Date: 20011002
Docket: A-554-01
Neutral citation: 2001 FCA 291
Present: EVANS J.A.
Admiralty Action in rem
BETWEEN:
THE OWNERS AND ALL OTHERS INTERESTED IN THE SHIP
M.V. ‘ZODIO', EX ‘ANTIGONOS'
Defendant - Appellant
and
HUDSON BAY PORT COMPANY
and
THE OWNERS AND ALL OTHERS INTERESTED IN HER CARGO OF
26,643 METRIC TONNES OF WHEAT LADEN THEREON
OR
EX THE SHIP
Plaintiff/Defendant - Respondents
Heard at Ottawa, Ontario, on October 2, 2001.
Order delivered from the Bench at Ottawa, Ontario, on October 2, 2001.
REASONS FOR ORDER BY: EVANS J.A.
Date: 20011002
Docket: A-554-01
Neutral citation: 2001 FCA 291
Present: EVANS J.A.
Admiralty Action in rem
BETWEEN:
THE OWNERS AND ALL OTHERS INTERESTED IN THE SHIP
M.V. ‘ZODIO', EX ‘ANTIGONOS'
Defendant - Appellant
and
HUDSON BAY PORT COMPANY
and
THE OWNERS AND ALL OTHERS INTERESTED IN HER CARGO OF
26,643 METRIC TONNES OF WHEAT LADEN THEREON
OR
EX THE SHIP
Plaintiff/Defendant - Respondents
REASONS FOR ORDER
(Delivered from the Bench at Ottawa, Ontario
on October 2, 2001.)
EVANS J.A.
[1] This is a motion by the appellant to stay interlocutory orders of O'Keefe J., dated September 17 and 20, 2001, pending the disposition of its appeal against those orders. The orders in question relate to the taking of commission evidence, the inspection of a ship and its equipment, and a refusal to order the sealing of such evidence pending a ruling upon their relevance by the Trial Judge. Counsel's objection before O'Keefe J. had been that the scope of the evidence and the inspection went well beyond the issues raised by the respondent's statement of claim. In effect, the appellant is asking me to order the sealing of the commission evidence and the inspection report until its appeal is determined.
[2] In order to obtain a stay, an appellant must satisfy the familiar three-part test applied with respect to interlocutory injunctions: the existence of an arguable issue to be determined on appeal; the prospect of irreparable harm if the order is not stayed; and a balance of convenience in favour of a stay.
[3] In my opinion, the appellant has not demonstrated an arguable issue, even though this is a fairly low hurdle to cross. In neither the written, nor oral submissions made on its behalf did counsel identify any error in O'Keefe J.'s discretionary order that would entitle this Court to allow the appeal. In the absence of any clearly demonstrated error of law or palpable error of fact, the Court is very reluctant to interfere with the exercise of discretion by a Motions Judge when making an interlocutory order.
[4] Despite is earlier position that the commission evidence and inspection report were irrelevant because the respondent's statement of claim was restricted to a claim for salvage, counsel conceded that the claim was wider than this, and that the evidence in question was not manifestly irrelevant to the respondent's claim for the damage caused to its facilities by the appellant's ship. I would also add that, while not unknown, sealing orders are highly unusual outside certain well-known situations, of which the case before me is not one. Hence, the appellant would have a heavy burden to discharge on the appeal, and I see no basis upon which it could expect to succeed in discharging it.
[5] For these reasons, the motion will be dismissed with costs payable by the appellant in any event. The respondents are entitled to $2,500.00 in respect of the expenses incurred by their expert, and to $1,500.00 each in costs. The appellant shall also pay $700.00 in costs to the "mis-en-cause".
"John M. Evans"
J.A.
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