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Nissan Automobile Co. (Canada) Ltd. (Plaintiff) v.
The owners of the vessel Continental Shipper and United Steamship Corporation and Federal Com merce and Navigation Company Limited, and Federal Pacific Lakes Line (Defendants)
Trial Division (T-342-72), Urie J.—Ottawa, March 27 and 28, 1974.
Practice—Application to reconsider judgment for interest on damages awarded from date of institution of action— Discretion of Court—Federal Court Rule 337(5)—Federal Court Act, s. 40; Interest Act, s. 3.
There is a discretion in the Court to award interest wheth er the rights being dealt with arise ex contractu or ex delicto. Since the question at issue has never before been resolved by a Canadian Court, the defendants, having denied liability on what they considered to be reasonable grounds, should not be penalized by being required to pay interest before the date of the judgment.
N. M. Paterson & Sons Limited v. Canadian Vickers Limited [1959] Ex.C.R. 289, followed.
APPLICATION in writing under Rule 324 to reconsider judgment.
COUNSEL:
Vincent Prager for plaintiff. Edouard Baudry for defendants.
SOLICITORS:
Stikeman, Elliott & Co., Montreal, for plaintiff.
Brisset, Bishop & Co., Montreal, for defendants.
URIE J.—The plaintiff applies under Rule 337(5) of the Rules of Court, by way of motion in writing pursuant to Rule 324, to reconsider the Judgment rendered herein on January 3, 1974 to condemn the defendants to pay interest on the damages awarded it from the date of institution of the action, namely January 15, 1971, to date of payment of the judgment on the ground that interest had not been awarded in the judgment, although claimed, and such failure to award interest may have been through an over sight or an accidental omission.
It seems clear on the authorities which I have examined that there is a discretion in the Court to award interest whether the rights being dealt with arise ex contractu or ex delicto. The general rule is that all judgments under which money is paid in Admiralty matters carry interest from the date of judgment or from such other date as the judge or judgment directs. Section 40 of the Federal Court Act provides that judgments bear interest from the time of giving the judgment at the rate prescribed by section 3 of the Interest Act. It thus appears clear that it is unnecessary to prescribe interest on the judgment awarded subsequent to the date of judgment.
In this case, in the exercise of my discretion, I did not feel that interest ought to be awarded from the date of institution of the action nor from the date upon which the expenditures which were the subject-matter of the action were made. The question at issue in the action, I was advised, had never been resolved by a Canadian Court and the defendants, therefore, had denied liability on what they considered to be reasonable grounds which ultimately, in light of my decision, proved to be wrong. However, in view of the prior lack of jurisprudence I did not think that they should be penalized by requiring them to pay interest on the judgment. Therefore, it was not an oversight that interest was not awarded from the date of institution of the action or from any other date and, in my view, the provisions of Rule 337(5) do not apply.
There are additional reasons, in my view, for not acceding to the plaintiff's request. Firstly, I have observed that the defendants have appealed the judgment and the failure to award interest may, of course, properly be part of the subject-matter of that appeal. Secondly, as was observed by A. I. Smith D.J.A. in N. M. Pater- son & Sons Limited v. Canadian Vickers Lim ited [1959] Ex.Ç.R. 289 at page 291:
To grant the present motion and hold the defendant con demned to the payment of interest calculated from the date or dates upon which the repair bills were respectively paid ... would be to render a judgment substantially different from that given on March 19, 1959 [in this case January 3, 1974]; something I am without jurisdiction to do.
For all of the above reasons, therefore, the plaintiff's motion for reconsideration will be dismissed.
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