Stays of Proceedings - Case Summaries
The database contains 25 case summaries relating to Stays of Proceedings. The summaries are sorted in reverse date order with 20 summaries per page. If there are more than 20 summaries, use the navigation links at the bottom of the page.
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Service Ex Juris - Stay of Proceedings
Continental Insurance Co. v. Almassa International Inc., 111 ACWS (3d) 470
This matter concerned a cargo policy taken out by a Quebec merchant from an Ontario based insurer insuring a cargo of lumber carried from Quebec to Saudi Arabia. During the course of the voyage the ship suffered engine damage and called at an intermediate port for repairs. As a result of the delay, the lumber cargo was damaged and a claim was made under the policy. The insurer initially made a payment on account but later denied coverage. The assured brought an action in Quebec against the insurer and the insurer brought an action in Ontario against the assured to recover the monies paid. The assured brought the present motion to stay the Ontario proceedings. The motion was granted. The motions Judge held that mere residency of the insurer in Ontario was insufficient to create a real and substantial connection with Ontario and that the appropriate forum was Quebec. The judgement was appealed. In a short endorsement the Ontario Court of Appeal affirmed the decision of the motions Judge.
Stay of Proceedings - Insurance - Jurisdiction - Marine - Insurance - Brokers
Royal & Sun Alliance v. The “Renegade III”, 2001 FCT 1050
This was an application for a stay of proceedings. The applicant was the owner of the Defendant yacht which had been damaged during the 2000 Victoria-Maui race. The applicant made a claim under his insurance policy for approximately $122,000 which was paid except for the sum of approximately $12,000. Subsequent to the payment the underwriters learned of circumstances which might void the policy and advised the applicant of this. On the same day the applicant commenced proceedings in the British Columbia Supreme Court for payment of the $12,000 he alleged was owing under the policy. Underwriters later did purport to void the policy for material non-disclosure and commenced in rem and in personam proceedings in the Federal Court claiming the return of the moneys paid. The applicant then brought this motion to stay the Federal Court proceedings. The application for a stay was denied. The Prothonotary noted that the Court would grant a stay only in the clearest of cases. The onus was on the applicant to prove (1) the continuation of the action would cause prejudice or injustice, not merely inconvenience or additional expense and (2) the stay would not be unjust to the Plaintiff. The Prothonotary held that although the British Columbia Supreme Court was a convenient forum it was not clearly the more appropriate forum. The Prothonotary noted that if underwriters were forced to bring their claim in the British Columbia Supreme Court they could not bring an in rem action by way of counterclaim and would have to start new proceedings and arrest the vessel for a second time. Further, the Prothonotary noted, without deciding, that there might be an issue as to whether the British Columbia Supreme Court had in rem jurisdiction. The Prothonotary concluded that there was no real prejudice or injustice to the applicant and that to allow the stay would deprive the underwriter of a legitimate juridical advantage. It is noteworthy that during the course of his reasons the Prothonotary considered whether a claim by the assured against his broker could be properly brought in the Federal Court. The Prothonotary seemed to suggest that Canadian maritime law had developed to the point where claims against brokers in a marine insurance context might be within the jurisdiction of the Federal Court.
Stay of Proceedings - Convenient Forum
Nissho Iwai Company Limited et al v. Shanghai Ocean Shipping Company, 2000 CanLII 15777
This was an application to stay proceedings on the grounds that Canada was not the convenient forum. The action arose out of the grounding of the "Ning Hai" in the Kurile Islands and the consequent loss of the Plaintiff’s cargo. The Plaintiff alleged that the Defendant, as provider of the officers and crew of the "Ning Hai", owed it a duty of care to provide competent and qualified officers and crew and that it breached this duty. The Defendant argued that the Peoples Republic of China was a more convenient forum for the dispute because the officers and crew were Chinese nationals and were trained in China, the Defendant was a Chinese corporation and the grounding occurred far away from Canada. The Plaintiff argued that Canada was a convenient forum because the cargo was loaded in Canada, the charterer was Canadian, and there were a number of witnesses in Canada who had the opportunity to observe the competence of the crew before it left on the fateful voyage. The Plaintiff further argued that there would be no discovery of documents or examinations for discovery in China. The Court held that the fundamental issue in the dispute was the competence of the crew and that most, if not all, of the evidence on this issue was in China. In result, the Court allowed the motion and stayed the proceedings.
Limitation Proceedings - Stay of Action
Canadian Pacific Railway Company v. The "Sheena M" et al.,  4 FC 159
This is another action arising out of the collision between the barge "Rivtow 101" in tow of the "Sheena M" and a railway bridge. As a result of the collision $5 million in damage was caused to the bridge. Two actions were commenced following the collision; one by the owners of the "Sheena M" for limitation (the "limitation action") and the other by the Plaintiff for the damages occasioned by the collision (the "liability action"). This was an application by the owners of the "Sheena M" to stay the liability action pending the outcome of the limitation action and an application by the Plaintiff to consolidate the two actions. The court refused consolidation on the grounds that the two actions were incompatible for consolidation. The court noted that there were different issues, a conflicting burden of proof, and different standards of conduct at issue in the two actions. The court further noted that the limitation action should border on a summary procedure whereas the liability action would be a complex piece of litigation.
The Plaintiff raised two preliminary objections to the jurisdiction of the court to hear the stay application. First, the Plaintiff argued that the court was functus by reason of res judicata. This argument was based on the fact that the court had earlier made an order under section 581 of the Canada Shipping Act enjoining the Plaintiff and anyone else from commencing or continuing proceedings against the "Sheena M" interests in any court other than the Federal Court. The court held that it was not functus because enjoining an action and staying an action are two different proceedings and the same question is not decided on the two motions. The second preliminary objection raised by the Plaintiff was that section 581 of the Canada Shipping Act prevailed over section 50 of the Federal Court Act and section 581 did not provide for a stay. The court noted that the wording of section 581 had changed over time and that earlier versions specifically referred to a stay of proceedings. However, the court found that the drafters of the present wording of section 581 had enjoinment in mind and not stay. The court concluded that there was no conflict or tension between section 581 of the Canada Shipping Act and section 50 of the Federal Court Act. They dealt with different concepts.
With respect to the merits of the stay application, the court considered whether the test for granting a stay was to be governed by the two part test of Mon-Oil v Canada, (1989) 27 F.T.R. 50 (i.e. that the continuation of the action would cause prejudice or injustice to the applicant and not mere inconvenience and that a stay would not be unjust to the other side) or the three part test of RJR MacDonald Inc. v Canada,  1 S.C.R. 311 (i.e. that there was a serious issue to be tried, that the applicant will suffer irreparable harm if the stay is not granted, and that the balance of convenience favours the stay). The court held that the two part test was the appropriate one where the court is asked to stay its own proceeding whereas the three part test is appropriate for stays of tribunals or stays pending appeal. Applying the two part test, the court held that it would be prejudicial to the applicants if the stay was not granted since the liability action would be lengthy and complex and would result in the shutting down of the applicant's operations. The court further held that it would be unjust if the limitation procedure under the 1976 Convention was not allowed to unfold as it should which would result in reduced litigation. The court further held that there was no prejudice to the Plaintiff in ordering the stay as the limitation proceeding might do away with the need for the liability action and the Plaintiff would have full discovery and full ability to do whatever investigations and hire whatever experts they required.
Stay of Proceedings - Jurisdiction Clause
Mitsui & Co. v. The "Evelyn", 1998 CanLII 5872 (BC SC)
This was an application to stay proceedings in British Columbia in favour of Japan. The action was for damage to a cargo of coils shipped from Japan to British Columbia. The Defendants relied upon a jurisdiction clause in the bills of lading selecting the Tokyo District Court as the appropriate forum. The motions judge followed well established case law to the effect that such clauses will be enforced unless the Plaintiff can show "strong cause" to override the agreement. The motions judge held that the Plaintiff had not shown "strong cause" for not enforcing the jurisdiction clause. The factors that the motions judge thought were persuasive were: that the contract was subject to Japanese law; that the shipper was a Japanese company; that the evidence of pre-shipment damage was in Japan; and that the Defendant had agreed to waive any time bar.
Stay of Proceedings
Humble v. The "Queen of Alberni", Reg. No.C940031, (B.C.S.C.)
This was an application by the Defendant for a stay of the Plaintiff's action on the grounds that there were similar actions pending in the Federal Court of Canada. The Defendant wanted all actions consolidated. The British Columbia Supreme Court refused the application on the basis that the Plaintiff's claim might be time barred in the Federal Court and the Federal Court actions concerned some matters which were not relevant to the Plaintiff.