Digests

Z.I. Pompey Industrie v. Canmar Fortune (The)

A-29-00

Isaac J.A.

25/1/01

9 pp.

Appeal from Motions Judge's dismissal of appeal ([1999] F.C.J. No. 2017) from Prothonotary's dismissal of motion for stay of proceedings ((1999), 179 F.T.R. 254)--Dispute arising under contract of carriage by sea of goods--Bill of lading, signed on behalf of appellant as carrier, to carry two crates of goods from Anvers, Belgium to Seattle, Washington, U.S.A. (port-to-port bill of lading)--Appellant carried goods from Anvers to Montréal by sea and from there shipped them by rail to Richmond, British Columbia where damage to cargo noted--Thereafter goods shipped to Seattle--Respondents allege unilateral change in mode of carriage amounted to fundamental breach of contract, entitling them to damages--Ground for motion seeking stay of proceedings that bill of lading requiring any dispute arising thereunder to be determined by courts in Antwerp--In dismissing appeal, Motions Judge concluded Prothonotary not erring in considering issue of breach of contract in assessment of facts of case, in exercise of discretion--Test for reviewing decisions by prothonotary whether exercise of discretion by prothonotary clearly wrong i.e. based decision on wrong principle of law or misapprehension of facts, or decision raising question vital to final issue of case--Test for reviewing exercise of judicial discretion whether judge at first instance gave sufficient weight to all relevant considerations: Reza v. Canada, [1994] 2 S.C.R. 394--Motions Judge considered extensive reasons of Prothonotary and, like him, found Eleftheria (The), [1969] 1 Lloyd's Rep. 237 (Adm.) not governing case--Proceeded to consider other matters Prothonotary had considered and concluded Prothonotary's decision should stand--Appeal dismissed--Anglo-American and Anglo-Canadian cases conclude dispute must be dealt with by courts of jurisdiction parties agreed to--Appellant submitting since The Eleftheria no Anglo-American or Anglo-Canadian case holding otherwise--But Jian Sheng Co. v. Great Tempo S.A., [1998] 3 F.C. 418 (C.A.) holding Prothonotary right to refuse stay where appellant not leading sufficient evidence to support existence of jurisdiction elsewhere than Canada--The Eleftheria decided in 1969--In 1975 American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.) setting out tripartite test to be applied on applications for interlocutory injunction--In Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, Beetz J. writing stay of proceedings and interlocutory injunction remedies of same nature, and courts tending to apply to granting of interlocutory stay principles followed with respect to interlocutory injunctions--Since 1975 decision in American Cyanamid, tripartite test employed in cases of applications for interlocutory injunctions proper test to apply in stay applications--Motions Judge took into account all relevant considerations--No reason to interfere with dismissal of appeal.