Date: 19990205
Docket: T-539-92
BETWEEN:
OLBERT METAL SALES LIMITED and
METALPLATE TRADING N.V.
Plaintiffs
- and -
CERESCORP INC., LONGITUDE TRANSPORT CO.
JOHN DOE CORPORATION, NORSUL INTERNACIONAL S.A.
and THE SHIP "HARMAC DAWN",
HER OWNERS AND ALL OTHERS INTERESTED IN HER
Defendants
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] The Court issued the notice of status review on July 3, 1998 requesting written submissions as to why this matter should not be dismissed for delay.
[2] The counsel for plaintiffs Andrew Barry Oland was receiving a large number of requests for status review from the Federal Court of Canada over the same period of time.
[3] Inadvertently, it was determined the status review for the within action related to a claim that was closed.
[4] On July 9, 1998, counsel for the plaintiffs sent a letter to the Federal Court of Canada referring to four different cases mentioning: "I have reviewed all files and find that these claims are closed... We have no objection to dismissal of the actions".
[5] On September 21, 1998, the plaintiffs requested Mr. Bailey be produced on behalf of the vessel interested for examination for discovery.
[6] Following that, the file was submitted to Justice L. Marcel Joyal who rendered a decision on December 10, 1998, dismissing the action for delay.
[7] On receipt of that decision, the plaintiffs" counsel wrote a letter on December 21, 1998 to the Federal Court of Canada explaining why this action should not be dismissed for delay and expressing his surprise with the situation, particularly that he had never received the notice of status review.
[8] Subsequently, by a letter sent by fax on December 22, 1998, the Senior Registry Officer of the Court has informed Mr. Oland that, not only he had received the notice of status review, but he had provided an answer to it confirming that the matter was closed. The Senior Registry Officer also suggested that the plaintiffs had to file a motion to the Court to have the dismissed order rescinded.
[9] In his motion and his affidavit, M. Oland has confirmed that the case is active and the letter sent by him on July 9, 1999 was a mistake and did not reflect his intention.
[10] UPON the plaintiffs have showed cause why this action should not be dismissed for delay;
[11] PURSUANT to Rule 399(2)(a);
| THIS COURT ORDERS THAT: |
| - The decision of Mr. Justice Joyal rendered on December 10, 1998 dismissing this action for delay be set aside by reasons of a matter that was discovered subsequent to the making of the order; |
| - The plaintiff is granted an extension of time until February 19, 1999 to file and serve its written submissions, pursuant to the notice of status review; |
Pierre Blais
Judge
OTTAWA, ONTARIO
FEBRUARY 5, 1999