Date: 19990609
Docket: T-1303-98
ADMIRALTY ACTIONIN REM
OTTAWA, ONTARIO, THIS 9th DAY OF JUNE, 1999
PRESENT: MS. ROZA ARONOVITCH, PROTHONOTARY
BETWEEN:
COLD OCEAN INC.
Plaintiff
- and -
THE OWNERS AND ALL OTHERS INTERESTED
IN THE SHIP "GORNOSTAEVKA" AND HER CARGO,
THE OWNERS AND ALL OTHERS
INTERESTED IN THE SHIP "VINOGRADNOE",
INCLUDINDG AS TO BOTH SHIPS
JOINT-STOCK COMPANY G.M.K. CO. LTD.
Defendants
AND BETWEEN:
ARCTIC UNITED SEAFOOD A.P.S.
Plaintiff by counterclaim
- and -
COLD OCEAN INC.
Defendant by counterclaim
REASONS FOR ORDER AND ORDER
ARONOVITCH P.:
[1] The plaintiff, Cold Ocean Inc. ("Cold Ocean") has brought a motion for an order striking out the defence and counterclaim filed by Arctic United Seafood A.P.S. ("Arctic United ") on March 5, 1999, on the grounds that the defence and counterclaim are immaterial, redundant, scandalous, frivolous and vexatious within the meaning of section 221. In the alternative, the plaintiff seeks an order extending the time for the filing of the defence to the counterclaim.
[2] The plaintiff filed a statement of claim on June 25th, 1998 claiming in rem against the ship "VINOGRADNOE", the ship "GORNOSTAEVKA" and her cargo and in personam against Joint-Stock Company G.M.K. Co. Ltd. Upon a motion by Arctic United, as demise charterer of the two ships and owner/vendor of the cargo of the latter ship, the warrants of arrest of the ships and the cargo were set aside. On July 10, 1998, by orders of McKay J., the statement of claim was struck out without prejudice however to any claim the plaintiff might have in relation to Joint-Stock Company G.M.K. Co. Ltd.
[3] Some eight months later, on March 5th, 1999, Arctic United filed a defence and counterclaim, claiming damages against Cold Ocean arising out of the arrest of the two ships and the cargo of one of them.
[4] Cold Ocean, the plaintiff, defendant by counterclaim, argues that as of July 10, 1998, and the orders of McKay J., there was no longer an action to which a defence and counterclaim could be filed. As to the latter part of the order of McKay.J., it is argued that it had no other effect than to prevent Joint-Stock Company G.M.K. Co. Ltd. from pleading resjudicata in respect of any further action that might be brought against it by the plaintiff, Cold Ocean.
[5] Arctic United, the defendant, plaintiff by counterclaim argues that a counterclaim may be filed following the striking out of a statement of claim and in that regard relies on Rule 190 of the Federal Court Rules, 1998 which provides as follows:
190. A counterclaim may be proceeded with notwithstanding that judgment is given in the action or that the action is stayed or discontinued.
190. La demande reconventionnelle peut être poursuivie même si un jugement est rendu dans l"action principale ou si l"action principale est suspendue ou abandonnée.
[6] Rule 190, in my view, contemplates actions in which a defence and counterclaim issue prior to judgment having been given or the action stayed. The use of the term "proceed" in Rule 190, must be given its plain meaning, namely, that a counterclaim may "continue" or "carry on" notwithstanding judgment having been given in the main action. Indeed, none of the cases relied on by Arctic United are to a contrary effect or rebut that interpretation of the rule.
[7] In this instance, the action of the plaintiff having been struck out, there remained no basis thereafter to support the issuance of a defence and counterclaim. Moreover, the Federal Court Rules 1998, require a defence and counterclaim to be filed within 30 days of the service of the statement of claim. Not having complied with the Rules, Arctic United"s defence and counterclaim, in any case, could not have been brought without a motion to extend time for filing.
[8] Accordingly, under the circumstances, the filing of the defence and counterclaim is improper and inappropriate, the more likely remedy of Arctic United, being an action for wrongful arrest.
ORDER
[9] The plaintiff"s motion is allowed and the defence and counterclaim are struck out without prejudice to any claim of Arctic United which may be enforceable by an action for wrongful arrest.
[10] Costs of the motion are awarded to the plaintiff.
"Roza Aronovitch"
Prothonotary