Nissan Automobile Co. (Canada) Ltd. (Plaintiff)
v.
The owners of the vessel Continental Shipper and
United Steamship Corporation and Federal Com
merce and Navigation Company Limited, and
Federal Pacific Lakes Line (Defendants)
Trial Division (T-342-72), Urie J.—Ottawa,
March 27 and 28, 1974.
Practice—Application to reconsider judgment for interest
on damages awarded from date of institution of action—
Discretion of Court—Federal Court Rule 337(5)—Federal
Court Act, s. 40; Interest Act, s. 3.
There is a discretion in the Court to award interest wheth
er the rights being dealt with arise ex contractu or ex delicto.
Since the question at issue has never before been resolved
by a Canadian Court, the defendants, having denied liability
on what they considered to be reasonable grounds, should
not be penalized by being required to pay interest before the
date of the judgment.
N. M. Paterson & Sons Limited v. Canadian Vickers
Limited [1959] Ex.C.R. 289, followed.
APPLICATION in writing under Rule 324 to
reconsider judgment.
COUNSEL:
Vincent Prager for plaintiff.
Edouard Baudry for defendants.
SOLICITORS:
Stikeman, Elliott & Co., Montreal, for
plaintiff.
Brisset, Bishop & Co., Montreal, for
defendants.
URIE J.—The plaintiff applies under Rule
337(5) of the Rules of Court, by way of motion
in writing pursuant to Rule 324, to reconsider
the Judgment rendered herein on January 3,
1974 to condemn the defendants to pay interest
on the damages awarded it from the date of
institution of the action, namely January 15,
1971, to date of payment of the judgment on the
ground that interest had not been awarded in the
judgment, although claimed, and such failure to
award interest may have been through an over
sight or an accidental omission.
It seems clear on the authorities which I have
examined that there is a discretion in the Court
to award interest whether the rights being dealt
with arise ex contractu or ex delicto. The general
rule is that all judgments under which money is
paid in Admiralty matters carry interest from
the date of judgment or from such other date as
the judge or judgment directs. Section 40 of the
Federal Court Act provides that judgments bear
interest from the time of giving the judgment at
the rate prescribed by section 3 of the Interest
Act. It thus appears clear that it is unnecessary
to prescribe interest on the judgment awarded
subsequent to the date of judgment.
In this case, in the exercise of my discretion, I
did not feel that interest ought to be awarded
from the date of institution of the action nor
from the date upon which the expenditures
which were the subject-matter of the action
were made. The question at issue in the action, I
was advised, had never been resolved by a
Canadian Court and the defendants, therefore,
had denied liability on what they considered to
be reasonable grounds which ultimately, in light
of my decision, proved to be wrong. However,
in view of the prior lack of jurisprudence I did
not think that they should be penalized by
requiring them to pay interest on the judgment.
Therefore, it was not an oversight that interest
was not awarded from the date of institution of
the action or from any other date and, in my
view, the provisions of Rule 337(5) do not
apply.
There are additional reasons, in my view, for
not acceding to the plaintiff's request. Firstly, I
have observed that the defendants have
appealed the judgment and the failure to award
interest may, of course, properly be part of the
subject-matter of that appeal. Secondly, as was
observed by A. I. Smith D.J.A. in N. M. Pater-
son & Sons Limited v. Canadian Vickers Lim
ited [1959] Ex.Ç.R. 289 at page 291:
To grant the present motion and hold the defendant con
demned to the payment of interest calculated from the date
or dates upon which the repair bills were respectively paid
... would be to render a judgment substantially different
from that given on March 19, 1959 [in this case January 3,
1974]; something I am without jurisdiction to do.
For all of the above reasons, therefore, the
plaintiff's motion for reconsideration will be
dismissed.
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.