Judgments and Enforcement of Judgments - Case Summaries
The database contains 30 case summaries relating to Judgments and Enforcement of Judgments. The summaries are sorted in reverse date order with 20 summaries per page. If there are more than 20 summaries, use the navigation links at the bottom of the page.
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Foreign Sovereign Immunity – Writ of Seizure and Sale – Setting Aside
Roxford Enterprises SA v. Cuba et al., 2003 FCT 763
The issue in this case was whether the assets of Cubana de Aviacion S.A. (“Cubana”) were available for seizure to satisfy a judgment obtained by default against the government of Cuba. Cubana was not a party to the original action but, according to the Plaintiff, the government of Cuba was the true owner of Cubana’s shares and assets such that the property of Cubana should be liable to seizure to satisfy Cuba’s debts. Having first determined that the Federal Court had jurisdiction to hear the case, the Prothonotary answered the narrow question: were the assets of Cubana liable to seizure for a debt owed by Cuba in respect of litigation unrelated to Cubana’s affairs? This was the opposite of the usual question asked in sovereign immunity cases, that is, is a particular state entity entitled to the benefit of sovereign immunity in respect of its activities? There apparently being no Canadian case law addressing the issue, the Prothonotary adopted the principles set out by the United States Supreme Court, these being: duly created instrumentalities of a foreign state are entitled to be accorded a presumption of independent status, however, where a corporate entity is so extensively controlled by its owner such that a relationship of principal and agent is created, one may be held liable for the actions of the other. The Prothonotary held that the facts did not support the conclusion that Cubana’s business, income, undertaking and assets were controlled or even owned by Cuba, and thus concluded that the Plaintiff had not dislodged the presumption that Cubana was a separate juridical entity. Cubana could therefore not be liable for the debts of Cuba.
Dismissal - Breach of Peremptory Orders
Angloflora Ltd. v. The “Cast Elk”, 2002 FCT 1230
This was an appeal from an order of a Prothonotary dismissing the Plaintiff’s claim for failure to comply with a peremptory order that required the Plaintiff to pay costs. The appeal Judge dismissed the appeal and upheld the order striking the Plaintiff’s claim. The appeal Judge noted that the only relevant consideration on such a motion is whether there was justification for the non-compliance. The standard of justification was whether the party had clearly demonstrated that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances. The failure to comply must be beyond the party’s control. Moreover, prejudice to the party that failed to comply is not a consideration in determining if the standard of justification is met.
Default Judgment - Requirement for Affidavit Evidence
249387 BC Ltd. v. The “Edith Cavell”, 2002 FCT 798
This was an application for in rem judgment in default of a defence. The Prothonotary granted the judgment but adjourned the balance of the motion to set the amount of the judgment pending the filing of proper affidavit evidence. The Prothonotary reviewed the authorities and held that the amount of the default judgment could not be based simply on allegations in the Statement of Claim but needed to be proved by proper affidavit evidence.
Summary Judgment - Agreement to Insure - Waiver of Subrogation
Pacifica Papers Inc. v. The “Haida Monarch”, 2002 FCT 676
This was a motion for summary judgment by the Plaintiff. The case concerned the partial loss of a cargo of logs being carried from Alaska to Powell River. It was common ground that the action by the Plaintiff was a subrogated action brought by the Plaintiff’s insurer. The Defendants alleged, inter alia, that the Plaintiff’s insurer was precluded from bringing the action because the Defendants were an “insured” under the policy and because of the waiver of subrogation clause contained in the policy. The motions Judge reviewed and summarized the principles applicable to motions for summary judgment and noted particularly that summary judgment was not appropriate where there was conflicting evidence or issues of credibility. The motions Judge then concluded that the issue of whether the Defendant was an insured was too complex for summary judgment and dismissed the motion.
Default Judgment - Reference
Island Tug & Barge Ltd. v. Haedon Co. Ltd. et al, 2002 FCT 250
This was an application by the Plaintiff for judgment in default of defence. Although the motion was not opposed, the court considered whether a reference to determine damages was necessary given that the action was in rem. The Prothonotary held that he had the discretion to give default judgment without a reference provided the claim was well founded, which he found it was.
Writ of Seizure and Sale - Setting Aside - Stay
Joy Shipping Inc. v. Empressa Cubana Des Fletes of Cuba et al.,  F.C.J. No. 945
This was an application to set aside a Writ of Seizure and Sale directing the Sheriff to seize the ship "Rio Cuyaguateje". The Writ was issued to enforce a judgment of the Superior Court of England and Wales which had been registered previously with the Federal Court. The Applicant brought this application to set aside the Writ and seizure on the grounds that it was not given notice of the requisition for the Writ and that the judgment debtors were not the owners of the ship. The Court held that there was no requirement that the Applicant be given notice of the requisition for the Writ. The Court further held that it did not have authority to set aside the Writ under Rule 399 as the Writ was not an order of the Court. Finally, the Court held that, pursuant to Rule 448, the issue of ownership should be resolved according to the laws of Newfoundland, where the ship was seized. The Court declined to adjudicate the ownership issue without a full record. In result, the Court refused to set aside the Writ but it did order a stay on condition that the Applicant file security for the entire amount of the judgment.
Examination in Aid of Execution
James Fisher & Sons PLC v. Pegasus Lines Limited S.A., 1999 CanLII 8652
In this matter the court ordered that a representative of the general agent of the Defendant shipping line could be examined in aid of execution as an "officer" of the Defendant within the meaning of Rule 426. The court held that the term "officer" should not be restricted to the president, vice president and secretary. The term should be broadly defined and included anyone in positions of authority at the senior management level.
Costs -Security - Non-Compliance With Orders
Margem Chartering Co. Inc v. Cosena SRL and The "Bocsa", No. T-2418-96
This was an application by the Defendant to have the Plaintiff's action dismissed for failing to provide security for costs as required by a previous peremptory order. The Court considered the test to be applied when a party fails to comply with a peremptory order (also referred to as an "unless" order). The Court noted that there were two different principles of law at issue. First, a litigant ought not to be deprived of a right to have its case heard, so long as any damage to other parties is compensable. Second, a litigant who fails to comply with a peremptory order will not normally be permitted to continue the action. The Court noted that to overcome the presumption the party who failed to comply with the order must demonstrate that the failure to comply was not intentional or contumelious. In the case before it the Court found that the Plaintiff's failure to post security was due to circumstances beyond its control and therefore refused to dismiss the action.
Arbitration - Review of Award - Buyer Beware
Killam v. Brander-Smith, 1997 CanLII 2387
This was an application to set aside an arbitration award. The arbitration concerned the sale of a 22 foot fibre glass boat. The purchaser alleged that the vendor had misrepresented the condition of the engine. The arbitrator held that the doctrine "buyer beware" applied and found in favour of the vendor. The Court upheld the arbitrator's decision.
Summary Judgment - Stay of Proceedings
Granville Shipping Co. v. Pegasus Lines Ltd.,  2 FC 853
This case involved a claim by the Plaintiff for unpaid hire under a charterparty and a counterclaim by the Defendant for damages for delay. The Plaintiff brought a motion for summary judgment on the main claim and a motion for an order staying the counterclaim and referring it to arbitration pursuant to the arbitration clause in the charterparty. The Court declined the request for summary judgment finding there were genuine issues of fact and credibility. With respect to the stay application, the Court held the request for a stay had not been made in a timely manner and further held the Plaintiff had waived its right to a stay of the counterclaim by commencing the main action in the Federal Court.