2012 QCCA 1579, 2012 QCCA 1579

Ever Friendship Navigation Ltd. c. Global Logistics Group Ltd. 2012 QCCA 1579 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022933-121 ( 500-17-067532-112 ) MINUTES OF THE HEARING DATE: September 5, 2012 THE HONOURABLE CLÉMENT GASCON, J.A. PETITIONER ATTORNEY EVER FRIENDSHIP NAVIGATION LTD. Mtre Daniel Grodinsky BORDEN LADNER GERVAIS RESPONDENTS ATTORNEY GLOBAL LOGISTICS GROUP LTD. ALTOMAR MARITIME INC. AMERICAN GLOBAL LOGISTICS (CANADA) INC. JOHN PRAGELAS Mtre Matthew Hamerman DE MAN PILOTTE ATTORNEY

MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT RENDERED ON JULY 18, 2012 BY THE HONOURABLE STEVE J. REIMNITZ OF THE SUPERIOR COURT, DISTRICT OF MONTREAL Clerk: Robert Osadchuck Courtroom: RC.18 HEARING 16 h 30 Commencement of the hearing. Identification of counsel. 16 h 30 Submission by Mtre Grodinsky. 16 h 45 Submission by Mtre Hamerman. 16 h 53 Reply by Mtre Grodinsky. 16 h 58 By the Judge: judgment – see next page. Robert Osadchuck Clerk JUDGMENT [ 1 ] Ever Friendship Navigation Ltd. requests leave to appeal from an interlocutory judgment rendered on July 18, 2012 by Mr. Justice Steve J.

Reimnitz of the Superior Court for the District of Montreal. This judgment granted the Motion of Respondent Global Logistics Group Ltd. to be relieved from its default to appear. [ 2 ] Ever Friendship contends that this is a rare occurrence where leave to appeal a decision relieving a party from its default to

appear at an early stage of the proceedings should be granted. [ 3 ] With respect, I disagree. [ 4 ] While one may argue that a judgment relieving a party from a default to appear allows the doing of something, namely the filing of an appearance, which cannot be remedied by final judgment, the pursuit of justice strongly militates against the granting of leave under the circumstances. [ 5 ] As the judgment appealed from indicates, the initial Motion to Institute Proceedings concerns a demand pursuant to a charter party agreement whereby the Defendants 1) allegedly failed to pay the sum of US$420,521.21 for the hire of a vessel and 2) allegedly failed to redeliver the vessel at stipulated ports, for which Ever Friendship suffered additional damages of US$65,000. [ 6 ] The record shows that Global Logistics was served on September 2, 2011 in the following manner.

Service was made on a Mr. Pragelas, apparently the sole operating mind and a board member of Global Logistics, the whole following a Motion for Special Mode of Service. Reimnitz J. indicated in his judgment that despite a request for such, the judgment authorizing this special mode of service was never found. It is still not part of the court record. [ 7 ] Be that as it may, it appears that Mr. Pragelas eventually had knowledge of the Motion to Institute Proceedings, albeit he failed to so advise Global Logistics or its corporate secretary, Mr. Wolf. According to the latter, Mr.

Pragelas was not a duly authorised representative of Global Logistics. [ 8 ] Faced with this, the trial judge considered that there was ambiguity as to whether or not Ever Friendship was properly authorized to serve the proceedings upon Mr. Pragelas and as to whether or not he was indeed a duly authorized representative of Global Logistics.

In these circumstances, the trial judge indicated that it was preferable not to deny to a party the right to defend itself in a context where the other side would suffer no prejudice save for being deprived of the possibility of obtaining a judgment by default. [ 9 ] The trial judge opined that Global Logistics was not negligent to the point where it should not be relieved of its default to appear.

He considered that between allowing one party the right to defend itself and allowing the other to proceed by default, the former option should prevail. [ 10 ] Ever Friendship does not convince me that the interest of justice calls for any solution other than that retained by the trial judge. There is no valid reason for me to intervene in this exercise of his discretion. A relatively short time frame elapsed between the filing of the initial Motion to Institute Proceedings and the filing of the Motion to be Relieved from the Default to Appear by Global Logistics.

As a matter of fact, more time has now elapsed on the current battle on this request to be relieved from such default. This is unfortunate. The parties should rather devote their energy and efforts to the efficient progress of their file. FOR THESE REASONS, THE UNDERSIGNED: [ 11 ] DISMISSES the Motion for Leave to Appeal of Ever Friendship Navigation Ltd.; [ 12 ] WITH COSTS . CLÉMENT GASCON, J.A.