OTTAWA, Ontario, September 15, 2006
PRESENT: The Honourable Mr. Justice Teitelbaum
BETWEEN:
and
OT AFRICA LINE, KWABENA APPIAH-BRENYA, carrying on business as TIME PACKAGING 7 SHIPPING SERVICES, ERIC KWAME OWUSU-BRENYA, carrying on business as LONG ISLAND SHIPPING SERVICES, HESSENOORD NATIE N.V. and WILLIAM OBREMPONG KOFI ARUN
REASONS FOR ORDER AND ORDER
OVERVIEW OF MOTIONS
[1] Hesse Noord Natie N.V. [Hesse Noord] is one of five defendants in the main action. The plaintiff, George Addo, sued after his cargo was damaged in Belgium, en route from Toronto to Takoradi, Ghana. Heese Noord, a Belgian company, operates terminals in three ports, including the Port of Antwerp where Mr. Addo’s cargo was dropped.
[2] Hesse Noord has filed a motion asking the Court to strike the plaintiff’s Statement of Claim, on the grounds that it discloses no reasonable cause of action, and because the Court does not have jurisdiction over this matter.
[3] In addition, Hesse Noord filed a Motion for security for costs in the sum of $20,000.00 in the event the claim is permitted to continue to proceed.
[4] Mr. Addo is asking the Court for an order that:
1) The Court refuse leave to admit an affidavit by Peter Cullen, submitted in Hesse Noord’s motion record;
2) Questions asked of the plaintiff in cross-examination be stricken; or, if admitted, the plaintiff receive leave to adduce reply evidence from his cross-examination;
3) The Court dismiss Hesse Noord’s motion with costs.
[5] The issue of questions asked of the plaintiff in cross-examination being stricken was not raised in oral argument during the hearing of the above matter.
CONCLUSION
[6] The Motion to strike out plaintiff’s action for lack of a cause of action or for lack of jurisdiction is denied for the following reasons.
[7] The Motion for security for costs is allowed in the sum of $5,000.00 in the case against Hesse Noord only, for the following reasons.
[8] The plaintiff may proceed against the other defendants without having provided the security for costs in the case against Heese Noord.
[9] Mr. Addo filed a Statement of Claim (simplified action) on October 21, 2005. He is claiming $50,000 in damages, pre and post-judgment interest, and costs, against five defendants:
1) Kwabena Appiah-Brenya, the sole proprietor of Time Packaging & Shipping Services [Time].
2) Eric Kwame Owusu-Brenya, the sole proprietor of Long Island Shipping Services [Long Island]. Both of these defendants are freight forwarders and consolidators of water cargo.
3) OT Africa Line [OTAL], a legal entity that operated a liner shipping service between Canadian and West African ports at the material times. Mr. Addo says OTAL issued the bill of lading for his cargo through its Toronto agent, Seabridge International Shipping Inc. [Seabridge]. Mr. Addo submits OTAL is a common carrier of goods by water, which OTAL has denied (para. 4, OTAL Staetment of Defence).
4) Hesse Noord, a corporation that operates marine terminals at the Port of Antwerp. Mr. Addo says the company arranged for or provides stevedoring and port carnage services to OTAL.
5) William Obrempong Kofi Arun, wholives in Toronto. Mr. Addo claims that Time chose Mr. Arun as its nominee as named shipper under the bill of lading. Mr. Addo says he was the beneficiary of the contract of carriage between Mr. Arun and OTAL.
[10] Mr. Addo outlines his claims against the defendants beginning at paragraph 24 of his Statement of Claim. He is claiming breach of contract and negligence against both Time and Long Island, arguing they failed to exercise reasonable care in their choice of an ocean carrier. He is also claiming against OTAL for breach of contract and negligence, and is claiming against Hesse Noord in negligence.
[11] OTAL submitted a Third Party Claim against Canada Maritime Ships, c/o CP Ships (Canada) Agencies Limited [Canada Maritime], on January 20, 2006.
[12] The only parties to file a Statement of Defence to this time have been OTAL and CP Ships. Hesse Noord is awaiting the Court’s decision on this motion before making any submissions on the main action.
[13] Mr. Addo submits that he hired Time and Long Island to transport cargo from Toronto to Takoradi, Ghana. According to Mr. Addo, his cargo included a 1992 Toyota truck which he now admits did not belong to him after swearing in an affidavit that he was the owner, toilet bowls, Caterpillar blades, one lot of 320 used car tires, two children’s bicycles, two crates of Canada Dry, 56 boxes of computer paper, one air conditioner, seven bags of rice, toilet paper and some other personal effects (see pp.6, 33-34, Cross-Examination of George Addo).
[14] However, it was revealed on cross-examination that Mr. Addo does not have receipts for all of these personal items. As well, Mr. Addo admitted on cross-examination that the Toyota truck actually belonged to Kwabena Appiah-Brenya, the sole proprietor of Time, one of the defendants in this action (p. 7-10, Cross-Examination of George Addo).
[15] Mr. Addo submits that Time and Long Island chose to consolidate his cargo with other goods in one 40-foot shipping container, and that they selected OTAL to carry his cargo to Takoradi. OTAL has admitted it supplied the container TEXU 5369027, which Mr. Addo claims Time and Long Island used to stuff the cargo. OTAL has also admitted that the contract for water carriage of the cargo was made in Canada.
[16] Mr. Addo submits that his cargo was received at Toronto, where he says a bill of lading was issued on April 23, 2004. OTAL has confirmed his cargo was loaded on the MV CANMAR PRIDE. Once his cargo reached Antwerp, it was moved off the boat, to be transshipped on its way to Takoradi (i.e. transferred from one boat to another for travel). Mr. Addo’s cargo was dropped at some point in the Port of Antwerp.
[17] Mr. Addo submits Hesse Noord was handling his cargo when it was dropped, because OTAL’s Web site identifies Hesse Noord as its Antwerp terminal operator. Mr. Addo claims to have read this Web site from Canada (para. 14, Affidavit of George Addo). OTAL has also identified Hesse Noord as the Antwerp terminal operator at the relevant time (para. 25, OTAL Statement of Defence). Canada Maritime has also admitted that CP Ships (U.K.) Ltd. retained Hesse Noord to load Mr. Addo’s container onto a barge in the Port of Antwerp (para. 5, Canada Maritime Statement of Defence).
[18] Mr. Addo claims that after his cargo was dropped, OTAL removed the cargo and restuffed it into other containers. He alleges this dropping and restuffing resulted in delay. Mr. Addo submits that he should have received his cargo around May 2004, but did not receive it until December 2004.
[19] OTAL pleads that Mr. Addo’s claim is time-barred, because the incident occurred on May 4, 2004 (para. 22, OTAL Statement of Defence). It denies liability, and has asked the Court to dismiss the plaintiff’s claim with costs. It submits that Mr. Addo’s container was dropped because of a weight issue. Specifically, OTAL pleads the container weighed 10.364 kilogrammes more than Time and Long Island declared in the two bills of lading for the cargo (para. 27, OTAL Statement of Defence). OTAL also claims the cargo was not loaded properly, as the Toyota was placed at the front of the container, with no weighted cargo at the rear to balance it out (paras. 30-31, OTAL Statement of Defence).
[20] Mr. Addo does not admit that his cargo was overweight. However, in the event the Court finds this was the case, he makes alternate arguments. He claims that if his cargo was overweight, it was because Time and Long Island “improperly consolidated” other goods with his cargo, then failed to stuff the container properly and brace its contents. He also submits that OTAL supplied an unsafe container, and Hesse Noord was negligent for failing to install, use and monitor capacity alarms or limit systems on equipment used to handle or tranship his cargo.
[21] With respect to OTAL’s third party claim against Canada Maritime, OTAL submits that its agent Seabridge entered into a contract with Canada Maritime in December 2003, whereby Canada Maritime agreed to move cargo from Montreal to various ports in Northern Europe. OTAL submits it gave Canada Maritime Mr. Addo’s container in Montreal to be shipped to Antwerp, where it would be transhipped to Ghana. OTAL also claims that Canada Maritime arranged for Hesse Noord to carry the container between quays in the Port of Antwerp. During the crane operation to load the container onto a barge, the container was dropped.
[22] In Canada Maritime’s response of March 9, 2006, it denies that OTAL is entitled to any relief, and asks the Court to dismiss the third party claim with costs. It has clarified that “Canada Maritime” is not a separate entity. Rather, it is a trade name of CP Ships (U.K.) Ltd., which Canada Maritime claims was the identified carrier under the bill of lading issued for Mr. Addo’s cargo, which it claims is TO5122AN (para. 2, Canada Maritime Statement of Defence).
[23] Canada Maritime submits that on May 4, 2004, Hesse Noord dropped Mr. Addo’s container, damaging both that container and one other container (para. 10, Canada Maritime Statement of Defence). It invokes the exculpatory and limitation provisions in OTAL’s contract of carriage. It also argues Mr. Addo has failed to mitigate any loss or damage, and that his claims are excessive, remote and unrecoverable at law.
[24] Both OTAL and Canada Maritime have submitted that they are protected by standard terms and conditions on the plaintiff’s bill of lading (para. 23, OTAL
Statement of Defence; paras. 2 and 8, Canada Maritime Statement of Defence).
[25] On March 6, 2006, Hesse Noord filed a motion objecting to the Court’s jurisdiction and requesting an order to strike the plaintiff’s Statement of Claim.
[26] Hesse Noord has submitted an affidavit by Peter Cullen, a partner at the Montreal office of Stikeman Elliott LLP (Stikeman Elliott). Hesse Noord’s counsel in this matter is Vincent Prager, who is also a partner at Stikeman Elliott in Montreal. After hearing the parties on the issue of Mr. Cullen’s affidavit, I struck the said affidavit for reasons that follow.
[27] Hesse Noord stresses that the bills of lading in this case were identified as non-negotiable documents unless the consignee was “to order”. Since the consignee was named Charles Arko Idun, the company says the bills of lading are non-negotiable. The company submits the replacement bill of lading was also non- negotiable, and was not “to order” (paras. 7-8, Written Representations of Hesse Noord).
[28] Hesse Noord argues that the absence of Mr. Addo’s name from any of these bills of lading precludes him from making any contractual claim against the defendant company (para. 9, Written Representations of Hesse Noord).
[29] The defendant argues that if Mr. Addo does have a valid claim against the company in tort, then the alleged tort happened entirely in Belgium. As such, Mr. Addo cannot pursue the claim in Canada.
[30] Mr. Addo’s submissions address the following issues:
- Hesse Noord’s affidavit evidence;
- Mr. Addo’s cross-examination;
- The “plain and obvious” test for striking a Statement of Claim;
- This Court’s jurisdiction;
- The plaintiff’s nexus to Hesse Noord for the purpose of addressing his claims of negligence and bailment.
[31] Mr. Addo reiterates that he was the holder and endorsee of the bill of lading OTTTKD117193, the named consignee in replacement bills of lading, and the owner of the cargo.
[32] Mr. Addo submits the affidavit by Peter Cullen is inadmissible on a motion to strike the Statement of Claim as disclosing no cause of action. He says this is because the defendant has not sought leave to rely on an affidavit provided by a partner of its solicitors of record (para. 19, Written Representations of George Addo). Mr. Addo relies on Rule 82 of the Federal Courts Rules:
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82. Use of solicitor’s affidavit – Except with leave of the Court, a solicitor shall not both depose to an affidavit and present argument to the Court based on that affidavit. |
82. Utilisation de l’affidavit d’un avocat - Sauf avec l’autorisation de la Cour, un avocat ne peut à la fois être l’auteur d’un affidavit et présenter à la Cour des arguments fondés sur cet affidavit. |
[33] Mr. Addo cites two related cases: Bojangles’ International, LLC v. Bojangles Café Ltd., 2005 FC 272, [2005] F.C.J. No. 383 (QL) [Bojangles]; Shipdock Amsterdam B.V. v. Cast Group Inc. (2000), 179 F.T.R. 282, [2000] F.C.J. No. 295 (QL) [Shipdock].
[34] Mr. Addo asks the Court to draw an adverse inference from Hesse Noord’s decision not to provide any affidavit evidence from its own staff about whether the company was handling Mr. Addo’s cargo when it was damaged (Para. 21, Written Representations of George Addo).
[35] Mr. Addo also submits the affidavit, as hearsay evidence, should be struck because it is remote and does not meet the test of necessity (paras. 22-23, Written Representations of George Addo). He cites Merck Frosst Canada Inc. v. Canada (Minister of National Health and Welfare) (1995), 91 F.T.R. 260, [1995] F.C.J. No. 224 (QL) [Merck Frosst] as authority for this proposition. That case, at paragraph 8, imports the common law exception for admitting hearsay evidence that the Supreme Court set in R. v. Smith, (A.L.) [1992] 2 S.C.R. 915 [Smith]. In Smith, the Court confirmed that the principled approach to admitting hearsay is a two-part test that evaluates if the evidence is both reliable and necessary.
[36] The plaintiff submits that parts of Hesse Noord’s affidavit evidence and excerpts from Mr. Addos’s cross-examination are not relevant to this motion. The following table includes questions that Mr. Addo’s counsel took under advisement during his client’s cross-examination by Mr. Prager. These questions relate to the value of Mr. Addo’s cargo, as well as Mr. Addo’s personal finances:
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QUESTIONS ON CROSS-EXAMINATION |
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14. |
Do you own any property in Canada, any real estate? |
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47. |
Did you buy the Toyota from him? |
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85. |
Fine, could you please look for it and let me see it? [Mr. Prager was referring to a bill for the mattresses allegedly sent in Mr. Addo’s container.] |
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87. |
So would you please try to find the mattress bills and let me have them? |
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176. |
Fine, could you please produce these through your attorney? [Mr. Prager was referring to receipts for the Caterpillar blades allegedly sent in Mr. Addo’s container.] |
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235. |
Well, maybe you could ask him again if you could get them, if you cannot find them yourself? But I would like to see the receipts that you got. [Mr. Prager was asking about Mr. Addo’s receipts or a bill of lading regarding his shipment.] |
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391. |
So please ask him and please get me a copy of that receipt. [Mr. Prager was asking about a receipt Mr. Addo would have signed upon picking up his shipment]. |
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428. |
Well, could you please try to obtain these documents and provide them through your attorney? [Mr. Prager was referring to documentation to show that the bill of lading was changed to show Mr. Addo’s name on it]. |
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663. |
Yes, could you please produce all the receipts that you have relating to payment of customs duties and clearance charges, anything that you have relating to the clearance of the goods. |
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[37] Mr. Addo pleads that if questions about the quantum of his claim are admissible on this motion, he is entitled in fairness to a right to respond. Accordingly, he submits that the Court should admit his reply evidence given during his cross-examination if it admits Mr. Prager’s questions (para. 26, Written Representations of George Addo).
[38] The issue of quantum will be left for the trial judge.
[39] Mr. Addo argues Hesse Noord must establish it is “plain and obvious” that there is no reasonable cause of action: Canada (A.G.) v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735. He claims that Hesse Noord also has the burden to establish the Court’s lack of jurisdiction on the “plain and obvious” test: Hodgson v. Ermineskin Indian Band No. 942 (2000), 180 F.T.R. 285, affirmed (2000), 267 N.R. 143, [2000] F.C.J. No. 313.
[40] Finally, Mr. Addo cites Rule 221(2) of the Federal Courts Rules, which says no evidence shall be heard on a motion for an order under Rule 221(1)(a) to strike a pleading on the ground that it discloses no reasonable cause of action. To his submissions, I would add that M.I.L. v. Hibernia Mgmt. & Dev. Co. (1998), 226 N.R. 369, 85 C.P.R. (3d) 320 (Fed. C.A.) stands for the principle that a party can bring evidence on an objection for want of jurisdiction.
[41] The plaintiff has cited International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752, [1986] S.C.J. No. 38 (QL) [I.T.O.], as the source of the proper test to determine the Federal Court’s jurisdiction in maritime law cases (para. 38, Written Submissions of George Addo). Paragraph 11 of that case reads:
In Quebec North Shore Paper Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054, and in McNamara Construction (Western) Ltd. v. The Queen, [1977] 2 S.C.R. 654, the essential requirements to support a finding of jurisdiction in the Federal Court were established. They are:
1. There must be a statutory grant of jurisdiction by the federal Parliament.
2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction.
3. The law on which the case is based must be “a law of Canada” as the phrase is used in s.101 of the Constitution Act, 1867.
[42] Mr. Addo submits the Federal Court’s jurisdiction over maritime and admiralty matters is only limited by the scope of federal power over navigation and shipping in the Constitution Act, 1867. He submits the Court has specific jurisdiction under subsection 22(1)(f) of the Federal Courts Act, and that subsection 22(2) of that Act does not place any geographical limits on such heads of jurisdiction.
[43] Mr. Addo refers to United Nations v. Atlantic Seaways Corporation, [1979] 2 F.C. 541 (F.C.A.) [Atlantic Seaways] for the principle that the Court’s jurisdiction for damage to cargo extends to a cause of action arising outside Canada. He also argues the facts of this case meet the test from Monk Corp. v. Island Fertilizers Ltd., [1991] 1 S.C.R. 779, [1991] S.C.J. No. 28 [Monk], which held that a subject matter will fall within the Federal Court’s jurisdiction if it is so “integrally connected” to maritime matters as to be legitimate Canadian maritime law within federal competence. He submits that Hesse Noord’s operations played an integral part in carrying his cargo from Montreal to Takoradi (paras. 42-43, Written Representations of George Addo).
[44] Mr. Addo notes that in OTAL’s Statement of Defence, it pleads that it is not in contractual privity with Mr. Addo. However, Mr. Addo submits that Hesse Noord is a proper party to his claim so long as the issue of privity between the plaintiff and OTAL remains an outstanding issue.
[45] Mr. Addo further submits that Hesse Noord’s arguments about privity should have no effect on his claims against the company for both negligence and bailment. Essentially, he argues that he is in a relationship of legal proximity with Hesse Noord because the company’s services are marketed on its Web site, which is accessible in Canada. He claims this is relevant in light of Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393, which says:
By tendering his products in the market place directly or through normal distributive channels, a manufacturer ought to assume the burden of defending those products wherever they cause harm as long as the forum into which the manufacturer is taken is one that he reasonably ought to have had in his contemplation when he so tendered his goods.
This is particularly true of dangerously defective goods placed in the interprovincial flow of commerce.
[46] Mr. Addo argues that Hesse Noord tendered its services in the Canadian market through its Web site.
[47] Finally, Mr. Addo claims he has standing to sue Hesse Noord in bailment as he owned the goods at the time they were damaged. He argues Hesse Noord was a bailee, having had more than transitory control over his cargo while it was being moved between quays in the Port of Antwerp. He cites Sears Ltd. v. Arctic Steamship Lines, [1985] F.C.J. No. 104 (TD) and P. & O. Nedlloyd B.V. and Utaniko Limited, [2003] E.W.C.A. Civ. 83 (C.A.) for the principle that a terminal operator has an independent duty of care in tort as a bailee or sub-bailee (para. 52, Written Representations of George Addo).
[48] The following three issues are before me:
- Does this Court have jurisdiction over Mr. Addo’s claim against Hesse Noord?
- Does the Statement of Claim disclose a cause of action against Hesse Noord?
- Should the Court refuse leave to admit Peter Cullen’s affidavit?
[49] Before addressing the issues above, it is important to confirm the standard Hesse Noord must meet to succeed in this motion. The “plain and obvious” test from Inuit Tapirisat, above, is well-accepted in the jurisprudence and can easily be applied here. However, a bit of further background may be helpful to appreciate how the test should be applied. More specifically, Mr. Addo has referred to Charlie v. Vuntut Gwitchin Development Corp. (2002), 218 F.T.R. 116 in his book of authorities. The following excerpt from that case illustrates how difficult it is to satisfy the “plain and obvious” test:
¶ 35 The Plaintiff's argument for jurisdiction by way of section 17(4) of the Federal Court Act is not one which is plainly, obviously and beyond doubt doomed to failure. This is not to say that it is in any way an easy jurisdictional argument to make. Indeed, were the standard for striking out merely a preponderance of evidence or a balance of probabilities, as argued by the Vuntut Gwitchin Defendants, the Plaintiff could be in difficulty at this point.
[50] Prothonotary Hargrave thus made it clear that a party must meet a high threshold to successfully strike a Plaintiff’s statement of claim. With respect to this case, I am not convinced it is “plain and obvious” that Mr. Addo’s claims are “doomed to fail” – both with respect to his Statement of Claim, and regarding the Court’s jurisdiction.
[51] Mr. Addo has cited the three-part test from I.T.O. traditionally used to ascertain this Court’s jurisdiction. He has also cited Monk’s “integrally connected” test. For reasons I will describe below, I do not think either of these tests will adequately determine if it is appropriate for this Court to hear Mr. Addo’s claim against Hesse Noord. I suggest an alternative approach, and based on this approach I have concluded that this Court does have jurisdiction over Mr. Addo’s claim.
[52] With respect to the I.T.O. test, I am satisfied that the test was developed to distinguish federal from provincial powers. If that is indeed the case, I do not see how the test would be useful here, where Hesse Noord argues Canada should not have jurisdiction over a tort claim more properly heard in Belgium.
[53] I have based my conclusions in part on this excerpt from I.T.O., above, at paragraph 20, where Justice McIntyre writes:
…the words “maritime” and “admiralty” should be interpreted within the modern context of commerce and shipping. In reality, the ambit of Canadian maritime law is limited only by the constitutional division of powers in the Constitution Act, 1867. I am aware in arriving at this conclusion that a court, in determining whether or not any particular case involves a maritime or admiralty matter, must avoid encroachment on what is in “pith and substance” a matter of local concern involving property and civil rights or any other matter which is in essence within exclusive provincial jurisdiction under s.92 of the Constitution Act, 1867. It is important, therefore, to establish that the subject-matter under consideration in any case is so integrally connected to maritime matters as to be legitimate Canadian maritime law within federal legislative competence.
[54] Justice McIntyre further described the relevant factors to determine jurisdiction, at paragraph 22:
At the risk of repeating myself, I would stress that the maritime nature of this case depends upon three significant factors. The first is the proximity of the terminal operation to the sea, that is, it is within the
area which constitutes the port of Montreal. The second is the connection between the terminal operator’s activities within the port area and the carriage by sea. The third is the fact that the storage at issue was short-term pending final delivery to the consignee. In my view it is these factors taken together, which characterize this case as one involving Canadian maritime law.
[55] Notably, none of the factors that persuaded the Court in I.T.O. address the question of Canadian versus foreign jurisdiction over a maritime case. The decision focused mainly on establishing if the case was about “maritime” law, thus within federal competency – and accordingly, Federal Court jurisdiction.
[56] Mr. Addo has argued the three-part I.T.O. test applies in this case. Moreover, he argues the test has been met.
[57] From a reading of the submissions and after hearing the parties’ oral submissions, I am satisfied the matter is clearly a Maritime matter. I am also satisfied that Hesse Noord’s activity of transferring the container while in transit from Montreal to Takoradi, Gahna is “integrally connected” to Maritime matters and to Canada.
[58] The plaintiff has properly submitted that the foreign location of a cause of action does not exclude the Federal Court from taking jurisdiction.
[59] A relevant case is D.S.L. Corp. v. Bulk Atlantic Inc., 2003 FC 1061, [2003] F.C.J. No. 1362 (QL) [D.S.L.]. In that case, the defendant unsuccessfully tried to set aside the ex juris service of the plaintiff’s Statement of Claim. The plaintiff was an American company, the defendant ship was registered in Malta, and the defendant Bulk Atlantic Inc. was a Marshall Island company. However, Prothonotary Hargrave still held the Federal Court had jurisdiction to hear the claim, because Bulk Atlantic Inc. had invited the plaintiff to deal with its agents in Montreal. Paragraph 11 of the decision reads:
The Plaintiff having been invited to deal with Atlantic Maritime, in Montreal, Quebec, there is some form of act and conduct tying the matter to Canada. In the alternative Atlantic Seaways still being good law, there is no qualification on in personam jurisdiction under section 22 of the Federal Court Act, so long as the claim falls, as it does here, within one of the specific categories [emphasis added].
[60] In this case, there are a number of significant factors tying this matter to Canada. While Hesse Noord has stressed that the alleged tort occurred in Belgian, and was allegedly committed by a Belgian company, the plaintiff is Canadian, his cargo was loaded in Canada, and his shipment was arranged in Canada.
[61] Overall, Hesse Noord has done little to persuade me that Belgium would be a more appropriate forum to hear this dispute. Practically, the defendant is clearly more capable of defending itself against a single claimant in Canada than the reverse. As well, if I order that Mr. Addo must pursue a claim against Hesse Noord in Belgium, it would lead to excessive costs and efforts to recover a comparatively low amount ($50, 000, according to the plaintiff). Taking these factors into account, as well as the strict threshold of the “plain and obvious” test, I do not think it is “plain and obvious” that this Court has no jurisdiction over Mr. Addo’s claim against Hesse Noord.
[62] Mr. Addo has focused his submissions on his proximity with Hesse Noord. He argues that the defendant company owed him a duty of care when it handled his cargo. I would rephrase this argument into the following question, based on the “plain and obvious” test described above: Is it so plain and obvious that Hesse Noord did not owe Mr. Addo a duty of care that it would be appropriate to strike the Statement of Claim for disclosing no cause of action? I do not believe so.
[63] Indeed, his submissions raise an interesting issue: whether the ability to access a company’s Web site gives rise to a global duty of care for that company towards any person who accesses that site. Of course, Mr. Addo’s submissions about the company’s Web site should be considered alongside the fact that Hesse Noord was in business relationships with companies doing business in Canada. The extent to which Hesse Noord dealt with OTAL, Canada Maritime, or both must still be determined. However, Hesse Noord’s alleged relationships with one or more of these companies could also be said to create a nexus with Canada, such that Hesse Noord could have foreseen its acts might cause harm to Canadian plaintiffs: Cooper v. Hobart, 2001 SCC 79, 206 D.L.R. (4th) 193 S.C.C, [2001] 3 S.C.R. 537.
[64] While it is unclear if the parties were truly in a relationship of proximity, this motion is not about resolving the merits of this dispute. Rather, it is about declaring whether it is “plain and obvious” that Mr. Addo’s Statement of Claim disclosed no reasonable cause of action. I do not think it is. Therefore, I would not strike his Statement of Claim.
[65] Mr. Addo argues Mr. Cullen’s affidavit should be struck for violating Rule 82 of the Federal Courts Rules. He also claims the affidavit is neither necessary nor reliable, and thus does not fall within the principled approach to hearsay exemptions from Merck Frosst, above.
[66] To start, it appears Mr. Addo is making several separate, if related, arguments:
1) Hesse Noord should have submitted affidavit evidence from its operations staff, rather than sheltering itself from cross-examination;
2) The affidavit should be struck because it violates Rule 82;
3) The affidavit should be struck because it is inadmissible hearsay.
[67] The first question appears to be an attack on Hesse Noord’s tactics, which I do not find determinative of any issue on this motion.
[68] I am more convinced by Mr. Addo’s argument about Rule 82. The Rule is quite explicit, and it has been interpreted strictly by this Court: Butterfield v. Canada (A.G.), 2005 FC 396. It is also clear from the jurisprudence that this Court considers it a violation of Rule 82 when lawyers from the same representative law firm submit an affidavit, then argue the case to which the affidavit relates (Shipdock, above). Mr. Cullen’s affidavit is struck as it is in violation of the Rule.
[69] I have allowed Hesse Noord’s application for security for costs in the sum of $5,000.00 for the reason that in reading the documents, the affidavit of the plaintiff and his reply to the issue of residence in Canada, to the issue of owning the Toyota truck, on the issue of the damages as declared to the authorities in Ghana, I am most concerned as to the plaintiff’s credibility.
[70] Therefore I am satisfied the plaintiff give $5,000.00 as security for costs.
[71] Costs on these proceedings are in the cause.
ORDER
THIS COURT ORDERS that
1) The motion to strike out the plaintiff’s action for lack of a cause of action or for lack of jurisdiction is denied.
2) The issue of striking the questions asked of the plaintiff in cross-examination was not raised during the hearing and will, if necessary, be determined at trial.
3) The motion to strike out the affidavit of Mr. Peter Cullen is granted and the affidavit is hereby struck.
4) The motion for security for costs is allowed in the sum of $5,000.00.
5) Costs of the present Motion are in the cause.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1849-05
STYLE OF CAUSE:
OT AFRICA LINE, KWABENA APPIAH-BRENYA, carrying on business as TIME PACKAGING & SHIPPING SERVICES, ERIC KWAME OWUSU-BRENYA, carrying on business as LONG ISLAND SHIPPING SERVICES, HESSE NOORD NATIE N.V. and WILLIAM OBREMPONG KOFI ARUN
PLACE OF HEARING: Montreal, Qc
DATE OF HEARING: September 13, 2006
REASONS FOR ORDER: TEITELBAUM J.
APPEARANCES:
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Mr. William Sharpe
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Mr. Matthew Liben
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SOLICITORS OF RECORD:
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Mr. William Sharpe Toronto, Ontario |
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Mr. Matthew Liben Stikeman Elliott LLP Montreal, Quebec |