Canada Maritime Ltd. v. Amut S.p.A., 2002 FCA 122

Date: 20020326

Docket: A-743-01

Neutral citation: 2002 FCA 122

CORAM:        NOËL J.A.

BETWEEN:

                                                                        AMUT S.p.A.

- and -

ROYAL FLEX LOX PIPE LIMITED

- and -

UNIFREIGHT ITALIA Srl.

- and -

UNIFREIGHT INTERNATIONAL LTD.

- and -

ALL THOSE PERSONS HAVING AN INTEREST IN THE

CARGO LADEN ON BOARD THE VESSEL "CANMAR CONQUEST"

                                                                                                                                                        Plaintiffs

                                                                                 and

                                                         CANADA MARITIME LTD.

- and -

THE OWNERS AND CHARTERERS OF THE

VESSEL "CANMAR CONQUEST"

- and -

THE VESSEL "CANMAR CONQUEST"

                                                                                                                                                    Defendants

                                           Dealt with in writing without appearance of parties.

                                     Order delivered at Ottawa, Ontario, on March 26, 2002.

REASONS FOR ORDER:                                                                                                         NOËL J.A.

Date: 20020326

Docket: A-743-01

Neutral citation: 2002 FCA 122

CORAM:        NOËL J.A.

BETWEEN:

                                                                        AMUT S.p.A.

- and -

ROYAL FLEX LOX PIPE LIMITED

- and -

UNIFREIGHT ITALIA Srl.

- and -

UNIFREIGHT INTERNATIONAL LTD.

- and -

ALL THOSE PERSONS HAVING AN INTEREST IN THE

CARGO LADEN ON BOARD THE VESSEL "CANMAR CONQUEST"

                                                                                                                                                        Plaintiffs

                                                                                 and

                                                         CANADA MARITIME LTD.

- and -

THE OWNERS AND CHARTERERS OF THE

VESSEL "CANMAR CONQUEST"

- and -

THE VESSEL "CANMAR CONQUEST"

                                                                                                                                                    Defendants

                                                            REASONS FOR ORDER

NOËL J.A.

[1]                 The defendants have appealed an interlocutory order issued by Nadon J. and one of them (Canada Maritime Ltd.) is now seeking a stay of that order pending the disposition of the appeal.

[2]                 By a prior decision issued on November 22, 2001, Teitelbaum J. ordered the plaintiff Amut S.p.A. to make a representative available to be examined on discovery by December 14, 2001. The order provided that failure to comply would result in "the action [being] dismissed ... without further notice".

[3]                 Upon a further motion brought by Amut S.p.A., Nadon J. extended the time within which the examination was to be conducted to January 11, 2002 on the following terms:

The January 11, 2002 date is peremptory. No further delay will be allowed. I will remain seized of this matter pending completion of the defendants' examination... .

[4]                 The application for a stay was initially made returnable before Nadon J. He declined to deal with it because by virtue of Rule 398(1)(b) of the Federal Court Rules, 1998, only a Judge of the Appeal Division has the jurisdiction to issue a stay pending the disposition of an appeal before that Division. Counsel for the defendant asked that the application be transferred to the Appeal Division in the form in which it was originally framed so that it may be considered and disposed of by a Judge of that Division (this explains the style of cause).

[5]                 The time for complying with the order of Nadon J. has now passed so that the issue before me is whether this order ought to be stayed pending the appeal or whether the parties should go back before Nadon J. for further adjudication in conformity with the order that he gave. I note in passing that Nadon J. remains an ex officio member of the Trial Division despite his recent elevation.

[6]                 The only argument made in support of the grant of a stay is that the appeal from the order of Nadon J. will become moot ("pointless") in the absence of the issuance of a stay and irreparable harm will presumably result. However, the record does not support this contention.

[7]                 The issue raised by the appeal is whether by virtue of the order of Teitelbaum J., "the Federal Court Trial Division [and specifically Nadon J.] was functus officio and without jurisdiction" to render the decision under appeal (paragraph 2 of Notice of Appeal). If so, the action stands to be dismissed in conformity with the terms of the order of Teitelbaum J.

[8]                 From the defendants' perspective, I fail to see how this issue is at risk of becoming moot and how irreparable harm can possibly result if a stay is not granted. It is apparent that should Nadon J. allow the action to continue, the defendants will remain at liberty to pursue their appeal and seek the reversal of his earlier order on the stated grounds.

[9]                 The application will accordingly be dismissed.

             "Marc Noël"                       

J.A.

FEDERAL COURT OF CANADA

APPEAL DIVISION

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NO.:A-743-01

STYLE OF CAUSE:AMUT S.p.A. ET AL v. CANADA MARITIME LTD. ET AL

MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCES OF PARTIES

REASONS FOR ORDER BY:NOËL J.A.

DATED:MARCH 26, 2002

WRITTEN REPRESENTATIONS BY:

MR. P. JEREMY BOLGER.FOR THE RESPONDENTS

SOLICITORS OF RECORD:

SPROULE & POLLACKFOR THE APPELLANTS

MONTREAL, QUEBEC

BORDEN LADNER GERVAIS LLPFOR THE RESPONDENTS

MONTREAL, QUEBEC