A-362-74
Canadian National Railway Company (Plaintiff)
v.
The Ship M/ V Norango and Norango Charters
Ltd. Owners of the Defendant MIV Norango
(Defendants)
Court of Appeal, Urie and Le Dain JJ. and Shep-
pard D.J.—Vancouver, February 24 and 25, 1976.
Practice—Order requiring claimants to file affidavits—Two
parties applying for extension of time—Addy J. extending
time, providing that in event of failure claimants 'forever
barred" from filing—Decary J. varying order of Addy J.,
granting further extension—Whether empowered to so do—
Whether proper exercise of power—Federal Court Rules
3(1)(c).
In order to prove claims with respect to money paid into
Court from the sale of a seized ship, supporting affidavits were
required to be filed by August 8, 1974. Two claimants applied
for and were granted extensions until October 21, by order of
Addy J.; failure would forever bar them from filing thereafter.
In response to a further application, Decary J. varied the order
of Addy J. to permit filing on the day of the application, and
service before November 21, 1974. Two of the other claimants
appealed. Questions raised are: (1) did Decary J. have the
power to vary Addy J.'s order in view of its peremptory nature?
and (2) if so, was the power properly exercised?
Held, the appeal is dismissed. (1) The power to vary existed
in spite of the wording of Addy J.'s order. The words "forever
barred", if taken literally, would have the effect of removing
the clear discretion to extend the time in spite of application
after the set date, as provided in Rule 3(1)(c). No judge has
such power. (2) Normally, an appeal court should interfere
with the discretion of a trial judge acting within his jurisdiction
only if it has been wrongly exercised through application of a
wrong principle of law or because some injustice would result.
Decary J. did not proceed on a wrong principle. He had the
duty to exercise his discretion, and such exercise should not be
interfered with. Nor did any injustice result.
APPEAL.
COUNSEL:
J. F. Dixon and Henry C. Wood for appel
lants W. H. Parry and Norwest Oyster Seed
Ltd.
E. B. Ruryk for claimants Royal Bank of
Canada and Matsumoto.
SOLICITORS:
Clark, Wilson & Co., Vancouver for
appellants.
Ernest B. Ruryk, Vancouver, for respondents.
The following are the reasons for judgment
delivered orally in English by
URIE J.: This is an appeal from an order of the
Trial Division made the 18th day of November
1974 which, inter alia, varied a previous order of
that Division.
A brief review of the proceedings to date will
indicate the basis upon which the appeal is
brought. As a result of the plaintiff's action to
recover unpaid dockage fees and charges, together
with interest thereon, arising out of the moorage of
the defendant ship at the plaintiff's dock, the ship
was arrested and eventually, pursuant to an order
of the Trial Division, was sold by the Marshal of
the City of Vancouver on March 27th, 1974 for
the sum of $85,000, which was paid into Court.
On July 5th, 1974, upon the plaintiff's applica
tion for directions and upon all parties and claim
ants having been served with the material in sup
port of the application, Collier J. of the Trial
Division ordered, inter alia, that each claimant on
or before August 8th, 1974, prepare and file in the
Vancouver Registry affidavits proving their
respective claims. He also ordered that unless on
or before September 1st, 1974 the claims so proved
were contested, they would be deemed admitted
subject only to a later ordering of the priorities of
all valid claims.
As a result of an application made by the plain
tiff on October 7th, 1974 for payment out of Court
of poundage fees, certain costs and the claims of
those parties who had complied with the order of
Collier J. counsel on behalf of Matsumoto Ship
yards Limited and The Royal Bank of Canada,
neither of whom had filed the requisite affidavits,
orally applied for an extension of time within
which to do so and thus to prove their respective
claims. Addy J. thereupon
(a) adjourned the plaintiff's motion for pay
ment out to November 18th, 1974;
(b) ordered that The Royal Bank and Mat-
sumoto Shipyards Ltd. pay forthwith to each of
those who had appeared on the motion costs in
the sum of $75.00;
(c) gave leave to The Royal Bank and Mat-
sumoto Shipyards Ltd. to file and serve notices
of motion, with affidavits in support thereof, on
each of the parties who had appeared on the
return of the motion, requesting leave to extend
the time in which to file proofs of claim in the
manner laid down in the order of Collier J.;
(d) ordered that the material filed by The
Royal Bank of Canada and Matsumoto Ship
yards Ltd. should include a full explanation as
to why the affidavits verifying their alleged
claims were not filed on time, as well as affida
vits establishing fully the nature and extent of
the claims;
(e) ordered that in the event that either of them
failed to file and serve the documents mentioned
in (d) on or before October 21st on each of the
other parties appearing, "The Royal Bank of
Canada or Matsumoto Shipyards Ltd. as the
case may be, shall be forever barred from doing
so";
(f) directed that nothing in the order should be
construed as an adjudication upon the merits of
any such future application on behalf of either
The Royal Bank or Matsumoto Shipyards Ltd.
for an extension of time to file their respective
affidavits proving their claims.
Neither The Royal Bank nor Matsumoto Ship
yards Ltd. filed and served the notice of motion
and affidavits in support on or before October
21st, 1974. On November 18th, 1974 The Royal
Bank and Matsumoto Shipyards Ltd. made
application for leave to yet again extend the time
to file the requisite affidavits and proofs of their
claims. In support of this application were read the
notice of motion and the affidavits filed in support
thereof, filed on November 18th, 1974, immediate-
ly prior to the application and then handed to
those counsel present, none of whom had been
previously notified of the application.
Decary J. ordered, inter alia, that the order of
Addy J. dated October 7th, 1974 be varied to
permit the solicitors for The Royal Bank of
Canada and Matsumoto Shipyards Ltd. to file
their affidavits that day and serve them on the
other parties to the action prior to November 21st,
1974. It is from that order that this appeal is
brought by two of the claimants whose claims had
been proved in the manner prescribed by the order
of Collier J. These appellants are Wesley H. Parry
and Surfside Shellfish Co. Ltd. (now Norwest
Oyster Seed Ltd.)
While neither Addy J. nor Decary J. gave rea
sons for making their respective orders, it is appar
ent that they were made pursuant to Rule 3(1)(c)
of the General Rules and Orders of this Court,
which Rule reads as follows:
(c) the Court may enlarge or abridge the time appointed by
these Rules, or fixed by any order, for doing any act or
taking any proceeding upon such terms, if any, as seem just,
and any such enlargement may be ordered, although the
application for the same is not made until after the expira
tion of the time appointed or fixed,
There does not appear to be any doubt that
Addy J. in making his order of October 7, 1974
validly exercised the discretion conferred on him
by the foregoing Rule. There are two questions
which, in my view, are raised by this appeal:
1. Did Decary J. have the power to vary Addy
J.'s order in view of the peremptory nature
thereof?
2. If he did have such a power, did he properly
exercise it in the circumstances of this case?
With respect to the first question, in my view it
is beyond doubt that the power to vary existed
notwithstanding the inclusion in Addy J.'s order of
the words "The Royal Bank of Canada or Mat-
sumoto Shipyards Ltd., as the case may be, shall
be forever barred from doing so", if they failed to
file the affidavits in question on or before October
21, 1974. The wording of the Rule clearly sets out
that the time fixed by any order for doing any act
may be enlarged although the application is not
made until after the time fixed by the order. The
effect of the words "forever barred", if accepted
literally as finally disposing of the matter, would
be to deprive another Judge or even Addy J.
himself, from exercising, in a proper case, the clear
discretion given him by the wording of Rule
3(1)(c). In my opinion, no Judge of the Court has
such a power so that Decary J. was in a position to
extend the time limit imposed by Addy J.
The second question presents a somewhat more
difficult problem in light of the unusual circum
stances of this case. The normal rule is that an
appellate court ought not to interfere with the
discretion of a trial judge acting within his juris
diction unless it is clearly satisfied that the discre
tion has been wrongly exercised either because the
judge had acted on some wrong principle of law or
because on other grounds the decision would result
in some injustice being done. (See McKinnon
Industries Limited v. Walker [1951] 3 D.L.R. 577
at page 579 (P.C.).)
That being said it is difficult for it to be con
cluded in this case that the learned Judge acted on
a wrong principle of law unless it could be found
that the excuses put forward by the claimants for
their failure to comply with Addy J.'s order were
so clearly unsatisfactory or unreasonable that
Decary J. acted on a wrong principle of law in
accepting them and further extending the time to
file their affidavits. Addy J. undoubtedly made the
order in the mandatory way in which he did
because of the unconscionable delays by the claim
ants in failing properly to prove their claims but
that does not mean that there could not be circum
stances in which the granting of a further delay
might not be found to be acceptable.
Even if I had concluded that had I been in the
position of Decary J. I would not have granted the
order—and I am not saying that I would have
reached such a conclusion—that would not justify
me in saying that this Court ought to set aside the
order. This is so because it is clear that there were
reasons advanced for the failure to file within the
time limited by Addy J. which, if accepted could
justify the order further extending the time. Thus,
Decary J. did not, in my opinion, proceed on a
wrong principle. He had the duty and obligation to
exercise his discretion on the circumstances as they
appeared to him and I do not believe that we
should interfere with the exercise of this discretion.
In so far as the question of injustice is con
cerned, there is nothing in this case which impels
one to the view that the granting of the order
resulted in any injustice to any one of the parties
more than another and it thus does not appear to
be a factor to be taken into account in this appeal.
For all of the above reasons, therefore, the
appeal should be dismissed but in view of the
unusual circumstances the respondents ought not
to be entitled to their costs in the appeal.
* * *
LE DAIN J. concurred.
* * *
SHEPPARD D.J. concurred.
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