Date: 20070501

Docket: T-1927-06

Citation: 2007 FC 467

[ENGLISH TRANSLATION]

Montréal, Quebec, May 1, 2007

PRESENT: Richard Morneau, Esq., Prothonotary

ADMIRALTY ACTION IN PERSONAM

BETWEEN:

A.P. MOLLER - MAERSK A/S TRADING AS MAERSK SEALAND

Plaintiff

and

MARITIME-ONTARIO FREIGHT LINES LIMITED

Defendant

REASONS FOR ORDER AND ORDER

[1]               GIVEN this motion by the defendant (hereinafter Maritime-Ontario) under Rule 105(b) of the Federal Court Rules (the Rules) to have a stay ordered in this case until the outcome of the action in docket T-2143-04 is determined;

[2]               GIVEN that the relationship between this docket, T-1927-06 and docket
T-2143-04 has thus been summarized by the Court in its decision on February 7, 2007, when it refused to consolidate the two dockets:

[2]        In this docket, T-1927-06, Maersk is acting as a plaintiff and commenced an action against Maritime-Ontario on November 3, 2006, so that the latter corporation would ultimately be held responsible for damages that Maersk might suffer due the action commenced by Lagoon Seafood in docket T-2143-04.

[3]        In docket T-2143-04, it should essentially be known that Lagoon Seafood accuses Maersk of ultimately having delivered a shipment of fish in a damaged state. Maersk considers that it is because of the shipment inspection conducted by Maritime-Ontario that that shipment deteriorated. Hence Maersk’s action in T-1927-06.

[3]               GIVEN that the consolidation of the two dockets was dismissed because, among other things, docket T-2143-04 was virtually ready for trial (and was in fact held on June 18, 2007), the application to combine the dockets was filed late and this docket, T-1927-06, had to develop normally;

[4]               GIVEN that, at the hearing for the motion by Maersk regarding the consolidation of the two files, Maritime-Ontario did not indicate its intent to appeal under Rule 105(b) and did not submit its motion record under review until April 11, 2007;

[5]               GIVEN, therefore, that this motion by Maritime-Ontario is essentially late and that the Court cannot retain any valid and serious reasons that would explain why this motion was not filed earlier;

[6]               GIVEN that a stay in this docket would prevent this docket from proceeding to its current stage, i.e. examination for discovery;

[7]               GIVEN that avoiding examination on discovery of the Maritime-Ontario representative would essentially represent financial savings if this action were not pursued as a result of the outcome of the action in docket T-2143-04;

[8]               GIVEN that the Court cannot see here that Maritime-Ontario would be prejudiced to the extent of an injustice or oppression (see the criteria retained by this Court in situations presenting aspects similar to this case, in Compulife Software Inc. v. Compuoffice Software Inc. (1997), 143 F.T.R. 19, at para 15; Mon-Oil Ltd. v. R. 1989 CarswellNat 153, at para 4), if it were to comply now — before the proceedings in docket T-2143-04 — at the stage of examination for discovery;

[9]               GIVEN the reasons above, the following order is issued:

ORDER

1.                  The motion by Maritime-Ontario under Rule 105(b) is dismissed, with costs.

2.                  Maritime-Ontario shall submit its representative to examination for discovery at a location in Montréal and on a date to be decided on consent between the parties, but that must nonetheless be on or before May 11, 2007.

“Richard Morneau”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          T-1927-06

STYLE OF CAUSE:                          A.P. MOLLER - MAERSK A/S TRADING AS         MAERSK SEALAND

Plaintiff

                                                            MARITIME-ONTARIO FREIGHT LINES LIMITED

Defendant

PLACE OF HEARING:                    Montréal, Quebec

DATE OF HEARING:                      April 23, 2007

REASONS FOR ORDER

AND ORDER:                                   PROTHONOTARY RICHARD MORNEAU

DATED:                                             May 1, 2007

APPEARANCES:

SOLICITORS OF RECORD: