Valentino Gennarini SRL v. Andromeda Navigation Inc., (2003) 232 F.T.R. 256 (TD)

• Judge: Rouleau, J.
• Court: Federal Court (Canada)
• Case Date: October 22, 2002
• Jurisdiction: Canada (Federal)
• Citations: (2003), 232 F.T.R. 256 (TD)

Valentino Gennarini v. Andromeda Navigation (2003), 232 F.T.R. 256 (TD)

MLB headnote and full text

Temp. Cite: [2003] F.T.R. TBEd. MY.046

Simplified Action Admiralty Action In Personam

Valentino Gennarini SRL (plaintiff) v. Andromeda Navigation Inc. (defendant)

(T-298-01; 2003 FCT 567)

Indexed As: Valentino Gennarini SRL v. Andromeda Navigation Inc.

Federal Court of Canada

Trial Division

Rouleau, J.

May 8, 2003.

Summary:

The plaintiff brought an action on account against the defendant for disbursements incurred and for ship agency services rendered by the plaintiff at an Italian port respecting a shipment of Canadian military equipment. The defendant alleged that the plaintiff overcharged the services rendered, significantly exceeding the initial quoted charges. Subject to the court's determination as to whether the defendant was liable only for the initial quoted amount, the defendant refused to pay anything on the ground that the final invoice was inflated and incorrect.

The Federal Court of Canada, Trial Division, granted judgment to the plaintiff. The amount claimed was 79,267,340 Lira. Judgment was granted for 75,225,340 Lira, after reducing the agency fee by 50%, as agreed to by the parties.

Practice - Topic 1617

Pleadings - The defence - Issues to be raised must be pleaded - The defendant sought by way of affidavit to introduce evidence of an agency relationship between it and a third party, and communication of that relationship to the plaintiff - The plaintiff moved to strike the affidavit evidence on the ground that the alleged relationship and communication were not pleaded in the statement of defence - The Federal Court of Canada, Trial Division, struck the evidence - Federal Court Rules 174 and 183 required that a defendant who intended to prove a version of facts different from that relied on by the plaintiff must plead its version of the facts - A defendant was required to plead any fact and defence that might take an adverse party by surprise if it was not pleaded - The court would not consider any evidence that was irrelevant to the pleadings as formulated or which contradicted the pleadings - What the defendant sought to do was tantamount to withdrawing an admission on the record without seeking leave of the court - See paragraphs 20 to 28.

Practice - Topic 2101

Pleadings - Amendment of pleadings - General principles - [See Practice - Topic 2123 ].

Practice - Topic 2123

Pleadings - Amendment of pleadings - Statement of defence - General - A defendant applied to amend its statement of defence - The Federal Court of Canada, Trial Division, stated that "as a general rule, an amendment should be allowed for the purpose of determining the real question in controversy between the parties, provided that the allowance would not result in an injustice to the other party not capable of being compensated by an award of costs and that it would serve the interests of justice. ... Factors relevant to the assessment of whether an amendment would cause prejudice to the other party that cannot be compensated by an award of costs include the timeliness of the motion to amend, the extent to which the amendment would delay an expeditious trial, the extent to which the original position caused another party to follow a course which is not easily altered, and whether the amendment facilitates the court's consideration of the merits of the action" - The court refused the proposed amendment where (1) the motion to amend was filed 18 months after the original statement of defence and only one day before the scheduled trial; (2) the amendment sought to introduce a distinct and entirely new cause of defence; and (3) the proposed amendment would inevitably delay an expeditious trial - See paragraphs 29 to 34.

Practice - Topic 2143

Pleadings - Amendment of pleadings - Circumstances when amendment denied - [See Practice - Topic 2123 ].

Cases Noticed:

Consumers' Gas Co. v. Minister of National Revenue, [1984] 1 F.C. 779; 52 N.R. 106 (F.C.A.), refd to. [para. 26].

Glisic v. Canada, [1988] 1 F.C. 731; 80 N.R. 39 (F.C.A.), refd to. [para. 26].

Minister of National Revenue v. Canderel Ltd., [1994] 1 F.C. 3; 157 N.R. 380 (F.C.A.), refd to. [para. 29].

Scanner Industries Inc. et al. v. Minister of National Revenue (1994), 172 N.R. 313 (F.C.A.), refd to. [para. 29].

Montana Indian Band v. Canada et al., [2002] F.T.R. Uned. 387 (T.D.), refd to. [para. 33].

Counsel:

Peter G. Pamel, for the plaintiff;

J. Kenrick Sproule, for the defendant.

Solicitors of Record:

Borden, Ladner, Gervais, Montreal, Quebec, for the plaintiff;

J. Kenrick Sproule, Montreal, Quebec, for the defendant.

This case was heard on October 22, 2002, at Montreal, Quebec, before Rouleau, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on May 8, 2003.