Shipdock Amsterdam B.V. v. Cast Group Inc., docket T-485-99

Date: 19991125

Docket: T-485-99

Admiralty action in personam

BETWEEN:

SHIPDOCK AMSTERDAM B.V.

Plaintiff

-and-

THE CAST GROUP INC. and CAST (1983) LIMITED

and CAST MANAGEMENT LIMITED and

THE ROYAL BANK OF CANADA and

PRICE WATERHOUSE COOPERS and FASKEN,

CAMPBELL, GODFREY and RICHARDS HOGG

LINDLEY and AON REED STENHOUSE and

M.J. OPPENHEIM IN HIS QUALITY AS

ATTORNEY IN FACT IN CANADA FOR UNDERWRITERS,

MEMBERS OF LLOYD'S, LONDON, ENGLAND

Defendants

     REASONS FOR ORDER AND ORDER

LAFRENIÈRE P.:

[1]      The present motion dated November 12, 1999 is brought by the Defendant Royal Bank for a stay or adjourn a summary judgment motion filed by the Plaintiff against the said Defendant until disposition of a pending motion for security for costs. The relief sought by the Defendant is as follows:

1.      An Order that the Plaintiff's motion for Summary Judgment against The Royal Bank of Canada ("Royal Bank") be stayed or adjourned pending the disposition of the motion for security for costs previously brought by Royal Bank and PriceWaterhouseCoopers LLP ("PriceWaterhouseCoopers");

2.      Further, Orders that the time for the Royal Bank to deliver responding materials in relation to the Summary Judgment motion be extended accordingly, and that a timetable be fixed for the hearing of the Plaintiff's Summary Judgment motion after the security for costs motion is disposed of;

3.      An Order that the security for costs motion brought by Royal Bank and PriceWaterhouseCoopers proceed on November 22, 1999, pre-emptory of the Plaintiff, or at another date agreed upon by the parties to the motion;

4.      An Order abridging the time to serve and file the within Motion Record, if necessary;

5.      Its costs of this motion in an amount to be fixed by the Judge hearing the motion and payable by the Plaintiff forthwith or, in the alternative, payable forthwith after assessment; and

6.      Such further and other relief as counsel may advise and to this Court seems just.

[2]      By way of background, on October 12, 1999 two Defendants, the Royal Bank of Canada and PriceWaterhouseCoopers, brought a motion for security for costs pursuant to Rule 416 of the Federal Court Rules, 1998. The motion, which included a request for a stay of the proceedings pending payment of security for costs, was made returnable on October 25, 1999. At the request of the Plaintiff, the matter was adjourned on consent to November 22, 1999.

[3]      On November 2, 1999, the Plaintiff filed a motion for summary judgment against the Defendant Royal Bank. This motion was made returnable on the same day the motion for security for costs was scheduled to be heard. The Defendant Royal Bank sought the Plaintiff"s consent to adjourn the summary judgment motion until disposition of its motion for security, which was refused.

[4]      The Defendant Royal Bank objects to the Plaintiff"s motion being scheduled before disposition of its motion for security for costs. Otherwise, it is submitted, the Defendant will be prejudiced by having to incur substantial costs in responding to the summary judgment motion without any means to enforce a costs order should the motion be dismissed. As such, the objective of Rule 416, and in particular Rule 416(3), would be frustrated.

[5]      The Defendant Royal Bank sought short leave to bring the present motion on November 15, 1999. The Plaintiff refused to provide its consent. On November 15, 1999, during a hearing by teleconference, counsel for the Plaintiff advised the Court that it was his intention to file responding materials in opposition to the present motion. Consequently, the motion was adjourned one week to allow the Plaintiff an opportunity to respond. In addition, the two motions scheduled for November 22 were ordered adjourned pending disposition of the present motion.

[6]      The Plaintiff submits that the Defendants" motion for security for costs is an abuse of process and that delaying its summary judgment motion will lead to a further injustice. The Plaintiff also contends that nothing in the Federal Court Rules, 1998 prevents two motions from being heard together or consecutively.

[7]      Notwithstanding the able arguments of counsel for the Plaintiff, I am satisfied that there are compelling reasons to grant the relief requested by the Defendant Royal Bank. It seems logical that a matter properly before the Court should not be defeated by a subsequent step taken by another party. In Bruce v. John Northway & Son Ltd. ©1962ª O.W.N. 150, the Senior Master stated the general rule as follows at page 151:

After service of a notice of motion, as a general rule, any act done by any party affected by the application which affects the rights of the parties on the pending motion will be ignored by the Court. In Preston v. Tunbridge Wells Opera House, [1903] 2 Ch. 323, Farwell, J., said at p. 325

It is due to the exigencies of the business of the Courts that an application cannot be heard the moment it is made.

[8]      The learned Master went on to say:

In that case it was held that the right of the first mortgagee to rents was to be determined as of the date of the service of the notice of motion and not as of the date the application was heard. In Holmested, 5th ed., p. 837 citing this case it is stated

The rights of an appellant [applicant?] cannot be prejudiced by anything done after the notice of motion has been served, but his rights are to be determined as they existed at the date of its service.

This appears to me to correctly state the practice. This principle is illustrated by the situation where a defendant serves a notice of motion to dismiss an action for want of prosecution and subsequent thereto and prior to the hearing of the application the plaintiff files and serves notice of discontinuance. In these circumstances it was held in Campbell v. Sterling Trust Corp., [1948] O.W.N. 557 that the defendant"s right was not abrogated by the subsequent notice of discontinuance.

[9]      The Plaintiff"s argument that the Defendants" motion for security for costs is an abuse of process should properly be advanced at the hearing of that motion. I agree with the submission of counsel for the Defendant Royal Bank that it would be unjust to allow the Plaintiff to defeat the moving party"s rights, particularly in the present circumstances where the hearing of the motion for security for costs was delayed at the request of the Plaintiff.

ORDER

[10]      The security for costs motion brought by Royal Bank of Canada and PriceWaterhouseCoopers LLP is adjourned to December 6, 1999, at 9:30 a.m.

[11]      The Plaintiff shall serve and file its responding record for the security for costs motion no later than 2:00 p.m. on November 29, 1999.

[12]      The Plaintiff"s motion for Summary Judgment against The Royal Bank of Canada shall be and hereby is stayed pending the disposition of the security for costs motion brought by Royal Bank of Canada and PriceWaterhouseCoopers LLP. A timetable for the Summary Judgment motion shall be fixed after the disposition of the security for costs motion.                 

[13]      The costs of this motion are costs to Royal Bank of Canada in the cause, fixed in the amount of $1,000.00.                     

                                 "Roger R. Lafrenière"

     __________________________

                                     Prothonotary

Toronto, Ontario

November 25, 1999

FEDERAL COURT OF CANADA

                                     Names of Counsel and Solicitors of Record

COURT NO:                          T-485-99

STYLE OF CAUSE:                      SHIPDOCK AMSTERDAM B.V.

- and -

THE CAST GROUP INC. and CAST (1983) LIMITED and CAST MANAGEMENT LIMITED and THE ROYAL BANK OF CANADA and PRICE WATERHOUSE COOPERS and FASKEN, CAMPBELL, GODFREY and RICHARDS HOGG LINDLEY and AON REED STENHOUSE and M.J. OPPENHEIM IN HIS QUALITY AS ATTORNEY IN

FACT IN CANADA FOR UNDERWRITERS, MEMBERS

                             OF LLOYD'S, LONDON, ENGLAND

                            

DATE OF HEARING:                  MONDAY, NOVEMBER 22, 1999

PLACE OF HEARING:                  TORONTO, ONTARIO

REASONS FOR ORDER AND ORDER BY:      LAFRENIÈRE P.

DATED:                          THURSDAY, NOVEMBER 25, 1999

APPEARANCES:                      Mr. Jonathan Marler

                                 For the Plaintiff

                             Mr. T. Anthony Ball

                                

                                 For the Defendants

                                 The Royal Bank of Canada and

                                 PricewaterhouseCoopers

        

REASONS FOR ORDER AND ORDER BY:      LAFRENIÈRE P.

DATED:                          THURSDAY, NOVEMBER 25, 1999

        

SOLICITORS OF RECORD:              Marler & Kyle                                          Barristers and Solicitors

                             86 Chisholm Street

                             Oakville, Ontario

                             L6K 3H7

                                 For the Plaintiff

                             Fasken Campbell Godfrey

                             Barristers and Solicitors

                             P.O. Box 20

                             Toronto Dominion Bank Tower

                             Toronto-Dominion Centre

                             Toronto, Ontario

                             M5K 1N6

For the Defendant

                                 The moving party,

                                 The Royal Bank of Canada

                             

                            

                             FEDERAL COURT OF CANADA

                                 Date:19991125

                        

         Docket: T-485-99

                             Between:

SHIPDOCK AMSTERDAM B.V.

                                     Plaintiff

                             - and -             

THE CAST GROUP INC. and CAST (1983) LIMITED

and CAST MANAGEMENT LIMITED and THE ROYAL BANK OF CANADA and PRICE WATERHOUSE COOPERS and FASKEN, CAMPBELL, GODFREY and RICHARDS HOGG LINDLEY and AON REED STENHOUSE and

M.J. OPPENHEIM IN HIS QUALITY                              AS ATTORNEY IN FACT IN CANADA FOR UNDERWRITERS, MEMBERS

                             OF LLOYD'S, LONDON, ENGLAND

                    

     Defendants

            

                            

        

REASONS FOR ORDER

                                 AND ORDER