Date: 19991125
Docket: T-485-99
Admiralty action in personam
BETWEEN:
SHIPDOCK AMSTERDAM B.V.
Plaintiff
-and-
THE CAST GROUP INC. and CAST (1983) LIMITED
and CAST MANAGEMENT LIMITED and
THE ROYAL BANK OF CANADA and
PRICE WATERHOUSE COOPERS and FASKEN,
CAMPBELL, GODFREY and RICHARDS HOGG
LINDLEY and AON REED STENHOUSE and
M.J. OPPENHEIM IN HIS QUALITY AS
ATTORNEY IN FACT IN CANADA FOR UNDERWRITERS,
MEMBERS OF LLOYD'S, LONDON, ENGLAND
Defendants
REASONS FOR ORDER AND ORDER
LAFRENIÈRE P.:
[1] The present motion dated November 12, 1999 is brought by the Defendant Royal Bank for a stay or adjourn a summary judgment motion filed by the Plaintiff against the said Defendant until disposition of a pending motion for security for costs. The relief sought by the Defendant is as follows:
| 1. An Order that the Plaintiff's motion for Summary Judgment against The Royal Bank of Canada ("Royal Bank") be stayed or adjourned pending the disposition of the motion for security for costs previously brought by Royal Bank and PriceWaterhouseCoopers LLP ("PriceWaterhouseCoopers"); |
| 2. Further, Orders that the time for the Royal Bank to deliver responding materials in relation to the Summary Judgment motion be extended accordingly, and that a timetable be fixed for the hearing of the Plaintiff's Summary Judgment motion after the security for costs motion is disposed of; |
| 3. An Order that the security for costs motion brought by Royal Bank and PriceWaterhouseCoopers proceed on November 22, 1999, pre-emptory of the Plaintiff, or at another date agreed upon by the parties to the motion; |
| 4. An Order abridging the time to serve and file the within Motion Record, if necessary; |
| 5. Its costs of this motion in an amount to be fixed by the Judge hearing the motion and payable by the Plaintiff forthwith or, in the alternative, payable forthwith after assessment; and |
| 6. Such further and other relief as counsel may advise and to this Court seems just. |
[2] By way of background, on October 12, 1999 two Defendants, the Royal Bank of Canada and PriceWaterhouseCoopers, brought a motion for security for costs pursuant to Rule 416 of the Federal Court Rules, 1998. The motion, which included a request for a stay of the proceedings pending payment of security for costs, was made returnable on October 25, 1999. At the request of the Plaintiff, the matter was adjourned on consent to November 22, 1999.
[3] On November 2, 1999, the Plaintiff filed a motion for summary judgment against the Defendant Royal Bank. This motion was made returnable on the same day the motion for security for costs was scheduled to be heard. The Defendant Royal Bank sought the Plaintiff"s consent to adjourn the summary judgment motion until disposition of its motion for security, which was refused.
[4] The Defendant Royal Bank objects to the Plaintiff"s motion being scheduled before disposition of its motion for security for costs. Otherwise, it is submitted, the Defendant will be prejudiced by having to incur substantial costs in responding to the summary judgment motion without any means to enforce a costs order should the motion be dismissed. As such, the objective of Rule 416, and in particular Rule 416(3), would be frustrated.
[5] The Defendant Royal Bank sought short leave to bring the present motion on November 15, 1999. The Plaintiff refused to provide its consent. On November 15, 1999, during a hearing by teleconference, counsel for the Plaintiff advised the Court that it was his intention to file responding materials in opposition to the present motion. Consequently, the motion was adjourned one week to allow the Plaintiff an opportunity to respond. In addition, the two motions scheduled for November 22 were ordered adjourned pending disposition of the present motion.
[6] The Plaintiff submits that the Defendants" motion for security for costs is an abuse of process and that delaying its summary judgment motion will lead to a further injustice. The Plaintiff also contends that nothing in the Federal Court Rules, 1998 prevents two motions from being heard together or consecutively.
[7] Notwithstanding the able arguments of counsel for the Plaintiff, I am satisfied that there are compelling reasons to grant the relief requested by the Defendant Royal Bank. It seems logical that a matter properly before the Court should not be defeated by a subsequent step taken by another party. In Bruce v. John Northway & Son Ltd. ©1962ª O.W.N. 150, the Senior Master stated the general rule as follows at page 151:
| After service of a notice of motion, as a general rule, any act done by any party affected by the application which affects the rights of the parties on the pending motion will be ignored by the Court. In Preston v. Tunbridge Wells Opera House, [1903] 2 Ch. 323, Farwell, J., said at p. 325 |
| It is due to the exigencies of the business of the Courts that an application cannot be heard the moment it is made. |
[8] The learned Master went on to say:
| In that case it was held that the right of the first mortgagee to rents was to be determined as of the date of the service of the notice of motion and not as of the date the application was heard. In Holmested, 5th ed., p. 837 citing this case it is stated |
| The rights of an appellant [applicant?] cannot be prejudiced by anything done after the notice of motion has been served, but his rights are to be determined as they existed at the date of its service. |
| This appears to me to correctly state the practice. This principle is illustrated by the situation where a defendant serves a notice of motion to dismiss an action for want of prosecution and subsequent thereto and prior to the hearing of the application the plaintiff files and serves notice of discontinuance. In these circumstances it was held in Campbell v. Sterling Trust Corp., [1948] O.W.N. 557 that the defendant"s right was not abrogated by the subsequent notice of discontinuance. |
[9] The Plaintiff"s argument that the Defendants" motion for security for costs is an abuse of process should properly be advanced at the hearing of that motion. I agree with the submission of counsel for the Defendant Royal Bank that it would be unjust to allow the Plaintiff to defeat the moving party"s rights, particularly in the present circumstances where the hearing of the motion for security for costs was delayed at the request of the Plaintiff.
ORDER
[10] The security for costs motion brought by Royal Bank of Canada and PriceWaterhouseCoopers LLP is adjourned to December 6, 1999, at 9:30 a.m.
[11] The Plaintiff shall serve and file its responding record for the security for costs motion no later than 2:00 p.m. on November 29, 1999.
[12] The Plaintiff"s motion for Summary Judgment against The Royal Bank of Canada shall be and hereby is stayed pending the disposition of the security for costs motion brought by Royal Bank of Canada and PriceWaterhouseCoopers LLP. A timetable for the Summary Judgment motion shall be fixed after the disposition of the security for costs motion.
[13] The costs of this motion are costs to Royal Bank of Canada in the cause, fixed in the amount of $1,000.00.
"Roger R. Lafrenière"
__________________________
Prothonotary
Toronto, Ontario
November 25, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: T-485-99 |
| STYLE OF CAUSE: SHIPDOCK AMSTERDAM B.V. |
| - and - |
| THE CAST GROUP INC. and CAST (1983) LIMITED and CAST MANAGEMENT LIMITED and THE ROYAL BANK OF CANADA and PRICE WATERHOUSE COOPERS and FASKEN, CAMPBELL, GODFREY and RICHARDS HOGG LINDLEY and AON REED STENHOUSE and M.J. OPPENHEIM IN HIS QUALITY AS ATTORNEY IN |
| FACT IN CANADA FOR UNDERWRITERS, MEMBERS |
OF LLOYD'S, LONDON, ENGLAND
| DATE OF HEARING: MONDAY, NOVEMBER 22, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER AND ORDER BY: LAFRENIÈRE P. |
DATED: THURSDAY, NOVEMBER 25, 1999
| APPEARANCES: Mr. Jonathan Marler |
For the Plaintiff
Mr. T. Anthony Ball
For the Defendants
The Royal Bank of Canada and
PricewaterhouseCoopers
| REASONS FOR ORDER AND ORDER BY: LAFRENIÈRE P. |
DATED: THURSDAY, NOVEMBER 25, 1999
SOLICITORS OF RECORD: Marler & Kyle Barristers and Solicitors
86 Chisholm Street
Oakville, Ontario
L6K 3H7
For the Plaintiff
Fasken Campbell Godfrey
Barristers and Solicitors
P.O. Box 20
Toronto Dominion Bank Tower
Toronto-Dominion Centre
Toronto, Ontario
M5K 1N6
| For the Defendant |
The moving party,
The Royal Bank of Canada
FEDERAL COURT OF CANADA
Date:19991125
Docket: T-485-99
Between:
| SHIPDOCK AMSTERDAM B.V. |
Plaintiff
- and -
| THE CAST GROUP INC. and CAST (1983) LIMITED |
| and CAST MANAGEMENT LIMITED and THE ROYAL BANK OF CANADA and PRICE WATERHOUSE COOPERS and FASKEN, CAMPBELL, GODFREY and RICHARDS HOGG LINDLEY and AON REED STENHOUSE and |
| M.J. OPPENHEIM IN HIS QUALITY AS ATTORNEY IN FACT IN CANADA FOR UNDERWRITERS, MEMBERS |
OF LLOYD'S, LONDON, ENGLAND
Defendants
| REASONS FOR ORDER |
AND ORDER