EVIDENCE |
A. Paschos--K. Katsikopoulos S.A. v. Polar (The)
T-391-03
2003 FCT 584, Morneau P.
12/5/03
9 pp.
Motions (to strike out statement of claim or stay proceedings and review performance bond) by defendants in opposition to action, arrest by plaintiff of ship Polar--In defence, plaintiff submitted record including two affidavits-- Present preliminary motion by defendants to strike out said affidavits for purposes of merits of defendants' principal motion--Motion to strike affidavits based on fact notary public who received affidavits allegedly failed to comply with requirements of Greek law as to terms and conditions that ought to surround administration of oaths to affiants, therefore notary public no longer recognized within meaning of Canada Evidence Act, ss. 52(e), 53--Notary public herein official authorized in Greece to receive affidavits--Even on assumption defendants right in their criticism of work performed by Greek notary public, Court not obliged ipso facto, pursuant to Evidence Act, to strike out allegations by affiants--Evidence Act, ss. 52(e), 53 pertaining much more to identity of individuals capable of receiving oath than to applicable penalties where problems in work done--Record herein not indicating any collusion between affiants and notary public who was to receive oaths with view to contravening requirements of Greek law--To strike out impugned affidavits owing to deficiencies attributable to notary public would, in circumstances, be akin to elevating form over substance--Preliminary motion therefore dismissed--As to defendants' principal motion, plaintiff did some work on Polar, other ships belonging to defendants-- Difference of about 375,000 euros between parties' claims concerning total cost of work--375,000 euros amount plaintiff sued for in December 2002 in Greece--Same parties, cause, purpose involved in action commenced in March 2003 in Federal Court--In view of absence of connection between any aspect of present litigation and Canada, proceedings herein stayed in favour of litigation already under way in Greece--No reason to intervene in regard to performance bond as amount covered by letter of credit consisting of sum of 375,000 euros increased by amount to cover interest, possible costs--Therefore, letter of credit now in place maintained, amended to include any judgment that may emanate from Greek courts in relation to similar litigation already under way there--Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 52(e) (as am. by S.C. 1994, c. 44, s. 92), 53.