[1993] 1 F.C. 67
T-552-88
Canadian National Railway Company (Applicant-Plaintiff)
v.
Norsk Pacific Steamship Company Limited, Norsk Pacific Maritime Services Ltd., Crown Forest Industries Ltd., Fletcher Challenge Ltd., the Tug Jervis Crown, the Barge Crown Forest No. 4, Francis MacDonnel, Rivtow Straits Ltd. and R.V.C. Holdings Ltd. operating under the firm name and style of Westminster Tug Boats and the said Westminster Tug Boats, the Tug Westminster Chinook and Barry Smith (Respondents-Defendants)
and
Her Majesty the Queen, Norsk Pacific Steamship Company Limited, Norsk Pacific Maritime Services Ltd., the Tug Jervis Crown, Rivtow Straits Ltd. and R.V.C. Holdings Ltd. operating under the firm name and style of Westminster Tugboats and the said Westminster Tugboats and The Tug Westminster Chinook (Third Parties)
Indexed as: Canadian National Railway Co. v. Norsk Pacific Steamship Co. (T.D.)
Trial Division, Rouleau J.—Vancouver, August 20; Ottawa, September 11, 1992.
Practice — Judgments and orders — Reconsideration — Application to convert bail bonds into cash and pay into Court — After trial as to liability for damages resulting from a ship colliding with railway bridge, assessment of damages ordered — Although statement of claim seeking condemnation of defendant ships and their bail, Trial Judge through inadvertence, mistake or omission not dealing with matter — Not brought to his attention within time prescribed under R. 337 — Trial Judge now retired — Application dismissed — Reference to cases supporting strict interpretation of R. 337 — Court unable to reconsider terms of judgment under R. 337(5) as not “Court as initially constituted” — R. 337(6) referring to clerical mistakes resulting in “accidental slip or omission” — Trial Judge not making slip or omission — Order sought not contrary to R. 1900 since would not be ordering levy or execution, but only requiring monies due under bonds be paid into Court — No evidence respondents unable to pay amount to be assessed.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Rules, C.R.C., c. 663, RR. 337, 1733, 1900.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Maligne Building Ltd. v. The Queen, [1983] 2 F.C. 301(T.D.); Steward v. Canada (Minister of Employment and Immigration), [1988] 3 F.C. 452 (1988), 84 N.R. 240 (C.A.).
CONSIDERED:
Crabbe v. Minister of Transport, [1973] F.C. 1091 (C.A.); Polylok Corporation v. Montreal Fast Print (1975) Ltd., [1984] 1 F.C. 713 (1983), 1 C.I.P.R. 113; 76 C.P.R. (2d) 151; 41 C.P.C. 294; 52 N.R. 218 (C.A.); Asbjorn Horgard A/S v. Gibbs/Nortac Industries Ltd. (1987), 14 C.I.P.R. 17; 16 C.P.R. (3d) 112 (F.C.A.); Cdn National Railway Co. v. Norsk Pacific Steamship Co. (1989), 49 C.C.L.T. 1; 26 F.T.R. 81 (F.C.T.D.); affd [1990] 3 F.C. 114 (1990), 65 D.L.R. (4th) 321; 3 C.C.L.T. (2d) 229; 104 N.R. 321 (C.A.); affd (1992), 137 N.R. 241 (S.C.C.).
APPLICATION to convert bail bonds into cash and pay into Court. Application dismissed.
COUNSEL:
David F. McEwen for applicant-plaintiff.
Murray Clemens for respondent-defendant Norsk Pacific Steamship Company Limited.
SOLICITORS:
McEwen, Schmitt & Co., Vancouver, for applicant-plaintiff.
Campney & Murphy, Vancouver, for respondent-defendant Norsk Pacific Steamship Company Limited.
The following are the reasons for order rendered in English by
Rouleau J.: In this matter the applicant-plaintiff sought an order of condemnation of the tug Jervis Crown and its bail; more particularly, it wanted the bail bonds that were posted as security to be converted into cash and the monies paid into Court forthwith.
The applicant-plaintiff’s claim for damages arose out of a collision with a railway bridge over the Fraser River in New Westminster, British Columbia, in November of 1987. Following a very lengthy trial which proceeded on the issue of liability alone before the Honourable Mr. Justice Addy of this Court, judgment was pronounced on April 27, 1990:
The Plaintiff recover its damages to be assessed resulting from the collision with the Westminster Railway Bridge, against the following Defendants namely, The Ship “Jervis Crown”, Norsk Pacific Steamship Company Limited, Norsk Pacific Maritime Services Ltd. and Captain MacDonnel.
The matter was appealed to the Federal Court of Appeal and was dismissed [[1990] 3 F.C. 114; a further appeal was taken to the Supreme Court of Canada [[1992] 1 S.C.R. 1021]; it rendered its decision on the 30th day of April, 1992. The respondents-defendants sought a further review by the Supreme Court of Canada which was denied.
In the applicant-plaintiff’s statement of claim initially filed in this matter on March 25, 1988, the following was included in the prayer for relief:
c) the condemnation of the Defendant ships and their bail;
Through inadvertence, mistake or omission, the Trial Judge in his judgment as well as in his reasons for judgment failed to condemn the respondent-defendant ship and the posted bail. No one brought it to his attention within the time prescribed under Rule 337 of the Federal Court Rules [C.R.C., c. 663] nor was the matter raised until it came before me at Vancouver on August 20, 1992.
The applicant-plaintiff submitted to the Court that damages together with accrued interest on the outstanding claims now exceed by more than half a million dollars the amount of posted security. This assertion was not denied by the respondents-defendants but there was no evidence before me substantiating the full value of the claims outstanding nor the accrued interest. The assessment of damages may only be concluded within the next 8 to 10 months and interest continues to accrue.
It is submitted by the applicant-plaintiff that the bail bonds not having been condemned was an oversight in the judgment of Addy J.; that the oversight has been extremely costly to the applicant-plaintiff since it will be entitled to both pre- and post-judgment interest. Had the bail bonds been condemned and the monies paid into Court there would have been an accrual of interest in order to help offset the amount to which the plaintiff and others will be entitled. He argues therefore that pursuant to Rule 337 of the Federal Court Rules, this Court has the authority to reconsider the terms of the pronouncement or correct any errors arising from any accidental slip or omission.
The respondents-defendants submit firstly that the Court is without jurisdiction to make an order pursuant to Rule 337(5) because it requires that such an application be brought within 10 days of the pronouncement of the judgment; and, secondly, that it may be reconsidered only before the Court “as constituted at the time of the pronouncement”. In support of this argument counsel for the respondents-defendants referred me to the following jurisprudence: Maligne Building Ltd. v. The Queen, [1983] 2 F.C. 301(T.D.); Crabbe v. Minister of Transport, [1973] F.C. 1091 (C.A.); and Steward v. Canada (Minister of Employment and Immigration), [1988] 3 F.C. 452(C.A.).
I have reviewed these decisions and I am satisfied that they are not completely analogous to the situation with which I am presently faced but nevertheless support a strict interpretation of Rule 337.
In the Maligne Building Ltd. case the request had been that the Trial Judge reconsider the matter of costs on an increased scale and it was suggested that they had been overlooked. The Trial Judge, having dismissed the action with costs, ruled that he had not overlooked or omitted this aspect and rejected the application.
In the Steward case, the Court of Appeal refused to deal with an issue of contempt of court since the panel hearing the application was one which was differently constituted than that which had initially entertained the contempt application; the panel that heard the initial application was available to be reconvened if required. In the present case, Mr. Justice Addy is no longer available since he has retired from office.
In the Crabbe case there was also a question of costs and it was determined that in order to vary the pronouncement, the issue should have been raised within the 10-day requirement.
It is further submitted by counsel for the respondents-defendants that the reasons for judgment of Mr. Justice Addy are not inconsistent with the order; accordingly the rule has no application and the order is “comprehensive on its face”. In support of this submission, counsel referred me to the case Polylok Corporation v. Montreal Fast Print (1975) Ltd., [1984] 1 F.C. 713(C.A.). The facts in Polylok reveal that a Trial Judge granted an application to examine for discovery the president of the respondent company. It was subsequently determined that this individual was not available and the Motions Judge was asked to reconsider. He issued a new order naming another party to be examined and reasoned that it was by inadvertence and that he was empowered to amend his first order by substituting the name of another officer. The Court of Appeal reversed the Motions Judge and held [at page 720] that:
… Rule [337(6)] should be given a scope which is broad enough to enable the Court to amend so as to make a judgment conform to what was intended when it was pronounced, but that it cannot and should not be used to authorize a judge to renew or rescind his judgment or to alter it so as to reflect a change of mind as to what the judgment should have been.
Counsel for the respondents-defendants also refers me to the case of Asbjorn Horgard A/S v. Gibbs/ Nortac Industries Ltd. (1987), 14 C.I.P.R. 17 (F.C.A.). This was a situation in which the applicant sought to vary a pronouncement. It was dismissed since the Court concluded that nothing had been “overlooked or accidentally omitted”. The Court went on to say that there was “no discrepancy between [the] reasons for judgment and [the] pronouncement”.
Counsel for the respondents-defendants suggests that Rule 1733 is not applicable since I have not to deal with a matter arising subsequent to a judgment; with this I agree. In conclusion, he argued that if I render such an order it would be premature since the assessment of damages has not yet been concluded and, any attempt to rely on Rule 1900 by condemning the bail bond, would in fact be levying execution. I disagree. The order sought will not be contrary to Rule 1900 since I would not be ordering levy or execution but only require that monies due under the bonds be paid into Court.
It was submitted that in the present application, I am not requested to amend the judgment, but rather to consider whether or not there was an omission or a slip. The applicant-plaintiff suggests that it is not requesting that I vary Mr. Justice Addy’s pronouncement to make it conform to what was intended but to rule on an aspect that was pleaded and on which there has been no pronouncement.
Needless to say that I have found no jurisprudence on the exact point. I have analyzed Rule 337 and more particularly paragraphs 337(5) and 337(6) which read as follows:
Rule 337. …
(5) Within 10 days of the pronouncement of judgment under paragraph (2)(a), or such further time as the Court may allow, either before or after the expiration of that time, either party may move the Court, as constituted at the time of the pronouncement, to reconsider the terms of the pronouncement, on one or both of the following grounds, and no others:
(a) that the pronouncement does not accord with the reasons, if any, that may have been given therefor;
(b) that some matter that should have been dealt with has been overlooked or accidentally omitted.
(6) Clerical mistakes in judgments, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court without an appeal.
Undoubtedly paragraph 337(5) would not allow me to reconsider the terms of pronouncement since I am not the “Court as initially constituted”. Paragraph 337(6) refers to clerical mistakes or errors which result in an “accidental slip or omission” which may at any time be corrected by the Court without appeal. I am satisfied that we are not dealing with a slip or omission that arose out of a clerical mistake or error.
No doubt it has been customary from time immemorial in maritime cases that the relief as sought, condemnation of bail, in a statement of claim would have been granted; but it is not apparent to me that this was an omission or slip of the Trial Judge, rather inadvertence on the part of counsel for failing to bring the matter to the attention of Mr. Justice Addy.
I agree that the respondents-defendants have had the use of their tug and that perhaps in equity I may have been justified in condemning the bonds; as I see it, the most important aspect of this application is that no evidence was submitted to suggest that the respondents-defendants cannot or will not be in a position to pay the full amount eventually assessed or any sum that exceeds the value of the posted bond.
This application is dismissed. Costs to the respondents-defendants.