Trans-Pacific Shipping Co. v. Atlantic & Orient Trust Co. Ltd. et al.

In Admiralty Practice, Judgments and Enforcement of Judgments on (Updated )

In this unique matter a foreign arbitration award had been ordered to be registered by a Prothonotary. Subsequently, in another proceeding, it was determined by the Federal Court of Appeal that Prothonotaries did not have jurisdiction to register such awards. Accordingly, a motion was brought to re-register the award nunc pro tunc. The Defendant challenged the registration and the antedating of the order. The challenge to the registration was based upon the fact that the affidavit in support of registration merely attached a copy of the award and contained a statement by the affiant, based on information and belief, that no impediment to registration was known. It was argued that this material was not in compliance with the requirements of Rule 329 (which requires “an exemplified or certified copy of the foreign judgment” and a statement that the applicant “knows of no impediment to registration”). The motions Judge noted that there was an apparent departure from the requirements of Rule 329 but held that “in the unique circumstances” there was sufficient evidence to comply with the rule. Regarding the antedating of the order, the motions Judge noted that there was a power to antedate orders to avoid injury to a litigant by an act of or delay by the court. The motion Judge held that this test had been met as it was the court that had initially assigned the matter to the Prothonotary.