Irving (J.D.) Ltd. v. Siemens Canada Ltd. et al., (2012) 434 N.R. 84 (FCA)

• Judge: Nadon, Dawson and Mainville, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: May 09, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 434 N.R. 84 (FCA);2012 FCA 225

Irving Ltd. v. Siemens Can. Ltd. (2012), 434 N.R. 84 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2012] N.R. TBEd. SE.003

Siemens Canada Limited (appellant) v. J.D. Irving, Limited, Maritime Marine Consultants (2003) Inc., Superport Marine Services Ltd., and New Brunswick Power Nuclear Corporation (respondents)

(A-258-11)

Siemens Canada Limited (appellant) v. Maritime Marine Consultants (2003) Inc., J.D. Irving, Limited, Superport Marine Services Ltd., New Brunswick Power Nuclear Corporation, BMT Marine and Offshore Surveys Ltd. (respondents)

(A-259-11; 2012 FCA 225; 2012 CAF 225)

Indexed As: Irving (J.D.) Ltd. v. Siemens Canada Ltd. et al.

Federal Court of Appeal

Nadon, Dawson and Mainville, JJ.A.

August 30, 2012.

Summary:

Siemens Canada Ltd. agreed to supply turbine rotors to the New Brunswick Power Nuclear Corp. (NBPNC) to be used in the refurbishment of the Point Lepreau Nuclear Generating Station. The modules were manufactured in Germany and transported to Saint John, New Brunswick. Siemens contracted (purchase order) with J.D. Irving Ltd. for carriage of the modules by water from Saint John harbour to Point Lepreau. Irving engaged Maritime Marine Consultants (2003) Inc. (MMC), as marine architects, to plan the voyage. Irving chartered a barge from Superport Marine Services Ltd. Siemens engaged BMT Marine and Offshore Surveys Ltd. (BMT) to provide marine surveying services relating to the handling and transportation plan. During loading, two rotors slipped into the water and were damaged. Siemens commenced an action in the Ontario Superior Court of Justice (CV-10-400645) against Irving, BMT, MMC and Superport, claiming breach of contract and negligence and claiming damages of $40,000,000 plus interest, and costs on a substantial indemnity basis. Siemens also claimed joint and several indemnification from Irving, MMC, BMT, and Superport in respect of all claims, liabilities, charges, or demands made against it by NBPNC. Irving commenced an action in Federal Court (T-520-10) under the Marine Liability Act (MLA) seeking, inter alia, a declaration that it was entitled to limit its liability in relation to the incident to $500,000 plus interest to the date of the constitution of a limitation fund under the MLA. Irving named Siemens, MMC, Superport and the NBPNC as defendants. MMC also commenced an action in Federal Court (T-666-10) seeking to limit its liability pursuant to the MLA in relation to the incident. MMC named Siemens, Irving, Superport, NBPNC and BMT as defendants. BMT filed a third party notice claiming contribution and indemnity and other relief, in relation to the incident, against AXA Corporate Solutions (AXA), a cargo insurer. Thereafter, Siemens commenced a second action in Ontario relative to the incident (CV-10-412-348), claiming $45,000,000 in damages against twelve individuals, including Bremner, a principal of MMC, and Atlantic Towing Ltd., a subsidiary of Irving. Five motions were filed: (1) Siemens moved to stay Irving's action (T-520-10); (2) Irving moved for advice and directions as to the setting up of a limitation fund under the MLA and sought to enjoin the Siemens' Ontario proceedings under s. 33 of the Marine Liability Act; (3) Siemens moved to stay MMC's action (T-666-10) respecting the limitation of liability and constitution and distribution of a fund; (4) MMC moved for advice and directions respecting its limitation of liability and sought to enjoin the Ontario proceedings; and (5) BMT moved for a direction that all matters proceed in Federal Court only and that the Ontario proceedings be enjoined.

The Federal Court, in a decision reported 393 F.T.R. 59, dismissed Siemens' motions to stay the Federal Court proceedings (i.e., motions (1) and (3)) and allowed those actions to proceed in Federal Court. The motions of Irving, MMC and BMT to enjoin any other proceedings before any court or tribunal in respect of the incident were granted (MLA, s. 33). Siemens appealed both the order dismissing its motions to stay the Federal Court proceedings and the order enjoining it from commencing or continuing proceedings against Irving and MMC in any court other than the Federal Court.

The Federal Court of Appeal dismissed the appeals.

Admiralty - Topic 6030

Principles of law - Canadian Maritime Law - Application - Siemens contracted (purchase order) with Irving for carriage of two steam turbine rotors by water (barge) from Saint John harbour to Point Lepreau Nuclear plant - During loading the turbines slipped into the water - Siemens sued Irving, MMC (Irving's marine architects) et al. in Ontario seeking millions in damages - Irving and MMC commenced actions in Federal Court seeking to limit their respective liability to $500,000 (Marine Liability Act) and have a limitation fund constituted - Siemens challenged the Federal Court's jurisdiction, arguing that its Ontario claim for damages in contract and common law negligence was not a matter of maritime law - The Federal Court held that Siemens' claim was essentially maritime law over which the Ontario and Federal Courts had concurrent jurisdiction - Siemens appealed - The Federal Court of Appeal dismissed the appeal - See paragraphs 30 to 45.

Admiralty - Topic 8005

Practice - General - Marine Liability Act (incl. powers of admiralty court) - Injunctions - Section 33 of the Marine Liability Act gave the Federal Court the power, when dealing with certain maritime claims, to enjoin proceedings in any court, tribunal or authority other than the Federal Court in relation the same subject matter - The Federal Court of Appeal interpreted s. 33 - The court held that the Federal Court's power to enjoin was available prior to a determination of whether or not a shipowner could limit his liability under the Act - Further, the court could enjoin other proceedings, whether or not it had decided to constitute a limitation fund - The court held that the applicable test under s. 33(1) was that of "appropriateness", and not the tests as set out in Amchem and RJR-MacDonald - See paragraphs 75 to 82, 102 and 116 to 118.

Admiralty - Topic 8005

Practice - General - Marine Liability Act (incl. powers of admiralty court) - Injunctions - Siemens contracted (purchase order) with Irving for carriage of two steam turbine rotors by water (barge) from Saint John harbour to Point Lepreau Nuclear plant - During loading the turbines slipped into the water - Siemens sued Irving, MMC (Irving's marine architects), et al. in Ontario seeking millions in damages - Irving and MMC commenced actions in Federal Court seeking to limit their liability under the Marine Liability Act (MLA) and have a limitation fund constituted - Irving and MMC moved for an order enjoining the continued prosecution of the Ontario proceedings, as well as against the commencement of proceedings before any other court or tribunal (MLA, s. 33) - The Federal Court granted the injunction - Siemens appealed - The Federal Court of Appeal dismissed the appeal - See paragraphs 46 to 123.

Conflict of Laws - Topic 1666

Actions - General - Forum conveniens - Stay of proceedings where action pending in another jurisdiction (lis alibi pendens) - [See Courts - Topic 4033.1 ].

Conflict of Laws - Topic 9303

Practice - Injunctions - To enjoin proceedings in another jurisdiction - [See both Admiralty - Topic 8005 ].

Courts - Topic 4026

Federal Court of Canada - Jurisdiction - Federal Court - Maritime and admiralty matters - [See Admiralty - Topic 6030 , both Admiralty - Topic 8005 and Courts - Topic 4033.1 ].

Courts - Topic 4033.1

Federal Court of Canada - Jurisdiction - Federal Court - Stay of proceedings where claim proceeded with in another court - Siemens contracted (purchase order) with Irving for carriage of two steam turbine rotors by water (barge) from Saint John harbour to Point Lepreau Nuclear plant - During loading the turbines slipped into the water - Siemens sued Irving, MMC (Irving's marine architects) et al. in Ontario seeking millions in damages - Irving and MMC commenced actions in Federal Court seeking to limit their liability under the Marine Liability Act (MLA) and have a limitation fund constituted - Siemens moved for an interlocutory stay of the Federal Court proceedings in favour of the Ontario proceedings - Siemens also sought a permanent stay, arguing that limitation of liability was barred by art. 4 of the Convention on Limitation of Liability for Maritime Claims, 1976 - The Federal Court, applying the two-part test in Mon-Oil, refused to stay proceedings - Siemens appealed - The Federal Court of Appeal dismissed the appeal - The motions judge applied the correct test - Siemens would be prejudiced by the Federal Court proceedings and a stay would cause an injustice to Irving and MMC - See paragraphs 124 to 129.

Shipping and Navigation - Topic 506.1

Ships - Ownership and control - Liability of owner - Limitation of - Limitation fund - [See Admiralty - Topic 6030 , both Admiralty - Topic 8005 and Courts - Topic 4033.1 ].

Shipping and Navigation - Topic 2603

Carriage of goods - Liability - Limitations - General - Convention on Limitation of Liability for Maritime Claims, 1976 - [See Admiralty - Topic 6030 , both Admiralty - Topic 8005 and Courts - Topic 4033.1 ].

Shipping and Navigation - Topic 2630

Carriage of goods - Liability - Limitations - Statutes - Marine Liability Act (incl. limitation fund) - [See Admiralty - Topic 6030 , both Admiralty - Topic 8005 and Courts - Topic 4033.1 ].

Shipping and Navigation - Topic 5405

Collisions and groundings - Negligence - Defences - Statutory limitation of liability - Stay of other proceedings - [See Courts - Topic 4033.1 ].

Cases Noticed:

Miida Electronics Inc. v. Mitsui O.S.K. Lines Ltd. and ITO-International Terminal Operators Ltd., [1986] 1 S.C.R. 752; 68 N.R. 241, refd to. [para. 18].

Chartwell Shipping Ltd. v. Q.N.S. Paper Co. (1989), 101 N.R. 1; 26 Q.A.C. 81 (S.C.C.), refd to. [para. 13].

Isen v. Simms, [2006] 2 S.C.R. 349; 353 N.R. 147; 2006 SCC 41, refd to. [para. 46].

Radil Brothers Fishing Co. v. Canada (Minister of Fisheries and Oceans) et al., [2002] 2 F.C. 219; 286 N.R. 295 (F.C.A.), refd to. [para. 13].

Mon-Oil Ltd. v. Canada (1989), 27 F.T.R. 50; 26 C.P.R.(3d) 379 (T.D.), refd to. [para. 19].

Canadian Pacific Railway Co. v. Ship Sheena M et al., [2000] 4 F.C. 159; 188 F.T.R. 16 (T.D.), refd to. [para. 21].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 21].

Elders Grain Co. et al. v. Ship Ralph Misener et al., [2005] 3 F.C.R. 367; 334 N.R. 1; 2005 FCA 139 (F.C.A.), refd to. [para. 29].

Banro Corp. v. Editions Ecosociété Inc. et al. (2012), 429 N.R. 293; 2012 SCC 18, refd to. [para. 29].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 29].

Skaarup Shipping Corp. v. Hawker Industries Ltd., [1980] 2 F.C. 746; 32 N.R. 622 (C.A.), refd to. [para. 35].

Ordon et al. v. Grail, [1998] 3 S.C.R. 437; 232 N.R. 201; 115 O.A.C. 1, refd to. [para. 36].

Siddall (William) & Sons Fisheries v. Pembina Exploration Canada Ltd., [1989] 1 S.C.R. 206; 92 N.R. 137; 33 O.A.C. 321, refd to. [para. 36].

Van Breda et al. v. Village Resorts Ltd. (2012), 429 N.R. 217; 343 D.L.R.(4th) 577; 2012 SCC 17, refd to. [para. 36].

Black v. Breeden et al. (2012), 429 N.R. 192; 2012 SCC 19, refd to. [para. 36].

Monk Corp. v. Island Fertilizers Ltd., [1991] 1 S.C.R. 779; 123 N.R. 1, refd to. [para. 36].

Pakistan National Shipping Corp. v. Canada, [1997] 3 F.C. 601; 212 N.R. 304 (F.C.A.), refd to. [para. 38].

Caterpillar Overseas S.A. et al. v. Ship Canmar Victory et al. (1998), 153 F.T.R. 266 (T.D.), affd. (1999), 250 N.R. 192 (F.C.A.), refd to. [para. 38].

Pantainer Ltd. et al. v. 996660 Ontario Ltd. (2000), 183 F.T.R. 211 (T.D.), refd to. [para. 38].

Stein Estate v. Ship Kathy K, [1976] 2 S.C.R. 802; 6 N.R. 359, refd to. [para. 47].

Ship Rhone v. Ship Peter A.B. Widener et al., [1993] 1 S.C.R. 497; 148 N.R. 349, refd to. [para. 47].

Société Telus Communications et al. v. Peracomo Inc. et al. (2011), 389 F.T.R. 196; 2011 FC 494, affd. (2012), 433 N.R. 152; 2012 FCA 199, refd to. [para. 53].

Amchem Products Inc. et al. v. Workers' Compensation Board (B.C.), [1993] 1 S.C.R. 897; 150 N.R. 321; 23 B.C.A.C. 1; 39 W.A.C. 1, refd to. [para. 66].

Ship Breydon Merchant, [1992] 1 Lloyd's Rep. 373, refd to. [para. 101].

Statutes Noticed:

Convention on Limitation of Liability for Maritime Claims, 1976, art. 1, art. 2, art. 4, art. 11 [para. 13].

Federal Courts Act, R.S.C. 1985, c. F-7, sect. 22, sect. 50(1) [para. 13].

Federal Court Rules, rule 496 [para. 13].

Marine Liability Act, S.C. 2001, c. 6, sect. 2, sect. 24, sect. 25, sect. 26, sect. 29, sect. 32, sect. 33 [para. 13].

Counsel:

Jonathan C. Lisus, James Renihan, Michael Perlin and Barry Olund, for the appellant;

Marc D. Isaacs an'd Bonnie Huen, for the respondent, Maritime Marine Consultants (2003) Inc.;

Rui Fernandes, Joel Richler and David Noseworthy, for the respondent, J.D. Irving, Ltd.

Solicitors of Record:

Lax O'Sullivan Scott Lisus LLP, Toronto, Ontario, McCarthy Tétrault LLP, Toronto, Ontario, and Oland & Co., Kelowna, British Columbia, for the appellant;

Isaacs & Co., Toronto, Ontario, for the respondent, Maritime Marine Consultants (2003) Inc.;

Blake, Cassels & Graydon LLP, Toronto, Ontario, and Fernandes Hearn LLP, Toronto, Ontario, for the respondent, J.D. Irving, Ltd.

This appeal was heard in Toronto, Ontario, on May 9, 2012, before Nadon, Dawson and Mainville, JJ.A., of the Federal Court of Appeal. The following decision was delivered for the court, in Ottawa, Ontario, by Nadon, J.A., on August 30, 2012.