Westshore Terminals Limited Partnership et al. v. Leo Ocean S.A., (2015) 480 N.R. 227 (FCA)

• Judge: Nadon, Scott and Rennie, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: November 17, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 480 N.R. 227 (FCA);2015 FCA 282

Westshore Terminals v. Leo Ocean SA (2015), 480 N.R. 227 (FCA)

MLB headnote and full text

Temp. Cite: [2015] N.R. TBEd. DE.017

Leo Ocean S.A. (appellant) v. Westshore Terminals Limited Partnership by its general partner Westshore Terminals Ltd., Westshore Terminals Investment Corporation, Westar Management Ltd. and Vancouver Fraser Port Authority (respondents)

(A-50-15; 2015 FCA 282)

Indexed As: Westshore Terminals Limited Partnership et al. v. Leo Ocean S.A.

Federal Court of Appeal

Nadon, Scott and Rennie, JJ.A.

December 9, 2015.

Summary:

The Cape Apricot, a vessel owned by the defendant Leo Ocean S.A. (Leo) collided with and destroyed approximately 450 feet of the trestle carrying the conveyor system, roadway, electrical power and water to berth number 1 at the Westshore terminals in the Port of Vancouver. Westshore terminals were operated by Westshore Terminals Limited Partnership (Westshore) under a modified lease whereby the owner of the property on which the Westshore terminals were constructed, Vancouver Fraser Port Authority (Port Authority), leased certain lands and water lot areas totalling some 972,799 square metres to Westshore. As a result of the collision, Westshore sued for damages, interest and costs against Leo and a number of Leo's ships including the Cape Apricot. Westshore's proceedings led Leo to commence limitation proceedings under the Convention on Limitation of Liability for Maritime Claims, 1976, as incorporated by reference in the Marine Liability Act. Westshore and the Port Authority filed claims in the limitation proceedings. The Port Authority sought recovery of approximately $1,027,166, representing the loss of "Participation Rent" as provided for in the lease. Westshore claimed $49,685,584.43. Westshore brought a motion seeking judgment after a summary trial under Federal Courts Rules 213 and 216, seeking the dismissal of the Port Authority's claim on the basis that it was for pure economic loss, and hence not recoverable. Leo supported Westshore's motion.

The Federal Court dismissed the motion, holding that the matter was not suitable for summary trial. Leo appealed.

The Federal Court of Appeal allowed the appeal and returned the matter to the Federal Court for redetermination of the question of whether or not the Port Authority's claim was one that should be struck or allowed to be pursued against the limitation fund to be constituted by Leo.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - The Cape Apricot, a vessel owned by the defendant (Leo) collided with and destroyed approximately 450 feet of the trestle carrying the conveyor system, roadway, electrical power and water to berth number 1 at the Westshore terminals in the Port of Vancouver - Westshore terminals were operated by Westshore Terminals Limited Partnership (Westshore) under a modified lease whereby the owner of the property on which the Westshore terminals were constructed, Vancouver Fraser Port Authority (Port Authority), leased certain lands and water lot areas totalling some 972,799 square metres to Westshore - As a result of the collision, Westshore sued to recover damages, interest and costs against Leo and a number of Leo's ships, including the Cape Apricot - Westshore's proceedings led Leo to commence limitation proceedings under the Convention on Limitation of Liability for Maritime Claims, 1976, as incorporated by reference in the Marine Liability Act - Westshore and the Port Authority filed claims in the limitation proceedings - The Port Authority sought recovery of approximately $1,027,166, representing the loss of "Participation Rent" as provided for in the lease - Westshore claimed $49,685,584.43 - Westshore brought a motion seeking judgment after a summary trial under Federal Courts Rules 213 and 216, seeking dismissal of the Port Authority's claim on the basis that it was for pure economic loss, and hence not recoverable - Leo supported Westshore's motion - The Federal Court dismissed the motion, holding that the matter was not suitable for summary trial - Leo appealed - The Federal Court of Appeal allowed the appeal and returned the matter to the Federal Court for redetermination - The Judge's reasons showed that her main task in the summary trial was the interpretation of the lease and a determination of the legal consequences which flowed from that interpretation - None of the parties, nor the Judge, suggested that there was evidence, not already in the record, that was required for the Judge to perform her task - Consequently, the Judge erred in concluding that the matter should not be determined by way of summary trial.

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See Practice - Topic 5702 ].

Cases Noticed:

Teva Canada Ltd. v. Wyeth LLC et al., [2011] F.T.R. Uned. 879; 99 C.P.R.(4th) 398; 2011 FC 1169, refd to. [para. 22].

Canadian National Railway Co. et al. v. Norsk Pacific Steamship Co. and Tug Jervis Crown et al., [1992] 1 S.C.R. 1021; 137 N.R. 241; 91 D.L.R.(4th) 289, refd to. [para. 27].

Bow Valley Husky (Bermuda) Ltd. et al. v. Saint John Shipbuilding Ltd. et al., [1997] 3 S.C.R. 1210; 221 N.R. 1; 158 Nfld. & P.E.I.R. 269; 490 A.P.R. 269, refd to. [para. 27].

D'Àmato et al. v. Badger et al., [1996] 2 S.C.R. 1071; 199 N.R. 341; 79 B.C.A.C. 110; 129 W.A.C. 110; 137 D.L.R.(4th) 129, refd to. [para. 27].

Anns v. Merton London Borough Council, [1977] 2 All E.R. 492 (H.L.), refd to. [para. 27].

Counsel:

W. Gary Wharton, for the appellant;

Douglas B. Fox, for the respondents.

Solicitors of Record:

Bernard LLP, Vancouver, British Columbia, for the appellant;

Cozen O'Connor, Toronto, Ontario, for the respondents.

This appeal was heard at Vancouver, B.C., on November 17, 2015, by Nadon, Scott and Rennie, JJ.A., of the Federal Court of Appeal. Nadon, J.A., delivered the following decision for the court on December 9, 2015.