Date: 20000117
Docket: T-778-99
BETWEEN:
UNITED PARTS OF FLORIDA INC.,
RODY TRUCK CENTER CORP., and
DENNIS MUNDAY,
Plaintiffs,
- and -
RICHARD M. CRAWFORD,
and the owners and others interested in
the ships formerly known as "HMCS FUNDY",
"HMCS THUNDER", "HMCS RESTICOUCHE",
AND "HMCS KOOTENAY",
Defendants.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] These reasons arise out of an application by the Defendant, Richard M. Crawford, seeking a reconsideration of my Order by Way of Endorsement, dated 22 December 1999, on the grounds that a portion of the Order related to a matter upon which there was no argument.
[2] The Court initially ordered the sale of the Resticouche and Kootenay, pendente lite, to American buyers. The sale to those purchasers did not complete. The Order of 22 December 1999 arose out of an application to approve a second sale of the Resticouche and Kootenay, formerly Canadian naval vessels, to the Artificial Reef Society of British Columbia.
[3] The Defendants object to the underlined portion of paragraph 8 of the 22 December 1999 Order which is as follows:
| "8. The sale to Messrs. Jackson and Gay was approved by Order of 22 November 1999, which order was not appealed. While the sale was as-is where-is, at $215,000 (US), the Order, paragraph (b), makes it clear that the sale was "without military appurtenances which are to be removed by the Canadian military:". This term was inserted in the Order on the understanding that the military items remaining aboard were to be removed, for they did not go with the ship. Further, it is the practice on the sale of a ship to sell the ship and her contents, but not those articles which are the property of someone other than the owner of the ship: see The Silia [1981] 2 Lloyd"s 534 at 535, a decision of Mr. Justice Sheen. Here it is clear that the military owned the military appurtenances and equipment and was to remove all such articles on its initial sale of the Vessels." |
This paragraph refers to the initial sale, which the American buyers, Messrs. Jackson and Gay, were unable to complete because, according to them, there was some confusion as to whether operating military hardware aboard, including a missile system, was a part of their purchase.
[4] Mr. Crawford, who initially objected to the last three sentences of paragraph 8, claims to have been the purchaser of the Resticouche and Kootenay from the Canadian military. After the purchase from the Canadian military a dispute arose as to whether the Plaintiffs or Mr. Crawford owned the ships. This resulted in sale pendente lite.
[5] As I understand it Mr. Crawford, who also apparently claims ownership of various military equipment aboard, including the rocket launcher, is concerned that my conclusion, that the military owned the military appurtenances and equipment aboard, might prejudice any claim for damages he might make against the military. Thus he now wishes the last two sentences removed, being the comment on the practice on the sale of the ship, not to sell articles which are the property of someone else and the conclusion as to ownership removed from the Order.
[6] The conclusion as to ownership was not supported by any affidavit evidence referred to at the hearing which resulted in the 22 December Order. The conclusion was based on earlier representations by counsel for Mr. Crawford, initially on 31 May 1999, when at issue was an opposed motion for an inspection of the ships by the Plaintiffs" surveyor. At that time I was advised by counsel for Mr. Crawford that there was classified military equipment aboard which the Department of National Defence (the "D.N.D.") had to removed before anyone could view the ship. Subsequently, on a motion heard 21 June 1999, when at issue was a viewing of the ships by individuals interested in purchasing them, I was advised by counsel for Mr. Crawford that a viewing of the ships should not be allowed because there was sensitive equipment aboard, including an ASROC rocket launcher and NATO secret equipment. I was told that there would be prejudice if the vessels were sold with sensitive equipment aboard and that the D.N.D. said they were going to remove the equipment.
[7] These representations lead me to the conclusion that military owned the rocket launcher and other equipment which was to have been removed, but which was apparently overlooked, when the ships were decommissioned and stripped of military hardware before the initial sale by the Crown as military surplus. I take this as a reminder of the danger of confusing and perhaps misconstruing unsupported representations by counsel with affidavit evidence.
[8] Rule 397, which provides for motions to reconsider and the correction of mistakes, "... does not empower a judge to re-examine the conclusions which he or she drew from the evidence.": The Kun Shoulder Rest Inc. v. Joseph Kun Violin and Bow-maker Inc. , an unreported 8 April 1999 decision of Mr. Justice Rouleau. However, Kun Shoulder Rest does not apply in the present instance for there was no evidence, as such, but merely representations at an earlier stage, dealing with status of the rocket launcher and other military equipment. A reconsideration deals with an inadvertent mistake or omission: see Sivakumar v. Canada (1999), 150 F.T.R. 299 at 300. Thus I may reconsider the portion of the Order at issue.
[9] The conclusion that the military equipment aboard belonged to the military, while not necessarily wrong, is presently unsupported by any affidavit evidence. It is thus an inadvertent mistake with which I may deal.
[10] The inadvertent mistake is contained in the last sentence in paragraph 8. The removal of the last sentence, the conclusion as to ownership of the military equipment, including the rocket launcher, preserves any status quo between D.N.D. and Mr. Crawford. An amended order will issue. The balance of paragraph 8 contains no inadvertent mistake.
(Sgd.) "John A. Hargrave"
Prothonotary
January 17, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-778-99
STYLE OF CAUSE: UNITED PARTS OF FLORIDA INC., ET AL
v.
RICHARD M. CRAWFORD ET AL
PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA
| DATE OF HEARING: January 17, 2000 |
| REASONS FOR ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY |
DATED: January 17, 2000
APPEARANCES:
| Mr. Chris Giaschi For the Plaintiffs |
| Mr. Paul Armitage For the Defendants |
| Mr. K. Joseph Spears For the Department of National Defence |
and Her Majesty the Queen
SOLICITORS OF RECORD:
CAMPNEY & MURPHY
| VANCOUVER, BC FOR THE PLAINTIFFS |
GIASCHI & MAROLIS
| VANCOUVER, BC. FOR THE DEFENDANTS |
K. JOSEPH SPEARS
BARRISTER & SOLICITOR
| WEST VANCOUVER, BC FOR THE DEPARTMENT OF NATIONAL DEFENCE |
AND HER MAJESTY THE QUEEN