T-1253-80
Alumina Contractors Ltd. (Plaintiff)
v.
The ship Bill Crosbie, Chimo Shipping Ltd. and
Empire Stevedoring Co. Ltd. (Defendants)
Trial Division, Dubé J.—Montreal, August 18 and
25, 1980.
Practice — Motion to rescind or set aside an ex parte order
permitting service ex purls of a third party notice upon the
applicant — Affidavit of defendants' attorney in support of the
ex parte motion contained statements of belief for which
grounds were not provided — Whether Trial Judge erred in
granting the ex parte motion on the ground that the affidavit
did not comply with Rule 332 which requires the grounds for
belief to be set out — Motion allowed — Federal Court Rules
307(2), 332(1).
Antares Shipping Corp. v. The "Capricorn" [1977] 2
S.C.R. 422, referred to. All Transport Inc. v. The "Rum-
ba", T-3585-75, referred to.
MOTION.
COUNSEL:
V. Prager for plaintiff.
T. Bishop for defendants the ship Bill Crosbie
and Chimo Shipping Ltd.
A. S. Hyndman, Q.C. for third party Deut-
sche Dampfschiffahrts-Ges. "Hansa".
SOLICITORS:
Stikeman, Elliott, Tamaki, Mercier & Robb,
Montreal, for plaintiff.
Brisset, Bishop, Davidson & Davis, Montreal,
for defendants the ship Bill Crosbie and
Chimo Shipping Ltd.
McMaster Meighen, Montreal, for third party
Deutsche Dampfschiffahrts-Ges. "Hansa".
The following are the reasons for order ren
dered in English by
Duet J.: This is a motion for conditional
appearance and to rescind or set aside the ex parte
order dated April 16, 1980 permitting service ex
furls of a third party notice upon the applicant
Dampfschiffahrts-Ges. Hansa of Bremen, West
Germany and the ex parte order dated May 26,
1980 for extending the delay for said service.
The statement of claim was filed March 12,
1980, by plaintiff as owner of a shipment of struc
tural steel and general cargo against the vessel Bill
Crosbie, its owners and against the stevedoring
firm which loaded the cargo at the Port of Halifax,
Nova Scotia. The statement of claim alleges that
the vessel capsized at the Port of St. John's, New-
foundland on or about January 8, 1980 and that
the cargo was never delivered to the plaintiff in
Foynes, Ireland.
The defendants filed a third party notice against
the applicant on April 11, 1980 alleging that the
sinking of the Bill Crosbie was caused by appli
cant's breach of a salvage agreement with the
defendants that the vessel would remain afloat at
her berth when the salvage services were being
completed.
By an ex parte motion defendants applied for
and obtained on April 11, 1980 and order for
service ex juris upon the applicant. The applicant
alleges that the motion Judge erred in law in
granting the said ex parte motion on three
grounds, the first of which is as follows:
(a) that the affidavit in support thereof, plainly
not based on personal knowledge, fails to comply
with the express requirements of Rule 332(1).
The Rule reads as follows:
Rule 332. (1) Affidavits shall be confined to such facts as the
witness is able of his own knowledge to prove, except on
interlocutory motions on which statements as to his belief with
the grounds thereof may be admitted.
The affidavit being in support of an interlocuto
ry motion, it is not limited to personal knowledge
but may include statements believed by the affiant
to be true, but the latter must provide the grounds
for such belief.
The affidavit of defendants' attorney included
statements which admittedly were not to his
knowledge and for which the grounds for his belief
were not provided. Some of those statements were
material in establishing the basis of "a good
arguable case" (vide Antares Shipping Corpora
tion v. The "Capricorn" [1977] 2 S.C.R. 422 at
446).
At the opening of the hearing counsel for
defendants filed two notices of motion for leave to
amend his original affidavits so as to indicate to
the Court the source and information of the facts
contained in said affidavits.
Counsel, however, has not provided me with any
jurisprudence, and I am not aware of any, to the
effect that such an amendment is allowable to
amend an affidavit in support of an application for
an order, after the said order has been issued.
Rule 303 empowers the Court to order any
document to be amended at any stage of a pro
ceeding, for the purpose of determining the real
question in controversy or of correcting any defect
or error. But the raison d'être of the two con
troversial affidavits in support of the two ex parte
motions was precisely for the obtention of an order
for service ex juris and for no other purpose. They
ought not to be amended ex post facto.
Under the circumstances it is not necessary to
deal with the other grounds raised by the appli
cant. An order will go setting aside the two ex
parte orders, with costs, but the defendants will be
allowed to apply again for an order for service ex
j uris with a fresh affidavit stating fully the facts
that are to the knowledge of the affiant to prove
and the statements as to his belief with the
grounds thereof. Defendants' two motions to
amend will be denied, without costs.
It should also be pointed out that the two ex
parte orders did not fix a time within which the
third party is to file his defence, contrary to Rule
307(2) which reads:
Rule 307...
(2) An order under paragraph (1) shall fix a time, depending
on the place of service, within which the defendant is to file his
defence or obtain from the Court further time to do so.
Failure to comply with that Rule was held
recently to be fatal by my brother Cattanach J. in
All Transport Inc. v. The `Rumba", T-3585-75,
dated April 28, 1980.
ORDER
The ex parte orders of April 16, 1980 and of
May 26, 1980 are set aside with leave to defend
ants to re-apply with a fresh affidavit in accord
ance with Rule 332(1) for an order for service ex
juris.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.