Date: 19980129
Docket: A-438-97
CORAM: THE CHIEF JUSTICE
| LINDEN J.A. |
| McDONALD J.A. |
ACTION In REM against The Ship DAWN LIGHT
BETWEEN:
ROBERT GLEASON
Plaintiff
(Appellant)
- and -
The Ship DAWN LIGHT (in rem)
CAROL NANCY BAKER (in personam)
Defendants
(Respondents)
- and -
RAYMOND MICHAEL DAVIS
Intervenor
(Respondent)
Heard at Toronto, Ontario, on Friday, January 23, 1998.
Judgment delivered from the Bench at Toronto, Ontario, on Friday, January 23, 1998.
REASONS FOR JUDGMENT BY: McDonald J.A.
Date: 19980129
Docket: A-438-97
CORAM: THE CHIEF JUSTICE
| LINDEN J.A. |
| McDONALD J.A. |
ACTION In REM against The Ship DAWN LIGHT
BETWEEN:
Robert Gleason
Plaintiff
(Appellant)
- and -
The Ship DAWN LIGHT (in rem)
CAROL NANCY BAKER (in personam)
Defendants
(Respondents)
RAYMOND MICHAEL DAVIS
Intervenor
(Respondent)
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario
on January 23, 1998)
McDONALD J.A.
[1] We are all of the view that this appeal cannot succeed and that the cross-appeal should be allowed, and that the warrant of arrest should be vacated.
[2] In our view, the Motions Judge correctly found that the appellant had not demonstrated that specific performance was the appropriate remedy in these circumstances. It was unavailable as a remedy because title had passed to the intervenor as a bona fide purchaser for value without notice. As a result, the intervenor"s motion should be allowed as the Motions Judge"s finding that the intervenor was a bona fide purchaser for value without notice should have led him to the conclusion that the arrest was no longer necessary as the ship could not be used to satisfy any potential award of damages against the respondent Baker.
[3] The Beauchamp v. Coastal Corporation, [1984] 1 F.C. 833 case was cited to us as authority for the proposition that the arrest should continue even after a claim for specific performance has been rejected. It is not clear to us that this case stands for the above cited proposition. In any event, it is not necessary to decide this point as the Beauchamp case is distinguishable. In Beauchamp, there was no bona fide purchaser for value whereas in this case there is.
[4] During argument counsel advised the Court that the original arrest warrant had been varied to allow for limited use of the vessel upon deposit of a bond in the amount of forty thousand dollars ($40,000.00) to be released only on further order of this Court. This Court now orders that the security be released.
[5] This Court also orders costs on a party and party basis in favour of the respondent Baker. There will only be one set of costs in favour of the intervenor in respect of the appeal and the cross-appeal.
| ___________________________________ |
| J.A. |
[6]
FEDERAL COURT OF APPEAL
Date: 19980129
Docket: A-438-97
ACTION In REM against The Ship DAWN LIGHT
BETWEEN:
ROBERT GLEASON
Plaintiff
(Appellant)
- and -
The Ship DAWN LIGHT (in rem)
CAROL NANCY BAKER (in personam)
Defendants
(Respondents)
- and -
RAYMOND MICHAEL DAVIS
Intervenor
(Respondent)
REASONS FOR JUDGMENT