Alaska ( State ) v. Persons Unknown
T-1552-97
Richard J.
25/9/97
12 pp.
Applications for orders pursuant to R. 401 granting applicants leave to file conditional appearance; stay of proceedings; declaring action invalidly commenced; declaring court without in rem jurisdiction herein-Action arising out of blockade, in Prince Rupert Harbour, of passenger and motor vehicle ferry Malaspina operating between Prince Rupert, B.C. and States of Alaska and Washington-Application for leave to file conditional appearance on basis irregularity in proceedings in joinder and service of all persons listed in Schedule A to amended statement of claim, and Court's jurisdiction over original in rem claims as pleaded challenged-Original statement of claim named 14 vessels and persons unknown, and others-Later, amended statement of claim purporting to add 180 vessels and 227 individuals and companies as defendants-Defendants argue proceedings improperly commenced as these defendants added without obtaining order of Court and that any purported service of statement of claim on any defendant prior to that defendant being named as defendant invalid-Application allowed in part-R. 401 contemplating two-stage procedure whereby applicant obtains leave and stay of proceedings at initial hearing and merits of objection to jurisdiction argued at subsequent hearing-Applying Larsen v. Canada (1995), 60 C.P.R. (3d) 98 (F.C.T.D.) and Montres Rolex S.A. v. Lifestyles Imports Inc. (1988), 23 C.P.R. (3d) 436 (F.C.T.D.), objection proceedings improper ly commenced meeting test in Antares Shipping Corp. v. The Capricorn, [1977] 2 F.C. 320 (C.A.) for granting leave (whether defendant has prima facie raised sufficient doubt as to regularity of proceedings or jurisdiction rationae personae of Court that justice requires defendant be allowed to appear in manner so as to avoid any waiver of these objections)-Order allowing Schedule A defendants to amended statement of claim to file conditional appearance for purpose of objecting to alleged irregularity in commencement of proceeding against them by adding them as party under R. 421(1) and consequential irregularity of service on them of statement of claim-Purusuant to R. 401(c), proceedings against such defendants stayed pending disposition of such objection by judge of Trial Division-Any defendants named in Schedule A who were not parties to these two motions may make application for leave to file conditional appearance, for purpose of maintaining their objection to two alleged irregularities identified herein, and participate in hearing-Federal Court Rules, C.R.C., c. 663, RR. 401, 421.