T-3693-79
Jupiter International Limited (Plaintiff)
v.
Dart Containerline Company Limited and Eckert
Overseas Agencies Limited (Defendants)
Trial Division, Walsh J.—Montreal, March 8;
Ottawa, March 11, 1982.
Practice — Motion for relief of failure to file particulars
within delay — Judgment granting application for particulars
stated "Motion Granted" and incorporated provisions sought
by defendant, i.e. 15-day limit and dismissal of action "with-
out further order" in case of default — Particulars delivered
to bailiff within delay, but served on defendant outside 15-day
period — Defendant's bill of costs on dismissal of action taxed
— Whether judgment granting application for particulars may
be varied or whether Court functus officio — Whether final
judgment rendered in view of words "without further order"
Rule 3(1)(c) conferring on judge discretion to enlarge time
fixed for doing any act for reasons considered valid — Bai
liffs delay in serving particulars sufficient reason — Judg
ment not final as it merely fixed date when judgment dismiss
ing action would be pronounced — Motion allowed — Federal
Court Rules 3(I)(c), 300(7), 337, 338, 415(3) — Quebec Code
of Civil Procedure, art. 249.
Plaintiff moves to be relieved of its failure to file particulars
requested by defendant Dart Containerline Company Limited
within the delay prescribed and to be permitted to file said
particulars concurrent with the present judgment. In its
application for an order for particulars, defendant asked that
they be furnished within 15 days and that in default, the
statement of claim be struck and the action dismissed "without
further order". No representations were made on behalf of
plaintiff at the hearing of the application. The judgment of
Dubé J. granting the application incorporated the provisions
sought by defendant and merely stated "Motion Granted". The
particulars, prepared by plaintiff's present attorney and deliv
ered to bailiff within the 15-day limit, were served on defendant
outside the delay. The Registry of the Court refused to accept
them, on the ground that an extension of the delay had not
been granted. Defendant's costs on the dismissal of the action
were subsequently taxed. Defendant argues that the effect of
the words "without further order" is that judgment has been
rendered and the action dismissed. The issue is whether the
judgment of Dubé J. may be varied so as to permit the belated
production of the particulars or whether the Court is now
functus officio.
Held, the motion is allowed. The words "without further
order" do not prohibit an extension of the delay for varying the
order of Dubé J. for reasons considered valid in the discretion
of the judge hearing the application for extension. This is
especially so when the order, as in the present case, is a mere
procedural one. To interpret the words differently would be to
negate the broad discretion given to the Court under Rule
3(1)(c) to abridge or enlarge the time fixed for doing any act.
In the case at bar, the bailiff's delay in serving the particulars
obtained within the time prescribed is sufficient reason to
justify extending it to the date on which they were actually
served on defendant. Rule 337 requires that a judgment be
pronounced and Rule 338, that it shall be recorded as of the
day on which it was pronounced. The judgment of Dubé J. had
the effect of fixing a date after the expiry of 15 days therefrom
on which a judgment dismissing the action would be pro
nounced. No final judgment was rendered.
Canadian National Railway Company v. The Ship "MIV
Norango" [1976] 2 F.C. 264, applied. Grace Kennedy &
Company Limited v. Canada Jamaica Line [1979] 1 F.C.
401 (Annex, p. 406), distinguished. May & Baker
(Canada) Ltd. v. The Motor Tanker "Oak" [1979] 1 F.C.
401, considered.
MOTION.
COUNSEL:
J.-P. Robitaille for plaintiff.
P. J. Bolger for defendants.
SOLICITORS:
Gregory & Robitaille, Montreal, for plaintiff.
McMaster Meighen, Montreal, for defend
ants.
The following are the reasons for order ren
dered in English by
WALSH J.: Plaintiff represented by its now
solicitor Jean-Paul Robitaille moves to be relieved
of its failure to file the details of particulars
requested by defendant Dart Containerline Com
pany Limited within the delay stipulated in the
judgment of Mr. Justice Dubé on January 11,
1982 and to be permitted to file the said particu
lars concurrent with the judgment to be rendered
on the present motion and to proceed on the merits
of its action. The facts indicate that the proceed
ings were instituted on July 30, 1979, claiming
damages of $58,000 resulting from delay in deliv
ery of seasonal cargo which led to loss of profits
and cancellation of orders and sales. Plaintiff at
that time was represented by the legal firm of
Courtois, Clarkson, Parsons and Tétrault. In due
course plaintiff was ordered to post security for
costs and did so by a bond in the amount of $1,500
on December 8, 1980. On August 10, 1981,
Messrs. Courtois, Clarkson, Parsons and Tétrault
were authorized by judgment to serve on plaintiff
out of the jurisdiction at its place of business a
motion to cease representing it as attorneys due to
inability to communicate or obtain instructions.
Pursuant to the order obtained this was duly
served on plaintiff and on attorneys for defendant
Dart Containerline Company Limited and by
judgment dated October 19, 1981, the motion was
granted. It is of interest to note that the notice in
lieu of service to be given out of the jurisdiction
refers to article 249 of the Quebec Code of Civil
Procedure. In order to comply with the Rules of
this Court, Rule 300(7) should have been applied
which provides that until a copy of the order is
served on every party to the proceedings the attor
ney shall continue to be considered as the attorney
on the record and this does not appear to have
been done. Nothing turns on this however, since,
when defendant Dart Containerline Company
Limited made an application for particulars pursu
ant to Rule 415(3) on December 15, 1981, pre
sentable on January 11, 1982, a copy was not only
sent by registered mail to plaintiff at its place of
business, 14923 N.E. 40th Redmond, Washington,
U.S.A., but a similar notice had been served on
plaintiff's then attorneys on September 4, 1981. It
cannot therefore be said that plaintiff did not have
adequate notice of the motion when it came on for
hearing on January 11, 1982, before the Honour
able Mr. Justice Dubé, although by that time
plaintiff was no longer represented by attorneys so
no representations were made to the Court on its
behalf. The judgment recited the application for
the order for particulars and merely stated
"Motion Granted". In the application for order
however defendant Dart Containerline Company
Limited had asked that the particulars in question
be furnished within 15 days and that in default the
statement of claim be struck and the action dis
missed "without further order".
Whether coincidentally or not it was only later
in the day on January 11, 1982, that plaintiff's
present attorney received instructions by telephone
to represent plaintiff. He immediately obtained the
necessary particulars and prepared a document
giving these details dated January 25, 1982, which
was within the 15-day delay fixed by the judg
ment. However although he delivered them to his
bailiff for service that day they were not actually
served on said defendant until February 1, 1982,
outside the delay. When plaintiff's attorney
attempted to file them in Court the Registry
refused to accept them, invoking Justice Dubé's
judgment, as they were outside the delay fixed and
no extension had been granted. Defendant takes
the position that because of the words "without
further order" in the judgment of Justice Dubé the
case was now closed and that no further action was
required to have plaintiff's claim dismissed. On
February 18, 1982, defendant mailed by registered
letter to plaintiff a notice of taxation of bill of
costs to take place on February 26, 1982, and in
due course on that date defendant's costs on dis
missal of the action were taxed at $267. (It is not
without significance to note that the claim would
now be prescribed as it originated in the summer
of 1978.) On the same day, February 26, 1982,
plaintiff produced the present motion dated Febru-
ary 22, 1982, presentable on March 8, 1982.
With respect to the dates therefore it is clear
that although defendant Dart Containerline Com
pany Limited only received the particulars sought
a few days after the 15-day delay for production of
same had expired said defendant nevertheless had
these particulars long before it had its bill of costs
taxed based on its contention that the effect of the
judgment of Dubé J. was to automatically cause
the action to be dismissed as of January 27, 1982.
The question now to be decided is whether said
judgment of Dubé J. can be varied so as to permit
the belated production of the particulars or wheth
er the Court is now functus, judgment having been
rendered as defendant claims.
Although the judgment of Dubé J. cannot be
said to have been rendered ex parte, nor would it
likely have been any different had representations
been made, I have serious doubts as to whether the
action can be considered as having been dismissed
without further judgment as a result of the words
"without further order" in said judgment (which
words were actually provided by defendant in its
motion, the judgment merely reading "Motion
Granted"). This question was considered by the
Court of Appeal in the case of Canadian National
Railway Company v. The Ship "M/V Norango"'.
It is true that there were some differences in that
case in that the order which was not accomplished
within the time delay merely barred the filing of
supporting affidavits to prove claims with respect
to money paid into Court, and also the judgment,
although it contained the words "shall be forever
barred from doing so" had a further paragraph
specifying that nothing in the order should be
construed as an adjudication upon the merits of
any future application for an extension of time to
file the affidavits. The Court of Appeal in render
ing judgment however referred to Rule 3 (1) (c) of
the Rules of this Court which reads as follows:
Rule 3.(1)...
(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;
and at pages 267-268 states:
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 .... [Emphasis mine.]
Later on page 268 the judgment of Urie J. states:
Addy J. undoubtedly made the order in the mandatory way in
which he did because of the unconscionable delays by the
claimants in failing properly to prove their claims but that does
not mean that there could not be circumstances in which the
granting of a further delay might not be found to be acceptable.
The judgment approved the discretion exercised by
Decary J. in extending the delay for reasons which
he deemed sufficient, as he had the right to do in
the exercise of his discretion, and in the present
case I would find that the mere delay by the bailiff
to serve the particulars which plaintiff's present
attorney had obtained from his client within the
delay provided is sufficient reason to justify
' [1976] 2 F.C. 264.
extending the delay for a few days to the date on
which they were actually received by defendant on
February 1, 1982.
Reference was also made to the case of May &
Baker (Canada) Ltd. v. The Motor Tanker
"Oak" 2 , although there again the facts are sub
stantially different so it is merely useful to exam
ine the reasoning of the Court by analogy. In that
case the orders were made ex parte which cannot
be said to be the case here although reference was
made in the judgment to the fact that "the appel
lant was given no opportunity to be heard with
regard thereto". The judgment on pages 404-405
states:
Generally speaking, when a court makes an order or delivers
a judgment, in the absence of special provision, it is without
authority to review such order or judgment. Its correctness can
only be dealt with on appeal. When, however, an order is made
ex parte, in my view, in the absence of something to the
contrary, there is an inherent jurisdiction in the Court, after the
party adversely affected has been given an opportunity to be
heard, if it then appears that the ex parte order or judgment
should not have been made,
(a) to set aside the ex parte order or judgment as of the time
when the order setting aside is made, and
(b) to make such ancillary order as may be necessary to
restore the party adversely affected to the position he would
have been in if the ex parte order or judgment had not been
made.
In the present case it cannot be said that Justice
Dubé's order should not have been made or that it
was not properly made.
I do not believe that it can be considered that
final judgment has been rendered in this matter
and that the Court is functus as a result of the
taxation of the bill of costs. A careful reading of
Rule 337 respecting delivery and pronouncement
of judgments requires that a judgment be pro
nounced and Rule 338 requires that it shall be
recorded as of the day on which it was pronounced
or delivered. It appears to me that if a question of
appeal arose, which is not the case here, however,
the delays would only run from such date, so that
what the judgment of January 11, 1982, did was
fix a date after the expiry of 15 days therefrom in
which a judgment dismissing the action would be
pronounced. As pointed out in the Canadian Na
tional Railway case (supra) the effect of the
words "forever barred" would be to negate the
broad discretion given to the Court under Rule
3(1)(c), and I am of the view that the same applies
2 [ 1979] 1 F.C. 401.
to the casual use of the words "without further
order" in the present case which should not be
interpreted as prohibiting the extending of the
delay for varying the order of Dubé J. for reasons
considered valid in the discretion of the judge
hearing such application. This is especially so
when the order was a mere procedural one as in
the present case and not one permitting the institu
tion of proceedings after the delay to institute
them had expired as in the case of Grace Kennedy
& Company Limited v. Canada Jamaica Line
annexed to the judgment in the case of May &
Baker (Canada) Ltd. v. The Motor Tanker "Oak"
(supra) in which Jackett P., as he then was, stated
at page 408 of the May & Baker case:
I have had occasion previously to refuse to grant a motion
made on substantially the same grounds. Where the policy
reflected by the law is that a lawsuit in respect of a cause of
action be launched within a limited period from the time the
cause of action arises and that the defendant or defendants in
such a lawsuit be served with the initiating document within a
limited period from the launching of the proceedings, it does
not appear to me to be a "sufficient reason" for not serving a
particular defendant within the specified period to show that
the plaintiff is carrying on settlement discussions with some
other defendant. Each defendant, as it seems to me, is entitled
to the benefit of the law. If such a reason were accepted as a
"sufficient reason", it would operate to frustrate the obvious
purpose of statutes limiting the periods for commencing
actions.
On the question of costs however plaintiff is
clearly at fault for its lack of diligence although
this is not sufficient in my view to justify the
dismissal of the action without any opportunity for
hearing on the merits. Any wasted costs payable to
attorneys for defendant Dart Containerline Com
pany Limited on the taxation of the bill of costs
shall be paid together with the costs of this motion.
ORDER
Plaintiff is relieved of its failure to file the
details of particulars requested by defendant Dart
Containerline Company Limited within the delay
stipulated in the judgment of the Honourable Mr.
Justice Dubé of January 11, 1982, and is permit
ted to file such particulars which were duly served
on said defendant on February 1, 1982; costs of
this motion are in favour of said defendant in any
event of the cause, together with any wasted costs
resulting from the taxation of the bill of costs in
favour of defendant.
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.