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.
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.