Bank of Scotland v. Ship Nel et al., (1998) 161 F.T.R. 267 (TD)

• Court: Federal Court (Canada)
• Case Date: December 18, 1998
• Jurisdiction: Canada (Federal)
• Citations: (1998), 161 F.T.R. 267 (TD)

Bk. of Scotland v. Ship Nel (1998), 161 F.T.R. 267 (TD)

MLB headnote and full text

Temp. Cite: [1999] F.T.R. TBEd. JA.083

Action in Rem against the Ship "Nel" and in personam

The Governor and Company of the Bank of Scotland (plaintiff) v. The Owners and all Others interested in the Ship "Nel" and Ocean Profile Maritime Limited (defendants)

(T-2416-97)

Indexed As: Bank of Scotland v. Ship Nel et al.

Federal Court of Canada

Trial Division

Hargrave, Prothonotary

December 30, 1998.

Summary:

An action to determine the priorities to a ship's sale proceeds was brought. The plain­tiff moved to rely on documents produced at the request of various claimants at or follow­ing the cross-examination of the plaintiff's witness and to file a supplementary affidavit.

A Prothonotary of the Federal Court of Canada, Trial Division, denied the plaintiff's motion, subject to the proviso that if the claimants' counsel who cross-examined the plaintiff's deponent wanted to rely upon a document that was part of a package or set, then the necessarily related documents in that package or set could be relied on by the plaintiff.

Evidence - Topic 3063

Documentary evidence - Primary evidence - Production of documents - Production during trial - A plaintiff moved to rely on documents that were not attached to its affidavit, but were produced to various claimants at their request at or following the cross-examination of the plaintiff's witness - Not all the documents that the plaintiff wanted to rely on were put to the witness - A Prothonotary of the Federal Court of Canada, Trial Division, denied the plaintiff's motion, subject to the proviso that if the claimants' counsel who cross-examined the plaintiff's deponent wanted to rely upon a document that was part of a package or set, then the necessarily related documents in that package or set could be relied on by the plaintiff - See paragraphs 1 to 8.

Practice - Topic 3554

Evidence - General principles - Leave to offer further evidence - [See Evidence - Topic 3063 ].

Practice - Topic 3604.6

Evidence - Affidavits - General - Supple­mentary affidavits - At issue in an action was, inter alia, whether the plaintiff filed a supplementary affidavit, which updated the balance owing regarding its claim for a debt owing, within the required time limit - The plaintiff argued that this was an extraordinary case and that there was no prescribed procedure for updating a bal­ance owed to it on a claim for a debt owing that was clearly defined in two previous affidavits - A Prothonotary of the Federal Court of Canada, Trial Division, did not allow the supplemental affidavit, which was contrary to rule 494(2) and flew in the face of a Court of Appeal's decision - Rule 55 should not be used to remove the rule 492(2) time bar - Given that the plaintiff proceeded by motion and not by a full blown case, the matter proceeding expeditiously outweighed any injustice to the plaintiff - See paragraphs 9 to 23.

Practice - Topic 3604.7

Evidence - Affidavits - General - Time for filing - [See Practice - Topic 3604.6 ].

Cases Noticed:

Senat v. Senat, [1965] P. 172, refd to. [para. 4].

Morrison-Knudsen Co. of Canada v. British Columbia Hydro & Power Au­thority (1972), 31 D.L.R.(3d) 633 (B.C.S.C.), refd to. [para. 5].

Mountainbell Co. et al. v. W.T.C. Air Freight (H.K.) Ltd. et al. (1990), 128 N.R. 75 (F.C.A.), refd to. [para. 5].

Kukan v. Minister of Manpower and Im­migration, [1974] 1 F.C. 12; 1 N.R. 445 (F.C.A.), refd to. [para. 5].

Calvert v. Flower (1836), 7 C. & P. 386; 173 E.R. 172 (N.P.), refd to. [para. 7].

Wharam v. Routledge (1805), 5 Esp. 235; 170 E.R. 797 (N.P.), refd to. [para. 8].

Feoso Oil Ltd. v. Ship Sarla, [1995] 3 F.C. 68; 184 N.R. 307 (F.C.A.), refd to. [para. 17].

Minister of National Revenue v. Fritz (1993), 63 F.T.R. 110 (T.D.), refd to. [para. 21].

Authors and Works Noticed:

Wigmore on Evidence (Chadbourn Rev. 1978), vol. 7, p. 688, s. 2125 [para. 8].

Counsel:

Peter Bernard, for the plaintiff;

Louis Buteau, for the claimant, Alpha Bunkering;

David McEwen, for the claimant, Marine et al.;

Jonathan McLean, for the claimant, Aktina S.A.

Solicitors of Record:

Campney & Murphy, Vancouver, British Columbia, for the plaintiff;

Sproule, Castonguay, Pollack, Montreal, Quebec, for the claimant, Alpha Bunker­ing;

McEwen, Schmitt, Vancouver, British Columbia, for the claimant, Marine et al.;

Edwards, Kenny & Bray, Vancouver, British Columbia, for the claimant, Ak­tina S.A.

This motion was heard at Vancouver, British Columbia, on December 18, 1998, before Hargrave, Prothonotary, of the Fed­eral Court of Canada, Trial Division, who delivered the following decision on De­cember 30, 1998.