its own initiative or, where the Rules require that a motion be brought, upon motion:
| 47(1) Unless otherwise provided in these Rules, the discretionary powers of the Court under these Rules may be exercised by the Court of its own initiative or on motion.
(2) Where these Rules provide that powers of the Court are to be exercised on motion, they may be exercised only on the bringing of a motion.
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47(1) Sauf disposition contraire des présentes règles, la Cour exerce, sur requête ou de sa propre initiative, tout pouvoir discrétionnaire que lui confèrent les présentes règles.
(2) Dans les cas où les présentes règles prévoient l'exercice d'un pouvoir discrétionnaire sur requête, la Cour ne peut exercer ce pouvoir que sur requête.
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[15] Rule 53 authorizes the court to impose conditions and issue directions as follows:
| 53 (1) In making an order under these Rules, the Court may impose such conditions and give such directions as it considers just.
(2) Where these Rules provide that the Court may make an order of a specified nature, the Court may make any other order that it considers just.
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53. (1) La Cour peut assortir toute ordonnance qu'elle rend en vertu des présentes règles des conditions et des directives qu'elle juge équitables.
(2) La Cour peut, dans les cas où les présentes règles lui permettent de rendre une ordonnance particulière, rendre toute autre ordonnance qu'elle juge équitable.
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[16] Rule 467(1) authorizes the court to set forth grounds of an alleged contempt either on motion of a interested person or upon its own initiative, as follows:
| 467(1) Subject to rule 468, before a person may be found in contempt of Court, the person alleged to be in contempt shall be served with an order, made on the motion of a person who has an interest in the proceeding or at the Court's own initiative, requiring the person alleged to be in contempt
(a) to appear before a judge at a time and place stipulated in the order;
(b) to be prepared to hear proof of the act with which the person is charged, which shall be described in the order with sufficient particularity to enable the person to know the nature of the case against the person; and(c) to be prepared to present any defence that the person may have.
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467(1) Sous réserve de la règle 468, avant qu'une personne puisse être reconnue coupable d'outrage au tribunal, une ordonnance, rendue sur requête d'une personne ayant un intérêt dans l'instance ou sur l'initiative de la Cour, doit lui être signifiée. Cette ordonnance lui enjoint :
a) de comparaître devant un juge aux date, heure et lieu précisés;
b) d'être prête à entendre la preuve de l'acte qui lui est reproché, don't une description suffisamment détaillée est donnée pour lui permettre de connaître la nature des accusations portées contre elle;
c) d'être prête à présenter une défense.
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[17] The Defendants declined to accept the proffered adjournment, and this refusal is clear on the record of the hearing as follows:
THE COURT: So the question is, are we going to go ahead with all this evidence today or are we going to take a brief adjournment? I'm here this week and next week, and rather than having this matter come before another judge to be dealt with all over again, I would propose that it come back before me while I'm here. What do you have to say?
MR. HENDERY: That we proceed now.
THE COURT: So we'll hear it all.
MR. HENDERY: Yes.
THE COURT: All right, so - - and if you need some time, like we were going to have a morning break. That wasn't our break. Once you've finished your examination of Mr. Whyte, if you want half an hour more to speak with your client, just let me know. I'm prepared to give you the time.
MR. HENERY: Thank you. And we have time now to proceed with cross-examination before the break?
THE COURT: Or if you want to - - if we could take - - you know, whatever - - I'm in your hands on that. We could take the break now and then come back. And then that still means - - if we take a break now and you do your cross-examination and you need time to consult with your client, you're going to have it.
MR. HENDERY: And if I understand fully, we are now facing the order of Hargrave, Prothonotary, setting this matter down for show cause as it then existed, and now facing your order that the contempt hearing also include the charge connected to the removal of documents.
THE COURT: Yes.
MR. HENDERY: I understand. May we take the break now and come back?
[18] Having regard to the stage which the proceedings had reached, the attendance of the personal Defendant and his Counsel, the offer of a postponement of a few days to provide an opportunity for the Defendants to respond to this additional ground and my availability to continue the hearing prior to the involvement of another judge who would have had to review the file, I concluded that the order made on March 25, 2002 was appropriate.
[19] The Defendants filed the affidavit of Mr. Maskall on March 22, 2002, as part of a Motion Record filed by the Defendants in response to the Plaintiff's motion. The Defendants elected not to call any witnesses upon the hearing of the motion.
[20] Rule 470 is relevant to the election of the Defendants. It provides as follows:
| 470. (1) Unless the Court directs otherwise, evidence on a motion for a contempt order, other than an order under subsection 467(1), shall be oral.
(2) A person alleged to be in contempt may not be compelled to testify
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470. (1) Sauf directives contraires de la Cour, les témoignages dans le cadre d'une requête pour une ordonnance d'outrage au tribunal, sauf celle visée au paragraphe 467(1), sont donnés oralement.
(2) La personne à qui l'outrage au tribunal est reproché ne peut être contrainte à témoigner.
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[21] In the result, I declined to accept the affidavit of Mr. Maskall as evidence upon the hearing of the motion since the Rules require oral evidence, unless the Court otherwise orders. The Defendant Mr. Maskall was present and there was no basis to order the acceptance of his affidavit as evidence. The Defendants were not compelled to testify and did not testify. Accordingly, the only evidence before the court is that offered by the Plaintiff, Mr. Whyte.
ANALYSIS
[22] The burden of proof in contempt proceedings is similar to that prevailing in criminal proceedings, that is proof beyond a reasonable doubt that the alleged contemners
committed the acts complained of. In this regard, see Bhatnager v. Canada (Minister of Employment and Immigration), [1990] 2 S.C.R. 217 and Vidéotion Ltée v. Industries Microléc Produits Électronique Inc., [1992] 2 S.C.R. 1065.
[23] The burden lies on the Plaintiff to prove that the Defendants acted in contempt of an order of the court. The elements of contempt were identified in Lyons Partnership, L.P. v. McGregor (2000), 5 C.P.R. (4th) 157 at page 160 as follows:
...Those constituent elements, the onus of proof which is upon the plaintiff, are: a defendant's actual personal knowledge of the Court's order; the defendant is the primary actor either actually or by express or implied authorization; and the required degree of mens rea.
[24] In the present case, the court order in issue is the warrant of arrest which was served on the dredge, tug and "A" frame in December 2001. Have the Defendants acted in contempt of this court by utilizing equipment, specifically a pipeline, that is subject to the warrant of arrest? Second, are the Defendants in contempt by reason of removing the warrant of arrest? These questions arise from the Plaintiff's motion and subject to the burden of proof in a motion for contempt, focus on the scope of a warrant of arrest when issued by this court.
[25] Counsel for the Defendants argues that the pipeline in issue, that is the pipeline belonging to the Defendant dredge, was not subject to the warrant of arrest because it was not specifically identified in the statement of claim, affidavit to lead warrant or the warrant itself. In response, the Plaintiff submits that the pipeline is unquestionably part of the equipment of the dredge and indeed, is the most important part of the equipment since the dredge cannot operate without it.
[26] The arguments offered by the Defendants are not sustainable in law. I refer to and adopt the following paragraphs from the Reasons for Order filed by Prothonotary Hargrave in connection with this case:
5. The courts have, as the many cases demonstrate, included in the definition of a ship all of the vessel's equipment, often pointedly looking to the employment of a ship and the relationship the equipment or appurtenances bear to that ship itself: see for example The "Dundee" (1823) 166 E.R. 39 at 46, 1 Hagg. Ad. 109 at 127, a decision of Lord Stowell of the High Court of Admiralty.
6. Turning specifically to the scope of an arrest warrant, I will not repeat all that I set out in Pacific Tractor Rentals (V.I.) Ltd. v. The Ship "Palaquin" (1997) 115 F.T.R. 224 at 226 and following: it is sufficient to say that not only equipment aboard the ship, but also any portions of a vessel's equipment which have been removed and taken ashore before the arrest, may be caught by the arrest warrant. This is a concept that has clearly been set out by the text writers as a general proposition arising out of The "Alexander" (1812) 165 E.R. 1310:
A warrant of arrest on a ship covers everything belonging to it as part of its equipment, even items which are physically detached from it. (Meeson on Admiralty Jurisdiction and Practice, Lloyds of London Press, 1993, at page 124.)
Passages similar to that in Meeson also appear in Wiswal on The Development on Admiralty Jurisdiction Since 1800, Cambridge University Press, 1970 at page 184 and Roscoe on Admiralty Jurisdiction and Practice, 5th edition, Stevens & Sons, 1931 at page 276.
Donald James Whyte v. The Owners, Edward Maskall and All Others Interested in the Dredge "Sandpiper VI: and Equipment Its Tender-Tug and "A" Frame, Island Dredging Corp. and Island Sand Piping Corp., formerly called Island Sand Sales Ltd., 2002 FCT 271.
[27] On the basis of the authorities referred to above, I am satisfied that any pipeline which was ordinarily part of the equipment of the Defendant dredge is subject to the warrant of arrest which was served on the dredge, tug and "A" frame in December 2001. The evidence establishes that the Defendant Maskall was aware that the dredge had been arrested and consequently, he is deemed to be aware of the legal effect of that arrest.
[28] I am also satisfied that certain pipeline belonging to the Defendant dredge was removed and used by Fraser River in carrying out its dredging activities near the Morey Channel Bridge. However, I am not satisfied that this usage occurred as a result of the deliberate and conscious intention of the Defendants to disobey the order of this court as represented by the warrant of arrest. Accordingly, I conclude that the Plaintiff has not discharged the evidentiary burden upon him, of showing that the Defendants are in contempt on this ground.
[29] As for the allegation of contempt resulting from removal of the warrant of arrest from the arrested property, the jurisprudence is clear that any interference with a ship after service of a warrant of arrest, can amount to contempt of court. I refer to "The Petrel" (1836), 166 E.R. 416 and "The Harmonie" (1841), 166 E.R. 540. However, again the evidence of the Plaintiff falls short of the requisite proof to establish contempt.
[30] The Plaintiff testified that he was present when the bailiff affixed the warrant to the dredge in December 2001, and that he attended near the dredge on March 12, 2002 when he took photographs which showed an absence of the warrant, together with remnants of the tape. At the same time, he testified that he had no personal knowledge that the Defendants, or anyone authorized by them, had removed the warrant.
[31] In these circumstances, I conclude that there was interference with the warrant of arrest as originally affixed to the dredge but the evidence fails to show that such interference was committed by any of the Defendants, their servants or agents.
[32] Accordingly, the motion is dismissed.
[33] In the exercise of my discretion, there will be no order as to costs. The conduct of this action will now proceed in accordance with the Rules governing simplified proceedings, subject to any further orders.
ORDER
The motion is dismissed, no order as to costs.
"E. Heneghan"
J.F.C.C.
OTTAWA, Ontario
May 16, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2157-01
STYLE OF CAUSE: Donald James Whyte and D.J.D. Industries Ltd. v. The Owners, Edward Maskall and All Others Interested in the Dredge "Sandpiper VI" and Equipment its Tender-Tug and "A" Frame, Island Dredging Corp. and Island Sand Piping Corp., formerly called Island Sand Sales Ltd.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: March 25, 2002
REASONS FOR ORDER AND ORDER: HENEGHAN J.
DATED: MAY 16, 2002
APPEARANCES:
Mr. Donald Whyte On His Own Behalf
Mr. Richard Hendery For all the Defendants
SOLICITORS OF RECORD:
Mr. Donald Whyte On His Own Behalf
10486 - 140B Street
Surrey, British Columbia
V3T 4P1
Mr. Richard Hendery For all the Defendants
Suite 102, 1100 Harwood Street
Vancouver, British Columbia
V6E 1R7
The Plaintiff filed an Amended Statement of Claim on March 18, 2001 and added D.J.D. Industries Ltd. as a plaintiff. Since no Defence had been filed by this date, this amendment to join a party was permitted pursuant to Rule 200.
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