This case involves a claim by a fishing processor that the two defendants to the action conspired to transfer ground fish quota from one defendant to another, when the defendants knew the quota had been previously purchased by the plaintiff. When the action was commenced, the plaintiff arrested one of the defendant’s vessels (upon which the quota had allegedly been fished) and obtained an ex parte injunction which enjoined the defendants from transferring or otherwise dealing with the ground fish quota. One of the defendants, brought on an application to set aside both the injunction and the arrest.
With respect to the injunction, the court applied the law as set out in RJR MacDonald Inc. v. Canada (A.G.)  1 S.C.R. 311. With respect to the issue of irreparable harm, the court found that since the plaintiffs operations would only be "disrupted" and since tracing would not be "impossible", there was no irreparable harm. Regarding the issue of balance of convenience, the court ruled that since the continuation of the injunction would cause the defendant to "become insolvent in the near future", the balance of convenience did not favour a continuation of the injunction. Consequently, the injunction was set aside.
With respect to the warrant of arrest, the plaintiffs argued that their claim amounted to a maritime tort which formed part of Canadian Maritime Law by virtue of section 22(2)(d) of the Federal Court Act. The court rejected the plaintiff’s argument and concluded that the court had no in rem jurisdiction. Consequently it set aside the arrest of the vessel.
This case also contains some interesting comments regarding the role of the court in attempting to salvage warrants of arrests, when possible.
Counsel for the applicant: David F. McEwen
Counsel for the plaintiff: Gary Wharton