Date: 19990915
Docket: T-1682-98
MONTRÉAL, QUEBEC, SEPTEMBER 15, 1999
| Before: RICHARD MORNEAU, PROTHONOTARY |
Between:
INTERNATIONAL PAINTS (CANADA) LIMITED,
Plaintiff,
AND
THE OIL RIG "SPIRIT OF COLUMBUS"
and
THE OWNERS AND ALL OTHERS INTERESTED
IN THE OIL RIG "SPIRIT OF COLUMBUS",
Defendants.
ORDER
Under s. 221(1)(a) of the Federal Court Rules (1998), the plaintiff"s proceedings disclose no reasonable cause of action and they are hereby ordered struck out. As a corollary to this, release of the seizure of the platform is granted.
Costs must be awarded to the defendants under column IV, but without awarding the maximum in that column.
| Richard Morneau Prothonotary |
Certified true translation
Bernard Olivier, LL. B.
Date: 19990915
Docket: T-1682-98
Between:
INTERNATIONAL PAINTS (CANADA) LIMITED,
Plaintiff,
AND
THE OIL RIG "SPIRIT OF COLUMBUS"
and
THE OWNERS AND ALL OTHERS INTERESTED
IN THE OIL RIG "SPIRIT OF COLUMBUS",
Defendants.
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY:
Introduction
[1] The Court has before it a motion by the defendants to strike pursuant to Rule 221(1)(a), (c) and (f) of the Federal Court Rules (1988) ("the Rules") made against the pleadings filed to date by the plaintiff, namely the statement of claim, the affidavit requesting seizure and the plaintiff's reply to the defendants' defence (hereinafter referred to collectively as "the plaintiff's pleadings"). As a corollary, the defendants are also seeking release of the seizure.
[2] According to the defendants, the plaintiff's pleadings disclose no reasonable cause of action essentially because the in rem aspect of the pleadings do not allege a contract between the plaintiff and the owner of the seized platform, here the Spirit of Columbus, or "some personal behaviour and attitude of the owner sufficient to entail its in personam liability". It should be noted that the statement of claim is in its entirety a statement in rem and that if it is to be struck out, the statement must be struck out in its entirety.
Context
[3] The reasons why the Spirit of Columbus platform ("the platform") was located in the premises of Industries Davie Inc. ("Davie") and why the plaintiff ("IPL") seized the platform are summarized in certain affidavits of the parties.
[4] The defendants filed an affidavit of the Pétromec project manager in which the latter explained how the platform came to Davie"s premises. In paragraphs 2 to 4 and 7 of that affidavit, dated August 18, 1999, it states:
| 2. At all material times herein, the Platform was (and still is) property of Societa Armamento Navi Appoggio S.p.A. (SANA) of Rome, Italy, the whole as more fully appears from the attached Affidavit of Mr. Stefano Ciccioriccio, Chairman of SANA, produced herewith as Exhibit "A" to this my Affidavit. |
| 3. On June 20, 1997, Petro-Deep Inc. (a Cayman Islands corporation) contracted with Petromec to upgrade the Platform. A copy of this contract (the Upgrade Agreement) is attached as Exhibit "B" to this my Affidavit. |
| 4. At all materials times Petromec, and only Petromec, was responsible for the upgrade of the Platform and to fulfill its obligations to Petro-Deep it engaged Industries Davie, Inc. ("DAVIE"), as stated hereinafter, as the shipyard contractor to carry out the upgrade. |
...
| 7. As part of its contract with Petromec, DAVIE provided paint and paint work to the Platform. ... |
[5] The plaintiff's statement of claim explains the latter's involvement in upgrading the platform and sets out the allegations in fact and law which it considers justify the seizure of the platform. This statement of claim needs to be set out at length (the wording of the affidavit requesting a warrant is similar):
| CLAIM |
| 1. At all material times hereto, Plaintiff was and still is in the business of manufacturing and supplying paint products; |
| 2. The Spirit of Columbus is a propeller-driven semi-submersible oil rig which seems to be owned or beneficially owned, or leased by Petromec Inc., Petrobras, Maritima, and/or others, and is docked at the Port of Quebec; |
| 3. The Spirit of Columbus is of Italian registry and nationality and belongs to the Port of Naples, Italy; |
| 4. Industrie Davie Inc. appears to have contracted with the owners of the Spirit of Columbus and/or its agents namely to modify and repair the oil rig; |
| 5. For this purpose, Plaintiff has sold and delivered to Industrie Davie Inc. various paint products, for the benefit of the Spirit of Columbus, from March to August 1998, as appears from the invoices totalling $330,743.10 and statement of account filed en liasse into the record of this Court as Exhibit A; |
| 6. To this date, the amount of $330,743.10 remains owing to Plaintiff; |
| 7. The paint products detailed in the said invoices were applied on the Spirit of Columbus or its components; |
| 8. The said paint products are necessaries for the oil rig; |
| 9. The Spirit of Columbus is presently at the Port of Quebec, and some of its components may be at the premises of Industrie Davie Inc.; |
| 10. The owners, beneficial owners of the Spirit of Columbus, and/or their agents, knew and authorized the supplying of paint products by Plaintiff; |
| 11. By way of example, and without limiting the generality of the foregoing, Plaintiff's representatives visited the oil rig many times and had numerous discussions and meetings with the representatives of the owners or beneficial owners of the oil rig, and/or their agents, with respect to the paint products supplied and to be supplied by Plaintiff; |
| 12. Industrie Davie Inc. has filed, on August 11, 1998, a notice of intention to file a proposal under the Bankruptcy and Insolvency Act; |
| 13. Plaintiff is entitled to claim from Defendants the payment of the amount of $330,743.10, plus interest at a rate of 18% per year, as mentioned on the invoices, or the maximum permitted by law (if less), from the date of the present claim, and costs; |
| 14. Plaintiff has a right in rem against the Spirit of Columbus and a right to arrest the said oil rig; |
| 15. Plaintiff invokes the jurisdiction in rem of this Honourable Court; |
| 16. Plaintiff is namely invoking sections 22(1), 22(2)m) and/or 22(2)n), and sections 43(2) and/or 43(3) of the Federal Court Act; |
| 17. Plaintiff is invoking its legal or statutory maritime lien against the said oil rig and all existing and applicable Federal Law, including the Canadian Maritime Law; |
| 18. Plaintiff's action is well founded both in fact and in law; |
| 19. Plaintiff proposes that this action be tried in Montreal. |
[6] Since the defendants sought particulars on paragraphs 10 and 11 of the statement of claim (these paragraphs correspond to paragraphs 11 and 12 of the affidavit requesting a warrant), the plaintiff alleged the following in its reply:
| 8. It denies paragraph 17 of the statement of defence adding that the particulars sought have never been refused; Plaintiff hereby produces various documents, en liasse, as Exhibit B, which documents contain the details on the various contacts, interventions and authorizations in support of the allegations contained in paragraphs 10 and 11 of the statement of claim, namely the following: |
| a) a copie (sic) of business cards of various representatives of Petromec and Petrobras met by Robert Perreault, Plaintiff's representative in connection with the supply of paint for the Spirit of Columbus; |
| b) a list of contacts from Brasoil and Petrobras at the Port of Quebec or at Davie's site in Lévis; |
| c) a list of contacts from Petromec and various representatives at the Port of Quebec or at Davie's site in Lévis; |
| d) a list of Davie's personnel involved with Plaintiff for this project; |
| e) a list of visits to the rig site by Robert Perreault (sic) various representatives of Brasoil, Petromec, Petrobras and/or Davie; |
| f) a list of products provided by Plaintiff for the Spirit of Columbus; |
| g) a list of communications and attached documents numbered 2 to 59. . . |
Criteria for striking out
[7] The right to request that a pleading be struck out in an action is now covered by Rule 221.
[8] This rule reads as follows:
| 221. (1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it |
| (a) discloses no reasonable cause of action or defence, as the case may be, |
| (b) is immaterial or redundant, |
| (c) is scandalous, frivolous or vexatious, |
| (d) may prejudice or delay the fair trial of the action, |
| (e) constitutes a departure from a previous pleading, or |
| (f) is otherwise an abuse of the process of the Court, |
and may order the action be dismissed or judgment entered accordingly.
(2) No evidence shall be heard on a motion for an order under paragraph (1)(a).
[9] This rule is the equivalent of Rule 419 of the Federal Court Rules. The precedents developed under the latter rule are therefore applicable to Rule 221.
[10] Consequently, under s. 221(1)(a) it must be plain and obvious (see Canada (A.G.) v. Inuit Tapirisat, [1980] 2 S.C.R. 735, at 740) that the in rem portion of the plaintiff's statement of claim discloses no reasonable cause of action.
[11] Additionally, as to the application of the other paragraphs of Rule 221 here, the disputed allegations must be so abusive and embarrassing that they have to be struck out, in whole or in part. As Teitelbaum J. of this Court mentioned in Copperhead Brewing Co. Ltd. v. John Labatt Ltd. et al. (1995), 61 C.P.R. (3d) 317, at 322:
. . . the jurisprudence is consistent that under Rules 419(1)(b) through (f) it must be established that the pleading is so clearly immaterial, frivolous, embarrassing or abusive that it is obviously forlorn and futile (Burnaby Machine & Mill Equipment Ltd. v. Berglund Industrial Supply Co. Ltd. (1982), 64 C.P.R. (2d) 206 (F.C.T.D.)). . .
Analysis
[12] In my view, it is clear from reading the various paragraphs of the statement of claim and from reading paragraph 8 of the plaintiff's reply that these paragraphs, read alone or in conjunction with each other, contain no allegation of participation by the owner of the platform which is sufficiently complete and direct for the latter to be personally liable.
[13] Of course, some of these paragraphs refer to certain direct or indirect participation by the owner. However, no allegation mentions the personal liability of the owner or owners of the platform or alleges that the latter authorized commitment of the credit of the platform. It must be concluded from the way the statement of claim is framed that paragraph 5 of these pleadings indicates that the plaintiff at the time contemplated and entered into a contract with Davie only.
[14] Consequently, in accordance with the ruling of the Federal Court of Appeal in Mount Royal/Walsh Inc. v. Jensen Star (The), [1990] 1 F.C. 199, at 216-217, there can be no in rem action in the case at bar. The situation before the Court is very similar in fact and in law to that occuring in Western Stevedoring Co. v. Ship "Anadolu Guney" et al. (1987), 18 F.T.R. 9, in which the Court allowed a motion to strike pursuant to the old Rule 419(1)(a).
[15] It must accordingly be concluded that under s. 221(1)(a) the plaintiff's pleadings disclose no reasonable cause of action and must be struck out. As a corollary, release of the seizure of the platform is granted.
[16] In view of this conclusion, there is no reason to consider the possible application of s. 221(1)(c) and (f) of the Rules. At all events, the plaintiff argued vigorously that the defendants' motion should not be considered in terms of these paragraphs as inter alia the basis of the defendants' challenge under those paragraphs is the same as that raised under s. 221(1)(a) of the Rules (see to this effect Versatile Vickers Inc. v. Chimo Shipping Ltd., [1982] F.C.A. No. 117, at 4).
[17] Further, I do not consider that the situation in the case at bar requires the Court to allow the plaintiff to amend its statement of claim instead of ordering the striking out forthwith. It appears that the platform will not leave Quebec until on or about October 12, 1999. This delay will allow the plaintiff to assess its knowledge of the facts and if necessary refile and again seize the platform. In the latter case, the parties will start on an equal footing once more.
[18] As to costs, these must be awarded to the defendants under column IV, but without awarding the maximum in that column.
[19] An order will be made accordingly.
| Richard Morneau Prothonotary |
MONTRÉAL, QUEBEC
September 15, 1999
Certified true translation
Bernard Olivier, LL. B.
| Federal Court of Canada Trial Division Date: 19990915 Docket: T-1682-98 Between: INTERNATIONAL PAINTS (CANADA) LIMITED, Plaintiff, et THE OIL RIG "SPIRIT OF COLUMBUS" and THE OWNERS AND ALL OTHERS INTERESTED IN THE OIL RIG "SPIRIT OF COLUMBUS", Defendants. REASONS FOR ORDER |
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE No.: T-1682-98
| STYLE OF CAUSE: INTERNATIONAL PAINTS (CANADA) LIMITED, |
Plaintiff,
ET
THE OIL RIG "SPIRIT OF COLUMBUS"
and
| THE OWNERS AND ALL OTHERS INTERESTED IN THE OIL RIG "SPIRIT OF COLUMBUS", |
Defendants.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 14, 1999
REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY
DATE OF REASONS FOR ORDER: September 15, 1999
APPEARANCES:
Nathalie Bédard for the plaintiff
Sophie Perron
Laurent Fortier for the defendants
Peter J. Cullen
Bernard Gravel for Crane Canada Inc., caveator
Robin St-Arnaud
Jeremy P. Bolger for X-Per-X Inc., caveator
| George J. Pollack advisor to counsel for the plaintiff |
SOLICITORS OF RECORD:
Coudert Frères for the plaintiff
Nathalie Bédard
Sophie Perron
Montréal, Quebec
Stikeman, Elliott for the defendants
Laurent Fortier
Peter J. Cullen
Montréal, Quebec
Grandpré Chaurette Lévesque for Crane Canada Inc., caveator
Bernard Gravel
Robin St-Arnaud
Montréal, Quebec
McMaster Gervais for X-Per-X Inc., caveator
Jeremy P. Bolger
Montréal, Quebec
Sproule, Castonguay, Pollack advisor to counsel for the plaintiff
George J. Pollack
Montréal, Quebec