Date: 19981221
Docket: T-272-98
Action In Rem and In Personam
Between:
CANA FOODS INC.
and
MAPLE LEAF FOODS INTERNATIONAL INC.
and
BAZAR ST. JOSEPH
ALL THOSE PERSONS HAVING AN INTEREST IN THE
CARGO LADEN ON BOARD THE VESSEL "KENT TRADER"
(Bill of Lading No. KLLM10007574)
Plaintiffs
AND
KENT LINE INTERNATIONAL LIMITED
and
REEDEREI HERMANN SIBUM GmbH & CO. KG
and
SIBUM GmbH & CO KG, M.S. "MARIA SIBUM"
and
THE OWNERS AND CHARTERERS
OF THE VESSEL "KENT TRADER"
and
THE VESSEL "KENT TRADER"
Defendants
REASONS FOR ORDER
RICHARD MORNEAU, ESQ., PROTHONOTARY:
[1] This is a motion by the Plaintiffs under rule 292(d) of the Federal Court Rules, 1998 (the rules) for an order that the action in this proceeding be conducted as a simplified action.
[2] The Plaintiffs' action can be considered a standard cargo claim. In that action, the Plaintiffs are claiming damages as a result of the alleged spoiling of their cargo when it was carried by the Defendants. The amount of the claim is Can.$50,984.88, that is, the Canadian equivalent of U.S.$36,679.70 converted at the applicable exchange rate around the time of the loss.
[3] For the purpose of proving their case, the Plaintiffs argue that their burden will be two-fold, namely, to establish that their cargo was loaded in good order and condition and to establish that it was delivered damaged.
[4] The evidence to be submitted by all parties to this case will centre indeed on the condition of the cargo, both at loading and at discharge.
Analysis
[5] Rule 292 reads as follows:
| 292. Unless the Court orders otherwise, rules 294 to 299 apply to any action in which |
| (a) each claim is exclusively for monetary relief in an amount not exceeding $50,000, exclusive of interest and costs; |
| (b) in respect of an action in rem claiming monetary relief, no amount claimed, exclusive of interest and costs, exceeds $50,000; |
| (c) the parties agree that the action is to be conducted as a simplified action; or |
| (d) on motion, the Court orders that the action be conducted as a simplified action. |
[6] When on its face an action falls within rule 292(a) or (b), it is automatically characterized as a simplified action and it benefits from the simplified process provided for in rules 295 to 299. These rules read as follows:
| 295. A party to a simplified action may serve, in lieu of an affidavit of documents, a complete list of all the documents in the party's possession, power or control that are relevant to a matter in issue in the action. |
| 296. An examination for discovery in a simplified action shall be in writing only, and shall not exceed 50 questions. |
| 297. No motion for summary judgment may be brought in a simplified action. |
| 298. (1) Subject to subsections (2) and (3), a motion in a simplified action shall be returnable only at a pre-trial conference conducted in accordance with rules 258 to 267. |
| (2) A motion may be brought, within the time set out in rule 204 for the service and filing of a statement of defence, |
| (a) to object to the jurisdiction of the Court; or |
| (b) to strike a statement of claim, on the ground that it discloses no reasonable cause of action. |
| (3) A motion may be brought at any time |
| (a) to remove an action from the operation of rules 294 to 299; or |
| (b) for the release of arrested property in an action in rem. |
| 299. (1) In the trial of a simplified action, unless the Court directs otherwise, the evidence of each party shall be adduced by affidavit, which shall, subject to rules 279 and 281, be served and filed |
| (a) in the case of evidence of a plaintiff, at least 20 days before the trial; and |
| (b) in the case of evidence of a defendant, at least 10 days before the trial. |
| (2) Unless all adverse parties agree otherwise, a witness whose affidavit evidence is tendered at trial shall be made available for cross-examination at trial. |
| (3) Subject to rule 281, reply evidence, including that of an expert witness, may be provided orally at trial. |
[7] The Defendants to the action herein opposed the motion at bar. They argued that the Plaintiffs did not advance any good or valid reason why the Court should grant the Plaintiffs' motion and impose on them a process whereby under rule 296 their discovery rights would be curtailed as opposed to the regime applicable to an "ordinary" action.
[8] The Defendants have not convinced me that the Plaintiffs' action cannot be seen as a straightforward claim in damages. That along with the fact the Plaintiffs' claim is so close to the $50,000 threshold constitutes in my opinion a valid reason to grant the Plaintiffs' motion and to order that henceforth the action in the present proceeding shall be conducted as a simplified action.
[9] Both counsel for the Plaintiffs and for the Defendants were unable to find any precedent on rule 292(d) for it may well be that none exists the present time. As the case law develops concerning this rule, perhaps it shall become apparent that the higher an action claim moves above the $50,000 threshold, the more justification required for an order that it be conducted as a simplified action.
[10] An order will be issued in accordance with these reasons. Costs shall be in the cause.
Richard Morneau
Prothonotary
MONTREAL, QUEBEC
December 21, 1998
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.:
STYLE OF CAUSE:
T-272-98
CANA FOODS INC. and MAPLE LEAF FOODS INTERNATIONAL INC. and BAZAR ST. JOSEPH, ALL THOSE PERSONS HAVING AN INTEREST IN THE CARGO LADEN ON BOARD THE VESSEL "KENT TRADER" (Bill of Lading No. KLLM10007574)
Plaintiffs
AND
KENT LINE INTERNATIONAL LIMITED and REEDEREI HERMANN SIBUM GmbH & CO. KG and SIBUM GmbH & CO KG, M.S. "MARIA SIBUB" and THE OWNERS AND CHARTERERS OF THE VESSEL "KENT TRADER" and THE VESSEL "KENT TRADER"
Defendants
MOTION HEARD BY TELECONFERENCE ON DECEMBER 14, 1998
REASONS FOR ORDER BY RICHARD MORNEAU, ESQ., PROTHONOTARY
DATE OF REASONS FOR ORDER:December 21, 1998
APPEARANCES:
| Mr. Francis Rouleau |
for the Plaintiffs |
| Mr. Christopher J. Stewart |
for the Defendant Kent Line International Limited |
| Mr. Victor DeMarco |
for the Defendants Reederei Hermann Sibum GmbH, Maria Sibum, Sibum GmbH |
SOLICITORS OF RECORD:
| Sproule, Castonguay, Pollack Montreal, Quebec |
for the Plaintiffs |
| Stewart McKelvey Stirling Scales Saint John, New Brunswick |
for the Defendant Kent Line International Limited |
| Brisset Bishop Montreal, Quebec |
for the Defendants Reederei Hermann Sibum GmbH, Maria Sibum, Sibum GmbH |