Date: 20000621
Docket: T-1942-98
MONTREAL, QUEBEC, JUNE 21, 2000
BEFORE: RICHARD MORNEAU, PROTHONOTARY
Between:
STELLA-JONES INC. and
AXA BOREAL ASSURANCES INC.,
Plaintiffs,
AND
HAWKNET LTD. and
SUNLIGHT COMPANIA NAVIERA S.A. and
SEBILAN COMPANIA NAVIERA S.A. and
THE OWNERS AND ALL OTHERS INTERESTED
IN THE SHIP MARIANA (Ex "ANAMELI"),
Defendants.
REASONS FOR ORDER AND ORDER
RICHARD MORNEAU, PROTHONOTARY
[1] The Court has before it a motion by the plaintiffs that judgment for failure to plead be registered, or alternatively, that there be a temporary stay order in the case at bar to allow the defendants to request and obtain a stay of the arbitration proceedings while this Court decides whether the issue between the parties should be subject to this Court's jurisdiction or to arbitration.
[2] I do not intend to dismiss the motion at bar outright or to grant the remedy at the opposite extreme, namely a judgment by default.
[3] After listening to counsel for the parties and reading their written submissions, it seems to me that a measure of agreement existed between the parties for a long period (August 28, 1998 to April 4, 2000) which essentially amplified the letter of agreement of August 28, 1998 - which does not itself strictly speaking include the general average claim by the owners of the vessel - and which was that the Federal Court should be allowed initially to decide the question of jurisdiction.
[4] I think that the interests of justice require this agreement to prevail. However, I do not intend to issue the temporary stay sought by the plaintiffs since the condition attached thereto amounts to indirectly issuing an anti-suit injunction within the meaning of Amchem Products Inc. v. British Columbia (Workers' Compensation Board), [1993] 1 S.C.R. 897.
[5] Pursuant to Rule 53 of the Federal Court Rules, 1998, I intend to order that if, by July 4, 2000, the defendants have not obtained the stay guarantee mentioned in point (b) of the plaintiffs' notice of motion, that is more specifically, the "condition precedent" mentioned therein, they shall on or before July 11, 2000 serve and file their defence to the plaintiffs' action in this Court, otherwise the plaintiffs may apply forthwith for a judgment by default against them.
[6] Costs to follow.
Richard Morneau
Prothonotary
Certified true translation
Martine Brunet, LL. B.
| Federal Court of Canada Trial Division Date: 20000621 Docket: T-1942-98 Between: STELLA-JONES INC. and AXA BOREAL ASSURANCES INC., Plaintiffs, AND HAWKNET LTD. and SUNLIGHT COMPANIA NAVIERA S.A. and SEBILAN COMPANIA NAVIERA S.A. and THE OWNERS AND ALL OTHERS INTERESTED IN THE SHIP MARIANA (Ex "ANAMELI"), Defendants. REASONS FOR ORDER AND ORDER |
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT FILE No.: T-1942-98 |
| STYLE OF CAUSE: STELLA-JONES INC. and |
| AXA BOREAL ASSURANCES INC., |
| Plaintiffs, |
| AND |
| HAWKNET LTD. and |
| SUNLIGHT COMPANIA NAVIERA S.A. and |
| SEBILAN COMPANIA NAVIERA S.A. and |
| THE OWNERS AND ALL OTHERS INTERESTED IN THE SHIP MARIANA (Ex "ANAMELI"), |
| Defendants. |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: June 19, 2000 |
| REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY |
| DATE OF REASONS FOR ORDER: June 21, 2000 |
APPEARANCES:
| Louis Buteau for the plaintiffs |
| Sean Harrington for the defendant Mariana Maritime S.A. |
SOLICITORS OF RECORD:
| Sproule, Castonguay, Pollack for the plaintiffs |
Montréal, Quebec
| Borden, Ladner, Gervais for the defendant Mariana Maritime S.A. |
Montréal, Quebec