Date: 20040514
Docket: T-1943-02
Citation: 2004 FC 701
OTTAWA, ONTARIO, THIS 14TH DAY OF MAY, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
ADMIRALTY ACTION IN REM AND IN PERSONAM
BETWEEN:
PRECISION DRILLING INTERNATIONAL, B.V.
and PRECISION LIMITED PARTNERSHIP
Plaintiffs
- and -
THE OWNERS AND ALL OTHERS INTERESTED IN
THE SHIP "BBC JAPAN", AQUARIUS SHIPPING CO. LTD.,
BRIESE SCHIFFAHRTS GMBH & CO. KG,
BBC CHARTERING & LOGISTIC GMBH & CO. KG,
ARGOSY SHIPPING (U.S.A.), LP,
BBC (U.S.A.), LP, and
LOGISTEC STEVEDORING (ATLANTIC) INC.
Defendants
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] On November 19, 2002, the Plaintiffs filed a Statement of Claim with this Court in respect of alleged damage to its cargo during shipping. The named Defendants included the alleged Charterers (BBC Chartering & Logistic GmbH & Co. KG, Argosy Shipping (U.S.A.), LP, and BBC (U.S.A.), LP) and Owners of the ship (Aquarius Shipping Co. Ltd. and Briese Shiffahrts GmbH & Co. KG), as well as the Stevedoring Company (Logistec Stevedoring (Atlantic) Inc.) that allegedly handled the cargo in question. In February, 2003, statements of defence were filed. This action has been discontinued against Argosy Shipping (U.S.A.), LP. No further proceedings have taken place since then.
[2] The Plaintiffs were served with a notice of status review dated December 16, 2003, once nearly 360 days had passed since their Statement of Claim was filed. The notice indicated that, at the status review, they would be required to show cause why their action should not be dismissed for delay. The Plaintiffs' written representations dated January 9, 2004, consisted of a short letter. In it, the Plaintiffs stated that the matter had not proceeded because they were engaged in settlement discussions with the Charterers of the vessel. The Plaintiffs asked the Court to suspend the matter for a few months to enable them to conclude these discussions. Counsel for the Owners and counsel for the Stevedoring Company both objected to this, claiming that they had not been apprised of any alleged discussions, had not consented to the delay and were still waiting for specific correspondence from the Plaintiffs who failed to respond to their inquiries.
[3] By decision dated March 11, 2004, the Prothonotary ordered that the Plaintiffs' action be dismissed for delay. The basis for her order was her finding that the Plaintiffs had failed to meet either aspect of the test in Baroud v. Canada (1998), 160 F.T.R. 91. The Plaintiffs seek an order from this Court reversing the Prothonotary's decision.
Issues
[4] In determining whether the decision of the Prothonotary ought to be reversed, I must address two issues:
1. Is the question raised in this motion vital to the final issue and hence one where I should exercise my discretion de novo?
2. If so, should this action be dismissed for delay?
Analysis
[5] For the reasons that follow, I am satisfied, exercising my discretion de novo, that this proceeding should continue.
Issue #1: Is the question raised in this motion vital to the final issue and hence one where I should exercise my discretion de novo?
[6] Federal Court Rule 51 provides that an order of a prothonotary may be appealed on motion to a judge. The order in question was a discretionary one. It is well established that such orders may not be set aside unless they raise issues vital to the final determination of the case, or are clearly wrong in that the discretion was exercised upon a wrong principle or upon a misapprehension of the facts (Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.), Z.I. Pompey Industrie v. Ecu - Line N.V. (2003), 224 D.L.R. (4th) 577 (S.C.C.), Merck & Co. v. Apotex Inc., [2003] F.C.J. No. 1925 (C.A.) (QL)). As the test was recently restated in Merck, supra, the first step in the appeal analysis is to determine whether the order in question was final to the determination of the issue. If it is, the discretion of the judge should be exercised de novo.
[7] The Prothonotary's decision in this case was final. As stated by my colleague, Justice Harrington, recently, "Nothing can be more final than a dismissal of an action" (Interbox Promotion Corp. v. 9073-0433 Québec Inc. et al (c.o.b. Bar Café Goodfellas), [2004] F.C.J. No. 151 (F.C.) (QL)). Accordingly, it is appropriate that I exercise my discretion as though the decision of the Prothonotary had not been taken.
[8] The Owners and Logistec, in response to this motion, submit than, even on a de novo basis, the record upon which I should take my decision is the same record that was before the Prothonotary (Dawe v. Canada (2002), 220 F.T.R. 91, James River Corp. v. Hallmark Cards, Inc. (1997), 126 F.T.R. 1). Accordingly, these parties urge me to disregard a large number of the exhibits filed by the Plaintiffs in deciding on the merits of the application.
[9] Generally, an appellant is not permitted to augment the record that was before the deciding Prothonotary. However, having read the authorities referred to by the Owners, I do not find them helpful to my analysis in this case. With respect to Dawe, supra, the only reference to this principle in that case was in a summary of positions of parties; it does not stand for the proposition stated. In James River, supra, there are two significant distinguishing features. Firstly, the prothonotary's decision in that case was not vital to the case; the judge was dealing with a series of decisions made by a prothonotary on discovery question responses. Secondly, the material sought to be added to the appeal record was evidence, the lack of which formed the basis of the prothonotary's decision. In this case, none of the exhibits formed the basis upon which the Prothonotary's Order was made. A number of the exhibits relate to the Plaintiffs' submission that discussions were ongoing. If the Prothonotary had reached her conclusion on the basis that the Plaintiffs had not provided evidence that negotiations were ongoing, the additional evidence may have fallen into the James River, supra reasoning. However, that was not the case here. Although the Prothonotary questioned the extent of the negotiations and the communication with other parties of the existence of those negotiations, she accepted that settlement discussions were ongoing with at least certain of the parties.
[10] The exhibits to the affidavit in this application do no more than provide more detailed explanation of the communications that were referred to in the Plaintiffs' brief submissions on the status review. I am prepared to accept them in this case.
Issue #2: Should this action be dismissed for delay?
[11] As was correctly stated by the Prothonotary, Baroud, supra teaches us that two questions must be addressed by the Court in deciding whether an action should be dismissed for delay. Those questions are:
1. What are the reasons why the case has not moved forward faster, and do they justify the delay that has occurred?
2. What steps are proposed to move this matter forward?
[12] Given the draconian effects of dismissing a claim for delay, I believe that it would be appropriate to focus on the overall interests of justice in the case and not to be overly concerned with minor omissions or procedural defects. The overarching concern should be whether the Plaintiffs recognize their responsibility to move this action along and are taking steps to do so. In my view, the Baroud questions are simply posed to address this concern and should not be applied in a manner that ignores this broader question. Thus, as I look at these two questions in the context of these particular facts, I would take a liberal approach to this analysis.
Reasons for the delay
[13] In the original response to the notice of status review, counsel for the Plaintiffs stated that the Plaintiffs "have had ongoing discussions with representatives of the charterer's interest and are optimistic that this matter will be resolved without further advancement of the litigation". This was the only reason offered for the delay. I am satisfied that the Plaintiffs were engaged in settlement negotiations with at least some of the Defendants.
[14] There a number of defendants in this action, thereby making settlement attempts more difficult. In contrast, there was only one plaintiff and one defendant in Baroud, supra. The Plaintiffs chose to focus their efforts on one set of Defendants. While this does not excuse the Plaintiffs' poor form in failing to communicate with other parties or all of the counsel involved, their approach to avoiding litigation is not unreasonable.
[15] Accordingly, while I would have preferred a better explanation of the delay, and while the behaviour of the Plaintiffs towards parties to this litigation could have been more professional, based on the record before me, I am satisfied that there are reasons why this action has not moved more quickly and that those reasons justify the delay in this case.
[16] I also note that the delay in this cargo claim case has been only several months and not several years as was the situation in a number of the cases referred to by the Respondents to this motion. In Baroud, supra, the delay was almost two years during which nothing at all had happened. In Alza Corp. v. Apotex Inc., [1998] F.C.J. No. 962 (T.D.) (QL), the delay was two years and there had been a number of interventions of the Court in attempts to move the litigation forward. Other cases referred to had even longer delays (Jazz Inspiration Ltd. v. Canada (Attorney General), [1995] F.C.J. No. 1134 (T.D.) (QL), (2 yrs.); Ahmad v. Canada, [1994] F.C.J. No. 1734 (T.D.) (QL) (2.5 yrs.); Mutlibond Inc. v. Durocoat Powder Manufacturing Inc. (1999), 177 F.T.R. 226 (4 yrs.); Transalta Utilities Corp. v. Canada (2000), 180 F.T.R. 303 (9 yrs.)).
[17] The Respondents to this motion were unable to provide me with any jurisprudence of this Court where a delay of this brief duration resulted in a dismissal on a status review, except in situations where no response whatsoever was filed by the plaintiffs or where there had been ongoing series of court involvement in the file.
Steps proposed to move action forward
[18] The Plaintiffs did not propose a timetable or outline steps for moving this action forward. However, they did request that the Court "set this matter over for a few months to allow us the opportunity to finalize the arrangements". Although, this is a rather vague statement, it is a reasonable response given the stage of the litigation. Why should the Court insist that the litigants prepare some artificial set of dates when the parties are involved in meaningful negotiations that could obviate any and all further steps?
Conclusion
[19] It is my view that the Plaintiffs have demonstrated a recognition of their responsibility to move this action along. In these circumstances it would not be appropriate for the Court to dismiss the claim.
[20] However, I would add that the Court may not be as accommodating on a further status review, if required. It is now incumbent on the Plaintiffs to take all reasonable steps, in full compliance with the Federal Court Rules and involving all parties to the litigation, to ensure that this action moves forward.
[21] In accordance with Rule 382, the action should continue as a specially managed proceeding before a judge or prothonotary as designated by the Chief Justice.
[22] In light of the specific circumstances of this case, I am not prepared to award costs.
ORDER
THIS COURT ORDERS THAT:
1. the decision of the Prothonotary is set aside;
2. this action is continued as a specially managed proceeding; and,
3. no costs are awarded.
"Judith A. Snider"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1943-02
STYLE OF CAUSE: Precision Drilling International, B.V. and others v.
"BBC" Japan and others
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: May 10, 2004
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
DATED: May 14, 2004
APPEARANCES:
Mr. Christopher Stewart FOR PLAINTIFFS
Mr. David Hashey
Thomas McGloan FOR DEFENDANTS,
"BBC Japan" and its owner Aquarius Shipping Co. Ltd. and others
Isabelle Pillet FOR DEFENDANT, Logistec Stevedoring (Atlantic) Inc.
SOLICITORS OF RECORD:
Stewart McKelvey Stirling Scales FOR PLAINTIFFS
Moncton, New Brunswick
Gilbert, McGloan, Gillis FOR DEFENDANTS, "BBC St. John, New Brunswick Japan" and its owner Aquarius
Shipping Co. Ltd. and others
De Man, Pilotte FOR DEFENDANT, Logistec
Montreal, Quebec Stevedoring (Atlantic) Inc.