James Fisher & Sons PLC v. Pegasus Lines Ltd. S.A.
T-2161-98
Lutfy J.
13/8/99
15 pp.
Examination in aid of execution of judgment issued in England by High Court of Justice, Queen's Bench Division on October 30, 1997 concerning applicant's claim for disbursements incurred by it as agent for, on behalf of respondent in respect of respondent's chartered vessels-Applicant caused to be served on Karathanos, president of Amican Navigation Inc., as representative of Pegasus Lines Ltd.'s agent in Montréal, direction to attend and produce for inspection certain documents at examination in aid of execution-Parties do not agree on relationship between Amican and respondent Pegasus Lines Ltd.-Nor that Karathanos person coming within scope of Federal Court Rules, 1998 r. 426 to be examined in aid of execution against judgment debtor Pegasus-Applicant now seeking Court order compelling examination of Karathanos pursuant to r. 426-Issue whether Karathanos officer of respondent within meaning of r. 426-Application allowed-Finding Karathanos personally retained American law firm to instruct Panamanian law firm to incorporate Pegasus, even prior to Amican acting as general agent-Evidence Karathanos through Amican acted as general agent and manager for Pegasus, at least for purposes of English action-Amican apparently continuing to act as agent for Pegasus-If Pegasus represented by anyone other than Amican and Karathanos in its shipping, financial activities, identity of that person not disclosed-"Officer" including more than principal officers of corporation: Control Data Canada, Ltd. v. Senstar Corp., [1986] 3 F.C. 516 (T.D.)-In corporation with no active personnel, as herein, "officer" for purposes of r. 426 may well be its external agent or manager, or some other similar person who decides for company-Outcome depending on facts-As Karathanos not yet examined, no final determination can be made concerning his status with Pegasus-Therefore inappropriate to resolve issue on present motion, with much of relevant information not yet disclosed-On present record, this warrants and requires evidence of Karathanos-On evidence, Karathanos, through Amican and personally, person in authority, general agent, manager or person who decides for Pegasus-At this stage, finding that Karathanos "officer" of Pegasus within meaning of r. 426-Will be examined as "officer" of Pegasus under r. 426-Order will issue compelling Karathanos, in personal capacity and as president of Amican, to attend examination under r. 426 and to produce for inspection documents sought by applicant, pursuant to r. 91-Questions may include those concerning: (a) identity of person who instructed American law firm with respect to incorporation of Pegasus; (b) identity of person Pegasus who instructed Amican when latter acted as former's agent, including identity of person Pegasus, if any, who instructed Amican concerning June 1999 possible resolution of litigation; (c) issues related to (a) and (b); and (d) issues related to documents listed in order-Federal Court Rules, 1998, SOR/98-106, rr. 91, 426.