Date: 20010606
Docket: T-109-97
Neutral citation: 2001 FCT 595
ACTION IN REM AGAINST THE VESSEL
"SEPTEMBER" (A.K.A. DESPERADO)
Between:
DOUGLAS GILLING
Plaintiff
AND
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
- and -
DENISE SHEPPARD
- and -
ALLEN COX
- and -
THE OWNERS AND ANY OTHER PERSONS
INTERESTED IN THE VESSEL
SEPTEMBER (A.K.A. DESPERADO)
Defendants
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY:
[1] Close to four years ago, the plaintiff commenced an action in this Court and in Turkey, essentially for recognition of his possession and ownership of a vessel.
[2] There is no question but that these two actions are concurrent proceedings.
[3] It appears that at the request of the defendant Sheppard, the Court in Turkey recently reached this conclusion and therefore dismissed the plaintiff's action. Since the history of the proceedings in Turkey suggests that this decision of the Turkish court might be appealed by the plaintiff and thus the action in Turkey would be prolonged, the defendant moves to this Court on the basis of the judgment in Nisshin Kisen Kaisha Ltd. v. CN, [1981] 1 F.C. 293 asking that it impose a restriction on the plaintiff, namely, that his present proceeding in this Court be maintained only on condition that he withdraw his action in Turkey, and that he lift the seizure or detention of the vessel in that country.
[4] In Nisshin, supra, this Court recognized the Court's right to impose a condition of this nature, in the following words at page 301:
... every Court of superior jurisdiction, if not every tribunal of any kind, must possess the innate right of controlling its own process and, subject to the requirements of justice, to control the actions before it of those wishing to avail themselves of its jurisdiction. This Court would, therefore, have the right to impose as a condition of any person being allowed to prosecute an action in this forum a restriction against that person prosecuting in another forum an action for the same cause or matter.
[Emphasis added]
[5] It is true that one of the central issues in the litigation on the merits in this Court will consist of determining the possession and ownership of the vessel. The plaintiff argues that if the Court were to allow the motion by the defendant Sheppard the balance would be tilted in her favour, effectively giving her possession of the vessel, since the registration documents are in her name. If the ship's detention in Turkey is to be modified, he argues, such detention or possession should be placed in the hands of independent third parties and not in the hands of one of the parties to this action, especially those of the defendant Sheppard.
[6] However, there is so far no evidence on the record suggesting that the defendant Sheppard might be tempted to remove herself from the jurisdiction of this Court should the plaintiff succeed in this Court.
[7] In my opinion, granting the defendant's motion would not adversely affect the substantive issue in this case or jeopardize this Court's authority over the vessel.
[8] Furthermore, I am unable to recognize any legitimate reason for maintaining the proceedings undertaken by the plaintiff in Turkey. It appears to be common ground among the parties that the best forum conveniens is Canada and it is legitimate and fair to the defendant Sheppard that this fact now be officially recognized. Also, in view of the state of the proceedings to date between the parties in Turkey, I do not think the intervention of this Court at this point would be inconsistent with comity in regard to the Turkish courts.
[9] Accordingly, the remedy sought by the defendant Sheppard will essentially be allowed, with costs in her favour. The order will also be limited to her since she cannot plead on behalf of another.
[10] Finally, in the context of the analysis of the motion under review, the Court itself -- and not at the request of the plaintiff or any of the other parties -- has questioned whether the remedy sought should be characterized as an injunction, a remedy for which a prothonotary of this Court has no jurisdiction under Rule 50(1)(e) of the Federal Court Rules, 1998.
[11] It should be noted at the outset that the defendant Sheppard has not referred to the institution of an injunction in the style of cause of her motion. It is only in her written representations that this word is found; hence my questioning in this regard.
[12] Although the plaintiff supports the Court's initial reaction, namely, that the remedy sought by the defendant Sheppard is an injunction, I now think the defendant's request can simply be seen as an attempt to impose on the plaintiff a condition in relation to the maintenance of his action in this Court. This is not the traditional situation in which it is the plaintiff who is seeking an injunction against a defendant. Accordingly, I do not think it is necessary to characterize the remedy sought by the defendant as an injunction. A prothonotary of this Court therefore has jurisdiction to issue the order attached to these reasons.
Richard Morneau
Prothonotary
MONTRÉAL, QUEBEC
June 6, 2001
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Federal Court of Canada
Trial Division
Date: 20010606
Docket: T-109-97
ACTION IN REM AGAINST THE VESSEL
"SEPTEMBER" (A.K.A. DESPERADO)
Between:
DOUGLAS GILLING
Plaintiff
AND
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
- and -
DENISE SHEPPARD
- and -
ALLEN COX
- and -
THE OWNERS AND ANY OTHER PERSONS
INTERESTED IN THE VESSEL
SEPTEMBER (A.K.A. DESPERADO)
Defendants
REASONS FOR ORDER
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: T-109-97
STYLE: ACTION IN REM AGAINST THE VESSEL
"SEPTEMBER" (A.K.A. DESPERADO)
Between:
DOUGLAS GILLING
Plaintiff
AND
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
- and -
DENISE SHEPPARD
- and -
ALLEN COX
- and -
THE OWNERS AND ANY OTHER PERSONS
INTERESTED IN THE VESSEL
SEPTEMBER (A.K.A. DESPERADO)
Defendants
PLACE OF HEARING (BY TELECONFERENCE): Montréal, Quebec
DATE OF HEARING: May 16, 2001
REASONS FOR ORDER OF RICHARD MORNEAU, PROTHONOTARY
DATED: June 6, 2001
APPEARANCES:
Douglas Gilling for the plaintiff
Mireille Tabib for the defendant Denise Sheppard
Caroline Dulong for the defendant Allen Cox
Robin Carter for the defendant Her Majesty the Queen
SOLICITORS OF RECORD:
Stikeman, Elliott for the defendant Denise Sheppard
Montréal, Quebec
Rouleau, Doss, d'Amours for the defendant Allen Cox
Montréal, Quebec
Morris Rosenberg for the defendant Her Majesty the Queen
Deputy Attorney General of Canada