T-1457-93
Between:
SCOTT STEEL LTD.,
Plaintiff,
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THE SHIP RECORDED IN THE PORT OF EDMONTON
UNDER THE NAME "THE ALARISSA", BEARING RECORD
NO. 420, AND COMMONLY KNOWN AS "THE EDMONTON
QUEEN", and, NORTH SASKATCHEWAN RIVER BOAT LTD.
OPERATING UNDER THE NAME AND STYLE "NORTH
SASKATCHEWAN RIVERBOAT CO.", and THE OWNERS
AND ALL OTHERS INTERESTED IN THE SHIP,
Defendants,
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PROVINCE OF ALBERTA
TREASURY BRANCHES,
Intervenor.
REASONS FOR ORDER
ROTHSTEIN, J.
This is a motion by Province of Alberta Treasury Branches (ATB) for final judgment in accordance with Formal Offers of Settlement by Scott Steel Ltd. that ATB says have been accepted. There are two Formal Offers of Settlement. The first is an offer by Scott to accept a specified sum1
| "all inclusive of principal, interest and costs to date as a first charge on the funds in Court after payment of the amount found by the Court to be payable to Coopers and Lybrand Limited as Agent for the Marshall in respect of the sale of 'The Alarissa'. This offer is subject to contemporaneous consent dismissal of the counterclaim advanced by North Saskatchewan River Boat Ltd. in the action." |
The offer is addressed to J.C. Damar Developments Ltd., Alberta Treasury Branches and North Saskatchewan River Boat Ltd. ATB and North Saskatchewan have accepted the offer. Damar has not. Damar is a creditor that ranks in priority after Scott.
Counsel for ATB argues that acceptance of the offer by ATB renders the offer and acceptance a binding contract between Scott and ATB which the Court must enforce by order. However, counsel concedes that as Damar has not agreed to the Formal Offer of Settlement, Scott's position vis-a-vis Damar is, at the least, less than certain.
The Formal Offer of Settlement is made to three persons, one of whom has not accepted. ATB's position is that I should either ignore Damar's non-acceptance or treat the Scott offer as three separate offers to each of the addressees and treat the acceptance by ATB as binding on Scott as between Scott and ATB. However, I must interpret the offer according to its terms. It is plain that I can neither ignore the fact that it is addressed to three persons for acceptance nor rewrite it so as to treat the offer as if there are three separate offers open to acceptance by each of the addressees individually. Accordingly, I cannot grant the order for judgment sought by ATB in respect of this Formal Offer of Settlement.
The second offer relates to the fees of Coopers and Lybrand as agents of the Marshall. The offer states:
| "Pursuant to Rule 344 of the Federal Court Rules, Scott Steel Ltd. offers to settle the taxation of the Agent of the Marshall's costs on the following terms namely that Coopers & Lybrand Limited. as Agent of the Marshall is entitled to its costs all inclusive in the amount of 2. This offer is subject to the contemporaneous acceptance of the offer to settle advanced by Scott Steel Ltd. to each of the parties in this action." (emphasis added) |
Counsel for Scott says that because Damar did not accept the first offer, a condition precedent to the second offer has not been satisfied. Counsel for ATB says that Damar is not a party to this action and there is no condition precedent that requires Damar's acceptance.
By Order dated November 10, 1995, Damar was given leave to intervene in the action. Therefore, I construe the reference to "parties" in the second offer as including Damar. In any event, it is obvious the second offer is made at the same time as the first and in the same format as the first. Unfortunately, the offers are characterized by loose language (I note that counsel for Scott before me did not prepare the documents). However, I am satisfied that the reference to "parties" in the second offer includes the addressees in the first offer. It is apparent that the two offers are inter-related. As the first offer is not binding on Scott, neither is the second.
This motion of ATB for judgment is therefore dismissed. In view of this disposition, the issue in the other motion brought by ATB, to strike the June 9, 1997 affidavit of Frank Monahan does not arise and this motion is dismissed.
As to costs, I would observe that at this point, the difficulty which has occasioned these proceedings is, at least in part, the loose language in Scott's Formal Offers of Settlement. However, counsel for Scott has persuaded me that there may be other considerations relating to these proceedings that I did not have to hear to decide the motion but that might have a bearing on costs. Therefore, I will not make an order for costs in favour of ATB but leave the costs of these proceedings to be addressed at a later date when any party brings the matter of such costs before the Court.
By consent of the parties, an order will issue sealing all materials relating to the ATB motion for judgment. The documents to be sealed shall be all documents filed by the parties up to and including June 16, 1997 on both the ATB motion for judgment and including all affidavits on the motion to strike the June 9, 1997 affidavit of Frank Monahan. The reasoning is obvious. The parties do not wish the prothonotary conducting further proceedings to be influenced by the information in the documents pertaining to this motion. The sealing order will, however, be vacated either: a) by agreement of the parties and their request that it no longer need be sealed; b) by an appeal of this order being filed in the Federal Court of Appeal with the information that has been sealed appearing in public court documents in the appeal file; or c) by further order of this Court.
(Sgd.) "Marshall E. Rothstein"
Judge
June 19, 1997
Vancouver, British Columbia
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: SCOTT STEEL LTD.
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| THE SHIP RECORDED IN TEH PORT OF EDMONTON UNDER THE NAME "THE ALARISSA" BEARING RECORD NO. 420. AND COMMONLY KNOWN AS "THE EDMONTON QUEEN" and NORTH SASKATCHEWAN RIVER BOAT LTD. OPERATING UNDER THE NAME AND STYLE "NORTH SASKATCHEWAN RIVERBOAT CO." and THE OWNERS AND ALL OTHER INTERESTED IN THE SHIP |
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| PROVINCE OF ALBERTA TREASURY BRANCHES |
-COURT NO.: T-1457-93
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: June 16, 1997
REASONS FOR ORDER OF ROTHSTEIN, J. dated
June 19, 1997
APPEARANCES:
Mr. David McEwen for Plaintiff
Mr. Ray Pollard for Intervenor
SOLICITORS OF RECORD:
McEwen, Schmitt & Co. for Plaintiff
Vancouver, BC
Richards, Buell, Sutton for Intervenor
Vancouver, BC
__________________1 Counsel requested that this number not be disclosed in view of further proceedings in this matter.
2 As with the first Formal Offer counsel requested that this amount not be disclosed.