Date: 20020910
Docket : T-1554-99
Montréal, Quebec, September 10, 2002
Before : Richard Morneau, prothonotary
Action in rem and in personam in admiralty
BETWEEN:
ANGLOFLORA LIMITED,
K. VAN BOURGONDIEN & SONS INC.
and
ALL OTHERS HAVING AN INTEREST
IN THE CARGO LADEN ON BOARD
THE VESSEL "CAST ELK" PURSUANT TO
BILLS OF LADING NOS. ELK157RT3249
AND ELK157RT3251 BOTH DATED AUGUST 28, 1998
Plaintiffs
and
CANADA MARITIME LIMITED,
CANADA MARITIME LIMITED (BERMUDA),
THE OWNERS AND ALL OTHERS
INTERESTED IN THE VESSEL "CAST ELK",
THE VESSEL "CAST ELK",
THE OWNERS AND ALL OTHERS
INTERESTED IN THE VESSEL "CAST PERFORMANCE",
THE VESSEL "CAST PERFORMANCE",
THE OWNERS AND ALL OTHERS
INTERESTED IN THE VESSEL "CAST POWER",
THE VESSEL "CAST POWER",
THE OWNERS AND ALL OTHERS
INTERESTED IN THE VESSEL "CAST PRIVILEGE"
and
THE VESSEL "CAST PRIVILEGE"
Defendants
ORDER
The plaintiffs' action is struck out as a consequence of and in accordance with the fact that para. 17 of this Court's order dated May 6, 2002 has not been complied with.
Costs of $2,000 are awarded to the defendant Canada Maritime Limited in connection with its motion.
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Richard Morneau
Prothonotary
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20020910
Docket : T-1554-99
Neutral citation: 2002 FCT 955
Action in rem and in personam in admiralty
BETWEEN:
ANGLOFLORA LIMITED,
K. VAN BOURGONDIEN & SONS INC.
and
ALL OTHERS HAVING AN INTEREST
IN THE CARGO LADEN ON BOARD
THE VESSEL "CAST ELK" PURSUANT TO
BILLS OF LADING NOS. ELK157RT3249
AND ELK157RT3251 BOTH DATED AUGUST 28, 1998
Plaintiffs
and
CANADA MARITIME LIMITED,
CANADA MARITIME LIMITED (BERMUDA),
THE OWNERS AND ALL OTHERS
INTERESTED IN THE VESSEL "CAST ELK",
THE VESSEL "CAST ELK",
THE OWNERS AND ALL OTHERS
INTERESTED IN THE VESSEL "CAST PERFORMANCE",
THE VESSEL "CAST PERFORMANCE",
THE OWNERS AND ALL OTHERS
INTERESTED IN THE VESSEL "CAST POWER",
THE VESSEL "CAST POWER",
THE OWNERS AND ALL OTHERS
INTERESTED IN THE VESSEL "CAST PRIVILEGE"
and
THE VESSEL "CAST PRIVILEGE"
Defendants
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY
[1] The Court has before it in the case at bar a motion by the defendant Canada Maritime Limited for an order formally striking out the plaintiffs' action as a consequence of this Court's decision on May 6, 2002. Alternatively, the defendant is asking that the action be struck because of a delay in prosecuting the said action.
Background and analysis
[2] In order to assess the merits of the motion at bar, it will basically suffice to start from this Court's order dated February 5, 2002 ("the February 5 order") in which the Court, in view of the fact that a past order, the one made on August 23, 2001, had not been complied with, ultimately agreed not to strike the plaintiffs' action for delay in prosecution but ordered that it go forward on certain specific conditions.
[3] That order reads as follows:
ORDER
I am satisfied that I can adjudicate upon the written representations filed by the parties further to the Order of this Court dated August 23, 2001 without the need to hold a conference call with the parties. It is obvious that the different deadlines found in the said Order have not been complied with. The responsibility for that situation lies heavily with the Plaintiffs. Although I have considered dismissing the Plaintiffs' claim for delay, I have finally resolved to allow this file to be pursued under the following conditions and schedule which must be adhered to.
1. The Plaintiffs shall have until February 15, 2002 to produce all the documents referred to at paragraph 8 of their written representations dated July 9, 2001.
2. The Defendants are entitled to conduct an examination for discovery of the Plaintiffs on or before March 18, 2002. The Plaintiffs are not afforded the reciprocal possibility since one must conclude that the Plaintiffs by their past conduct have waived their right to do so. The specific time and place for the discovery of the Plaintiffs' representative shall be agreed between the parties and, failing an agreement, a notice to attend shall be served by the Defendants.
3. Any undertakings arising from the discovery of the Plaintiffs' representative shall be answered on or before April 2, 2002.
4. The parties shall have until May 2, 2002 to explore the possibilities of an amicable settlement of this claim, failing which the Plaintiffs shall apply for a pre-trial conference in accordance with Rule 258 on or before May 16, 2002.
5. As indicated above, the further delays caused in this file fall on the Plaintiffs' shoulders. It is therefore appropriate to order that the Plaintiffs pay forthwith to the Defendants costs in the amount of $1,500.
5. Any unjustified departure by the Plaintiffs with respect to the above timetable shall entail the Defendants moving the Court with a motion to dismiss the Plaintiffs' claim for delay.
(My emphasis)
[4] The various deadlines for this order were extended by an order of March 12, 2002 as follows. The deadlines on paras. 2, 3 and 4 were postponed to April 5, April 26 and May 28, 2002.
[5] However, the plaintiffs were dissatisfied with the fact that the order of February 5 prevented them from proceeding with the examination for discovery of the defendants and the fact that they were ordered to pay costs of $1,500 forthwith, so appealed the order of February 5.
[6] It should be noted at once that the plaintiffs did not make any attempt to have the Court stay the order of February 5.
[7] The appeal from the February 5 order was heard by Rouleau J. of this Court.
[8] In a decision with reasons on May 6, 2002 ("the May 6 order"), the judge was careful to review the preceding circumstances which related to the February 5 order. On the merits of the February 5 order and the question of what should be done with the appeal filed by the plaintiffs as a result, Rouleau J. said the following:
[12] The Prothonotary, as he states in his Order, considered dismissing plaintiffs/appellants' action but nevertheless resolved to allow the file to be pursued under the strict conditions and schedule set forth therein.
[13] I have carefully reviewed submissions from both parties, not only to this appeal but all those filed with the Court and judiciously considered by the learned Prothonotary. There is no doubt that the Orders, and more particularly the Order of February 5, 2002, were caused by undue delay and total lack of consideration for Orders of this Court by counsel for the plaintiffs/appellants.
[14] As the Federal Court of Appeal wrote in Sawridge Band v. Canada [2001] F.C.J. No. 1684, the parties must respect orders of prothonotaries and case management judges. In paragraph 11 of the Sawridge decision, Rothstein J.A. indicated that the Court would not interfere except in the clearest cases of misuse of judicial discretion. He then went on to quote from the Alberta Court of Appeal in Korte v. Deloitte, Haskins and Sells (1995), 36 Alta. L.R. (3d) 56, at p. 58:
. . . This is a very complicated lawsuit. It is the subject of case management and has been since 1993. The orders made here are discretionary. We have said before, and we repeat, that case management judges in those complex matters must be given some "elbow room" to resolve endless interlocutory matters and to move these cases on to trial. In some cases, the case management judge will have to be innovative to avoid having the case bog down in a morass of technical matters. Only in the clearest case of misuse of judicial discretion will we interfere. In this case, the carefully crafted orders made by the case management judge display sound knowledge of the rules and the related case law. In particular, the order contains a provision that the parties are free to return to the case management judge for relief from the imposition of any intolerable burden imposed by the order. No clear error has been shown and we decline to interfere. While there may be some inconvenience to some of the parties, this does not translate into reversible error. We are not here to fine tune orders made in interlocutory proceedings, particularly in a case such as this one.
[15] The plaintiffs appellants have been dealt with more than fairly by counsel for the defendant as well as by judges and prothonotaries of this Court in this matter.
[16] Counsel for the plaintiffs/appellants submitted that it was mandatory under the Federal Court Rules that parties were entitled to examinations for discovery. The rules are devised in such a way as to allow the parties to an action to proceed in a manner that permits the litigants to obtain admissions and disclosures that could either lead to settlement or in many cases a reduction of the time required for the Court to entertain and dispose of actions. There is no obligation on the parties to conduct examinations for discovery and they are in some instances waived by the parties on consent or by order of the Court. The fact that the plaintiffs/appellants are precluded from conducting examinations for discovery as ordered by the Prothonotary does not in any way hinder their rights to pursue their remedy before this Court.
[17] There is no merit to this appeal and it is hereby dismissed. It is hereby further ordered that the $1,500.00 costs awarded to the defendant by Prothonotary Morneau in his Order of February 5, 2002, together with costs of this appeal which I fix at $2,000.00 are to be paid within 30 days of the date of this Order or the action shall be struck.
(My emphasis)
[9] Accordingly, in the last paragraph of its May 6 order the Court dismissed the plaintiffs' appeal. Further, probably noting that the $1,500 costs which were payable forthwith under the February 5 order had not yet been paid by the plaintiffs, the judge ordered that this amount, to which he added $2,000 costs for the appeal before him, be paid within 30 days (that is, on or before June 5, 2002), otherwise the plaintiffs' action would be dismissed.
[10] The plaintiffs appealed this May 6 order, but did not ask the Court to stay the order.
[11] Accordingly, on June 18, 2002, the day the defendant's motion at bar was filed, the plaintiffs had still not paid the $1,500 costs mentioned in the February 5 order and the $2,000 costs mentioned in the May 6 order. These two amounts were however due on June 5, 2002 at the latest.
[12] Seeing all of this, counsel for the defendant on June 14, 2002 wrote Rouleau J. asking him to give effect to his May 6 order and confirm that the plaintiffs' action was in fact struck out. Rouleau J. issued the following direction on the same day:
The Defendant is required to serve and file a Motion for the issuance of a formal Dismissal Order. Said Motion can be presented to any General Sittings. It is to be noted that I am not seized of this matter.
[13] In my opinion, this order by Rouleau J. does not in any way alter the binding force of para. 17 of his May 6 order. In fact, I think that the following can be concluded from the May 6 order and the direction of June 14, 2002. Once the thirty-day deadline expired, that is to say on June 5, 2002, the defendant could regard the plaintiffs' action as having been struck out. If, and in my opinion this is the purpose of the June 14, 2002 direction, the defendant wished a further order by the Court confirming all of this, it would have to proceed by motion since that is the way in which an order is obtained.
[14] This is why on June 18, 2002 the defendant filed and served the motion at the bar, in which the relevant portion of the notice reads as follows:
TAKE NOTICE that at 0930 o'clock in the forenoon or so soon thereafter as counsel may be heard on Monday, July 8, 2002, the undersigned solicitors for Defendant, Canada Maritime Limited, will apply to this Honourable Court sitting at the Federal Courthouse, 30 McGill Street, Montreal, Quebec for the issuance of a formal Dismissal Order and/or dismissal of Plaintiffs' action for delay.
. . . . .
THE GROUNDS IN SUPPORT OF THE MOTION are as follows:
1) Plaintiffs have failed to respect the Court's Order of May 6, 2002 pursuant to which Plaintiffs were obliged to pay Defendant costs in the amount of $3,500 by June 5, 2002 failing which Plaintiffs' action "shall be struck";
2) The said Order of May 6, 2002, was peremptory in nature and given Plaintiffs' failure to comply with same, Plaintiffs' action is, in Defendant's view, dismissed and all that is required is a formal Dismissal Order from the Court to give effect to the said Order;
3) In addition, Plaintiffs have failed to respect the April 26, 2002 deadline provided for in the Court's Order of February 5, 2002 (as amended by a subsequent Order of May 12, 2002) for the production of all answers to undertakings arising from the examination of Plaintiffs' representative;
4) As more fully provided in the appended Affidavit of Darren McGuire, Plaintiffs' failure to advance the claim diligently and its repeated failure to respect the various Orders of the Court has served to jeopardize Defendant's ability to properly defend the action and has resulted in same incurring significant increased legal fees and disbursements for which it should be compensated.
[15] The plaintiffs are now vigorously opposing this motion.
[16] It seems to me the only question that arises in the case at bar is whether the plaintiffs in their objection have put forward persuasive reasons why the Court should not simply give effect to the letter and spirit of the May 6 order.
[17] I do not think they have.
[18] As a matter of legal argument, counsel for the plaintiffs alleged that Rouleau J. did not have the power to make his May 6 order peremptory (that is, that the action would be struck out if the payments mentioned therein were not made), since in the Federal Court, unlike the position in England, neither the rules nor the Act provide for such a procedure. In his submission, on the question of costs Rouleau J. should have made sure that they were awarded, and no more, and left the defendant to rely on Rule 433 in the event that they were not paid.
[19] I regard this argument as without foundation. The fact that this power is expressly conferred in England does not mean that it cannot exist without express provision in the Federal Court. It is a matter of frequent and long-standing practice that Court orders shall be made peremptory in situations which require that such an instruction be attached to an order. Some situations require that the Court be able to give its orders all the necessary compulsive force and, in my opinion, the Court certainly has the authority and power to act in this way.
[20] As to factual justifications that might explain the non-payment of the costs awarded in the February 5 and May 6 orders, only para. 4(f) of a signed statement (not a sworn affidavit) by a collection officer acting for the plaintiffs, and paras. 5 and 6 of a signed statement (not a sworn affidavit) by counsel for the plaintiffs deal with this aspect of the matter.
[21] These paragraphs, which we set out below, offer few if any details about any efforts made by the plaintiffs since February 5, or even following Rouleau J.'s May 6 order, to see that the costs were paid on time, that is on or before June 5, 2002. Moreover, although the defendant caused the motion at bar to be served on June 18, 2002, the paragraphs set out below clearly indicate by their lack of particulars that the plaintiffs' efforts to have the costs paid were not made until about July 3, 2002, mainly in order to avoid having the motion at bar filed on July 8, 2002.
[22] In fact, it may well be asked here whether, if it had not been for the defendant's motion served on June 18, 2002, the plaintiffs would have concerned themselves with the costs in the near future.
[23] The paragraphs below in my view indicate a clear lack of attention, or worse, to the February 5 and May 6 orders. The paragraphs in question and the paragraph introducing each of the statements read as follows:
I, Stephen Spicer, of the City and State of New York, United States of America, solemnly declare:
1. I am the Recovery Agent of TMCA and, as such, I am authorized to act on plaintiffs' behalf in this action;
2. I make this affidavit in reply to the affidavit of Mr. Darren McGuire dated June 18, 2002 which is being filed in support of the motion by Canada Maritime Limited to dismiss this action;
. . . . .
4. f) On behalf of plaintiffs, I have contacted the underwriters of the plaintiff Angloflora Limited and it has been confirmed to me that the costs that are due will be paid within twenty (20) days from today;
I, the undersigned, J. Kenrick Sproule, practicing my profession as a lawyer with the firm The Law Offices of J. Kenrick Sproule, situated at 1250 René-Lévesque Blvd. West, Suite 4345, in the City and District of Montreal, Province of Quebec, solemnly declare:
1. I am one of the attorneys of record for the plaintiffs and, as such, I am authorized to act on plaintiffs' behalf in this action;
2. I file this affidavit having read the Motion Record for a Dismissal Order filed by the defendant Canada Maritime Limited. In particular, I have read the affidavit in support thereof filed by Darren McGuire and respond as follows;
. . . . .
5. I have personally spoken with Mr. De Groot of Nieberding Verzekeringen BV, which is the underwriting agency of Angloflora Limited, and have been assured that the costs in the amount of three thousand five hundred dollars ($3,500) shall be paid. The reason for the delay in obtaining this confirmation is that Nieberding Verzekeringen BV is an underwriting agency and must obtain confirmation and instructions in respect of the payment of costs, not only from Angloflora Limited but also from underwriters of concern. Nonetheless, confirmation of payment has been given and this has been communicated to Mr. McGuire;
6. I communicated with Mr. McGuire on Wednesday, July 3, 2002 that I would seek instructions for plaintiffs to pay the costs within twenty (20) days and to satisfy the undertakings by July 5, 2002 and asked Mr. McGuire to obtain instructions to withdraw the dismissal motion. Confirmation of these instructions to Mr. McGuire was given on the morning of July 4, 2002 by my e-mail which stated that the underwriters of Angloflora have undertaken to pay the costs and that the majority of the answers to the undertakings will be provided on July 4 & 5, 2002. Mr. McGuire was also asked to advise if his client was prepared to withdraw the motion in light of the confirmation of payment of costs and in light of the answers to undertakings being furnished. Mr. McGuire has responded that Canada Maritime Limited will not withdraw its motion . . .
[24] I accordingly conclude that the plaintiffs have not put forward persuasive reasons in their objection to the motion at bar to prevent the Court giving effect to the letter and spirit of the May 6 order.
[25] In my opinion, therefore, the Court may stop its consideration of the motion at this point so it can give effect to its principal argument and make an order striking the plaintiffs' action, as a consequence of and in accordance with the fact that para. 17 of this Court's May 6 order has not been complied with.
[26] Even if the Court were to proceed with its analysis and examine the situation of the undertakings (23 in number) which had to be carried out for April 26, 2002, in fact late April 2002 in view of the postponement for a few days of the examination for discovery of the plaintiffs' representative, our review of the statements submitted by the plaintiffs in opposition to the motion at bar would lead us to conclude that in accordance with and on the basis of the rules stated in Ferrostaal Metals Ltd. et al. v. Evdomon Corp. et al. (2000), 181 F.T.R. 265, what was done by the plaintiffs in respect of the undertakings must be regarded as "too little too late". In the circumstances of the case at bar, the undertakings which were still not carried out in late April 2002, indeed on July 4 or even at the date the motion at bar was heard, are an additional reason which is in itself a sufficient basis to dismiss the plaintiffs' action for delay.
[27] An order will accordingly be made, accompanied by an award of $2,000 costs to the defendant on the motion at bar.
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Richard Morneau
Prothonotary
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Montréal, Quebec
September 10, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
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FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020910
Docket : T-1554-99
Action in rem and in personam in admiralty
Between:
ANGLOFLORA LIMITED,
K. VAN BOURGONDIEN & SONS INC.
and
ALL OTHERS HAVING AN INTEREST
IN THE CARGO LADEN ON BOARD
THE VESSEL "CAST ELK" PURSUANT TO
BILLS OF LADING NOS. ELK157RT3249
AND ELK157RT3251 BOTH DATED AUGUST 28, 1998
Plaintiffs
and
CANADA MARITIME LIMITED,
CANADA MARITIME LIMITED (BERMUDA),
THE OWNERS AND ALL OTHERS
INTERESTED IN THE VESSEL "CAST ELK",
THE VESSEL "CAST ELK",
THE OWNERS AND ALL OTHERS
INTERESTED IN THE VESSEL "CAST PERFORMANCE",
THE VESSEL "CAST PERFORMANCE",
THE OWNERS AND ALL OTHERS
INTERESTED IN THE VESSEL "CAST POWER",
THE VESSEL "CAST POWER",
THE OWNERS AND ALL OTHERS
INTERESTED IN THE VESSEL "CAST PRIVILEGE"
and
THE VESSEL "CAST PRIVILEGE"
Defendants
REASONS FOR ORDER
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FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: T-1554-99
STYLE OF CAUSE: Action in rem and in personam in admiralty
Between:
ANGLOFLORA LIMITED,
K. VAN BOURGONDIEN & SONS INC.
and
ALL OTHERS HAVING AN INTEREST
IN THE CARGO LADEN ON BOARD
THE VESSEL "CAST ELK" PURSUANT TO
BILLS OF LADING NOS. ELK157RT3249
AND ELK157RT3251 BOTH DATED AUGUST 28, 1998
Plaintiffs
and
CANADA MARITIME LIMITED,
CANADA MARITIME LIMITED (BERMUDA),
THE OWNERS AND ALL OTHERS
INTERESTED IN THE VESSEL "CAST ELK",
THE VESSEL "CAST ELK",
THE OWNERS AND ALL OTHERS
INTERESTED IN THE VESSEL "CAST PERFORMANCE",
THE VESSEL "CAST PERFORMANCE",
THE OWNERS AND ALL OTHERS
INTERESTED IN THE VESSEL "CAST POWER",
THE VESSEL "CAST POWER",
THE OWNERS AND ALL OTHERS
INTERESTED IN THE VESSEL "CAST PRIVILEGE"
and
THE VESSEL "CAST PRIVILEGE"
Defendants
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: July 8, 2002
REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY
DATED: September 10, 2002
APPEARANCES:
J. Kenrick Sproule for the plaintiffs
Darren McGuire for the defendants
SOLICITORS OF RECORD:
Law Offices of J. Kenrick Sproule for the plaintiffs
Montréal, Quebec
Borden, Ladner, Gervais for the defendants
Montréal, Quebec
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