A-169-73
The Ship Capricorn (alias the Ship Alliance)
(Appellant) (Defendant)
v.
Antares Shipping Corporation (Respondent)
(Plaintiff)
Court of Appeal, Ryan J.—Ottawa, September 9,
1977.
Practice — Rule 1206 — Appellant requests additions to
appeal book — Registry seeks directions — Federal Court
Rules 1204 and 1206.
APPLICATION in writing under Rule 324.
COUNSEL:
Gilles de Billy, Q.C., for appellant (defend-
ant).
Guy Vaillancourt for respondent (plaintiff).
SOLICITORS:
Gagnon, de Billy, Cantin, Dionne, Martin,
Beaudoin & Lesage, Quebec, for appellant
(defendant).
Langlois, Drouin, Roy, Fréchette & Gau-
dreau, Quebec, for respondent (plaintiff).
The following are the reasons for order ren
dered in English by
RYAN J.: The notice of appeal in this case was
filed on October 9, 1973. The appeal was brought
against the judgment of the Trial Division deliv
ered on October 1, 1973', which, as asserted in the
notice of appeal, affirmed the jurisdiction of the
Court on a motion for an order striking out the
statement of claim and setting aside the arrest of
the defendant ship.
In accordance with subsection (2) of Rule
' [1973] F.C. 955.
1206 2 , the Registry prepared the appeal book.
Copies of the appeal book were sent to the parties
on November 2, 1973.
In a letter to the Registry, dated July 4, 1977,
counsel for the respondent referred to certain judi
cial proceedings that had occurred since the appeal
book was prepared. It was submitted that ma
terials relevant to these proceedings should be
before the Court of Appeal when this appeal is
heard. The letter thus requested that some twenty-
nine items should be added to the appeal book 3 .
The request was made pursuant to subsection (5)
of Rule 1206. The Registry has sought directions
2 Subsections (1),(2),(4) and (5) of Rule 1206 provide:
Rule 1206. (1) This Rule applies to every appeal under
section 27 of the Act except one where the appellant has
elected to prepare a printed case in Supreme Court of
Canada form as authorized by Rule 1207.
(2) After a notice of appeal has been filed, the Registry
shall, unless the Court otherwise directs, forthwith prepare
copies of all the material in the case as defined by Rule 1204
other than
(a) the transcript of verbal testimony,
(b) the written or other admissions put before the Court
otherwise than by documents that have been filed, and
(c) the physical exhibits;
and shall arrange such materials in sets, each of which shall
be indexed and bound in a manner satisfactory to the Court
and shall be certified. Each copy of such material shall be
labelled "Appeal Book".
(4) As soon as the appeal book prepared under paragraph
(2) is ready, the Registry shall send one copy to each of the
parties to the appeal.
(5) Any party may, upon receipt of the appeal book, make
a request in writing to the Registry, of which a copy shall be
served on the other parties to the appeal, requesting any
correction or addition to the appeal book, and the Registry
shall, if satisfied that the correction or addition should be
made, comply with the request and, otherwise, shall place the
request before the Chief Justice, or a judge nominated by
him for the purpose, for directions. Before acting under this
paragraph, the Registry shall give other parties an opportu
nity to send in written representations on the request.
Actually, the first of these items, described in the letter as
being "a bail bond on behalf of the defendant, June 22, 1973",
was in existence before the judgment appealed from but was
not included in a list of items to which, according to the file, the
parties had consented for inclusion in the appeal book before it
was prepared. The order I am making is not intended to prevent
inclusion of this item if, by agreement of the parties, a further
request is made for its inclusion or if, on further request of
either party, the Registry is satisfied it was omitted by over
sight. All of the other items sought to be included came into
being after the judgment appealed from and after the appeal
(Continued on next page)
in respect of the request.
Subsection (5) of Rule 1206 provides a means
whereby errors in an appeal book may be corrected
or whereby materials, which should be in an
appeal book by virtue of subsection (2) of Rule
1206, may be added to the appeal book if they are
not contained in it. Subsection (5) does not have to
do with the composition of the case'. It has to do
with the contents of an appeal book, which is a
copy of materials in a case.
I am accordingly directing that the respondent's
request to the Registry should be denied.
In making this direction, I do not mean to
express a view as to whether, in the circumstances,
the "case", as determined by Rule 1204, should be
varied. If, however, the respondent were to decide
to apply for an order to vary the contents of the
case, I would suggest that such application might
be made to the division of the Court that hears the
appeal when the appeal comes on for hearing. The
application could be supported by an affidavit to
which could be attached, as exhibits, copies of the
documents the respondent seeks to have added to
the case. Four copies of the notice of motion and
the supporting affidavit, with the exhibits, could be
filed; a copy could be served on the appellant a
substantial time before the hearing. Thus, if the
Court were persuaded, after hearing the parties,
that the case should be varied, it should be possible
to proceed with the hearing without delay.
(Continued from previous page)
book was sent to the parties.
Rule 1204 provides:
Rule 1204. The appeal shall be upon a case that shall
consist (unless, in any case, the parties otherwise agree or the
Court otherwise orders) of
(a) the judgment appealed from and any reasons given
therefor;
(b), the pleadings;
(c) a transcript of any verbal testimony given during the
hearing giving rise to the judgment appealed from;
(d) any affidavits, documentary exhibits or other docu
ments filed during such hearing;
(e) any written or other admissions of the parties other
wise put before the Court during such hearing; and
(/) any physical exhibits filed during such hearing.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.