Federal Court Decisions

     T-2205-96

BETWEEN:

     OCEAN FISHERIES LTD.

     Plaintiff,

     - and -

     PACIFIC COAST FISHERMEN'S MUTUAL

     MARINE INSURANCE COMPANY

     Defendant.

     ORDER AND REASONS FOR ORDER

TEITELBAUM, J:

     This is an application by the plaintiff, by way of Rule 324 of the Federal Court Rules for an Order pursuant to Rules 337(5) and 344(1) extending the time for re-consideration of an Order dated March 26, 1997 and ordering that the costs of the application before the Prothonotary to stay the action and the appeal of that application be paid by the defendant in any event of the cause.

     In support of the Notice of Motion, the plaintiff filed the affidavit of David F. McEwen in which it is stated:

2.      This action was commenced on October 3, 1996.

3.      Rather than filing a Statement of Defence to the action, the solicitor for the Defendants brought an application to stay the proceedings returnable November 25, 1996.

4.      After argument and a reserved judgment, the Prothonotary handed down judgment staying the proceedings, and ordering that costs of the application be in the cause.

5.      An appeal was taken from that order, and the Honourable Mr. Justice Teitelbaum, on March 26, 1997, made an order allowing the appeal, setting aside the order of the Prothonotary on the ground that the action was not subject to the arbitration clauses contained in the policy of insurance.

     In my Order of March 26, 1997, I allowed plaintiff's appeal but omitted to discuss the issue of costs. The issue of costs was not addressed before me.

     My Order of March 26, 1997 has now been taken to appeal by the defendant.

     Rule 337(5) states:

Within 10 days of the pronouncement of judgment under paragraph (2)(a), or such further time as the Court may allow, either before or after the expiration of that time, either party may move the Court, as constituted at the time of the pronouncement, to reconsider the terms of the pronouncement, on one or both of the following grounds, and no others:

( a) that the pronouncement does not accord with the reasons, if any, that may have been given therefor;

( b) that some matter that should have been dealt with has been overlooked or accidentally omitted.

     Therefore, this application should have been brought no later than April 7, 1997 in that April 5 and 6, 1997 is a Saturday and Sunday, days when the Court Registry is closed. This application was brought on April 23, 1997, some sixteen days outside the legal delay provided in Rule 337(5).

     As I have stated, through an oversight on my part and because the issue of costs was not raised, I omitted to discuss the said issue. I would not normally amend an Order issued by myself if the matter is before the Court of Appeal as is the case at the present time.

     The issue of costs has no relevance as to the validity or non-validity of my Order relating to the substantive issue that was before me and that now must be decided by the Court of Appeal.

     I am therefore satisfied that I can amend my Order of March 26, 1997 to include the issue of costs.

     I agree with the submission of the plaintiff that the issue of the stay is an issue totally separate and apart from the dispute on the merits.

     The present application for extension of time for re-consideration of the Order dated March 26, 1997 is allowed and I hereby amend the Order dated March 26, 1997 to read:

IT IS HEREBY ORDERED that the appeal is allowed and the appellant is not subject to the arbitration clauses contained in the policy of insurance (by-laws 13 and 15) with costs of the application before the Prothonotary to stay the action and the appeal of that application be paid by the defendant in any event of the cause.

                                 "Max M. Teitelbaum"

                                                          J U D G E

OTTAWA

May 9, 1997