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T-838-75
Canadian Pacific Limited and Incan Ships Lim ited (Plaintiffs)
v.
Quebec North Shore Paper Company and Quebec and Ontario Transportation Company Limited (Defendants)
Trial Division, Walsh J.—Montreal, April 28; Ottawa, May 2, 1975.
Practice—Jurisdiction—Motion by defendants for leave to file conditional appearance objecting to jurisdiction and for stay of proceedings—Plaintiffs maintaining jurisdictional issue should be determined by trial judge hearing case on merits—Whether conditional appearance to contest jurisdic tion necessary when question is whether Court has jurisdiction ratione materiae—Federal Court Act, s. 22(2)(i), 23.
Defendants, who contend that the proceedings constitute an action for breach of contract, and are outside the Court's jurisdiction, move for leave to file a conditional appearance to object to jurisdiction, and for a stay of proceedings to allow for disposing of the objection. Plaintiffs claim that a conditional appearance to contest jurisdiction is only necessary where the issue is whether the Court has jurisdiction ratione personae, and not whether it has jurisdiction ratione materiae, which question can be resolved at any stage.
Held, allowing the conditional appearance, and staying the proceedings, there is nothing to indicate that the jurisdiction of the Court ratione materiae can not and should not be raised by such a motion. Defendants have a right to raise the matter at this stage; it is within the Court's discretion and deciding factors should be desirability and expedience. It is undesirable that an action should proceed to a lengthy and costly trial, and then be dismissed for lack of jurisdiction. Serious doubt as to jurisdiction should be resolved as soon as possible; here there is sufficient doubt to justify determination of the question in advance of the trial.
Mulvey v. The Barge `Neosho" (1915-20) 19 Ex.C.R. 1, considered.
MOTION. COUNSEL:
A. Gadbois for plaintiffs.
L. A. Poitras, Q.C., and M. Cuddihy for
defendants.
SOLICITORS:
Gadbois, Joannette & Durand, Montreal, for plaintiffs.
Laing, Weldon, Courtois, Clarkson, Parsons, Gonthier & Tétrault, Montreal, for defendants.
The following are the reasons for judgment rendered in English by
WALSH J.: Defendants move for an order for leave to file a conditional appearance for the pur pose of objecting to the jurisdiction of this Court, and for a stay of proceedings to allow such objec tion to be raised and disposed of.
Plaintiffs contest this motion contending that the granting of same is a matter within the discre tion of the Court and that in the circumstances of this case the question of jurisdiction should not be decided on a preliminary motion but should be left for determination by the trial judge hearing the case on the merits.
Without going into the merits of the dispute on the question of jurisdiction which will be dealt with by the Court on a preliminary motion in the event that permission to file the conditional appearance is granted, or alternatively by the trial judge hearing the case on the merits in the event that such permission is refused, it can be stated that the litigation arises out of a series of contracts entered into between plaintiffs and defendants. Plaintiff Canadian Pacific Limited wished to pro vide for through carriage of newsprint shipped by Quebec North Shore Paper Company for a period of fifteen years from Baie Comeau, Quebec to New York and Chicago in the United States of America, as well as to provide warehousing and further transportation by truck in New York. This newsprint was to be transported by ship from Baie Comeau to Quebec and thence by rail to its desti nations in the United States. Defendant Quebec and Ontario Transportation Company Limited with plaintiff Incan Ships Limited formed a joint venture for the operation of a specialized ship called a rail transporter, the construction of which had already been contracted for by Incan, and to lease a sufficient number of newsprint railcars to
transport the newsprint. Plaintiff Mean was .to construct and operate a railcar terminal in the City of Quebec to be available on May 15, 1975 and defendants were to construct and operate a railcar marine terminal at Baie Comeau to be ready by the same date. Quebec and Ontario and Mean agreed with Canadian Pacific to operate the rail transporter on its behalf, which cargo would be solicited by Canadian Pacific and carried by it on a through bill of lading. Allegedly, Canadian Pacific has taken the necessary steps to provide for warehousing and trucking of the newsprint in New York as of May 15, 1975 and Incan is in the process of constructing the rail terminal in Quebec and has ordered 175 newsprint railcars for the first year of operation which are now being built, as well as 225 additional such cars for use between May 15, 1976 and May 14, 1990, but neither of the defendants has commenced the construction of the railcar marine terminal at Baie Comeau so that it cannot become available as required by May 15, 1975. Damages are claimed in the amount of $35,987,385 with interest at 10%.
Plaintiffs' counsel states that when the question of jurisdiction is argued it will be contended that this Court has jurisdiction under section 23 of the Federal Court Act, the contracts themselves con stituting "undertakings connecting a province with any other province or extending beyond the limits of a province" and, alternatively, under section 22(2)(i), the action being a "claim arising out of any agreement relating to the carriage of goods in or on a ship or to the use or hire of a ship whether by charter party or otherwise". Defendants for their part will contend that proceedings constitute an action for breach of contract, specifically the failure by defendants to construct the marine rail- car terminal at Baie Comeau by the appropriate date and hence that they should be instituted in the Superior Court of the Province of Quebec and that this Court has no jurisdiction over the subject matter of the proceedings.
Without in any way prejudging the issue, it appears to me that this is a very serious argument which defendants have every right to raise.
Plaintiffs' counsel contends that a conditional appearance to contest the jurisdiction of the Court is only necessary when the question to be raised is whether the Court has jurisdiction ratione per sonae but that when the question is one of jurisdic tion ratione materiae, this can be raised at any stage of the proceedings and will be raised by the Court itself so that the failure to raise it by preliminary objection does not constitute a waiver of this right or an acceptance of the jurisdiction of the Court. I have examined the jurisprudence and authorities to which counsel referred and in par ticular Johnson: Conflict of Laws, 1937 ed., vol. 3, page 605, and the case of Mulvey v. The Barge "Neosho"' which supports this proposition. I can find nothing to indicate, however, that the jurisdic tion of the Court ratione materiae cannot or should not be raised by a motion such as the present one seeking leave to file a conditional appearance in order to raise the question of juris diction ratione materiae on a preliminary motion. Defendants have chosen to raise this issue at this stage of the proceedings as they have the right to do, even if the failure to do so might not have prevented them from raising this issue at a later date. Since the matter is within the discretion of the Court, the desirability and expediency of pro ceeding in this matter should be the deciding factor.
Counsel for plaintiffs contends that the primary objective of the contract was for shipment of mer chandise partially by water from the Province of Quebec to the United States of America, and that in view of the very large amount involved in the action and the continuing damages, it is urgent that it should be heard on the merits at the earliest possible date. He suggests that a decision that this Court does not have jurisdiction would undoubted ly be appealed right through to the Supreme Court and that if the final holding sustains this Court's jurisdiction there would be considerable delay before the action on the merits could be heard and the result of that judgment might well lead to a further appeal in the Supreme Court, whereas if the question of jurisdiction were left for the trial judge to decide after hearing all the evidence, there could then only be at most one such appeal. I cannot adopt this argument. It appears to me
' (1915-20) 19 Ex.C.R. 1.
highly undesirable that an action should proceed to a lengthy and costly trial at the conclusion of which the Court may dismiss same for lack of jurisdiction. If there is any serious doubt about the jurisdiction of the Court this should be decided as soon as possible, and in the present case there certainly appears to be sufficient doubt to justify defendants seeking to have this question deter mined in advance of the trial on the merits. I not find that defendants' motion is frivolous or made solely with a view to delaying the proceed ings. It should therefore be granted.
ORDER
Defendants may file a conditional appearance for the purpose of objecting to the jurisdiction of this Court and the proceedings herein shall be stayed until such objections have been raised and disposed of. Defendants shall file such conditional appearance and move for a hearing of their objec tions on a regular motion day within thirty days from this order or such further delay as the parties may agree to, or may be fixed by a Judge of this Court.
In view of the contestation, costs of this motion are in favour of defendants.
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