Pleadings - Case Summaries
The database contains 20 case summaries relating to Pleadings. 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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Bill of Lading - Container Yard to Container Yard - Obligations - Completed
Black & White Merchandising Co. Ltd. v. Deltrans International Shipping Corporation, 2019 FC 379
Précis: The Federal Court lacked jurisdiction to hear a claim subsequent to completion of the obligations under a bill of lading.
Facts: The plaintiff ordered a cargo of children’s shoes and submitted a booking request with the defendant, which in turn contacted various third parties, including Delmar, to organize transportation of the cargo from China to Montreal. Delmar issued a bill of lading that specified Ningbo as the port of loading, Prince Rupert as the port of discharge and Montreal as the place of delivery with an estimated arrival date being 31 January 2017. The terms of the bill of lading specified the type of move as container yard to container yard. The cargo arrived on 5 February 2017 at the container yard in Montreal and was then to be sent to a third-party warehouse. On 6 February 2017 one of the third parties notified Delmar that the container in which the cargo was carried was stolen from that third-party warehouse. Delmar advised the Plaintiff that the container was stolen, and on 22 March 2017 the Plaintiff issued its Statement of Claim, alleging the loss of cargo was a result of the defendant’s breach of the contract of carriage and negligence. On 6 February 2019 the defendant brought this motion to strike the plaintiff’s claim.
Decision: Motion granted; claim struck.
Held: The plaintiff brought this action to Court pursuant to s. 22(2)(f) of the Federal Courts Act. The plaintiff’s affidavit provided that the bill of lading required the cargo to be delivered to the warehouse, and since the cargo was stolen from the warehouse of a third party, the defendant was liable for the loss. The defendant argued that the contractual obligations under the bill of lading ended with it delivered the cargo to the container yard, thus the obligations under the bill of lading were satisfied and complete prior to the theft from the warehouse. In finding that the plaintiff’s Statement of Claim did not assert the bill of lading required the cargo to be delivered to the warehouse, there was no alleged fact supporting the jurisdiction of the Court on the basis of the bill of lading or s. 22(2)(f). Further, the Court found no evidence tendered by the plaintiff as to its assertion that the defendant and Delmar were “one and the same” which would make the defendant liable for the loss. The court found that the transport of the cargo beyond container yard to container yard was not encompassed by the bill of lading and thus would not find jurisdiction under s. 22(2)(f). On that basis, the Court struck the claim without leave to amend.
Third Party Action - Indemnity - Jurisdiction of Federal Court - Prothonotaries – Standard of Review
Certain Underwriters at Lloyd's and Soline Trading Ltd. v. Mediterranean Shipping Company S.A., 2017 FC 460 2017 FC 893
Précis: The Federal Court held it had no jurisdiction to adjudicate a third party claim for indemnity brought by the ocean carrier against a trucker who took delivery of the cargo either unlawfully or negligently.
Facts: The plaintiff and defendant entered into a contract for the carriage of one container of frozen shrimp from Ecuador to Montreal. The container was discharged at Montreal and was later released by the terminal, the defendant’s agent, to a trucking company who was not entitled to delivery. The plaintiff commenced proceedings in the Federal Court against the defendant for wrongful delivery. The defendant then commenced these third party proceedings against the trucking company that took delivery alleging that it took delivery either unlawfully or negligently. The trucking company brought an application for an order striking out the third party claim on the grounds that the Federal Court did not have jurisdiction to hear the third party claim. At first instance (2017 FC 460), the Prothonotary agreed with the third party and held that the court did not have jurisdiction to adjudicate the claim. The defendant appealed.
Decision: Appeal dismissed.
Held: The order of the Prothonotary is discretionary and can only be interfered with if incorrect in law or based on a palpable and overriding error of fact. The defendant argues that the Prothonotary failed to take into account the modern context of navigation and shipping and mischaracterized the third party action as a matter of trucking governed by provincial law rather than as theft from a sea terminal which it says is governed by Canadian maritime law. Whether the claim is governed by Canadian maritime law requires a consideration of whether the subject matter of the claim is integrally connected to maritime matters. Here there is hardly any proximity between the activities of the third party and the sea and there is no contractual connection between the third party and the contract for the carriage of the cargo by sea. In fact, there is no contractual relationship with the third party at all. The activities of the third party are essentially those of a trucker and are governed by provincial law not Canadian maritime law. It is therefore plain and obvious that the Federal Court is without jurisdiction to hear the third party claim.
Practice - Amendment of Pleadings
Atlantic Container Lines AB v. Cerescorp Company, 2017 FC 465
Précis: The Federal Court permitted a defendant to amend its Statement of Defence to allege additional causes of the collapse of a stow of containers where the amendments were not a radical departure from prior pleadings, were not doomed to fail and the motion to amend was made in a timely fashion.
Facts: During the discharge of the plaintiff’s vessel by the defendant a stack of containers collapsed causing damage to the vessel. The plaintiff brought the present action against the defendant. The defendant filed a defence pleading the containers had been negligently misaligned during loading. The defendant now brought an application to amend its defence to plead the misalignment was also due to defects in the placement of the cell guides and spacing bars and to plead that a stack of 8 containers was inherently dangerous. The plaintiff opposed the amendments arguing they constituted a radical departure from previous pleadings, were unsupported by evidence and doomed to fail, were untimely and were prejudicial since evidence had been lost and the plaintiff’s rights of recourse were time barred.
Decision: The amendments are allowed.
Held: The proposed amendments are not a radical departure from the prior pleadings which identified misalignment and improper stowage as contributing factors. The amendments are also not doomed to fail as the defendant has demonstrated that there is some evidence in support of them. Amendments can be refused as untimely when allowing them would unduly delay the trial of the action, however, here the amendments are requested before expert reports have been prepared and before a trial date has been set and will not cause significant delay. The more significant argument made against the amendments is that to allow them would cause prejudice to the plaintiff that could not be compensated for in costs. The plaintiff relies on the fact the vessel has been sold and destroyed together with her documents. However, the evidence would have been lost even if the amendments were in the original pleading and therefore does not lead to an injustice.
s. 139 MLA Lien - Pleadings - Motion to Strike Claims of Railway Against Shipowner
Canadian National Railway Company v. Hanjin Shipping Co Ltd, 2017 FC 198
Précis: A motion by the Owner of the “Hanjin Vienna” to strike the Statement of Claim of the Canadian National Railway Company on the grounds that it disclosed no cause of action or was scandalous, frivolous or vexatious was dismissed.
Facts: Following the well publicized bankruptcy of Hanjin Shipping Co. Ltd. in 2016, the “Hanjin Vienna”, a ship under long term time charter to Hanjin, was arrested at Vancouver in the Federal Court. The plaintiff had provided rail services to Hanjin, including to the “Hanjin Vienna”, and was allegedly owed approximately $20 million in respect of these services. The plaintiff commenced this action against Hanjin and various vessels owned or chartered by it, including the “Hanjin Vienna”. The owner of the “Hanjin Vienna” then brought this application to strike the claim of the plaintiff as against it.
Decision: Application dismissed.
Held: The owner of the “Hanjin Vienna” brings this application to strike the statement of claim on the grounds that it discloses no reasonable cause of action or is scandalous, frivolous or vexatious. The burden on the owner is a heavy one. If there is a chance the plaintiff might succeed, the action should be allowed to continue. The plaintiff alleges that it has a maritime lien by virtue of s. 139 of the Marine Liability Act for services supplied to the vessel. The owner says that there can be no such lien as there is no contract between the owner and the plaintiff and therefore no personal liability on the part of the owner. However, it is not clear whether the personal liability of the owner is required for a lien under s. 139 of the Marine Liability Act. The plaintiff’s lien claim is therefore arguable. It is further arguable that the plaintiff’s claim is governed by Canadian maritime law. The claim of the plaintiff is arguably one for freight and may fall within s.22(1) of the Federal Courts Act. The Canada Transportation Act, S.C. 1996, c. 10, may also provide a basis for the plaintiff’s claims.
Action Against Insurance Broker - Applicability of Canadian Maritime Law - Jurisdiction of Federal Court
Coastal Float Camps Ltd. v. Jardine Lloyd Thompson Canada Inc., 2014 FC 906
Précis: The Federal Court refused to strike a claim for negligence against a marine broker as it was not “plain and obvious” the court was without jurisdiction.
Facts: The plaintiff’s vessel capsized and sank on 5 November 2009. The plaintiff’s insurer denied coverage on the grounds of material non-disclosure and misrepresentation. The plaintiff commenced this action against the insurer for a declaration that the loss was covered. The plaintiff later amended the statement of claim to include a claim against its marine broker for negligence and breach of contract. The broker then brought this application to strike the allegations against it on the grounds that the Federal Court had no jurisdiction in respect of those claims.
Decision: Application dismissed.
Held: The applicable test on a motion to strike is whether it is plain and obvious the claim discloses no reasonable cause of action. The fact that a claim is novel or difficult is not sufficient. “The burden on the defendant is very high and the Court should exercise its discretion to strike only in the clearest of cases.” The broker relies upon the decision in Intermunicipal Realty & Development Corp v Gore Mutual Insurance Co,  2 FC 691 where it was held the Federal Court did not have jurisdiction over a marine insurance broker in agency and misrepresentation. However, the plaintiff cites a number of authorities that show the law concerning the jurisdiction of the Federal Court has evolved considerably since Intermunicipal Realty was decided and that it may no longer be good law. In the circumstances, it is not plain and obvious the plaintiff’s claim cannot succeed.
Pleadings- Motion to Strike - Expiry of Limitation Period - Continuation of Earlier Action
Adventure Tours Inc. v. St. John's Port Authority, 2014 FCA 172
Précis: The Federal Court of Appeal refused to strike a claim against a port authority for abuse of public office as being made out of time when it was a continuation of an earlier action and filed with leave of the court.
Facts: The plaintiff previously commenced proceedings against the defendant Port Authority for the tort of abuse of public office. The statement of claim in that action was ultimately ordered to be struck by the Federal Court of Appeal in a decision rendered on 10 June 2011 (reported at 2011 FCA 198). In that decision the Court of Appeal expressly gave the plaintiff leave to file a fresh statement of claim properly pleading the facts and elements of the tort. However, instead of filing a fresh statement of claim, the plaintiff commenced this entirely new action. The defendant brought this motion to strike the new statement of claim on the grounds that it was commenced out of time. The motion was dismissed by the Prothonotary and an appeal from that order was later dismissed by an appeal Judge (reported at 2012 FC 592). The defendant filed a further appeal to the Federal Court of Appeal.
Decision: Appeal dismissed.
Held: It would be inappropriate to strike a statement of claim that has been filed with the leave of this Court. It is not plain and obvious the action cannot succeed since the new action appeared to be a continuation of the earlier action that had been filed in time.
Federal Court Jurisdiction over Provincial Crown – Practice – Pleadings - Motion to Strike
Ship Source Oil Pollution Fund v. British Columbia (Finance), 2012 FC 725
Précis: The admiralty jurisdiction of the Federal Court was held to include jurisdiction in actions against a provincial crown. (This is probably no longer good law. See the "Comment" in the summary.
This action by the plaintiff was pursuant to the Marine Liability Act to recover costs it paid to clean up oil pollution from a vessel that sank in Brittania Bay, British Columbia. The defendant was the Crown in right of the Province of British Columbia who had allegedly became the “owner” of the vessel when its registered and beneficial owner was dissolved under the Society Act of British Columbia. The BC Crown brought this application to strike the claim on various grounds including that the Federal Court does not have in personam jurisdiction against it or, alternatively, that that Federal Court is without subject matter jurisdiction because the issue of ownership depended on provincial law.
Decision: Application dismissed.
Held: The test on a motion to strike for lack of jurisdiction is whether it is plain and obvious the claim discloses no reasonable cause of action. For the purpose of the application, the allegations of fact in the pleadings are accepted as proved unless patently ridiculous or incapable of proof. The onus is on the party moving to strike the pleading. The BC Crown is asking the Federal Court to engage in a complex exercise of statutory interpretation to justify the “draconian” measure of striking the Statement of Claim. “A motion to strike is not the proper forum to make a final determination on such weighty matters.” Alberta v Toney, 2012 FCA 167, is dispositive of the issue and, in any event, it is not plain and obvious the Federal Court is without jurisdiction. Jurisdiction is based on a three part test: there must be a statutory grant of jurisdiction; there must be an existing body of federal law essential to the disposition of the case that nourishes the statutory grant; and, the law on which the case is based must be “a law of Canada” within the meaning of s.101 of the Constitution Act. Section 22(2)(d) of the Federal Courts Act grants jurisdiction with respect to “damage done by a ship” and the sinking of a ship resulting in pollution is arguably damage within the meaning of s. 22(2)(d). There is case authority that the Federal Court has jurisdiction over a claim against a province as owner of a vessel where the claim is a maritime claim. Section 43(7) of the Federal Courts Act also suggests the Federal Court has in rem jurisdiction against a ship owned by a province. Section 3 of the Marine Liability Act also expressly provides that act is binding on a province. At the very least it is not plain and obvious the Federal Court does not have personal jurisdiction over the BC Crown. The fact that the ownership issue may require the application by the Federal Court of provincial law does not matter. The ancillary application of provincial law does not affect the jurisdiction of the Federal Court.
Comment: It is now clear that the Federal Court does not have jurisdiction over a province as decided in Alberta (Canada) v. Toney, 2013 FCA 217.
Practice – Motion to Strike Statement of Claim
Freightlift Private Limited v. Entrepot DMS Warehouse Inc.,, 2011 FC 280
The plaintiff in this action was an Indian freight forwarder who had been retained to arrange shipment of four containers of clothing to Montreal. The bills of lading for the containers named the plaintiff as consignee because the purchaser had not paid for the cargo. The purchaser was in fact unable to pay for the cargo when it arrived and, as a consequence, arrangements were made by the purchaser and its freight forwarder for the containers to be stored while another buyer could be found. The cargo, however, mysteriously disappeared from the warehouse. The plaintiff brought this action alleging the defendants had conspired to release the goods to the purchaser. The defendants brought this motion to strike the Statement of Claim on the grounds that it was premature in that the plaintiff was not the owner of the goods and had not suffered a loss. The plaintiff was, in fact, being sued by its customer in India and was defending that suit. At first instance and on appeal the motion was dismissed.
Pleadings - Amendment - Limitation Period
Bank of the West v. The 26' Well Craft Scarab (Ship), 2007 FC 1112 (CanLII)
The Defendant marine insurer sought leave to amend its pleading to plead a limitation period contained in its policy. At first instance the Prothonotary denied the application without giving reasons. On appeal, the motions Judge noted the general rule is to allow amendments at any stage of an action provided there is no prejudice or injustice to the other party that cannot be compensated for in costs. Given that the proceeding had not advanced significantly and the Plaintiff was unable to identify any particular prejudice, the Judge allowed the appeal and gave leave to the Defendant to plead the limitation period defence.
Pleadings – Reasonable Cause of Action – Security for Costs – Solicitor's Affidavits
Addo v. OT Africa Line et al. , 2006 FC 1099 (CanLII)
The Plaintiff was the owner of goods that were damaged when the container in which the goods were stowed was dropped at the Port of Antwerp. The Plaintiff commenced proceedings against various parties including the operator of the port where the container was dropped. That Defendant brought this motion to strike the Plaintiff's claim on the basis that it disclosed no reasonable cause of action and, in the alternative, for security for costs. The Court held that the fact that the container was dropped in a foreign location did not deprive it of jurisdiction and that there were a number of significant factors tying the claim to Canada. The Court concluded that it was not “plain and obvious” that it was without jurisdiction and dismissed that part of the motion. With respect to the application for security for costs, the Court ordered that the Plaintiff post security of $5,000 because the Court was “concerned as to the plaintiff's credibility”. A final matter that was considered in the course of the Reasons was the admissibility of an affidavit prepared by one of the plaintiffs' solicitors. The Court reviewed Rule 82 of the Federal Court Rules noting that it was quite explicit and that case law had held that it was a violation of this rule for a lawyer to submit an affidavit when another lawyer in the same firm will argue the motion.
Pleadings – Striking Statement of Claim
Canada Steamship Lines Inc. v. Elliott, 2006 FC 609
This was a motion to strike a counterclaim on the grounds that it failed to disclose a reasonable cause of action. The counterclaim alleged an intentional interference with contractual relations relating to the use of a ship. The motion was denied by the Prothonotary who reviewed the relevant authorities and concluded that the impugned pleading contained allegations of the essential elements of the tort of interference with economic relations, namely: an intention to injure; interference by illegal means; and economic loss as a consequence. Unlike the tort of inducing breach of contract, there was no requirement to plead or prove knowledge of a specific contract or that the actions of the defendants resulted in a breach of a specific contract.
Pleading – Striking – Jurisdiction
Kona Concept Inc. v. Guimond Boats Limited, 2005 FC 214
In this matter the Plaintiff commenced proceedings against the Defendant in Hawaii in relation to a contract for the design, manufacture and sale of a tuna fishing boat. The Defendant initially contested the jurisdiction of the Hawaiian courts but after having lost its jurisdiction motion withdrew from that action. The Plaintiff subsequently obtained a default judgment against the Defendant and commenced these proceedings for breach of contract and for enforcement of the U.S. default judgment. The Defendant brought this motion to strike the entire Statement of Claim on the grounds that the Plaintiff was a dissolved company when the Statement of Claim was issued and on the grounds that the Federal Court lacked jurisdiction. On the first issue the Court found that the Defendant had dealt with and was paid by the principal of the Plaintiff and held that fairness dictated that the Plaintiff be permitted to substitute the correct party. On the second issue the Court held that pursuant to s. 22(2)(n) of the Federal Court Act it had jurisdiction over claims for the construction of a ship and that the Plaintiff had pleaded sufficient facts to bring it within that jurisdiction. The Court declined to rule on the claim for the enforcement of the U.S. judgment as its status was in some doubt and this issue was better dealt with in a motion for summary judgment. (Note: The comments of the Court on jurisdiction were approved and adopted in a later motion for summary judgment summarized below under “Miscellaneous”.)
Stay of Proceedings – Arbitration Clause – MLA s. 46 – Charterparties – Bills of Lading and Incorporation of Charter Terms – Striking Claims
Dongnam Oil & Fats Co. v. Chemex Ltd. et al., 2004 FC 1732
This matter concerned damage to a cargo of bleached tallow to be carried from Newark, New Jersey to Inchon, Korea. The cargo was to be carried on board the ship “Tuapse”. The “Tuapse” was owned by Novoship but chartered under a head charter to Chemex. The head charter provided for London arbitration. The Plaintiff and Chemex entered into a voyage charter party which again called for London arbitration. The cargo was loaded at Newark and two bills of lading were issued which incorporated the voyage charter party. The cargo was carried on board the “Tuapse” to Nanaimo, British Columbia where it was transhipped to another vessel for carriage to Korea. The cargo was allegedly damaged during the transhipment. The Plaintiff subsequently commenced this proceeding and the Defendants Novoship and Chemex brought applications to stay the proceedings in favour of London arbitration. The Plaintiff argued that s. 46 of the Marine Liability Act applied making the arbitration provisions inapplicable. The Prothonotary disagreed ruling that a transhipment from one vessel to another was not loading or discharging at a Canadian port within the meaning of s. 46(1)(a). The Prothonotary further noted that section 46 should be interpreted strictly since it was a restriction on freedom to contract. The Prothonotary then considered whether the arbitration provisions were incorporated. With respect to the dispute between the Plaintiff and Chemex he found that there was clearly an arbitration provision in the voyage charter and therefore concluded that he had no alternative but to allow the stay. With respect to the dispute between the Plaintiff and Novoship, however, there was no direct contractual relationship between these two and therefore he had to consider the effect of the bills of lading. In this regard he noted that if the bills of lading had specifically referred to the arbitration provision, Novoship would be entitled to a stay. In addition, if the bills of lading incorporated the charter party terms and those terms provided that the arbitration provision applied to disputes under the bill of lading, then Novoship would be entitled to a stay. However, in this case the terms of the voyage charter party did not provide that the arbitration provision applied to disputes under the bill of lading and the bills of lading did not specifically refer to arbitration. Accordingly, Novoship was not entitled to a stay. Two subsidiary issues dealt with in these reasons concerned applications to strike out a claim for a declaration the Plaintiff did not owe dead freight and a claim for wrongful arrest. The claim for a declaration on the dead freight issue was struck on the grounds that the issue had been decided in an arbitration. The claim for wrongful arrest was struck on the grounds the Plaintiff was not the owner or in possession of the cargo at the time it was arrested.
Marine Insurance – Bad Faith – Limitation Period - Pleading – Striking – Reasonable Cause of Action
Forestex Management Corp. et al. v. Underwriters at Lloyds et al., 2004 FC 1303
“Many years ago when small boys wore suspenders and ships had gender...” So begins the Reasons for judgment of Prothonotary Hargrave in this application by the Defendants to strike out the Statement of Claim of the Plaintiff. The facts were that on 4 August 2000 the “Texada” went aground in a passage in the Queen Charlotte Islands and was subsequently declared a constructive total loss. The Plaintiff gave underwriters notice of the casualty on 8 August 2000 and underwriters denied coverage for breach of the trading warranty on 10 August 2000. The Plaintiff subsequently commenced an action against underwriters for coverage under the policy of insurance. That action was, however, dismissed following a status review on 9 January 2003. The dismissal was appealed by the Plaintiff but the appeal was not served. The Plaintiff attempted to bring on a motion ex parte to extend the time to serve the appeal but was ordered to serve the underwriters. This was not done and the Federal Court of Appeal dismissed the appeal for delay on 13 January 2004. The Plaintiff subsequently commenced the present action against underwriters alleging bad faith. The Defendant underwriters filed a Statement of Defence and brought the present motion to dismiss the action on various grounds. However, as they had filed a Statement of Defence the Prothonotary held that they were only entitled to argue that the Statement of Claim failed to disclose a reasonable cause of action. The thrust of the Defendants argument was that there could be no action for bad faith without an initial finding that there was coverage under the policy. The Prothonotary first considered the requirements of an action for bad faith. He reviewed American and Canadian authorities and noted that although a claim under a policy and a claim for bad faith are two distinct causes of action they are related in that a claim for bad faith cannot succeed unless there is a finding that there is coverage under the policy. He next considered the effect of the dismissal of the claim under the policy and held that an order dismissing an action for delay does not set up a res judicata defence and therefore, subject to any time bar defence, does not prevent a Plaintiff from re-commencing an action. The Prothonotary next considered whether there was a limitation period that would bar the Plaintiff from re-commencing an action on the policy. The Court was referred to s. 39 of the Federal Court Act which incorporates provincial limitation periods and was urged to apply the one year limitation period set out in section 22(1) of the British Columbia Insurance Act. However, the Prothonotary questioned whether the British Columbia Insurance Act extended or ought to extend to marine insurance, a federal undertaking. The Prothonotary did, however, apply the two year limitation period in the British Columbia Limitations Act and applying that period held that the action was not time barred. (The denial of coverage occurred on 10 August 2000 and the bad faith action was commenced on 9 August 2002.) Accordingly, the Prothonotary noted that the existing bad faith action could be amended by adding a supporting claim under the policy and held that if this was done it was not plain and obvious and beyond doubt that the Plaintiff's action could not succeed. In result, the motion to strike the claim was dismissed.
Pleadings – Striking – Economic Loss
1340232 Ontario Inc. v. St. Lawrence Seaway Management Corp., 2004 FC 209
This was an application to strike the claim of the Plaintiff. The Plaintiff's claim was for damages for business losses incurred as a result of the closure of a bridge over the Welland Canal, which closure it was alleged was due to the negligence of the Defendant. The Plaintiff had no proprietary interest in the bridge and none of the Plaintiff's own property was damaged. The Prothonotary allowed the application and struck the claim noting that similar claims to recover pure economic loss because of negligent damage to a bridge have been consistently rejected by the courts.
Motion to Strike Statement of Claim
Berhad v. The Queen, 2003 FC 992
This was an application to strike out the Statement of Claim. The underlying action was a claim by the owner of the vessel “Lantau Peak” against the Federal government and two steamship inspectors. The two inspectors detained the vessel and would not allow it to be moved until repairs were completed. The Plaintiff wanted to move the vessel to another jurisdiction where the repairs could be done more economically than in Canada. The application to strike was dismissed for two reasons. It was an important and complex case involving the overlap and interplay of the Canada Shipping Act, two international Memorandums of Understanding, and the SOLAS Convention and therefore ought not to be decided on a motion to strike out. Secondly, it was far from plain and obvious that the Plaintiff would certainly fail at trial. (Note: In fact, the action was successful. The trial judgment is summarized below.)
Simplified Action Procedures – Pleadings – Amendment – Evidence
Valentino Gennarini SRL v. Andromeda Navigation Inc., 2003 FCT 567
This was a simplified action for disbursements incurred and for ship agency services rendered by the Plaintiff at the port of Taranto, Italy. The case is of interest because of the way a number of procedural matters were decided. The Defendant sought to adduce affidavit evidence that it was acting as agent for a third party. The Plaintiff applied to strike this evidence on the basis that the agency relationship the Defendant sought to prove was never pleaded. The Court agreed and struck the evidence, holding that “the Court should not consider any evidence which is irrelevant to the pleadings as they are formulated or which contradicts the pleadings”. The Defendant also applied for short leave to bring a motion to amend its pleadings. The Court reiterated the general rule that an amendment should be allowed for the purpose of determining the real question in controversy between the parties provided that the allowance would not result in an injustice to the other party not capable of being compensated by an award of costs and that it would serve the interests of justice. The Court denied the Defendant’s motion to amend its Statement of Defence because the motion was presented one day before trial when it could have been brought many months earlier, the amendment was not being made to refocus and particularize points in controversy but rather sought to introduce a distinct and entirely new cause of defence, and the proposed amendments would inevitably delay an expeditious trial. At the hearing on the merits the Plaintiff sought to introduce documents by way of an affidavit which effectively incorporated by reference every document listed in the Plaintiff’s Affidavit of Documents which the Plaintiff wished to introduce as evidence in chief. Despite the objections of the Defendant the Court accepted as filed the original documents incorporated by reference in the affidavit since they had been listed in the Plaintiff’s Affidavit of Documents and served on the Defendant over one year earlier together with copies of the documents themselves. As a final procedural point, the Court permitted the Plaintiff to read in excerpts from the transcript of an oral examination for discovery conducted before the action was converted to a simplified action. While the rules on simplified procedures do not provide for read-ins of oral discovery because there can be no oral examination for discovery, they do not preclude such read-ins when the oral examination was conducted before the action was converted to a simplified action.
Pleadings - Amendment - Striking Out - Length of Written Argument
Berhad v. Canada, 2002 FCT 298
In this matter the Defendant brought a motion to strike the Statement of Claim on various grounds including that it failed to disclose a reasonable cause of action and was frivolous and vexatious. The Defendant additionally brought a motion for leave to amend its Statement of Defence to plead that the Statement of Claim failed to disclose a reasonable cause of action and was frivolous and vexatious. The amendments to the Statement of Defence were necessary as the case law establishes that a motion to strike out a Statement of Claim on any basis other than for failure to disclose a reasonable cause of action must be brought before the Defendant has pleaded and may only be brought subsequently if the Statement of Defence contained a reservation. The Statement of Defence in this matter contained no such reservation and hence the need for the amendment. The Prothonotary held that the Defendant did not need to amend its Statement of Defence to plead want of a reasonable cause of action in the Statement of Claim since this went to jurisdiction which could always be challenged regardless of whether the Defendant had filed a Statement of Defence. With respect to the amendment to plead that the Statement of Claim was frivolous and vexatious, the Prothonotary noted that such an amendment was of a merely procedural or technical nature and disallowed the amendment. Alternatively, the Prothonotary held that the Defendant ought to have applied for the amendment much earlier. A secondary issue in this case concerned the written argument filed by the Defendant for use on the later motion to strike which comprised 145 pages in length. The Prothonotary noted that such written arguments should generally not exceed 30 pages in length and ordered the Defendant to redraft the argument so that it did not exceed 45 pages.
Pleadings - Striking Out - Unjust Enrichment
Ed Wahl Boat Builders and Repairs Ltd. v. Holm, 2000 CanLII 15889 (FC)
This was an application to strike out a paragraph of the Statement of Claim pleading a claim for unjust enrichment in the alternative to a main claim for breach of contract for the building of a boat. The Court allowed the application and struck out the offending paragraph on the basis that facts in support of the claim for unjust enrichment had not been pleaded and, more importantly, because the building contract which was specifically pleaded by the Plaintiff provided a juristic reason for any alleged unjust enrichment.
Limitation Proceedings - Pleadings
Bayside Towing Ltd. v. Canadian Pacific Railway Company,  3 FC 127
This was a limitation action by the owner of the tug "Sheena M" in relation to a collision between the barge "Rivtow 101" in tow of the "Sheena M" and a railway bridge owned by the Defendant. The Defendant challenged the right of the Plaintiff to limit liability pursuant to the 1976 Convention. The Plaintiff brought this application to strike out portions of the Statement of Defence. The court ordered that those portions of the Statement of Defence referring to faults allegedly committed by the owners of the tow be struck on the grounds that they were not relevant to whether the tug owner could limit liability. The court also struck out those portions of the Statement of Defence alleging mere negligence on the grounds that negligence has nothing to do with the test set out in Article 4 of the Convention for breaking limitation (i.e. personal act or omission committed with intent to cause loss, or recklessly, with the knowledge that loss would probably result). The court also struck out pleas of res ipsa loquitur, on the grounds that it was no longer applicable in Canada, and breach of statutory duty, on the grounds that it was not a recognized tort and was to be considered in the context of the general law of negligence. The court refused to strike out allegations of "wilful defaults", noting that concepts of wilfulness may be close to the test under the Convention. The court further refused to strike out an allegation that the tonnage for limitation purposes should be calculated on the combined tonnage of the tug and tow. The court doubted that the plea could succeed in the absence of common ownership of the tug and tow but it was not something that plainly and obviously would fail.