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T-2218-73
Antares Shipping Corporation (Plaintiff) v.
The Ship Capricorn alias The Ship Alliance and her owners (Defendants)
Trial Division, Marceau J.—Montreal, March 1, 1976; Ottawa, March 4, 1976.
Practice—Order directing plaintiff to provide security for costs, appealed—Plaintiff seeking stay until appeal heard— Federal Court Rules 1213, 1909.
Rule 1213 may be applied only in the case of an enforceable judgment in the true meaning of the phrase, i.e. one which may in itself be the object of execution proceedings. Mere fear of a possible withdrawal of the action, relied on by defendant, would not detract from the relevance of the reasons adduced by plaintiff (the contention that to carry out the order immediately would render pointless the appeal, whereas a stay would not prejudice defendants) to obtain the stay, provided that the case is not heard at first instance before a decision is made on the appeal.
APPLICATION. COUNSEL:
R. Gaudreau for plaintiff. G. De Billy for defendants.
SOLICITORS:
Langlois, Drouin & Laflamme, Quebec, for plaintiff.
Gagnon, De Billy, Cantin, Dionne & Martin, Quebec, for defendants.
The following is the English version of the reasons for judgment rendered by
MARCEAU J.: On January 29, 1976, an order of this Court directed plaintiff to provide within the time allowed security for costs in the amount of $140,000. This order was appealed and the present application, based on Rule 1909 of the Federal Court Rules, seeks to obtain a stay of the order until the appeal is heard.
Plaintiff contends that if it were to carry out the order immediately, its appeal would be virtually pointless, whereas on the other hand a stay would cause no prejudice to defendants if the appeal were
decided before the case was heard in the Trial Division. Defendants opposed the application, arguing that the requirements of Rule 1213 of the Rules of this Court dealing with the stay of execu tion of a judgment must be observed, and they add that the mere possibility of a withdrawal of its action by plaintiff in the event that its appeal is dismissed is sufficient indication of their interest in seeing that the security is deposited immediately.
I am of the opinion that Rule 1213 may be applied only in the case of an enforceable judg ment in the true meaning of this expression, that is one which may in itself be the object of execution proceedings. I feel also that the mere fear of a possible withdrawal of the action, relied on by defendant, would not detract from the relevance of the reasons adduced by plaintiff to obtain the stay which it has requested, provided however that the case is not heard at first instance before a decision is made on the said appeal. The application is accordingly allowed, but the order will specify that plaintiff must pursue its appeal without any undue delay and refrain from submitting the case to enquiry and hearing before the said appeal judg ment is rendered and given effect.
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