Date: 19990402
Dossier: T-1041-95
| AN ACTION IN REM AGAINST THE SHIP "KRISTINA LOGOS", ULYBEL ENTERPRISES LIMITED, JOSE PRATAS, and THE OWNERS, CHARTERERS AND OTHERS INTERESTED IN THE SHIP "KRISTINA LOGOS" |
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BETWEEN:
MARIO NEVES AND CARLOS NEVES
Plaintiffs
AND
THE SHIP "KRISTINA LOGOS",
ULYBEL ENTERPRISES LIMITED,
JOSE PRATAS, and THE OWNERS,
CHARTERERS AND OTHERS INTERESTED
IN THE SHIP "KRISTINA LOGOS"
Defendants
AND
HER MAJESTY THE QUEEN
Intervenor
REASONS FOR ORDER
RICHARD MORNEAU, ESQ., PROTHONOTARY
[1] This motion by Her Majesty the Queen in her capacity as claimant is for an order striking out several paragraphs or parts thereof of the affidavit of a José Pratas filed by the Defendants further to the order of this Court dated December 19, 1997.
[2] That order required that all claimants to the proceeds of the sale of the Kristina Logos file affidavits in support of their claims, including affidavits by experts advancing proof of any foreign law relied upon.
[3] With the exception of paragraph 27 and part of paragraph 34, a perusal of the impugned paragraphs reveals that they all make legal arguments by interpreting the law or drawing conclusions of law. Admittedly this is unacceptable and contrary to the provisions of rule 332(1) of the Federal Court Rules (the rules).
[4] During the hearing of the motion at bar, counsel for the Defendants admitted that impugned paragraphs 12, 16, 26, 33 and 35 could be amended to comply with rule 332(1). Therefore, these paragraphs or parts thereof shall be ordered struck out.
[5] Impugned paragraphs 15, 24 and 25 should be subjected to a similar fate. Although counsel for Her Majesty the Queen has not established any specific prejudice if these paragraphs were to remain, I am of the view in the present circumstances that an element of prejudice is nevertheless present here in that the economy of rule 332(1) has been repeatedly ignored.
[6] As for paragraph 27, I am of the view that the two sentences contained therein are principally, if not solely, expressions of material facts. That paragraph shall not be ordered struck out.
[7] In the case of paragraph 34, considering that counsel for the moving party did not object to its first sentence, I do not believe that it would be appropriate to order the second sentence struck out as the latter is only an expansion of the first sentence.
[8] I shall allow the Defendants twenty (20) days from the date of the disposition of this motion to file and serve an amended affidavit conforming to the rules.
[9] Costs on this motion shall be in the cause.
Richard Morneau
Prothonotary
MONTREAL, QUEBEC
April 2, 1998
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.:
STYLE OF CAUSE:
T-1041-95
MARIO NEVES AND CARLOS NEVES
Plaintiffs
AND
THE SHIP "KRISTINA LOGOS", ULYBEL ENTERPRISES LIMITED, JOSE PRATAS, and THE OWNERS, CHARTERERS AND OTHERS INTERESTED IN THE SHIP "KRISTINA LOGOS"
Defendants
AND
HER MAJESTY THE QUEEN
Intervenor
PLACE OF HEARING BY TELECONFERENCE:Montreal, Quebec
DATE OF TELECONFERENCE:March 26, 1998
REASONS FOR ORDER BY RICHARD MORNEAU, ESQ., PROTHONOTARY
DATE OF REASONS FOR ORDER:April 2, 1998
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| APPEARANCES:
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| Mr. Richard F. Southcott/Mr. John D. Murphy
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for the Plaintiffs
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| Mr. John R. Sinnott
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for Defendants Ulybel Enterprises Ltd. and Jose Pratas
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| Ms. Danièle Dion
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for the Intervenor
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| Mr. Thomas E. Hart
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for Claimant Clearwater Atlantic Seafoods Inc.
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SOLICITORS OF RECORD:
| Mr. Richard F. Southcott/Mr. John D. Murphy
Stewart McKelvey Stirling Scales
Halifax, Nova Scotia
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for the Plaintiffs
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| Mr. John R. Sinnott
Lewis, Sinnott, Shortall, Hurley
St. John's, Newfoundland
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for Defendants Ulybel Enterprises Ltd. and Jose Pratas
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| Me Danièle Dion
Brisset Bishop
Montreal, Quebec
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for the Intervenor
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| Mr Thomas E. Hart
McInner Cooper & Robertson
Halifax, Nova Scotia
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for Claimant Clearwater Atlantic Seafoods Inc.
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