Date: 19991223
Docket: T-1048-98
BETWEEN:
GILBERTE PAQUIN
Plaintiff
- and -
LOUISE CÔTÉ
- and -
THE OWNERS AND ALL OTHER PERSONS HAVING
A RIGHT IN THE VESSEL ALLEY CAT I
- and -
THE VESSEL ALLEY CAT 1
Defendants
REASONS FOR ORDER
LEMIEUX J.:
PLEADINGS
[1] This is a motion for summary judgment against the defendants under Rules 213 and following of the Federal Court Rules, 1998 on the ground that the defence filed in this matter raises no genuine issue to be tried in opposition to the plaintiff"s statement of claim.
[2] On May 22, 1998, the plaintiff filed a statement of claim in this Court asking that the defendant Louise Côté be declared in default under a loan agreement executed on February 11, 1998, the said agreement being secured by a conventional maritime mortgage in the amount of $80,000.00. The plaintiff is also seeking an order that the defendant Louise Côté pay $50,000.00 (sic) in principal, interest and costs over and above the additional compensation provided by law.
[3] The plaintiff further asks this Court to order the defendant vessel under the admiralty action in rem to pay $80,000.00 in principal, interest and costs should the owners and any other persons having a right in the vessel ALLEY CAT I fail to pay the judgment amount in principal, interest and costs so that the said vessel may be sold by judicial sale.
THE FACTS
[4] On February 11, 1998, the plaintiff Gilberte Paquin loaned the defendant Louise Côté $80,000.00 under a loan agreement executed before a notary. A term note is appended to this agreement, providing as follows:
| [Translation] I, the undersigned Louise Côté, residing at 2190, Principale, Sainte-Julie, Quebec J3E 3H3, acknowledge that I owe the amount of eighty thousand dollars ($80,000.00) to Gilberte Paquin for a loan granted by the creditor of equivalent amount, the receipt of which is hereby acknowledged. This loan shall be repayable in one year from this date unless it is renewed, and shall bear interest at the rate of nine per cent (9.0%) per year, calculated and payable monthly on the eleventh day of each month from the eleventh of March next (March 11, 1998). Effective the eleventh day of October, nineteen hundred and ninety-eight (1998), the principal of this loan may be prepaid in whole or in part subject to advance notice of thirty (30) days and an interest penalty equivalent to two hundred and fifty dollars ($250.00) for each month of prepayment. This loan shall be used solely for the purchase of photographic equipment and/or photocopies. The renewal of this loan shall be subject to the costs and terms to be imposed at that time by the creditor. |
[5] Under this loan agreement, the defendant assigned and hypothecated as security in favour of the plaintiff certain movable property described in the said agreement, up to the amount borrowed.
[6] Also on February 11, 1998, the defendant granted a second maritime mortgage on her vessel ALLEY CAT I to the plaintiff to secure the said loan of $80,000.00 executed on that date.
[7] The record indicates that this maritime mortgage is composed of two (2) documents, a notarized hypothecary agreement bearing the number three thousand one hundred twelve (3112) in the minutes of the executing notary signed by the plaintiff Gilberte Paquin, the defendant Louise Côté and the executing notary Mr. Yvan Barabé, and a hypothec form No. 7 executed by the defendant Louise Côté and the executing notary, registered in the Registrar of Ships on February 13, 1998.
[8] However, the plaintiff submits that the defendant has defaulted on payment of the monthly interest owing on the amount of the loan. Accordingly, the plaintiff demands immediate payment of the debt in full as provided under the notarized loan agreement executed on February 11, 1998.
[9] In fact, the plaintiff submits that under the terms of the notarized loan agreement executed on February 11, 1998, the defendant has defaulted on her monthly payment obligations through passage of time alone, without advance notice or warning by the plaintiff.
[10] In reply to the plaintiff"s submissions, the defendant Louise Côté submits that no valid conventional hypothec was granted on the vessel ALLEY CAT I, on the ground that the notarized hypothecary agreement dated February 11, 1998 does not prescribe the amount of the hypothec, as is required by the rules contained in the Civil Code of Québec (hereinafter "C.C.Q.").
[11] The defendants further submit that they were never informed of the possible value of a potential hypothec on the vessel ALLEY CAT I.
[12] During her examination, the transcript of which has been filed in the Court record, the defendant Louise Côté states that she signed the hypothec form No. 7 when its content was blank or incomplete and that she has never had a copy of it. Furthermore, she says she was never informed of the amount of the maritime mortgage.
[13] In conclusion, the defendants submit that there is no conventional hypothec charging the vessel ALLEY CAT I in favour of the plaintiff.
[14] The plaintiff submits in reply to the defendants" arguments that the latter have no factual or legal foundation since the mortgage granted on the vessel ALLEY CAT I is governed by the Canada Shipping Act (hereinafter the "Act"), the rules of which differ from those in the C.C.Q. and that in any event the defendant Louise Côté executed before a notary hypothec form No. 7 prescribed by law, which clearly indicates the amount loaned in consideration of the creation of this hypothec, i.e. the sum of $80,000.00, and that in these circumstances the maritime mortgage granted by the defendant on February 11, 1998 is absolutely valid.
ANALYSIS
[15] Under section 22(2)(c) of the Federal Court Act, R.S.C. 1985, c. F-7, the Federal Court of Canada, Trial Division, has jurisdiction over a mortgage or hypothecation of a ship or any part interest therein or its cargo. The provision reads as follows:
| 22. (2) Without limiting the generality of subsection (1), it is hereby declared for greater certainty that the Trial Division has jurisdiction with respect to any one or more of the following: (c) any claim in respect of a mortgage or hypothecation of, or charge on, a ship or any part interest therein or any charge in the nature of bottomry or respondentia for which a ship or part interest therein or cargo was made security; |
22. (2) Il demeure entendu que, sans préjudice de la portée générale du paragraphe (1), la Section de première instance a compétence dans les cas suivants: c) une demande relative à un prêt à la grosse ou à une hypothèque, un privilège ou une sûreté maritimes grevant tout ou partie d'un navire ou sa cargaison; |
[16] Rules 214, 216 and 218 of the Federal Court Rules, 1998 provide as follows in regard to summary judgments:
| 214. (1) A party may bring a motion for summary judgment in an action by serving and filing a notice of motion and motion record at least 20 days before the day set out in the notice for the hearing of the motion. (2) A party served with a motion for summary judgment shall serve and file a respondent's motion record not later than 10 days before the day set out in the notice of motion for the hearing of the motion. 216. (1) Where on a motion for summary judgment the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant summary judgment accordingly. (2) Where on a motion for summary judgment the Court is satisfied that the only genuine issue is (a) the amount to which the moving party is entitled, the Court may order a trial of that issue or grant summary judgment with a reference under rule 153 to determine the amount; or (b) a question of law, the Court may determine the question and grant summary judgment accordingly. (3) Where on a motion for summary judgment the Court decides that there is a genuine issue with respect to a claim or defence, the Court may nevertheless grant summary judgment in favour of any party, either on an issue or generally, if the Court is able on the whole of the evidence to find the facts necessary to decide the questions of fact and law. (4) Where a motion for summary judgment is dismissed in whole or in part, the Court may order the action, or the issues in the action not disposed of by summary judgment, to proceed to trial in the usual way or order that the action be conducted as a specially managed proceeding. 218. Where summary judgment is refused or is granted only in part, the Court may make an order specifying which material facts are not in dispute and defining the issues to be tried, including an order (a) for payment into court of all or part of the claim; (b) for security for costs; or (c) limiting the nature and scope of the examination for discovery to matters not covered by the affidavits filed on the motion for summary judgment or by any cross-examination on them and providing for their use at trial in the same manner as an examination for discovery. |
214. (1) Toute partie peut présenter une requête pour obtenir un jugement sommaire dans une action en signifiant et en déposant un avis de requête et un dossier de requête au moins 20 jours avant la date de l'audition de la requête indiquée dans l'avis. (2) La partie qui reçoit signification d'une requête en jugement sommaire signifie et dépose un dossier de réponse au moins 10 jours avant la date de l'audition de la requête indiquée dans l'avis de requête. 216. (1) Lorsque, par suite d'une requête en jugement sommaire, la Cour est convaincue qu'il n'existe pas de véritable question litigieuse quant à une déclaration ou à une défense, elle rend un jugement sommaire en conséquence. (2) Lorsque, par suite d'une requête en jugement sommaire, la Cour est convaincue que la seule véritable question litigieuse est : a) le montant auquel le requérant a droit, elle peut ordonner l'instruction de la question ou rendre un jugement sommaire assorti d'un renvoi pour détermination du montant conformément à la règle 153; b) un point de droit, elle peut statuer sur celui-ci et rendre un jugement sommaire en conséquence. (3) Lorsque, par suite d'une requête en jugement sommaire, la Cour conclut qu'il existe une véritable question litigieuse à l'égard d'une déclaration ou d'une défense, elle peut néanmoins rendre un jugement sommaire en faveur d'une partie, soit sur une question particulière, soit de façon générale, si elle parvient à partir de l'ensemble de la preuve à dégager les faits nécessaires pour trancher les questions de fait et de droit. (4) Lorsque la requête en jugement sommaire est rejetée en tout ou en partie, la Cour peut ordonner que l'action ou les questions litigieuses qui ne sont pas tranchées par le jugement sommaire soient instruites de la manière habituelle ou elle peut ordonner la tenue d'une instance à gestion spéciale. 218. Lorsqu'un jugement sommaire est refusé ou n'est accordé qu'en partie, la Cour peut, par ordonnance, préciser les faits substantiels qui ne sont pas en litige et déterminer les questions qui doivent être instruites, ainsi que : a) ordonner la consignation à la Cour d'une somme d'argent représentant la totalité ou une partie de la réclamation; b) ordonner la remise d'un cautionnement pour dépens; c) limiter la nature et l'étendue de l'interrogatoire préalable aux questions non visées par les affidavits déposés à l'appui de la requête en jugement sommaire, ou limiter la nature et l'étendue de tout contre-interrogatoire s'y rapportant, et permettre l'utilisation de ces affidavits lors de l'interrogatoire à l'instruction de la même manière qu'à l'interrogatoire préalable. |
[17] However, I will determine the applicable test in regard to obtaining summary judgment within the framework of the old rules. In Granville Shipping Co. v. Pegasus Lines Ltd. S.A., [1996] 2 F.C. 853 (F.C.T.D.), Madam Justice Tremblay-Lamer lists the applicable principles as developed by this Court (at pages 859-60):
| I have considered all of the case law pertaining to summary judgment and I summarize the general principles accordingly: |
| 1. the purpose of the provisions is to allow the Court to summarily dispense with cases which ought not proceed to trial because there is no genuine issue to be tried (Old Fish Market Restaurants Ltd. v. 1000357 Ontario Inc. et al); |
| 2. there is no determinative test (Feoso Oil Ltd. v. Sarla (The)) but Stone J.A. seems to have adopted the reasons of Henry J. in Pizza Pizza Ltd. v. Gillespie. It is not whether a party cannot possibly succeed at trial, it is whether the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial; |
| 3. each case should be interpreted in reference to its own contextual framework (Blyth and Feoso); |
| 4. provincial practice rules (especially Rule 20 of the Ontario Rules of Civil Procedure, [R.R.O. 1990, Reg. 194]) can aid in interpretation (Feosoand Collie); |
| 5. this Court may determine questions of fact and law on the motion for summary judgment if this can be done on the material before the Court (this is broader than Rule 20 of the Ontario Rules of Civil Procedure) (Patrick); |
| 6. on the whole of the evidence, summary judgment cannot be granted if the necessary facts cannot be found or if it would be unjust to do so (Pallmanand Sears); |
| 7. in the case of a serious issue with respect to credibility, the case should go to trial because the parties should be cross-examined before the trial judge (Forde and Sears). The mere existence of apparent conflict in the evidence does not preclude summary judgment; the court should take a "hard look" at the merits and decide if there are issues of credibility to be resolved (Stokes ). |
[18] As I mentioned earlier, the defendants are challenging not only the validity of the maritime mortgage of February 11, 1998 but the nature of the legal rules applicable to the case at bar.
[19] In view of the submissions made to me at the hearing, I have no doubt that the two issues raised by the defendants are serious issues. Nevertheless, and particularly in regard to the validity of the said maritime mortgage, it appears that this issue necessitates a detailed analysis of the facts; but I note that the facts as presented by the plaintiff in her pleadings and at the hearing of this motion are being contested by the defendants.
[20] Indeed, besides challenging the validity of the said maritime mortgage, the defendants deny the plaintiff"s interpretation of the terms of the loan agreement and the term note, dated February 11, 1998, the interaction between the two (2) agreements (i.e. the loan agreement and the hypothecary agreement), and in particular that the defendant Louise Côté is actually in default of paying the monthly interest owing on the $80,000.00 that was loaned.
[21] However, I note that the defendants have filed no motion record, contrary to the requirements of paragraph 2 of Rule 214 of the Federal Court Rules, 1998. The only arguments advanced by the defendants have been made through their defence filed with the Court on June 26, 1998, supported by the examination of Louise Côté.
[22] On a motion for summary judgment, it is not appropriate for this Court to decide an issue as to questions of fact and law that have been raised when the facts are insufficient or disputed. Teitelbaum J. summarizes this rule in the following way in Homelife Realty Services Inc. v. Sears Canada Inc. and Sears Roebuck and Co. (January 16, 1996), T-1069-95 (F.C.T.D.):
| Rule 432.3(4) provides that summary judgment should not be granted where, on the whole of the evidence, the judge cannot find the necessary facts, for it would be unjust to do so. I am also of the view that summary judgment should only be granted in circumstances where the facts are clear. |
[23] Accordingly, I conclude from the case law of this Court and Rule 216 of the Federal Court Rules, 1998 that the facts on the record are insufficient to enable me to determine all of the factual and legal questions that have been raised.
[24] However, although I decline to answer the question of the validity of the maritime mortgage of February 11, 1998, that is, the hypothecary agreement and hypothec form No. 7, I conclude that I am able to answer the question of the nature of the applicable law in the context of this case.
[25] The scope of Canadian maritime law has been debated many time in the Supreme Court of Canada and recently, in Ordon Estate v. Grail, [1998] 3 S.C.R. 437, Iacobucci and Major JJ. set down the applicable test in determining the applicability of the rules of Canadian maritime law:
| All of the relevant principles for this resolution have been stated in one form or another in the Court"s recent maritime law jurisprudence. We believe that it will prove useful for future cases if these principles are assembled and synthesized into a test that may be applied in any instance where a provincial statute is sought to be invoked as part of a maritime law negligence claim. The test has four steps. |
| (a) Step One: Identifying the Matter at Issue |
| 73 The first step involves a determination of whether the specific subject matter at issue in a claim is within the exclusive federal legislative competence over navigation and shipping under s. 91(10) of the Constitution Act, 1867. Is the matter truly a matter of Canadian maritime negligence law? As stated by McIntyre J. in ITO, supra, at p. 774, and as restated by Iacobucci J. in Monk Corp., supra, at p. 795, it must be determined whether the facts of a particular case raise a maritime or admiralty matter, or rather a matter which is in pith and substance one of local concern involving property and civil rights or any other matter which is in essence within exclusive provincial jurisdiction under s. 92 of the Constitution Act, 1867. The test for making this determination is to ask whether the subject matter under consideration in the particular case is so integrally connected to maritime matters as to be legitimate Canadian maritime law within federal legislative competence. As is clear from this Court"s recent jurisprudence on the issue, the answer to this question is to be arrived at through an examination of the factual context of the claim. |
| (b) Step Two: Reviewing Maritime Law Sources |
| 74 Once the court determines that the subject matter at issue is legitimately one of Canadian maritime negligence law, the second step involves a determination of whether it is necessary for the party who seeks to rely upon the provincial statute within the context of a maritime negligence claim to do so. That is, before engaging in what may well be an unnecessary constitutional analysis of the applicability of a provincial law, a court should consider whether a counterpart to the statutory provision upon which the party seeks to rely is present within Canadian maritime law itself. Such a counterpart could be a duplication of the provincial law within federal maritime law (e.g., a cause of action for dependants of a person killed), or it could be a provision or rule which deals with the same issue as the provincial provision but in a different manner (e.g., common law agency principles as contained in Canadian maritime law deal with agency issues in a manner different from the agency principles contained in the Civil Code of Québec, S.Q. 1991, c. 64). Of course, where Canadian maritime law deals differently with an issue addressed in the provincial statute sought to be relied upon, it may still be necessary to engage in a constitutional analysis if the party seeking to rely upon the provincial statute argues that the federal and provincial laws should operate simultaneously. |
| 75 Whatever the case, it is important to canvass all of the relevant sources of Canadian maritime law when seeking to determine whether an issue has already been addressed. Canadian maritime law has sources which are both statutory and non-statutory, national and international, common law and civilian: Chartwell, supra, at pp. 695-97. As stated by McIntyre J. in ITO, supra, at p. 774, the scope and content of Canadian maritime law is defined in s. 2 of the Federal Court Act in a comprehensive manner, encompassing all claims in respect of maritime and admiralty matters. The sources of Canadian maritime law include, but are not limited to, the specialized rules and principles of admiralty, and the rules and principles adopted from the common law and applied in admiralty cases, as administered in England by the High Court on its Admiralty side in 1934 and as amended by the Canadian Parliament and developed by judicial precedent to date. The sources of Canadian maritime law have recently been interpreted by this Court on several occasions: see ITO, supra, Chartwell, supra, Whitbread, supra, Monk Corp., supra, Bow Valley Husky, supra, and Porto Seguro, supra. Litigants should investigate all sources of Canadian maritime law before seeking to rely upon a provincial statute in their place, and courts should be equally reluctant to move on to a determination of constitutional applicability without having resolved this preliminary issue. |
| (c) Step Three: Considering the Possibility of Reform |
| 76 The third step, if existing sources of Canadian maritime law do not contain a counterpart to the provision sought to be relied upon, also takes place prior to engaging in constitutional analysis. A court must determine whether or not it is appropriate for Canadian non-statutory maritime law to be altered in accordance with the principles for judicial reform of the law as developed by this Court in Watkins v. Olafson, [1989] 2 S.C.R. 750, and R. v. Salituro, [1991] 3 S.C.R. 654, as well as in Bow Valley Husky, supra, and in the present case. The court should engage in this step of the analysis regardless of whether or not the possibility of judicial reform of existing maritime law is raised by the parties. |
| 77 This form of pre-constitutional analysis was adopted and applied by McLachlin J., speaking for the Court on this issue, in Bow Valley Husky, supra. In that case, the plaintiffs sought to rely upon the Newfoundland Contributory Negligence Act, R.S.N. 1990, c. C-33, in the context of a maritime negligence action. They relied in support of their argument upon the decision of this Court in Stein, supra, in which as we have seen Ritchie J. for the Court permitted the plaintiffs in a maritime negligence action to rely upon the British Columbia Contributory Negligence Act. In denying the plaintiffs the right to rely upon the provincial statute in Bow Valley Husky, McLachlin J. gave the following reasons, at p. 1260: |
| The plaintiffs argue that this Court"s decision in Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802, provides that provincial laws can apply to maritime matters in the absence of federal law. Assuming this is so, it does not advance the plaintiffs" case. On the view I take, there is no "gap" that would allow for the application of provincial law. While the federal government has not passed contributory negligence legislation for maritime torts, the common law principles embodied in Canadian maritime law remain applicable in the absence of federal legislation. The question is not whether there is federal maritime law on the issue, but what that law decrees. |
| McLachlin J. went on to conclude that Canadian maritime law incorporated the contributory negligence bar to recovery that was inherited as part of British maritime law. She then considered whether it was appropriate, in light of the test for judicial reform of the law as developed by this Court, to remove the bar and substitute a regime of apportionment according to fault, answering this question in the affirmative. |
| 78 We note, with respect to the test for judicial reform of the law that was applied by McLachlin J. in Bow Valley Husky, supra, and again in Porto Seguro, supra, that the test as it has been thus far developed is a common law test with a national focus. In our view, this common law test must be adapted in accordance with the nature and sources of maritime law as an international body of law whenever courts consider whether to reform Canadian maritime law. The basic elements of the test for judicial reform of the common law were set out by Iacobucci J. for the Court in Salituro, supra, at p. 670: |
| Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared. Nonetheless, there are significant constraints on the power of the judiciary to change the law. As McLachlin J. indicated in Watkins, supra, in a constitutional democracy such as ours it is the legislature and not the courts which has the major responsibility for law reform; and for any changes to the law which may have complex ramifications, however necessary or desirable such changes may be, they should be left to the legislature. The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society. |
| 79 When applying the above framework in the maritime law context, a court should be careful to ensure that it considers not only the social, moral and economic fabric of Canadian society, but also the fabric of the broader international community of maritime states, including the desirability of achieving uniformity between jurisdictions in maritime law matters. Similarly, in evaluating whether a change in Canadian maritime law would have complex ramifications, a court must consider not only the ramifications within Canada, but also the effects of the change upon Canada"s treaty obligations and international relations, as well as upon the state of international maritime law. It is essential that the test for judicial reform of Canadian maritime law accord with the sui generis nature of that body of law. |
| (d) Step Four: Constitutional Analysis |
| 80 The fourth step, if it is required, consists of a constitutional analysis of whether a particular provincial statutory provision is applicable within the context of a maritime law claim. The applicability of provincial law should be evaluated only where the issue cannot be resolved on non-constitutional grounds as set out above. ... |
[26] In regard to step one in the test laid down by the Supreme Court of Canada, identifying the matter at issue, it appears from the transactions within the context of this litigation that the loan agreement falls within the powers assigned to the provinces under section 92(16) of the Constitution Act, 1867, that is, matters of a purely local nature affecting property and civil rights, and that the term note falls within the powers assigned to the federal Parliament by section 91(18) of the Constitution Act, 1867.
[27] However, the fact remains that the subject matter of the maritime mortgage of February 11, 1998 is a vessel subject to the applicable rules of Canadian admiralty or maritime law and falls within the competence of the Federal Court of Canada, Trial Division under the Act. In Ordon Estate, supra, the Supreme Court of Canada clearly describes the origins of Canadian maritime law and the importance of ensuring its uniformity:
| 71 Subsequent to the decision in Stein, a reorientation has occurred in this Court"s maritime law jurisprudence, beginning most notably with the decision in ITO , supra, followed by Chartwell, supra, Whitbread, supra, Monk Corp. v. Island Fertilizers Ltd., [1991] 1 S.C.R. 779, Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210, and Porto Seguro Companhia De Seguros Gerais v. Belcan S.A., [1997] 3 S.C.R. 1278. These cases establish a number of basic principles and themes regarding the sources and content of Canadian maritime law, the role of provincial law in relation thereto, and the scope for gradual change and development in maritime law. These general principles and themes, insofar as they are relevant to the instant appeals, may be summarized as follows: |
| 1. "Canadian maritime law" as defined in s. 2 of the Federal Court Act is a comprehensive body of federal law dealing with all claims in respect of maritime and admiralty matters. The scope of Canadian maritime law is not limited by the scope of English admiralty law at the time of its adoption into Canadian law in 1934. Rather, the word "maritime" is to be interpreted within the modern context of commerce and shipping, and the ambit of Canadian maritime law should be considered limited only by the constitutional division of powers in the Constitution Act, 1867. The test for determining whether a subject matter under consideration is within maritime law requires a finding that the subject matter is so integrally connected to maritime matters as to be legitimate Canadian maritime law within federal competence: ITO, supra, at p. 774; Monk Corp., supra, at p. 795. |
| 2. Canadian maritime law is uniform throughout Canada, and it is not the law of any province of Canada. All of its principles constitute federal law and not an incidental application of provincial law: ITO, supra, at pp. 779, 782; Chartwell, supra, at p. 696. |
| 3. The substantive content of Canadian maritime law is to be determined by reference to its heritage. It includes, but is not limited to, the body of law administered in England by the High Court on its Admiralty side in 1934, as that body of law has been amended by the Canadian Parliament and as it has developed by judicial precedent to date: ITO, supra, at pp. 771, 776; Chartwell, supra, at pp. 695-96. |
| 4. English admiralty law as incorporated into Canadian law in 1934 was an amalgam of principles deriving in large part from both the common law and the civilian tradition. It was composed of both the specialized rules and principles of admiralty, and the rules and principles adopted from the common law and applied in admiralty cases. Although most of Canadian maritime law with respect to issues of tort, contract, agency and bailment is founded upon the English common law, there are issues specific to maritime law where reference may fruitfully be made to the experience of other countries and specifically, because of the genesis of admiralty jurisdiction, to civilian experience: ITO, supra, at p. 776; Chartwell, supra, at pp. 695-97. |
| 5. The nature of navigation and shipping activities as they are practised in Canada makes a uniform maritime law a practical necessity. Much of maritime law is the product of international conventions, and the legal rights and obligations of those engaged in navigation and shipping should not arbitrarily change according to jurisdiction. The need for legal uniformity is particularly pressing in the area of tortious liability for collisions and other accidents that occur in the course of navigation: Whitbread, supra, at pp. 1294-95; Bow Valley Husky, supra, at pp. 1259-60. |
| 6. In those instances where Parliament has not passed legislation dealing with a maritime matter, the inherited non-statutory principles embodied in Canadian maritime law as developed by Canadian courts remain applicable, and resort should be had to these principles before considering whether to apply provincial law to resolve an issue in a maritime action: ITO, supra, at pp. 781-82; Bow Valley Husky, supra, at p. 1260. |
| 7. Canadian maritime law is not static or frozen. The general principles established by this Court with respect to judicial reform of the law apply to the reform of Canadian maritime law, allowing development in the law where the appropriate criteria are met: ITO, supra, at p. 774; Bow Valley Husky, supra, at pp. 1261-68; Porto Seguro, supra, at pp. 1292-1300. |
[28] Although the maritime mortgage appears to be incidental to the loan agreement and the term note, it is clear that the applicable rules are those of Canadian maritime law, owing to the very subject matter of this mortgage.
[29] However, although I have concluded that it is the rules of Canadian maritime law that apply in this case, this conclusion in no way excludes the possibility that Canadian maritime law has adopted certain rules of provincial law as a supplement to Canadian maritime law. Thus, it is in the context of step two of the test laid down by the Supreme Court of Canada in Ordon Estate, supra, that this Court is obliged to review the sources of maritime law.
[30] The plaintiff submitted that the rules applicable to a maritime mortgage are contained in sections 45 to 54 of the Canada Shipping Act.
[31] However, I am unable to conclude de facto that those sections of the Canada Shipping Act constitute the entire body of rules applicable to maritime mortgages, and this is confirmed by the comments of Iacobucci and Major JJ. in Ordon Estate, supra, when they note the varied origins of Canadian maritime law, the scope of the federal common law in matters of maritime law and the possibility, in certain specific situations, of incorporating therein certain rules of provincial law. Accordingly, because the parties have failed to demonstrate to me in any way during the hearing of this motion the rules of law applicable to this case, I am obliged, once again, to refer this issue to the judge who will hear this case on the merits.
CONCLUSION
[32] For these reasons, this motion for summary judgment is dismissed without costs.
| "François Lemieux" |
| J. |
Ottawa, Ontario
December 23, 1999
Certified true translation
Martine Brunet, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| FILE NO: T-1048-98 |
| STYLE: GILBERTE PAQUIN v. LOUISE CÔTÉ ET AL. |
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: JUNE 21, 1999 |
REASONS FOR ORDER OF LEMIEUX J.
DATED: DECEMBER 23, 1999
APPEARANCES:
JEAN-FRANÇOIS BILODEAU FOR THE PLAINTIFF
GILLES B. THIBAULT FOR THE DEFENDANTS
SOLICITORS OF RECORD:
SPROULE, CASTONGUAY, POLLACK FOR THE PLAINTIFF
MONTRÉAL, QUEBEC
THIBAULT & ASSOCIÉS FOR THE DEFENDANTS
VARENNES, QUEBEC