Date: 19980326
Docket: T-194-97
TORONTO, ONTARIO, THIS 26th DAY OF MARCH 1998
Present: THE HONOURABLE MR. JUSTICE MARC NADON
ACTION IN REM AGAINST THE SHIPS "LE CHENE NO. 1",
"L'ORME NO. 1", "LE SAULE NO. 1" AND
"W.M. VACY ASH",
Between:
CANADIAN IMPERIAL BANK OF COMMERCE,
Plaintiff,
AND:
THE OWNERS AND ANY OTHER PARTIES
HAVING AN INTEREST IN THE SHIPS "LE CHENE NO. 1",
"L'ORME NO. 1", "LE SAULE NO. 1" AND
"W.M. VACY ASH",
Defendants.
ORDER
1. The hearing relating to the determination of the questions of law that are the subject of my order of March 23, 1998, will be held at Montréal on June 17, 18 and 19, 1998, beginning at 10:00 o'clock a.m.
2. The applicants will file their memoranda by May 15, 1988. The Canadian Imperial Bank of Commerce will file its memorandum by June 5, 1998.
3. The applicants will file their replies, if any, by June 12, 1998.
4. The parties will file, on consent, by May 15, 1998, a book containing the documents relating to the determination of the questions of law.
5. The claimants, other than the applicants who filed the application that was the subject of my order of March 23, 1998, shall file, within 10 days of the date of this order, a notice of their intention to file a memorandum concerning the questions of law to be argued on June 17, 18 and 19, 1998 (a "notice of intention").
6. The claimants who have filed their notices of intention shall file and serve their memoranda by May 15, 1998.
7. Only the claimants who file a notice of intention shall be entitled to be served with the memoranda of the applicants and of the Canadian Imperial Bank of Commerce.
"MARC NADON"
Judge
Certified true translation
C. Delon, LL.L.
Date: 19980326
Docket: T-194-97
TORONTO, ONTARIO, THIS 26th DAY OF MARCH 1998
Present: THE HONOURABLE MR. JUSTICE MARC NADON
ACTION IN REM AGAINST THE SHIPS "LE CHENE NO. 1",
"L'ORME NO. 1", "LE SAULE NO. 1" AND
"W.M. VACY ASH",
Between:
CANADIAN IMPERIAL BANK OF COMMERCE,
Plaintiff,
AND:
THE OWNERS AND ANY OTHER PARTIES
HAVING AN INTEREST IN THE SHIPS "LE CHENE NO. 1",
"L'ORME NO. 1", "LE SAULE NO. 1" AND
"W.M. VACY ASH",
Defendants.
ORDER
1. The Court will determine the following questions of law:
(a) Can the maritime lien provided in Canadian maritime law and in the Federal Court Act, and in the Canada Shipping Act or any other legislative provisions, for wages, salary, money, property or other remuneration or benefits arising out of his employment, owing to officers and seamen, be claimed against the last ship on which the seaman worked and/or all ships on which he worked that belonged to the same ship-owner (Sister Ships)?
(b) Does the maritime lien referred to in the preceding paragraph include:
(i) The severance pay provided for by law and/or by the collective agreement?
(ii) The notice of termination of employment provided for by law and/or by the collective agreement?
(iii) The seamen's contributions which have been withheld at source and/or are payable by the defendants for the Pension Fund, under the Collective Agreement?
(iv) The seamen's contributions which have been withheld at source and/or are payable by the defendants for the Welfare Plan, under the Collective Agreement?
(v) The seamen's contributions which have been withheld at source and/or are payable by the defendants for union dues, under the Collective Agreement?
(vi) The seamen's contributions which have been withheld at source and/or are payable by the defendants for the hiring hall, under the Collective Agreement?
(vii) The seamen's contributions which have been withheld at source and/or are payable by the defendants for the legal fund, under the Collective Agreement?
(viii) The transportation and other disbursements and/or expenses that the defendants have not refunded and that are owing to the seamen, under the terms of the Collective Agreement?
(ix) The overtime and other claims (grievances) that have not yet been argued?
(x) The N.S.F. cheques received by the seamen from the defendants?
(xi) The penalties for late remission and/or payment provided in the Collective Agreement?
2. The applicants shall file a reply to the plaintiff's contestation by April 30, 1998.
3. The applicants shall file their affidavits of documents within sixty days of the date on which the points of law supra are determined.
4. Costs in the cause.
"MARC NADON"
Judge
Certified true translation
C. Delon, LL.L.
Date: 19980326
Docket: T-194-97
ACTION IN REM AGAINST THE SHIPS "LE CHENE NO. 1",
"L'ORME NO. 1", "LE SAULE NO. 1" AND
"W.M. VACY ASH",
Between:
CANADIAN IMPERIAL BANK OF COMMERCE,
Plaintiff,
AND:
THE OWNERS AND ANY OTHER PARTIES
HAVING AN INTEREST IN THE SHIPS "LE CHENE NO. 1",
"L'ORME NO. 1", "LE SAULE NO. 1" AND
"W.M. VACY ASH",
Defendants.
REASONS FOR ORDER
NADON J.
[1] By their motion, filed under rule 474(1)[1] of the Federal Court Rules, the applicants are seeking an order to have certain questions of law determined.
[2] In order to understand the application better, it is necessary to provide a brief summary of the relevant facts. On April 7, 1997, this Court confirmed the sale of the ships "Le Chêne No. 1", "L'Orme No. 1" and "Le Saule No. 1" (the "ships"). On June 9, 1997, the Prothonotary, Richard Morneau, gave judgment in favour of the Canadian Imperial Bank of Commerce (the "plaintiff") against the ships. In his judgment, the Prothonotary held, inter alia, that the plaintiff "is hereby recognized as the holder of first ranking priority mortgages on the ships "Le Chêne No. 1", "L'Orme No. 1" and "Le Saule No. 1", said mortgages standing as security for the amount of the judgment rendered herein."
[3] On June 9, 1997, the Prothonotary made three orders, at the request of the plaintiff, under Rule 1008.[2] The orders, which are all identical, provide as follows:
THIS COURT ORDERS THAT:
1. Any claim that has not been filed at one of the local Registry offices of the Court on or before April 1, 1997, unless its filing has been authorized by a further Order of the Court, shall be barred;
2. Within one hundred and twenty (120) days from the date of this Order, claimants shall file affidavits in support of their claims, including affidavits by experts advancing proof of any foreign law relied upon. All documents relied upon by a claimant shall be filed as exhibits to that party's affidavit(s);
3. Within a further delay of thirty (30) days, any party wishing to contest another party's claim shall do so by filing a Notice of contestation setting out its grounds for contesting the claim, with a statement of the material facts on which it relies. All reply affidavits including affidavits dealing with foreign law shall be filed within the same delay;
4. Within a further delay of thirty (30) days, the claimant whose claims are subject to a contestation shall be at liberty to file a reply with any supporting affidavits;
5. There shall be no cross-examination upon any affidavit save by leave of the Court;
6. Within a further delay of thirty (30) days, all claimants shall file their affidavits of documents which shall be in conformity with Rules 448;
7. Within a further delay of sixty (60) days, the parties shall be at liberty to conduct the discovery examinations of a representative of each claimant, at Montréal, or at such other place as the parties may agree upon or the Court determine, the discovery process to be in conformity with Rules 455 and following insofar as applicable. All undertakings given during the discovery examination shall be completed with a further delay of forty-five (45) days;
8. The parties shall serve notice upon one another of all filings made pursuant to this Order but shall not be required to serve a copy of the material so filed. On request, a party shall provide any other party with a copy of its material;
9. The parties or any one of them shall be at liberty to apply for a hearing date upon completion of discoveries;
10. Subject to any further Orders of the Court, there shall be no viva voce evidence heard and the rights of all parties shall be adjudicated upon the affidavit and discovery evidence files;
[4] According to the orders made under rule 1008, the claimants, including the applicants who had filed a claim at the Registry office of the Court on or before April 1, 1997, had to file affidavits in support of their claims within 120 days from June 9, 1997.
[5] On October 3, 1997, the applicants filed a motion seeking an order extending the time for filing the affidavits. On October 7, 1997, the Prothonotary granted the claimants who were unable to comply with the time provided in paragraph 2 of the orders of June 9, 1997, additional time for filing the affidavits. By his order of October 7, 1997, the Prothonotary gave those claimants until December 10, 1997, to file their affidavits.
[6] On December 3, 1997, the applicants filed a new motion for additional time to file the affidavits in support of their claims. On December 10, 1997, the Prothonotary gave additional time to the claimants who could not comply with his order of October 7, 1997, i.e. until January 15, 1998.
[7] The applicants all filed their affidavits in compliance with the orders made by the Prothonotary. On February 16, 1998, the plaintiff filed its contestations against the applicants' claims.
[8] According to the orders of the Prothonotary dated June 9, 1997, the claimants, including the applicants, had 30 days from the date of filing of the plaintiff's contestation of their claims to file a reply. After that 30-day period, and again under the orders of June 9, 1997, the claimants had to file their affidavits of documents under rule 448. Since the time allowed under paragraphs 4 and 6 of the orders of June 9, 1997, was not complied with, the applicants are asking me to suspend those time limits if I find that their main application, for determination of the points of law supra, must be allowed. In the alternative, if the main application is dismissed, the applicants are asking me to grant them an additional 30 days for filing a reply to the plaintiff's contestations and an additional 6 months for filing their affidavits of documents.
[9] The applicants are asking this Court to determine the following questions of law:
(a) Can the maritime lien provided in Canadian maritime law and in the Federal Court Act, and in the Canada Shipping Act or any other legislative provisions, for wages, salary, money, property or other remuneration or benefits arising out of his employment, owing to officers and seamen, be claimed against the last ship on which the seaman worked and/or all ships on which he worked that belonged to the same ship-owner (Sister Ships)?
(b) Does the maritime lien referred to in the preceding paragraph include:
(i) The severance pay provided for by law and/or by the collective agreement?
(ii) The notice of termination of employment provided for by law and/or by the collective agreement?
(iii) The seamen's contributions which have been withheld at source and/or are payable by the defendants for the Pension Fund, under the Collective Agreement?
(iv) The seamen's contributions which have been withheld at source and/or are payable by the defendants for the Welfare Plan, under the Collective Agreement?
(v) The seamen's contributions which have been withheld at source and/or are payable by the defendants for union dues, under the Collective Agreement?
(vi) The seamen's contributions which have been withheld at source and/or are payable by the defendants for the hiring hall, under the Collective Agreement?
(vii) The seamen's contributions which have been withheld at source and/or are payable by the defendants for the legal fund, under the Collective Agreement?
(viii) The transportation and other disbursements and/or expenses that the defendants have not refunded and that are owing to the seamen, under the terms of the Collective Agreement?
(ix) The overtime and other claims (grievances) that have not yet been argued?
(x) The N.S.F. cheques received by the seamen from the defendants?
(xi) The penalties for late remission and/or payment provided in the Collective Agreement?
[10] According to the applicants, an answer to these questions will considerably narrow the case currently before the Court. Specifically, the applicants submit that disposing of the points of law will definitively resolve a number of the points in issue, and accordingly the trial to be held will be avoided or considerably shortened.
[11] It is plain, on reading the questions of law supra, that their purpose is to determine whether the applicants' claims comprise a maritime lien. According to the applicants, the question of whether severance pay comprises a maritime lien is the question that will have the greatest impact on the claims. According to the applicants, if the answer to the questions of law this Court is being asked to determine is no, the effect of that, to all practical purposes, will be to end the matter between the plaintiff and the applicants.
[12] In Berneche v. The Queen, [1991] 3 F.C. 383, the Federal Court of Appeal ruled as to the meaning of Rule 474(1)(a). Mahoney J.A., speaking for the Court, stated the following opinion, at pages 388 and 389:
What Rule 474(1)(a) requires is that there be application for the preliminary determination by at least one of the parties: the Court cannot proceed ex proprio motu. It then requires that the Court be satisfied (1) that there is no dispute as to any fact material to the question of law to be determined; (2) that what is to be determined is a pure question of law, and (3) that its determination will be conclusive of a matter in dispute so as to eliminate the necessity of a trial or, at least, shorten or expedite the trial.
The last requirement was stated by Jackett C.J., in the following terms in R. v. Achorner:
The duty of the Trial Division ... was to form a discretionary opinion as to whether it is "expedient", from the point of view of the most efficient carrying on of the action, to have the ... question dealt with before other steps are taken in the action.
While the first requirement is often stated in terms of an agreement or admission of facts because that is the context in which the application is being considered, what is required is that the facts material to the question of law not be in dispute. That does not require the acquiescence of all parties. It is a conclusion for the judge to draw and I see no reason whatever why that conclusion cannot be drawn from the entire pleadings of the party respondent to the application on the assumption that what has been pleaded is true. Nor do I see any reason why an issue estoppel cannot be taken into account in determining whether facts are in dispute.
[13] Accordingly, the applicants must satisfy me that there is no dispute as to any fact material to the determination of the questions supra, that the questions to be determined are in fact questions of law and that the decision to be made by the Court will put an end to the matter in dispute or will reduce the length of the trial to be held.
[14] Plainly, in this instance, the decision that the Court makes concerning the questions of law supra will, in my opinion, be "conclusive of a matter in dispute so as to eliminate the necessity of a trial or, at least, shorten or expedite the trial". There can therefore be no doubt that, if the applicants' claims do not comprise a maritime lien, the dispute between the plaintiff and the applicants will be terminated. The quantum of the claims is important only in so far as the claims are founded on a maritime lien, which will give the applicants priority before the plaintiff's maritime mortgages. There is no dispute as to the facts that are relevant to determining the questions of law supra.
[15] Accordingly, I am of the opinion that it is appropriate, in the circumstances, for the Court to determine the points of law supra. In the next few days I shall summon the parties, by conference call, to discuss the directions that must be given under rule 474(2).
[16] The applicants are asking that I suspend the times allowed by paragraphs 4 and 6 of the orders of June 9, 1997. I am not disposed to suspend the time allowed by paragraph 4. The applicants will have to file their reply by April 30, 1998. With respect to the time allowed by paragraph 6 of the order of June 9, 1997, the applicants will have to file their affidavits of documents within sixty days of the decision to be made by the Court on the points of law.
[17] Costs in the cause.
"MARC NADON"
Judge
Certified true translation
C. Delon, LL.L.
FEDERAL COURT OF CANADA
Date: 19980326
Docket: T-194-97
Between:
Canadian Imperial Bank of Commerce,
Plaintiff,
and/et
The owners and any other parties having an interest in the ships "Le Chêne No. 1", "L'Orme No. 1", "Le Saule No. 1" and "W.M. Vacy Ash",
Defendants.
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: T-194-97
STYLE OF CAUSE: Canadian Imperial Bank of Commerce
and/et
The owners and any other parties having an interest in the ships "Le Chêne No. 1", "L'Orme No. 1", "Le Saule No. 1" and W.M. Vacy Ash",
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 2, 1998
REASONS FOR ORDER OF NADON J.
DATED: March 23, 1998
APPEARANCES:
Édouard Baudry FOR THE PLAINTIFF
Paul-Émile Dion
Bernard Gravel
Gary H. Waxman FOR THE CLAIMANTS
- 2 -
SOLICITORS OF RECORD:
Édouard Baudry
Lavery de Billy
1 Place Ville Marie
Suite 400
Montréal, Quebec
H3B 4M4 FOR THE PLAINTIFF
Paul E. Dion
800 René-Lévesque Blvd.
Suite 2450
Montréal, Quebec
H3B 4V7 Canadian Marine Officers' Union
Bernard Gravel
de Grandpré, Chaurette, Lévesque
2000 McGill College Avenue
Suite 1600
Montréal, Quebec
H3A 3H3 Canadian Merchant Service Guild
Gary H. Waxman
1000 de la Gauchetière Street West
Suite 2700
Montréal, Quebec
H3B 4W5 Seafarers' International Union
FOR THE CLAIMANTS
[1] 474.(1) The Court may, upon application, if it deems it expeditious to do so,
(a) determine any question of law that may be relevant to the decision of a matter, or
(b) determine any question as to the admissibility of any evidence (including any document or other exhibit),
and any such determination shall be final and conclusive for the purposes of the action subject to being varied upon appeal.
(2) Upon an application for an order that a question be determined under paragraph (1), the Court shall, if it orders that the question be so determined,
(a) give directions as to the case upon which the question shall be argued,
(b) give directions as to whether or not memoranda shall be filed and served by the parties and, if they are to be filed and served, fix time limits for the filing and service of the memoranda of the respective parties, and
(c) subject to section 15(2) of the Act, fix a time and place for argument of the question.
[2] When an application is made for payment out of any money paid into court under Rule 1007(7), the Court has power to determine the rights of all claimants thereto and may make such order and give such directions as will enable the Court to adjudicate upon the rights of all claimants to such money and to order payment out to any person of any such money or portion thereof in accordance with its findings.
(2) For the purpose of any application under paragraph (1), the Court may, at the time it makes the order for sale of the property or at any time thereafter, give directions as to notices to be given to other possible claimants to such money, and as to advertising for such other claimants, as to the time within which claimants must file their claims, and generally as to the procedure to be followed to enable the Court properly to adjudicate upon the right of the parties, and to give judgment upon any claim or claims against the money in court; and any claim that is not made within the time limited, and in the manner prescribed, by such an order of the Court shall be barred, and the Court may proceed to determine the other claims and distribute the moneys among the parties entitled thereto without reference to any claim so barred.
(3) Upon any such application, the Court may order payment out at once of any fees or expenses of the marshal or other person under this Rule in connection with the arrest, custody, appraisement, or sale of such property.