Date: 19980527
Docket: T-245-98
MONTREAL, QUEBEC, THIS 27th DAY OF MAY 1998
PRESENT: RICHARD MORNEAU, ESQ., PROTHONOTARY
BETWEEN:
MEDITERRANEAN SHIPPING COMPANY S.A.
and
S/S STEAMSHIP CO. LTD.
Plaintiffs
AND
CANADA TEXTILE INTERNATIONAL INC.
Defendant
REASONS FOR ORDER AND ORDER
RICHARD MORNEAU, ESQ., PROTHONOTARY:
[1] On consent, this motion to strike by the Plaintiffs has been considered under Rule 369 of the Federal Court Rules, 1998 (the Rules).
[2] I consider the present motion as one under Rule 221(1)(a) of the Rules. Under that rule, it is accepted that the allegations found in the Defence and Counterclaim filed by the Defendant must be taken as proven and that the Court will only strike pleadings in plain and obvious cases where the matter is beyond doubt.
[3] In paragraph 9 of its Defence and Counterclaim, the Defendant asserts that the inordinate delay in delivering the goods constitutes a fundamental breach of the contract between the parties.
[4] From my point of view, it is not plain and obvious that this allegation cannot constitute a valid exception to the rule that in Canadian maritime law there could be no defence of set-off against an action for freight.
[5] Therefore, it is not beyond doubt that the Defence and Counterclaim of the Defendant, in whole or in part, does not disclose a reasonable defence, or a cause of action in the case of the Counterclaim.
[6] Furthermore, I am not satisfied under the present circumstances that it is desirable that the Counterclaim be dealt with separately from the main action since I tend to believe that the evidence on the Counterclaim will to a certain extent duplicate that submitted in the defence of the main action.
[7] Consequently, this motion is dismissed. Costs in the cause.
Richard Morneau
Prothonotary
MONTREAL, QUEBEC
May 27, 1998
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.:
STYLE OF CAUSE:
T-245-98
MEDITERRANEAN SHIPPING COMPANY S.A.
and
S/S STEAMSHIP CO. LTD.
Plaintiffs
AND
CANADA TEXTILE INTERNATIONAL INC.
Defendant
WRITTEN MOTION EXAMINED IN MONTREAL WITHOUT PERSONAL APPEARANCE OF THE PARTIES
REASONS FOR ORDER BY RICHARD MORNEAU, ESQ., PROTHONOTARY
DATE OF REASONS FOR ORDER:May 27, 1998
WRITTEN OBSERVATIONS BY:
Mr. Trevor H. Bishop for the Plaintiffs
Mr. Grant H. English for the Defendant
SOLICITORS OF RECORD:
Mr. Trevor H. Bishop for the Plaintiffs
Brisset Bishop
Montreal, Quebec
Mr. Grant H. English for the Defendant
Belowus, Easton, English, Holmes
Windsor, Ontario