Date: 20011012
Docket: T-1145-01
Neutral Citation: 2001 FCT 1113
QUÉBEC, QUEBEC, THE 12TH DAY OF OCTOBER, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
ACTION IN ADMIRALTY IN REM AGAINST THE VESSELS JURONG BAUHINIA AND HYUNDAI INNOVATOR AND IN PERSONAM AGAINST NEPTUNE ASSOCIATED LINES PTE LTD AND ULYSSES OVERSEAS INC. AND ALL OTHER PARTIES WITH AN INTEREST IN THE VESSELS JURONG BAUHINIA AND HYUNDAI INNOVATOR
BETWEEN:
J.A. BESNER AND SONS (CANADA) LTD
- and -
J.A. BESNER AND SONS LTD
Plaintiffs
- AND -
VINALINK
- and -
ULYSSES OVERSEAS INC.
c/o : HYUNDAI MERCHANT MARINE CO. LTD
- and -
NEPTUNE ASSOCIATED LINES PTE LTD
- and -
THE VESSEL JURONG BAUHINIA
- and -
THE OWNERS AND ALL OTHERS WITH AN INTEREST
IN THE VESSEL JURONG BAUHINIA
- and -
THE VESSEL HYUNDAI INNOVATOR
- and -
THE OWNERS AND ALL OTHERS WITH AN INTEREST
IN THE VESSEL HYUNDAI INNOVATOR
Defendants
Notice of motion by the defendants Neptune Associated Lines PTD Ltd, the "Vessel Jurong Bauhinia", the owners and all others with an interest in the Vessel "Jurong Bauhinia" for the purposes of obtaining an order:
Objecting to the service of the statement of claim on the defendants Neptune Associated Lines PTD Ltd, the "Vessel Jurong Bauhinia", the owners and all others with an interest in the Vessel "Jurong Bauhinia" and to dismiss the action against them.
(Federal Court Rules 203, 204, 208 and 359)
REASONS FOR ORDER AND ORDER
[1] This is a motion objecting to the service of the statement of claim on the defendants Neptune Associated Lines PTD Ltd, the "Vessel Jurong Bauhinia", the owners and all others with an interest in the "Vessel Jurong Bauhinia".
[2] As the Court record indicates, on June 26, 2001 an action was commenced by the plaintiffs against certain defendants, including Neptune Associated Lines PTD Ltd, the "Vessel Jurong Bauhinia", the owners and all others with an interest in the "Vessel Jurong Bauhinia".
[3] According to the evidence filed on the record, of the three defendants at issue, only Neptune Associated Lines PTD Ltd was served by registered mail, on July 16, 2001.
[4] It appears that Franklin and Franklin, counsel for the plaintiffs at the time of service, had sent a copy of the Statement of Claim by certified mail to the attention of Neptune Associated Lines PTD Ltd, adding in the envelope a copy of the Statement of Claim for the other two parties, the "Vessel Jurong Bauhinia" and the owners and all others with an interest in the "Vessel Jurong Bauhinia" (exhibit A of the motion).
[5] The new counsel for the plaintiffs are well aware that service on these three parties had been done irregularly; thus, in reply to the defendants' motion, they are asking the Court to use the provisions of Rule 147 of the Federal Court Rules, 1998.
[6] Rule 147 reads:
147. Where a document has been served in a manner not authorized by these Rules or by an order of the Court, the Court may consider the document to have been validly served if it is satisfied that the document came to the notice of the person to be served or that it would have come to that person's notice except for the person's avoidance of service.
147. Lorsqu'un document a été signifié d'une manière non autorisée par les présentes règles ou une ordonnance de la Cour, celle-ci peut considérer la signification comme valide si elle est convaincue que le destinataire en a pris connaissance ou qu'il en aurait pris connaissance s'il ne s'était pas soustrait à la signification.
[7] There are few cases in relation to when service may be authorized under Rule 147. However, Madam Justice Simpson, in a judgment dated June 8, 2001, Canada v. Trudgeon, [2001] F.C.J. No. 943 (F.C.T.D.), states:
The issue on a motion under Rule 147 is whether a judge is satisfied that the Statement of Claim has come to the Defendant's notice. Although the evidence is thin, I have concluded that the test has been met because I think it reasonable to believe that someone located at the Defendant's address who was old enough to sign for the Letter and who had the same surname as the Defendant would have given the Letter to the Defendant.
[8] In the matter that concerns us, it is clear from the evidence and the affidavit of defendants' counsel that the action was indeed received by the defendant Neptune Associated Lines PTD Ltd.
[9] However, it is hard for me to use the provisions of Rule 147 to validate the service in the case of the other two defendants, the "Vessel Jurong Bauhinia" and the owners and all others with an interest in the "Vessel Jurong Bauhinia".
[10] It must be noted that the provisions of Rule 147 are a means of validating service that has been done in a manner not authorized by the Federal Court Rules; as a prerequisite, therefore, the service must have been done first, and Rule 147 simply validates that service.
[11] However, the Court must be persuaded that the service was done in the first place. Mr. Justice Denis Pelletier, in Canada (Minister of Citizenship and Immigration) v. Wei [1999] F.C.J. No. 1533 (March 31, 1999), held:
12. In order for Rule 147 to be of assistance to the Applicant, she must first bring herself within its terms. In this case, there is no evidence that the originating document, the Notice of Application, came to the notice of the Respondent. In this case, the Affidavit of the Respondent says that:
"I never received a copy of the Notice of Application." ...
"I never received any document by registered mail"
There is, in my view, no acceptable proof of service of the Notice of Application or the Application Record upon the Respondent. ... I am not satisfied that the Notice of Application came to the notice of the Respondent and therefore, Rule 147 is not available to validate service.
[12] As it happens, sending a document for service to a party in an envelope by registered mail and simply stating in the cover letter that there are two additional copies in the envelope for two other parties for whom the authorized representatives and corresponding addresses, let alone any possible relationship between the three defendants, are unknown, cannot be considered service, even imperfect service, by any stretch.
[13] That the other two defendants were made aware of the existence of an action taken against them through some means that is not brought to the knowledge of the court, and that these two parties asked the same solicitor to represent them in this action taken here in Canada, cannot in any event constitute a recognition or admission of the service of the said action.
[14] I can understand the awkward position of the new counsel for the plaintiffs in this proceeding, who is now unable to re-serve the action on the two defendants in view of the limitation periods. However, the new solicitors came to this case only after the expiration of those limitation periods. They alleged this themselves in their respondent's motion record and the least that can be said is that they do not appear to be responsible for this problem.
[15] Whatever the case, I have no choice but to find in favour of the submissions by counsel for the defendants, that the action in this case was not validly served on the defendants, the "Vessel Jurong Bauhinia" and the owners and all others with an interest in the "Vessel Jurong Bauhinia".
ORDER
The Court orders that:
The motion objecting to the service of the Statement of Claim on the defendants Neptune Associated Lines PTD Ltd, the "Vessel Jurong Bauhinia" and the owners and all others with an interest in the "Vessel Jurong Bauhinia", is allowed in part;
The service of the Statement of Claim on the defendants Neptune Associated Lines PTD Ltd is considered valid under the provisions of Rule 147 of the Federal Court Rules, 1998.
The action against the defendants the "Vessel Jurong Bauhinia" and the owners and all others with an interest in the "Vessel Jurong Bauhinia" is dismissed for want of service, with costs against the plaintiffs.
The Court shall also consider that the defendants had no choice but to present the said motion and that it is only in reply to the said motion that the plaintiffs asked the Court to validate the imperfect service of their action on one of the defendants, which proof of service had not been filed in the Court record in accordance with Rules 203 and 204. Costs will therefore be accorded to the defendants Neptune Associated Lines PTE Ltd on the said motion.
The defendant Neptune Associated Lines PTE Ltd will have 60 days from the date of this judgment in which to serve and file its defence.
Pierre Blais
J.
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Federal Court of Canada
Trial Division
Date: 20011012
Docket: T-1145-01
ACTION IN ADMIRALTY IN REM AGAINST THE VESSELS JURONG BAUHINIA AND HYUNDAI INNOVATOR AND IN PERSONAM AGAINST NEPTUNE ASSOCIATED LINES PTE LTD AND ULYSSES OVERSEAS INC. AND ALL OTHER PARTIES WITH AN INTEREST IN THE VESSELS JURONG BAUHINIA AND HYUNDAI INNOVATOR
BETWEEN:
J.A. BESNER AND SONS (CANADA) LTD
- and -
J.A. BESNER AND SONS LTD
Plaintiffs
- AND -
VINALINK
- and -
ULYSSES OVERSEAS INC.
c/o : HYUNDAI MERCHANT MARINE CO. LTD
- and -
NEPTUNE ASSOCIATED LINES PTE LTD
- and -
THE VESSEL JURONG BAUHINIA
- and -
THE OWNERS AND ALL OTHERS WITH AN INTEREST IN THE VESSEL JURONG BAUHINIA
- and -
THE VESSEL HYUNDAI INNOVATOR
- and -
THE OWNERS AND ALL OTHERS WITH AN INTEREST IN THE VESSEL HYUNDAI INNOVATOR
Defendants
REASONS FOR ORDER
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE NO: T-1145-01
STYLE:
J.A. BESNER AND SONS (CANADA) LTD
- and -
J.A. BESNER AND SONS LTD
Plaintiffs
- AND -
VINALINK
- and -
ULYSSES OVERSEAS INC.
c/o : HYUNDAI MERCHANT MARINE CO. LTD
- and -
NEPTUNE ASSOCIATED LINES PTE LTD
- and -
THE VESSEL JURONG BAUHINIA
- and -
THE OWNERS AND ALL OTHERS WITH AN INTEREST IN THE VESSEL JURONG BAUHINIA
- and -
THE VESSEL HYUNDAI INNOVATOR
- and -
THE OWNERS AND ALL OTHERS WITH AN INTEREST IN THE VESSEL HYUNDAI INNOVATOR
Defendants
PLACE OF HEARING:Québec, Quebec
DATE OF HEARING: October 12, 2001
REASONS FOR ORDER
OF THE COURT BY: Blais J.
DATED: October 12, 2001
APPEARANCES:
Jean-Marie Fontaine for the plaintiffs
Marilyn Thibault for the defendants
SOLICITORS OF RECORD:
Sproule & Pollack
Montréal, Quebec for the plaintiffs
Langlois, Gaudreau, O'Connor
Québec, Quebec for the defendants