Delay and Time Extensions - Case Summaries
The database contains 21 case summaries relating to Delay and Time Extensions. 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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Extension of Time - Barred - Present Motion - Delay
Heddle Marine Service (NL) Inc. v. Kydy Sea (Ship), 2019 FC 1140
Précis: The Federal Court extended the time for a claimant to file its claim against the proceeds of sale of a ship.
Facts: This was a motion in writing for an extention of time for the applicant, Halthorn Marine Group Inc. (“Halthorn”), to file a claim against the ship “Kydy Sea”. Halthorn serviced the “Kydy Sea” which was laid up alongside at the Port of Sydney, Nova Scotia. Pursuant to an arbitral award against the “Kydy Sea” and her owners, on 7 February 2019 Heddle Marine Service (NL) Inc. (“Heddle”) made an application to register that award with the Court. On 26 February 2019 the Court granted Heddle’s application and ordered and the owners and “Kydy Sea” were to pay the amounts, with interest, and that the sale of the “Kydy Sea” was authorized. On 3 April 2019 the Court ordered the appraisal and sale of the “Kydy Sea” on terms that all claims against the Ship shall be filed with the Court within 30 calendar days of the publication of the advertisement and notice to creditors failing which such claims shall be barred. The advertisement was published the next day along with the notice to creditors. Halthorn’s managing director was made aware on 10 May 2019 of the advertisement and attempted to file its claim, but was informed by the Court registry that the documents were incomplete and suffered from procedural inconsistencies. Halthorn’s managing director then contacted Heddle’s counsel on 16 May 2019 for consent to a request for extension of time for filing Halthorn’s claim and an agreement was concluded on 10 June that Heddle would agree to such a request. On 30 May 2019 the Court ordered the sale of the “Kydy Sea” to GFY International S.A. (“GFY”) . On 24 June Halthorn filed the present motion. However, GFY failed to pay the purchase price and on 17 July 2019 the Court declared GFY’s initial deposit forfeited and approved the sale of the “Kydy Sea” to South Eastern Shipping Corporation Inc. (South Eastern).
Held: Motion granted.
Decision: After a review of the Federal Court of Appeal’s decision in the Polar Paraguay No. 2 and the Court’s decision in The Kimissis Ii, the Court found that it had discretion under Rule 8 of the Federal Courts Rules to extend the time to file a claim which is otherwise barred under Rule 492(2). The Court found that Halthorn was aware of the time limit to file its notice of claim and also that it had a continuing intention to pursue their application. Further, the claim was where there was at least a reasonably arguable case to be made and the plaintiff and other claimant consented to Halthorn’s motion so there was no prejudice to be suffered despite the owners of the “Kydy Sea” not taking part in these proceedings. The overriding consideration that justice be done was considered by the Court and found that justice sided with allowing the motion. Lastly, the Court found that compelling service on the owners of the “Kydy Sea” was not warranted as the owners took no part in the proceedings or the arbitration.
Disturb a Marine Mammal - Whales - Tour Boats - Actus Reus - Judicial Consideration of Unreasonable Delay
R v. Reddick, 2018 CanLII 111732
Précis: The Provincial Court of Newfoundland and Labrador acquitted the accused when the Crown failed to prove beyond a reasonable doubt the alleged offence under the Marine Mammal Regulations.
Facts: On 5 August 2014 the accused was alleged to have unlawfully disturbed a marine mammal contrary to s. 7 of the Marine Mammal Regulations in waters off the coast of Newfoundland and Labrador. At the time of the offence the accused was the captain of the "Cetacean Quest", a tour boat. A second boat, a speed boat, was also interacting with the whale. Another boat, a zodiac owned by the DFO and carrying DFO and CBC employees (who were recording), was also in the vicinity and allegedly witnessed the tour boat disturb the whale. The Crown called six witnesses and the trial lasted for 15 days.
Decision: The evidence led in the case failed to prove the actus reus of the offence beyond a reasonable doubt.
Held: The judge was unable to determine how close the tour boat came to the whale from the CBC video, filmed from the DFO vessel. Expert evidence on the whale's behaviour was incapable of proving beyond a reasonable doubt the accused's guilt, and the judge rejected the argument that the whale was interfered with because the tour boat was in close proximity to it. The judge also held that the presence of the speed boat raised reasonable doubt as to whether the whale disturbance was caused by the tour boat or the speed boat. After a review of the case law, the judge held that the accused's behaviour did not disturb or tended to disturb the whale to the level needed to be convicted of the offence.
Interestingly, the judge raised concern regarding the amount of court time used to complete this trial, bluntly stating that "The unnecessary use of court time causes systemic delays and prevents other accused persons from having their cases heard in a more timely fashion" (para. 33). In light of the decisions in R v. Jordan and R v. Cody, the judge was compelled to point out concerns about the manner in which this trial proceeded, questioning if Crown counsel should have proceeded with the trial after the judge refused to qualify its expert witness, and also pointing out that the Marine Mammal Regulations were being amended in June 2018 to provide clearer direction on what constitutes marine mammal disturbance- amendments released some 10 days before the conclusion of the trial.
Dismissal for Delay - Status Review
Roots v. HMCS Annapolis, 2015 FC 1339
Précis: Repeated non-compliance with court orders and directions resulted in dismissal of the action for delay.
Facts: This action arose out of a project to decommission and sink the “HMCS Annapolis” as an artificial reef. The plaintiff was one of the subcontractors engaged to assist with the project. The plaintiff commenced this action, and arrested the vessel, on 24 April 2013. A Statement of Defence and Counterclaim was filed on 10 June 2013. On 28 October 2014 a motion to release the vessel from arrest was granted and the plaintiff was ordered to pay $10,000 in costs on the basis that the plaintiff had been “highly adversarial”. On 6 February 2015 the plaintiff was again ordered to pay costs in the amount of $2,500 on the basis that he had been “highly adversarial” and increased costs unnecessarily. On 21 July 2015 the Court issued a Direction requiring the plaintiff to file a status report and provide a proposed timetable by 8 September 2015. The plaintiff failed to comply with the Direction. On 15 September 2015 the Court asked the plaintiff to provide dates for a case management conference. The plaintiff failed to comply with the request. On 21 September at a case management conference scheduled by the Court the plaintiff undertook to comply with the Direction dated 21 July 2015 by 7 October 2015. The plaintiff failed to comply. On 14 October 2015 the Court issued an Order requiring the plaintiff to show cause, by written submissions to be filed by 9 November 2015, why the action should not be dismissed for failure to comply with the Court’s directions and for delay. The plaintiff failed to file the written submissions.
Decision: Action dismissed.
Held: A party in receipt of a notice of status review must address (1) whether there is justification for failure to move the case forward and (2) what steps the party proposes to move the case forward. In addition, any outstanding court orders or directions that have not been complied with must be addressed. Proceedings should only be dismissed in exceptional cases and where no other remedy would suffice. The focus is on the overall interests of justice. Here, the plaintiff has offered no explanation for his failure to respond to the notice of status review or for his repeated non-compliance with court orders and directions. His actions “demonstrate a continued pattern of ignoring his responsibilities to move the proceeding forward and a complete disregard of the case management process”. Dismissal of the action is “an appropriate remedy that is proportionate to the Plaintiff’s conduct”.
Dismissal for Delay
Putjotik Fisheries Ltd. v. The “Mersey Viking”, 2006 FC 491
In this matter the Court dismissed the action of the Plaintiff for undue delay. In dismissing the action the Court agreed with the Defendant that the Plaintiff had demonstrated a lack of interest in advancing the claim both prior to and subsequent to a status review. In particular, the Plaintiff failed to produce a meaningful affidavit of documents as required by the status review order and failed to make arrangements for examinations for discovery by the date specified in the status review order.
Dismissal for Delay
Haylock et al. v. Norwegian Cruise Lines, 2005 FC 501
This was an application by the Defendants to dismiss the actions of several of the Plaintiffs for failure to deliver written answers to examination questions on the date specified in the case management schedule. The answers were to be delivered by 1 November 2004 but by 1 April 2005 they still had not been delivered and the Plaintiffs had taken no steps to obtain an extension of time. Moreover, at the hearing the Plaintiffs were unable to provide any assurances to the Court as to when the answers might be provided. The Prothonotary noted that although time limits are not absolute, they are more than mere targets and, subject to uncontrollable events, must be obeyed. The Prothonotary also noted that commonplace missing of deadlines can be an abuse of process which can be dealt with by an order of dismissal. The Prothonotary concluded that in the absence of evidence explaining the delay and in the absence of assurances the answers would be provided by a specified date the appropriate remedy was to dismiss the claims.
Extension of time for Service and Arrest – Order for Sale Pendente Lite
Franklin Lumber Ltd. v. The “Essington II” et al., 2005 FC 95
This was an application by a mortgagee for a substantial extension of time (more than six years) within which to serve and arrest the vessel and a further application for Court approval of a private sale pendente lite. In deciding to grant the time extension, the Prothonotary applied the three-part test from Registered Public Accountants Association of Alberta v. Society of Professional Accountants of Canada, (2000) 5 C.P.R. (4th) 527 that the applicant must demonstrate a continuing intention to pursue the claim, that there is an arguable case and that there is no prejudice to the defendant by granting the extension. This test was to be applied within the context of the “overarching” principle of ensuring justice is done between the parties. In this case, the Prothonotary considered the fact that the dispute was essentially between family members to be particularly significant. In view of the fact that the vessel owner had not found a buyer in seven or eight years, but had at one time agreed to sell the vessel to the present buyer at the same price, the Prothonotary also made an Order for the private sale of the vessel pendente lite without appraisal and on the terms that a down payment of just under 8% of the sale price would be paid into Court immediately with closing approximately four months thereafter. The elements to be considered in deciding whether to order a sale pendente lite are open-ended, but the Prothonotary noted that they include: 1) the value of the vessel compared to the amount of the claim; 2) whether there is an arguable defence; 3) whether the owner can carry on, that is, whether there must be a sale at some point; 4) whether there will be any diminution in the value of the vessel or of the sale price by the delay; 5) whether the vessel with depreciate by further delay; and 6) whether there is any good reason for a sale before trial.
Extension of Time – Service – Substitutional Service
Arrow Corporation Inc. v. The “Sea Tiger” et al., 2004 FC 1502
This was an application to extend time for service of a Statement of Claim on one of the Defendants. The facts were that the Plaintiff had provided the Defendant with a copy of the Statement of Claim shortly after it was issued and later asked the Defendant to acknowledge service. The Defendant did not acknowledge service so the Plaintiff arranged to have it served but the service occurred out of time. The Plaintiff then indicated it would bring a motion to extend the time for service but delayed some six months in bringing the application. The Prothonotary noted that the test to apply was whether there was a continuing intent to pursue the claim, whether there is an arguable case and whether there would be prejudice to the proposed defendant should the extension be granted. The underlying consideration or general principal is to do justice between the parties. Applying this test the Prothonotary found that the explanation for the delay and the demonstration of a continuing intent were weak. He further found there was an arguable case and no prejudice. The important factor, however, was that the Defendant had acknowledged receipt of the Statement of Claim the day after it was issued. The Prothonotary suggested that this might have been sufficient to support a motion under Rule 147 validating the service noting that good service merely required proof that a legible copy of the document came into the hands of the Defendant. Under these circumstances the Prothonotary considered it would be an injustice to not allow the extension of time.
Dismissal for Delay – Security for Costs
Intertech Marine Limited v. The “Nautica” et al., 2004 FC 1456
This was an application by the Defendant to dismiss the Plaintiff's action for delay or alternatively for security for costs. The motions Judge noted that there had been significant delay in moving the action forward and further noted that the Plaintiff had failed to comply with a number of court orders and directions. She referred to the decision of the Federal Court of Appeal in Sokolowska v Canada,  FCJ No. 570, in which that court said; “Failure to comply with Orders or Directions from this Court and with the Rules of procedure as well as omission to provide a good justification for the delays and an action plan to speedily move the appeal forward justifies a dismissal of the appeal”. (Note the absence of a reference to “prejudice” in this test.) Notwithstanding this fairly strict test, the motions Judge did not dismiss the case but imposed very stringent conditions on the Plaintiff. The Judge then turned to the motion for security for costs. She noted that the Defendant had provided evidence of a number of outstanding judgements against the Plaintiff. She held however that this was not sufficient to obtain an order for security for costs. In addition, evidence was needed as to the assets of the Plaintiff.
Trial – Adjournment
Parrish & Heimbecker Limited v. The “Mapleglen” et al., 2004 FC 1197
This was an application by the Plaintiff to adjourn the trial which was scheduled to commence in approximately two months time. The underlying action concerned short delivery of a cargo of grain. The reason for the requested adjournment was that the Plaintiff had recently obtained scale tickets from the discharging terminal which indicated that the discharging terminal might be responsible for the shortage and should be added as a Defendant. The Prothonotary refused the request for the adjournment noting that an adjournment in the Federal Court required exceptional circumstances. The Prothonotary did not consider the circumstances exceptional since the Defendants had repeatedly asked for the scale tickets from the discharge terminal and the Plaintiff had refused to obtain and provide them. The Prothonotary considered that the Plaintiff had brought the present difficulties upon itself.
Security for Costs – Time Extension
Fish Maker LLC v. The “Zodiak” et al., 2004 FC 1057
The Plaintiff in this matter had been ordered to post security for costs within a specified time. It failed to do so and the Defendant brought an application to dismiss the action for delay. The Plaintiff also brought an application for a 60 day extension of time within which to post the security. The Court set out the test for a time extension being: a continuing intention to pursue the application; that the application has some merit; that there is no prejudice to the other party; and that a reasonable explanation for the delay exists. The Court further noted that whether a reasonable explanation for granting the extension of time exists will depend on the facts of each case and that it was required to balance the elements bearing on a time extension to do justice between the parties. Applying these factors and considerations the Court denied the time extension. In reaching this conclusion the Court was influenced by the fact that the Plaintiff had not moved the action forward and by the fact that the Plaintiff had not attempted to cure the failure to post security in a timely manner.
Dismissal for Delay – Appeal – Standard or Review
Precision Drilling International B.V. v. The “BBC Japan” et al., 2004 FC 701
This was an appeal from an order of a Prothonotary dismissing the action for delay after a status review. The only explanation for the delay was that the Plaintiff had been negotiating a settlement with one of the Defendants. The appeal Judge considered first whether discretion should be exercised de novo on the appeal and held that it should since the Prothonotary's decision was final. The appeal Judge then considered the proper test to be applied and noted that the questions to ask were: 1) What are the reasons for the delay and do they justify the delay? and, 2) What steps are proposed to move the matter forward? The appeal Judge further noted that the overarching concern should be whether the Plaintiffs recognize their responsibility to move the action along and are taking steps to do so. Applying this “liberal” approach the Judge held that although the Plaintiff might have provided a better explanation for the delay it had justifiably explained the delay. The Judge further found that although the Plaintiff had failed to propose a time table they did ask that the matter be set over for a few months to allow the settlement to be finalized. The Judge considered this a reasonable response and queried why the court should insist on litigants preparing an artificial timetable when the parties are involved in meaningful negotiations. In the result, the appeal was allowed and the order dismissing the action set aside.
Service – Extension of Time
Finlandia Cheese Inc. v. Shoreline Shipping SA et al., 2003 FC 9
In this matter the Prothonotary granted the Plaintiff an extension of time within which to serve its Statement of Claim and validated service by mail. The facts were that the Plaintiff had mailed the Statement of Claim to the Defendant but the Defendant had changed its address without advising the Plaintiff. When the Plaintiff became aware of the change of address it immediately re-mailed the Statement of Claim. The Court validated this second mailing.
Counterclaim – Extension of time to file defence
Budget Steel Ltd. v. Seaspan International Ltd., 2003 FCT 610
This was an appeal to the Federal Court of a Prothonotary’s order granting the Plaintiffs an extension of time to file a defence to counterclaim. The Plaintiffs claimed damages for the loss of a cargo of scrap steel when the Defendant’s barge capsized. The Defendant filed a defence and counterclaimed for loss of freight and damage to the barge as a constructive total loss. Plaintiff’s counsel could not obtain instructions to defend the counterclaim and wrote to Defendant’s counsel asking that they not take default judgment without prior notice. Defendant’s counsel did not respond to that letter. The Prothonotary granted the application applying the test in Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399. Although finding that there was not a particularly strong continuing intention to defend and the reasons for delay were weak, there appeared to be possible defences and there was no prejudice to the Defendant in granting the extension. The Prothonotary on these factors alone considered the issue balanced, but on the basis that the Plaintiffs' counsel had written at the outset explaining the need for time to obtain instructions and that the Defendants had not responded and had not taken steps to advance the counterclaim along, the Prothonotary held it would be unjust not to grant the time extension. The decision was upheld on appeal. The appeal Judge held that this was a discretionary matter and that the discretion had been properly exercised.
Time - Extension - Late Expert’s Reports
Armonikos Corporation Ltd. v. Saskatchewan Wheat Pool, 2002 FCT 526
This was an application by the Defendant for an extension of time to file rebuttal expert evidence. The primary ground argued was that the report had not been filed in time because of the illness of Defendant’s counsel. The Prothonotary allowed the application and in doing so identified the applicable test as being: a continuing intention to pursue the application; that the application has some merit; lack of prejudice; and that a reasonable explanation exists for the delay. The Prothonotary further noted that in applying the test there was a balancing of factors with the objective being that justice is done. The Prothonotary further noted that a party must not be deprived of his rights on account of an error of counsel where it is possible to rectify the consequences of the error without injustice to the opposing party.
Appeals - Dismissal for Delay
Korea Heavy Industries & Const. Co. Ltd. v. Polar Steamship Line, 2002 FCA 173
This was an application to dismiss an appeal for delay in failing to file appeal books within the prescribed time. The facts were that the Plaintiffs had notified the Defendants of their intention to examine representatives of the Defendants for discovery but failed to do so and failed to move their case forward. As a consequence, a Prothonotary ordered that the Plaintiffs were precluded from examining the Defendants and set down guidelines for the continuation of the action. The Prothonotary’s order was affirmed on appeal to a Judge of the Court. The Plaintiffs further appealed to the Federal Court of Appeal but failed to file the Appeal Books in time. The Defendants then brought this motion to dismiss the appeal for delay. The Plaintiffs did not appear on the motion and the Court of Appeal granted the order dismissing the appeal with costs.
Extension of time
Global Enterprises International v. The “Aquarius” , 2002 FCT 193
This was an application by the Polish trustee in bankruptcy of the Defendant shipowner for an extension of time in which to file appeal of an order striking the trustee’s affidavit of claim and of an order refusing the appointment of pro bono counsel. The Prothonotary dismissed the application on the grounds that there was not a continuing intention to appeal (as evidenced by the lack of effort put into the filing of materials), that the appeals were without merit, and that the reason given for the delay (the absence of the trustee from his office) was not an adequate explanation.
Dismissal For Delay
Ferrostaal Metals Ltd. v. The “Herakles” et al., 2001 FCA 297
This was an appeal from an order made by the Prothonotary and affirmed by the Motions Judge dismissing the action for delay. The facts were that the Statement of Claim was filed on December 12, 1995 but was not served until a year later. The Plaintiff further delayed in waiting almost one year to file a Reply to a Statement of Defence. With the introduction of the Case Management Rules, an order was made on March 16, 1999 requiring the parties to file Affidavits of Documents by May 10, 1999. The Plaintiff failed to file its Affidavit of Documents by May 10, 1999 and made application on January 25, 2000 for an additional 30 days to complete this step. At first instance, the Prothonotary declined the extension of time and struck the claim for delay. In doing so the Prothonotary noted that unjustified non-compliance with a court order is a serious matter which is even more so when the order is made pursuant to a Notice of Status Review. The Prothonotary further noted that prejudice to a party is not a factor to be taken into account in such applications. On appeal, the Motions Judge agreed with the reasons given by the Prothonotary. The Motions Judge dealt with an additional submission not made before the Prothonotary, i.e. that the delay was due to the fault of counsel and not the fault of the party. However, the Motions Judge found that the Plaintiff was itself partly responsible for the delay. On further appeal, the Federal Court of Appeal held the Motions Judge had considered the relevant principles and committed no error of law.
Dismissal For Delay
Baldwin v. The "Jennifer Martha", 1997 CanLII 4912
This was an application to dismiss the underlying action for want of prosecution. The action involved a collision which had occurred on May 15, 1989, and the action was commenced on May 11, 1990. The Court cited the applicable test as being threefold: whether there has been inordinate delay, whether the delay is inexcusable, and whether the defendants are likely to be seriously prejudiced by the delay. The Court easily found that the first two parts of the test had been established but did not dismiss the action as there was no evidence of prejudice.
Dismissal For Delay
Quinlan Brothers Limited v. The "Tricon Commander" et.al., No. T-2690-94 (F.C.T.D.)
In this matter the surety of a bail bond brought an application for their bond to be released. The action had been commenced and the Defendant ship arrested in November, 1984. Bail was posted in January 1986 and the ship was released from arrest the following month. Nine years then passed without any significant action being taken by either party. The Court ordered that the Plaintiff show cause why the action should not be dismissed for delay.
Extension of Time For Service
Companhia Siderurgica Nacional v. The "Imperial Confidence" , No.T-3083-94 (F.C.T.D.)
This was an ex parte motion by the Plaintiff to extend the time for service of the Statement of Claim. The Prothonotary extended the time for service in rem as the Defendant vessel had not been in the jurisdiction since the Statement of Claim was issued. However, the Court refused to extend the time for service in personam. The Prothonotary held that inadvertence or a mere slip in practice was not a sufficient reason to extend the time for service.