Date: 20020830
Docket: T-687-02
Neutral citation: 2002 FCT 924
ADMIRALTY ACTION IN REM AND IN PERSONAM
BETWEEN:
MR. AND MRS. STEPHEN STRIEBEL
Plaintiffs
and
SOVEREIGN YACHTS (CANADA) INC.
THE OWNERS AND ALL OTHERS INTERESTED
IN THE MOTOR VESSEL CHAIRMAN, also known as
SOVEREIGN HULL NUMBER 7644
Defendants
REASONS FOR ORDER
HARGRAVE P.
These reasons arise out of the Plaintiffs' request that I re-consider my Order of 27 August 2002, in which I set security for the release of the Plaintiffs' vessel Chairman at $1 million (US). By way of explanation the vessel was built by Sovereign Yachts (Canada) Inc. ("Sovereign") arrested by the Plaintiffs as mortgagees and intended owners while in the yard of the builder, Sovereign, and subsequently caveated by Sovereign. The Plaintiffs submit that I erred by reason of inadvertence, or a misunderstanding of the evidence, and that the security in favour of Sovereign should have been stated as $1 million (Canadian).
The Defendant, Sovereign, submits that to change the currency designation is a variance, a change of mind, and not a mere correction of an error.
CONSIDERATION
The law is well-settled: I may not re-consider a judgment, altering it to reflect a change of mind, but may rectify it to conform to what the judgment should have been, or what was intended: Polylock Corporation v. Montreal Fast Print (1975) Ltd., [1984] 1 F.C. 713 at 720 and 721, reasons of Chief Justice Thurrow.
In Maligne Building Ltd. v. The Queen, [1983] 2 F.C. 301, Mr Justice Dubé phrased the concept slightly differently, there referring to Rule 337(5), the predecessor to the present slip rule, Rule 397, setting out that where some matter had been overlooked by a judge, that is, a slip in some technical matter, the Court may take the necessary steps to rectify the situation: see page 304.
The Defendants rely upon well-established case law to the effect that a re-examination of a conclusion drawn from the evidence is not a proper basis for re-consideration under Rule 397, there relying upon Kun Shoulder Rest Inc. v. Joseph Kun Violin & Bow Maker Inc. (1999), 172 F.T.R. 149. Similarly see Keleher v. Canada, an unreported decision in action T-1981-87 dated 27 June 1989, a re-consideration of an earlier reported decision, for the proposition that the Court may not re-examine conclusions which it drew from the evidence, that being a matter for an appeal.
Both of these lines of cases set out perfectly valid propositions. On the one hand, the concept that there are inadvertent mistakes or omissions which may be corrected in order to bring about an intended result, and on the other hand, the concept that the Rule 397 power to correct mistakes does not extend to a re-examination of conclusions drawn from the evidence. This is a natural and sensible distinction, for only the initial decision-maker can know what was intended and rectify such an inadvertent slip, whereas it is for a court sitting on appeal to consider anew the evidence and perhaps come to a different conclusion.
In the present instance there was a technical slip, an error in reading and transcribing evidence and argument, by reason of figures being used in both Canadian and American currencies including, from time to time, both sides using the same figures with two different currency designations in pleadings, in affidavit material and in argument. For example, the counterclaim of Sovereign seeks damages of "US $1,850,000", less an American dollar deduction, with the same contractual loss of profit being refined to "in excess of $1.8 million" in argument and as "approximately $1,810,815" in Sovereign's affidavit evidence. There are other similar inconsistencies.
I inadvertently took the claim of Sovereign to be $1,810,815.00 (US), with a security request of $2 million (US). I concluded that security, on that basis, was exorbitant and that there were special circumstances which called for a reduction in the security. Taking a pragmatic approach, for in setting security I may not decide the case, I cut the security in half. The intent was that the security ordered not be oppressive, but be a reasonable reflection of the claim, taking into consideration the special circumstances surrounding the claim, to arrive at security reflecting the reasonably arguable best case. The error was in using the American dollar designation, not the Canadian dollar designation used by the parties in affidavit and argument, for the intent was, as I say, that the security reflect both the special circumstances and the claim in its reasonably best arguable form. The error is rectified with a purely mechanical change of currency designations. Should either party wish a re-assessment of the evidence, that may be accomplished by appeal.
The motion for re-consideration is allowed. The Order of 27 August 2002 is amended, pursuant to Rule 397, to substitute "Canadian" for "US" in two places in paragraph 1 and to remove the redundant words in the first line "the equivalent of" in referring to the security for North West Delta Yacht Services Inc.
Costs to the Plaintiffs at the end of the day.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
30 August 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-687-02
STYLE OF CAUSE: Mr. and Mrs. Stephen Striebel v.
Sovereign Yachts (Canada) Inc.
PLACE OF HEARING: Motion in writing
DATE OF HEARING: -
REASONS FOR ORDER: HARGRAVE P.
DATED: 30 August 2002
APPEARANCES:
- FOR PLAINTIFFS
FOR DEFENDANT Sovereign Yachts (Canada) Inc.
- FOR DEFENDANT North West Delta Yacht Services
SOLICITORS OF RECORD:
McEwen, Schmitt & Co. FOR PLAINTIFFS
Vancouver, British Columbia
Nathanson Schachter & Thompson FOR DEFENDANT Sovereign
Vancouver, British Columbia Yachts (Canada) Inc.
Ottho Law Group FOR DEFENDANT North West
Vancouver, British Columbia Delta Yacht Services