T-2182-86
Mondel Transport Inc. (Plaintiff)
v.
Afram Lines Ltd. (Defendant)
and
Afram Lines Ltd. (Cross-plaintiff)
v.
Mondel Transport Inc. and Her Majesty the
Queen in Right of Canada (Cross-defendants)
INDEXED AS: MONDEL TRANSPORT INC. v. AFRAM LINES LTD.
(T.D.)
Trial Division, Addy J.—Ottawa, September 26
and October 3, 1990.
Practice — Judgments and orders — Reversal or variation
— Motion for reconsideration of terms of judgment to include
interest — Although pleadings not claiming interest, parties
mutually agreed at trial to amend claims to add pre-judgment
and post-judgment interest at 11 %, and Court approving
Court having jurisdiction to entertain motion under Federal
Court Rules, R. 337(5)(b) and 337(6) — Failure to allow
interest due to accidental oversight — Motion allowed.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Rules, C.R.C., c. 663, R. 337(5),(6).
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Merco Nordstrom Valve Company and Peacock Brothers
Limited v. J. F. Comer, [1942] Ex.C.R. 156; [1942] 1
D.L.R. 316; (1942), 1 C.P.R. 177; 2 Fox. Pat. C. 8; N.M.
Paterson & Sons Ltd. v. Canadian Vickers Ltd., [1959]
Ex.C.R. 289; Verreault Navigation Inc. v. Cooperative de
Transport Maritime et aerien, [1969] 2 Ex.C.R. 257;
Hendricks v. R., [1970] Ex.C.R. 750; Polylok Corpora
tion v. Montreal Fast Print (1975) Ltd., [1984] 1 F.C.
713; (1983), 1 C.I.P.R. 113; 76 C.P.R. (2d) 151; 41
C.P.C. 294; 52 N.R. 218 (C.A.).
COUNSEL:
Andrew J. Ness for plaintiff/cross-defendant.
David G. Colford for defendant.
Daniele Dion for cross-defendant Her Majes
ty the Queen.
SOLICITORS:
Marler, Sproule & Pilotte, Montreal, for
plaintiff/cross-defendant.
Brisset Bishop Davidson, Montreal, for
defendant.
Deputy Attorney General for cross-defendant
Her Majesty the Queen.
The following are the reasons for order ren
dered in English by
ADDY J.: By notice of motion dated September
20, 1990, the plaintiff Mondel, which was success
ful in its claim against the defendant Afram,
applies under Rule 337(5) and (6) [Federal Court
Rules, C.R.C., c. 663] for a reconsideration of the
terms of my judgment pronounced in this matter
on September 14, 1990 [[1990] 3 F.C. 684].
The request is that pre-judgment and post-judg
ment interest be included in the judgment.
In the written pleadings there was no mention of
any claim for interest. In the conclusion of my
reasons for judgment which were issued simultane
ously with the formal judgment, I stated [at
page 700]:
Since no claim was made by Mondel for interest from the date
of the tort, interest on its claim shall run from the date of
judgment.
Although no written order nor freshly amended
statement of claim was issued, the latter was in
fact amended pursuant to an oral motion at trial
agreed upon by both parties. Strangely enough,
neither the plaintiff in its claim nor the defendant
in its counterclaim had included a claim for inter
est. As a result, during the hearing both of them
agreed that their claims would be amended by
adding the following:
Together with interest at the rate of eleven percent (11%) from
January 13th, 1986 to the date of Judgment. And then, at the
rate of eleven percent (11%) post Judgment until payment.
It is obvious from my reasons that I completely
omitted to consider this agreement between the
parties. Furthermore, it had been mutually agreed
that whoever was successful could claim interest at
the above-mentioned rate both before and after
judgment without the necessity of adducing evi
dence as to the rate of interest to be granted or as
to the date from which it was to be calculated. It is
evident, on examining the transcript of the pro
ceedings at trial, at pages 57 to 62 of volume I,
that the motions of both parties and the agreement
as to calculations of interest were granted and
accepted by the Court. The sole issue which I have
to decide on this present motion is whether I have
jurisdiction to entertain it. Counsel for the defend
ant Afram maintains that I lack such jurisdiction.
He relied upon the following cases: Merco Nord-
strom Valve Company and Peacock Brothers
Limited v. J. F. Comer, [1942] Ex.C.R. 156; N.M.
Paterson & Sons Ltd. v. Canadian Vickers Ltd.,
[1959] Ex.C.R. 289; Verreault Navigation Inc. v.
Cooperative de Transport Maritime et aerien,
[1969] 2 Ex.C.R. 257; Hendricks v. R., [1970]
Ex.C.R. 750; Polylok Corporation v. Montreal
Fast Print (1975) Ltd., [1984] 1 F.C. 713 (C.A.).
A careful reading of these cases has failed to
convince me that I cannot entertain the plaintiff's
motion. On the facts this case is quite easily
distinguishable from all of them.
Rule 337(5)(b) provides that the Court, as con
stituted at the time of pronouncement, may, after
pronouncement of judgment, entertain such a
motion where "some matter that should have been
dealt with has been overlooked or accidentally
omitted". Rule 337(6), in addition to providing for
the correction of clerical mistakes in judgments,
also provides that "errors arising therein from any
accidental slip or omission, may at any time be
corrected by the Court without an appeal". It is
abundantly clear that I failed to allow interest
because I overlooked and accidentally omitted to
consider not only the fact that a claim for interest
was included in the pleadings and therefore should
have been dealt with by the Court but, that there
existed a binding agreement between the parties
and approved by the Court that, if the plaintiff
were successful, interest at eleven percent (11%)
per annum would be awarded and that such inter
est would be calculated from January 13, 1986,
until payment of the sum adjudged to be payable.
My formal judgment will therefore be amended
accordingly. The plaintiff will be entitled to its
costs of this motion.
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.