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T-2182-86
Mondel Transport Inc. (Plaintiff)
v.
Afram Lines Ltd. (Defendant)
and
Afram Lines Ltd. (Cross-plaintiff) v.
Mondel Transport Inc. and Her Majesty the Queen in Right of Canada (Cross-defendants)
INDEXED AS: MONDEL TRANSPORT INC. v. AFRAM LINES LTD. (T.D.)
Trial Division, Addy J.—Ottawa, September 26 and October 3, 1990.
Practice — Judgments and orders — Reversal or variation — Motion for reconsideration of terms of judgment to include interest — Although pleadings not claiming interest, parties mutually agreed at trial to amend claims to add pre-judgment and post-judgment interest at 11 %, and Court approving Court having jurisdiction to entertain motion under Federal Court Rules, R. 337(5)(b) and 337(6) — Failure to allow interest due to accidental oversight — Motion allowed.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Rules, C.R.C., c. 663, R. 337(5),(6).
CASES JUDICIALLY CONSIDERED REFERRED TO:
Merco Nordstrom Valve Company and Peacock Brothers Limited v. J. F. Comer, [1942] Ex.C.R. 156; [1942] 1 D.L.R. 316; (1942), 1 C.P.R. 177; 2 Fox. Pat. C. 8; N.M. Paterson & Sons Ltd. v. Canadian Vickers Ltd., [1959] Ex.C.R. 289; Verreault Navigation Inc. v. Cooperative de Transport Maritime et aerien, [1969] 2 Ex.C.R. 257; Hendricks v. R., [1970] Ex.C.R. 750; Polylok Corpora tion 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.).
COUNSEL:
Andrew J. Ness for plaintiff/cross-defendant.
David G. Colford for defendant.
Daniele Dion for cross-defendant Her Majes
ty the Queen.
SOLICITORS:
Marler, Sproule & Pilotte, Montreal, for plaintiff/cross-defendant.
Brisset Bishop Davidson, Montreal, for defendant.
Deputy Attorney General for cross-defendant Her Majesty the Queen.
The following are the reasons for order ren dered in English by
ADDY J.: By notice of motion dated September 20, 1990, the plaintiff Mondel, which was success ful in its claim against the defendant Afram, applies under Rule 337(5) and (6) [Federal Court Rules, C.R.C., c. 663] for a reconsideration of the terms of my judgment pronounced in this matter on September 14, 1990 [[1990] 3 F.C. 684].
The request is that pre-judgment and post-judg ment interest be included in the judgment.
In the written pleadings there was no mention of any claim for interest. In the conclusion of my reasons for judgment which were issued simultane ously with the formal judgment, I stated [at page 700]:
Since no claim was made by Mondel for interest from the date of the tort, interest on its claim shall run from the date of judgment.
Although no written order nor freshly amended statement of claim was issued, the latter was in fact amended pursuant to an oral motion at trial agreed upon by both parties. Strangely enough, neither the plaintiff in its claim nor the defendant in its counterclaim had included a claim for inter est. As a result, during the hearing both of them agreed that their claims would be amended by adding the following:
Together with interest at the rate of eleven percent (11%) from January 13th, 1986 to the date of Judgment. And then, at the rate of eleven percent (11%) post Judgment until payment.
It is obvious from my reasons that I completely omitted to consider this agreement between the parties. Furthermore, it had been mutually agreed that whoever was successful could claim interest at the above-mentioned rate both before and after judgment without the necessity of adducing evi dence as to the rate of interest to be granted or as to the date from which it was to be calculated. It is evident, on examining the transcript of the pro ceedings at trial, at pages 57 to 62 of volume I, that the motions of both parties and the agreement as to calculations of interest were granted and accepted by the Court. The sole issue which I have to decide on this present motion is whether I have jurisdiction to entertain it. Counsel for the defend ant Afram maintains that I lack such jurisdiction. He relied upon the following cases: Merco Nord- strom Valve Company and Peacock Brothers Limited v. J. F. Comer, [1942] Ex.C.R. 156; N.M. Paterson & Sons Ltd. v. Canadian Vickers Ltd., [1959] Ex.C.R. 289; Verreault Navigation Inc. v. Cooperative de Transport Maritime et aerien, [1969] 2 Ex.C.R. 257; Hendricks v. R., [1970] Ex.C.R. 750; Polylok Corporation v. Montreal Fast Print (1975) Ltd., [1984] 1 F.C. 713 (C.A.).
A careful reading of these cases has failed to convince me that I cannot entertain the plaintiff's motion. On the facts this case is quite easily distinguishable from all of them.
Rule 337(5)(b) provides that the Court, as con stituted at the time of pronouncement, may, after pronouncement of judgment, entertain such a motion where "some matter that should have been dealt with has been overlooked or accidentally omitted". Rule 337(6), in addition to providing for the correction of clerical mistakes in judgments, also provides that "errors arising therein from any accidental slip or omission, may at any time be corrected by the Court without an appeal". It is abundantly clear that I failed to allow interest because I overlooked and accidentally omitted to consider not only the fact that a claim for interest was included in the pleadings and therefore should have been dealt with by the Court but, that there existed a binding agreement between the parties
and approved by the Court that, if the plaintiff were successful, interest at eleven percent (11%) per annum would be awarded and that such inter est would be calculated from January 13, 1986, until payment of the sum adjudged to be payable.
My formal judgment will therefore be amended accordingly. The plaintiff will be entitled to its costs of this motion.
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