MARITIME LAW |
Canada v. Mid-Atlantic Minerals Inc.
A-380-02
2004 FCA 28, Nadon J.A.
15/1/04
12 pp.
Appellant licensed under Coasting Trade Act to operate foreign vessel M.V. Bjorn in Canadian waters from February 9 to March 9, 1998--Respondent invoiced appellant under 1997-98 Marine Services Fee Schedule: Fees to be paid for Marine Navigation Services Provided by the Canadian Coast Guard, s. 10 for marine navigation services provided-- Appellant refused to pay on ground fees fixed under s. 10 discriminated on basis of ship's nationality--Respondent commenced legal proceedings against appellant to recover outstanding amount--Respondent's action allowed in full-- Appellant then appealed decision but Rouleau J. dismissed appeal ([2003] 1 F.C. 168) concluding appellant not disadvantaged for operating foreign ship because no evidence supporting appellant's contention fees payable by M.V Bjorn those set out in Fee Schedule, s. 8(3)--Specifically, appellant's failure to prove M.V. Bjorn bulk carrier fatal to contention s. 8(3) section under which fees for respondent's marine navigation services ought to have been claimed-- Appellant has burden of proving marine navigation services rendered ought to have been invoiced in accordance with Fee Schedule, s. 8(3)--Appellant had to prove M.V. Bjorn bulk carrier and that aggregates loaded thereon between February 9 and March 9, 1998--Appellant made no attempt, prior to Rouleau J. having reserved decision following hearing of April 10, 2002, to adduce evidence in respect of M.V. Bjorn and nature of cargo carried on ship while in Canadian waters --Appellant submitting coasting licence part of record and showing M.V. Bjorn bulk carrier carrying aggregates in Canadian waters between February 9 and March 9, 1998-- Appellant put forward two submissions supporting propositions--First, licence part of record because licence admitted in paragraph 1 of amended statement of defence allegations made by respondent in paragraph 5 of statement of claim--Submission not convincing because at paragraph 5 of statement of claim, respondent simply alleged M.V. Bjorn foreign ship which entered Canada on temporary basis pursuant to licence--Secondly, respondent deemed to have admitted truth of facts by not denying paragraph 10 of amended statement of defence--Submission flies in face of Federal Court Rules, 1998, r. 184(1), which states in unequivocal terms that unless admitted, allegation of fact in pleading deemed to have been denied--Rouleau J. made no error in concluding no evidence M.V. Bjorn bulk carrier and as result, fees charged to appellant properly subjected to Fee Schedule, s. 10--Appeal dismissed--Coasting Trade Act, S.C. 1992, c. 31--1997-98 Marine Services Fee Schedule: Fees to be Paid for Marine Navigation Services Provided by the Canadian Coast Guard, ss. 8(3), 10--Federal Court Rules, 1998, SOR/98-106, r. 184(1).