Navi-Mont Inc. v. Rigel Shipping Canada Inc.
T-966-97
Nadon J.
28/5/97
18 pp.
Applications for interlocutory injunction directing respondent Rigel to continue to operate ships Emerald Star, Diamond Star, Jade Star in accordance with terms and conditions of contract of affreightment-Ultramar and Rigel entering into contract of affreightment pursuant to which Rigel undertaking to place at Ultramar's disposal above three ships from December 28, 1995 to April 14, 1999-Ultramar agreeing to pay freight, hire, regardless of whether needing ships-Contract subsequently extended to 2004-Ultramar losing money because insufficient employment for Rigel ships-Rigel refusing to amend contract-In 1997 Ultramar assigning rights, obligations under contract of affreightment to Navi-Mont-Rigel considering assignment null, void-Applicants seeking injunction until dispute concerning assignment resolved pursuant to arbitration clause-Contract of affreightment prohibiting assignment without written consent of other party, except that shipper may assign rights, obligations to associate-Ultramar taking position Navi-Mont associate of Ultramar-Petro-Nav, Navi-Mont operating from same business premises, have same directors-Petro-Nav owning one hundred percent of shares in Navi-Mont-In 1997 Petro-Nav granting to Ultramar irrevocable option to purchase 11 percent of Navi-Mont's voting shares-Shell and Petro-Nav entering into contract of affreightment under which Petro-Nav undertaking to transport Shell's petroleum products-Intending to use Rigel ships-Applications dismissed-Application of test in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.)-As to Ultramar, although whether assignment valid under contract of affreightment constituting serious issue to be tried, will not suffer irreparable harm not compensable in damages if injunction not granted-As to Petro-Nav, cannot assert same issue to be tried as other applicants as not party to assignment-No evidence supporting argument Rigel acting in bad faith-As to second part of American Cyanamid test, incumbent on Petro-Nav to establish unable to secure replacement vessel-No evidence to support statement Petro-Nav, Navi-Mont will go bankrupt-Irreparable harm not established-As to Navi-Mont, serious issue to be tried-If Rigel refusing to make ships available, either Petro-Nav or its parent liable to Ultramar-No mention of potential liability of Navi-Mont-Navi-Mont created only for purpose of allowing Ultramar to assign to it rights, obligations to make ships available to Petro-Nav-Navi-Mont having no assets, no debts, no employees-Paper company, unlikely to go bankrupt-NaviMont not establishing irreparable harm.