Digests

Narsimhalu v. Air Canada

T-2148-01

2003 FC 945, Martineau J.

1/8/03

12 pp.

Motion for reconsideration of Court order dismissing statement of claim herein for delay--Counsel for plaintiffs contending Court should reconsider impugned order on ground that it will result in great prejudice, injury due to unfortunate, unforeseen serious illness on his part--In meantime, on April 1, 2003, Farley J. of Ontario Superior Court of Justice granted initial order for protection of defendant, Air Canada, pursuant to Companies' Creditors Arrangement Act (CCAA), appointed Ernst & Young as monitor--Initial order provided for interim stay of proceedings against defendant Air Canada--Monitor filed initial order together with notice to suspend proceedings with Federal Court of Canada on May 13, 2003--Court issued direction directing registry to accept filing of notice to suspend proceedings and attachment thereto--Motion dismissed--Court needed to analyse two questions: whether reasons why case has not moved forward justify delay; nature of measures party proposes to take to move case forward--On evidence, illness did not prevent counsel from meeting deadline herein--Plaintiffs failed to establish that while making above order matter that should have been dealt with overlooked or accidentally omitted--As to effect of initial order, defendants submitting that neither initial order nor notice to suspend proceedings effective as against defendant Singapore Airlines Ltd.--Provisions of CCAA establishing clearly that Federal Court not bound by stay order made by court in any province in accordance with CCAA--Here, statement of claim dismissed before filing of notice to suspend proceedings--Granting present motion for reconsideration presented by plaintiffs who seek to take advantage of initial order goes directly against purpose behind initial order made with objective to allow structured environment in which Air Canada can attempt to organize and go forward with its business in possession of its assets--Supposing Court should have dealt with initial order of Farley J., which is not case, should have at least been brought to attention of Court by plaintiffs who had burden of justifying delay, providing plan to move case forward, which they failed to do at time of impugned decision--Moreover, plaintiffs have not provided any reasons why Court should be bound by initial order of Farley J.--Request for reconsideration dismissed--Impugned order final, and should be changed only in narrowest of circumstances--Companies' Creditors Arrangement Act, R.S.C., 1985, c. C-36.