FRASER POINT HOLDINGS LTD. Plaintiff v. VISION MARINE TECHNOLOGIES INC., 2023 FC 738

Date: 20230525 Docket: T-1416-20 Citation: 2023 FC 738 Ottawa, Ontario, May 25, 2023 PRESENT: The Honourable Madam Justice Rochester BETWEEN:FRASER POINT HOLDINGS LTD.PlaintiffandVISION MARINE TECHNOLOGIES INC.Defendant ORDER AND REASONS I.

Overview [1] The Defendant brings the present motion to appeal Fraser Point Holdings Ltd v Vision Marine Technologies Inc, [Order], in which Associate Judge Alexandra Steele denied the Defendant’s motion to strike and concluded that the FederalCourt has jurisdiction to hear the Plaintiff’s claim for the cost of repairs to a vessel it purchased from the Defendant. [2] The central issue in the present appeal is what impact, if any, does the Supreme Court’s judgment in Desgagnés Transport Inc vWärtsilä Canada Inc, 2019 SCC 58 [Wärtsilä] have in terms of the jurisdiction of the Federal Court to hear a dispute concerning thepurchase of a vessel where the contract was entered into in Quebec.

The contract at issue, for the sale of a pleasure boat, does not containa governing law clause, nor does it contain a jurisdiction or forum selection clause. [3] In Wärtsilä, the central issue was whether a manufacturer and supplier of marine engines was entitled to rely on the limitation ofliability clause in its contract with the vessel owner, who had suffered loss and damage when the engine failed.

The question on appealwas whether Canadian maritime law or the Civil Code of Québec, CQLR c CCQ-1991 [Civil Code] governed the vessel owner’s claim.The Supreme Court held that notwithstanding that the sale of marine engine parts for use on a commercial vessel is governed byCanadian maritime law, the Civil Code

article pertaining to warranties in contracts of sale (article 1733) was also directed at the samefactual situation, thereby giving rise to a double aspect scenario (para 5). The fact that Canadian maritime law extended to the matter atissue, did not mean that the overlapping provincial rule could also not validly govern the sale (paras 80-81). The Supreme Courtultimately concluded that the

article on warranties of the Civil Code was operative and governed the dispute, prevailing over theCanadian non-statutory maritime law relied upon by the manufacturer (paras 103-106). [4] The Defendant, the moving party, submits that the Supreme Court’s decision in Wärtsilä results in the Civil Code taking precedenceover Canadian maritime law in cases such as the present. The effect, in the Defendant’s view, is that there is no longer an existing bodyof federal law which is essential to the disposition of the case.

Consequently, the second branch of the three-part test for jurisdiction setout by the Supreme Court in International Terminal Operators Ltd v Miida Electronics Inc, (SCC), [1986] 1 SCR 752[ITO] is not satisfied, with the result that the Federal Court does not have jurisdiction to hear the present claim. While the subject matterof the contract of sale, and of the resulting dispute, is a vessel, the matter, in the Defendant’s submission, is governed in its entirety bythe Civil Code.

Canadian maritime law cannot resolve the matter or dispose of the case because the Civil Code is a complete body oflaw. [5] The Defendant further submits that Associate Judge Steele erred in law when she determined that the test in ITO was satisfied and theCourt has jurisdiction. She further erred, in the Defendant’s view, by finding that it is not the Court’s role to determine what law actuallyapplies to the dispute on the motion to strike.

Rather, at this stage, she concluded that "“the Court must only decide whether it is plainand obvious that the Court is without jurisdiction to entertain the Plaintiff’s claim because the matter is not concerned with navigation orshipping.”" In so finding, the Defendant pleads that Associate Judge Steele committed an error of law. [6] The Plaintiff submits that jurisdiction was not an issue in Wärtsilä, rather the sole issue was the governing law.

The Plaintiff pleadsthat the Supreme Court did not reduce or detract anything from the Federal Court’s jurisdiction as understood prior to Wärtsilä, but ratherbroadened the applicable law to include matters, such as the sale of goods, which have, constitutionally, a double aspect. While theSupreme Court in Wärtsilä concluded that non-statutory Canadian maritime law did not take precedence over the provisions of the CivilCode, this does not deprive the Federal Court of jurisdiction with respect to a maritime matter.

The Plaintiff argues that the presentdispute is integrally connected to maritime matters, namely the sale and delivery of an unseaworthy vessel. The Plaintiff submits,therefore, that on the basis of the Tropwood AG et al v Sivaco Wire & Nail Co et al, (SCC), [1979] 2 SCR 157[Tropwood] the Federal Court has jurisdiction even if the governing law is not Canadian maritime law, but that of another jurisdiction –in this case Quebec. [7] The Plaintiff pleads that Associate Judge Steele did not err in concluding that this Court has jurisdiction to hear its claim.

The Plaintiffhighlights numerous authorities where the Federal Court had jurisdiction over disputes in connection with the sale of a vessel. ThePlaintiff submits that this case is integrally connected to maritime matters, raising such issues as the winterization of the vessel, itspreparation for transport, its seaworthiness, and the costs of repairs to the engine and the vessel. The Plaintiff underscores that theStatement of Claim invokes remedies available under Canadian maritime law along with certain articles of the Civil Code, and pleads

that the Associate Judge correctly determined that (

i) federal power over navigation and shipping, and the Court’s jurisdiction over matters coming under Canadian maritime law, are not ousted by the fact that valid provincial legislation may also govern the sale of a ship, and (ii) it is not plain and obvious that Canadian maritime law does not apply to all or part of the claim or that only the Civil Code should apply to the case. [ 8 ] This matter is a challenging one that speaks to the heart of the Federal Court’s jurisdiction should a matter arise in or have a connection with Quebec, following the decision by the Supreme Court in Wärtsilä .

Indeed, while the present dispute arose in the context of the sale of a vessel – the ramifications of this case for this Court’s jurisdiction in the context of maritime matters, and matters involving non-statutory federal law, go far beyond that. [ 9 ] I thank counsel for the Plaintiff and the Defendant, who are experienced members of the maritime bar, for their thoughtful and considered arguments on the issue of this Court’s jurisdiction. As noted by counsel during the hearing, this is the first case where the impact of Wärtsilä in this respect is being considered. II.

Background [ 10 ] The Defendant is a company located in Boisbriand, Quebec, that manufactures and sells pleasure boats. The Plaintiff is a British Columbia holding company that acts as a trustee for the Potter family, located in West Vancouver. On November 23, 2017, the Plaintiff purchased a demonstrator (demo) twenty-two foot 2016 Bruce model boat, together with a demo trailer for $55,000 plus taxes.

The sale was on a cost, insurance, and freight basis for delivery in Mill Bay, British Columbia, meaning the costs of delivering the vessel to the destination, including the insurance costs, were for the Defendant’s account. As noted above, the contract does not contain a governing law clause, nor does it contain a jurisdiction or forum selection clause. [ 11 ] The vessel was inspected at the Defendant’s premises by a representative of the Plaintiff.

The Plaintiff alleges that at the time of the sale, given the winter conditions in Western Quebec, the Defendant’s representatives confirmed to the Plaintiff that all the necessary winterizing and preparation for variations in temperature during the transport of the vessel had been performed.

The Plaintiff relies, among other things, upon a clause in the contract that provides for the vessel and trailer to be secured, readied, protected and covered, at the Defendant’s cost, for on deck truck transportation. [ 12 ] In December 2017, the vessel and the trailer were transported by truck from Quebec to British Columbia. Receipt in Mill Bay was acknowledged on January 5, 2018.

The Plaintiff alleges that the vessel remained covered and was immediately placed into storage for the remainder of the winter. [ 13 ] The Plaintiff alleges that once the vessel was brought out of storage, in July 2018, the engine would not function having been irremediably damaged by the presence of fluids within the tubing and engine structure at freezing temperatures, as a result of the Defendant’s failure to drain the engine. The Plaintiff further alleges that there were substantial cracks in the deck, finish, fibreglass, and wood inlay, resulting from inadequate preparation of the vessel for transport.

The Plaintiff submits that these defects affected the seaworthiness of the vessel. [ 14 ] Initially, the Plaintiff sought to have the sale cancelled and obtain a refund. The Defendant refused, and thus the Plaintiff proceeded to have the engine replaced and the vessel repaired at a cost of approximately $110,000. [ 15 ] On November 20, 2020, the Plaintiff instituted proceedings in this Court seeking compensation for the cost of the repairs.

In its Statement of Claim, the Plaintiff invokes all rights and remedies under Canadian maritime law together with those available under articles 1726 and 1729 of the Civil Code . [ 16 ] The Defendant then sought to have the Statement of Claim stuck without leave to amend pursuant to Rule 221 of the Federal Courts Rules , SOR/98-106 [ Rules ] for want of jurisdiction. The Defendant, relying on Wärtsilä , submitted that the Statement of Claim clearly relates to a matter of property and civil rights which is exclusively within provincial jurisdiction.

The Defendant highlighted that in the past, this Court has determined that the law governing the sale of a pleasure boat is not intrinsically related to maritime law and is therefore a matter of provincial legislative competence. [ 17 ] The Plaintiff opposed the motion to strike, pleading that the sale of a ship is clearly a matter covered by Canadian maritime law and/or integrally connected to shipping and navigation such that this Court has jurisdiction.

The Plaintiff argued that Wärtsilä does not oust or constrain this Court’s jurisdiction over maritime matters - in fact, Wärtsilä was not concerned with the issue of jurisdiction, rather with determining the applicable or operative law, which is a question for the merits, especially since the contract at issue in this case does not specifically identify the applicable law(s). [ 18 ] Associate Judge Steele considered the requirements of this Court’s jurisdiction as set out in ITO, along with the Federal Courts Act , RSC 1985, c F-7 [ Federal Courts Act ], pursuant to which this Court has broad and concurrent jurisdiction in all cases in which a claim for relief is made or a remedy is sought under Canadian maritime law or any other law of Canada coming within the class of subject of navigation and shipping (ss 22(1) of the Federal Courts Act ).

The test as set out by the Supreme Court in ITO at page 766 is: 1. There must be a statutory grant of jurisdiction by the federal Parliament. 2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction. 3. The law on which the case is based must be "a law of Canada" as the phrase is used in s. 101 of the Constitution Act, 1867 . [ 19 ] Associate Judge Steele noted that in Wärtsilä , the Supreme Court found that the sale of a vessel, as well as the sale of equipment

required to operate the vessel, is integrally connected to shipping and navigation such that Canadian maritime law may validly extend and apply to such sales (Order at para 30; Wärtsilä at paras 74-77 ). [ 20 ] In response to the Defendant’s argument that the claim does not pertain to " “title, possession or ownership of a ship or any

part interest therein or with respect to the proceeds of sale of a ship or any

part interest therein” " pursuant to paragraph 22(2) (

a) of the Federal Courts Act , thus the Court has no jurisdiction, Associate Judge Steele found that neither subsection 22(1) nor

section 22 are as limitative or narrow as the Defendant suggested. The Associate Judge decided that " “it would be illogical for the Federal Court to have jurisdiction over matters of breach of contract, warranties and damages relating to a ship’s equipment, but not to those same matters as they relate to the sale of the ship itself.” " (Order at para 33). [ 21 ] Associate Judge Steele concluded that the three-part test in ITO was satisfied, namely: (1) there is a statutory grant of jurisdiction to the Court through the Federal Courts Act ; (2) there is an existing body of federal law, Canadian maritime law, that is entirely able to resolve matters such as those at issue in this case; and

(3) Canadian maritime law and the Federal Courts Act are undoubtedly laws of Canada (at paras 36, 41).

The Associate Judge further concluded, relying on Wärtsilä , that if this Court " “can apply foreign law when exercising its maritime jurisdiction, then surely the Federal Court can apply provincial law under the [ Civil Code ] in the exercise of such maritime jurisdiction” " (Order at para 38). [ 22 ] The Associate Judge ultimately concluded that the Defendant had failed to discharge its burden of demonstrating that it is plain and obvious on the face of the pleading that this Court has no jurisdiction (Order at paras 42-44). III.

Standard of Review [ 23 ] Decisions made on motions to strike are discretionary in nature ( Feeney v Canada , 2022 FCA 190 at para 4 ) [ Feeney ]). The applicable standard of review for an appeal under Rule 51 of a discretionary order of an Associate Judge is set out in Hospira Healthcare Corporation v Kennedy Institute of Rheumatology , 2016 FCA 215 [ Hospira ] at paragraphs 64 , 66 and 79.

Such orders are to be reviewed on the civil appellate standard ( Housen v Nikolaisen , 2002 SCC 33 [ Housen ]) and " “should only be interfered with when such decisions are incorrect in law or are based on a palpable and overriding error in regard to the facts” " ( Hospira at para 64 ).

Questions of mixed fact and law are subject to the palpable and overriding error standard while questions of law, and mixed questions where there is an extricable question of law, are subject to the standard of correctness ( Worldspan Marine Inc v Sargeant III , 2021 FCA 130 at para 48 ). [ 24 ] An exercise of discretion by an Associate Judge involves applying legal standards to the facts as found. For the purposes of the Housen framework, exercises of discretion are questions of mixed fact and law ( Mahjoub v Canada (Citizenship and Immigration) , 2017 FCA 157 at para 72 [ Mahjoub ]).

Such questions of mixed fact and law, including exercises of discretion, can be set aside only on the basis of palpable and overriding error unless an error on an extricable question of law or legal principle is present ( Mahjoub at para 74 ). The Federal Court of Appeal explains the notion of an extricable question of law by way of the following example in Mahjoub : [74] … So, for example, if an appellate court can discern some error in law or principle underlying the first-instance court’s exercise of discretion, it can reverse the exercise of discretion on account of that error.

Another way of putting this is whether the discretion was “infected or tainted” by some misunderstanding of the law or legal principle: Housen at para. 35 . [ 25 ] The palpable and overriding error standard is a highly deferential one ( Feeney at para 4 ). " “Palpable” " means an error that is obvious, while " “overriding” " means an error that goes to the very core of the outcome of the case ( Canada v South Yukon Forest Corporation , 2012 FCA 165 at para 46 [ South Yukon ]).

When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing, rather the entire tree must fall ( South Yukon at para 46 ; Mahjoub at para 61 ). [ 26 ] The Defendant submits that the standard of correctness applies because Associate Judge Steele erred in law when she determined that (

i) the three-part test in ITO was satisfied in the present case, and (ii) she did not need to determine, at this stage and based on the record before her, the applicable law of the contract.

The Defendant further submits that the Associate Judge committed an error of mixed fact and law where there is an extricable question of law, to which the standard of correctness applies, when she found that it was not plain and obvious that Canadian maritime law does not apply to all or a part of the Plaintiff’s claim. [ 27 ] In the present case, there is no doubt – and this is not disputed by the parties – that Associate Judge Steele applied the correct legal test, namely the ITO test, when asking herself whether it is plain and obvious that this Court has no jurisdiction to hear the Plaintiff’s claim (Order at para 23).

In my view, the Defendant’s submissions are in effect aimed at Associate Judge Steele’s application of the ITO test to the facts in the present case. In this regard, I find the comments of Justice Cecily Y.

Strickland in Del Ridge Homes Inc v Ledgemark Homes Inc , 2022 FC 566 to be instructive: [27] Legal questions are questions about what the correct legal test is; factual questions are questions about what actually took place between the parties; and, mixed questions are questions about whether the facts satisfy the legal tests, or, put otherwise, whether they involve applying a legal standard to a set of facts ( Teal Cedar Products Ltd. v. British Columbia , 2017 SCC 32 [ Teal Cedar ] at para 43 ). The application of a legal test to a set of facts is a mixed question.

However, if in the course of that application the underlying legal test may have been altered – for example by failing to consider a required element of the test – then a legal question arises. This is an extricable question of law ( Teal Cedar at para 44 ).

However, " [c]ourts must be vigilant in distinguishing between a party alleging that a legal test may have been altered in the course of its application (an extricable question of law; Sattva , at para. 53), and a party alleging that a legal test, which was unaltered, should have, when applied, resulted in a different outcome (a mixed question)" ( Teal Cedar at para 45 ). [ 28 ] Having considered the Defendant’s submissions, I do not find that the standard of correctness applies to the present appeal.

That being said, even if I had found that the standard of correctness applies to one or more of the alleged errors, my decision would have ultimately been the same.

IV. Analysis [29] The test with respect to striking out pleadings under Rule 221(1)(

a) is whether it is "“plain and obvious”" that the claim discloses noreasonable cause of action (R v Imperial Tobacco Ltd, 2011 SCC 42, at paragraph 17 [Imperial]).

As per the Supreme Court in Imperial,and as recently restated by the Federal Court of Appeal in Feeney, motions to strike must be used with care, however, they are a valuabletool when utilized to unclutter the docket by weeding out hopeless claims while nevertheless ensuring that those claims that have somechance of success go on to trial (Imperial at para 9; Feeney at para 8). [30] Where an alleged lack of jurisdiction is the basis for a motion to strike, the plain and obvious test remains the correct test to usewhen determining whether the claim should be struck (Hodgson v Ermineskin Indian Band No 942, (2000) (FC),180 FTR 285, aff’d [2000], 267 NR 143 (FCA); Windsor City v Canadian Transit Co, 2016 SCC 54 at para 24 [Windsor City]; ApotexInc. v Ambrose, 2017 FC 487 at para 39 [Ambrose]; Black & White Merchandising Co Ltd v Deltrans International ShippingCorporation, 2019 FC 379 at paras 32-33 [Deltrans]). [31] Where the question is one of jurisdiction, the parties may adduce evidence to support the alleged lack of jurisdiction (Deltrans atpara 33).

In the present matter, the Defendant filed the affidavit of the Defendant’s Director of Operations, Patrick Bobby, to which thecontract between the parties was appended. As such, Associate Judge Steele had the alleged facts contained in the Statement of Claim,the affidavit of Mr.

Bobby, and the contract of sale, before her when rendering her decision. [32] With respect to the test on a motion to strike for want of jurisdiction, I find that Associate Judge Steele correctly identified theapplicable test and jurisprudence. [33] With respect to the test for determining whether the Federal Court has jurisdiction, Associate Judge Steele correctly identified thethree-part ITO test, quoted in

Section II of this Order and Reasons above. Associate Judge Steele also correctly identified that the firststep in the jurisdictional analysis is to determine the essential nature or character of the claim (Windsor City at para 25-26; Deltrans atpara 38).

When determining the essential character of the claim, this Court has interpreted this exercise to mean simply identifying thematerial facts needed to assess whether the claim falls within the statutory grant of jurisdiction identified in the first step of the ITO test(Ambrose at para 48; Deltrans at para 38). [34] I find that Associate Judge Steele considered each of the required elements of the three-part ITO test, along with the initial step ofdetermining the essential character of the claim, and applied the test to the facts before her.

There is no extricable question of law, as theAssociate Judge did not alter the ITO test or fail to consider any of its parts. The issue to be resolved in this appeal then is whether herconclusion that it is not plain and obvious that this Court has no jurisdiction to hear the Plaintiff’s claim is legally defensible on astandard of "“palpable and overriding error”". In my view, it is. [35] Given that the application of Canadian maritime law, and the resulting impact on this Court’s jurisdiction, are at issue, it is helpfulto define it.

Associate Judge Steele spent several paragraphs defining Canadian maritime law, referencing

section 2 of the Federal CourtsAct and Wärtsilä (Order at paras 25-26). I recently provided a detailed explanation on the question of what is Canadian maritime law inDuval v Seapace (Ship), 2022 FC 575 [Duval]: [34] The Supreme Court in Wärtsilä reaffirmed that “Parliament’s authority over navigation and shipping, and consequentlythe scope of Canadian maritime law, is broad” (para 5).

The majority confirmed that Canadian maritime law is acomprehensive body of federal law, uniform throughout Canada, that deals with all claims in respect of maritime andadmiralty matters, subject only to the scope of federal power over navigation and shipping under subsection 91(10) of theConstitution Act, 1867 (para 9), while also acknowledging that a valid provincial enactment will be permitted to haveincidental effects on a federal head of power such as navigation and shipping, unless either interjurisdictional immunity orfederal paramountcy is found to apply (paras 87-88). [35] […] it is helpful to briefly expand on the definition of Canadian maritime law in the preceding paragraph.

Canadianmaritime law is a broad and comprehensive body of federal law. As noted by the Supreme Court, Canadian maritime law isthe progeny of English maritime law as administered by the High Court of Admiralty in England until 1874 and then theHigh Court of Justice thereafter (Wärtsilä at para 11).

Although reference tends to be made to the Admiralty Courts andadmiralty jurisdiction, contemporary Canadian maritime law (and the term maritime law in general) is significantly broaderin scope than the areas traditionally addressed by admiralty law (Chircop A. et al., Canadian Maritime Law, 2nd Ed (2016)Irwin, at 1 [Canadian Maritime Law]). [36] While Canadian maritime law is rooted in English maritime law, to simply equate it to common law would not beaccurate (Wärtsilä at para 12).

English maritime law developed in an English context since the 14th century, however, “thelaw was heavily civilian in nature, despite strong influences from the common law” (Canadian Maritime Law at 168). Thelaw that was administered by the High Court of Admiralty was distinct from the general common law of England, and civillaw sources and comparative law played a significant role in the development of maritime law (QNS Paper Co v. Chartwell, (SCC), [1989] 2 SCR 683 [Chartwell] at 715, per Justice L’Heureux-Dubé in concurring reasons).

Indeed,until 1858, pleading before the Admiralty Court in England was restricted to doctors of civil law (Canadian Maritime Law at168). [37] The body of law that is Canadian maritime law is derived from a long international tradition that draws in large partfrom both the common law and the civil law (Chartwell at 691-692, per Justice McLachlin in concurring reasons; See alsoWärtsilä at para 19; Ordon Estate v. Grail, (SCC), [1998] 3 SCR 437 [Ordon Estate] at para 71).

It is alsointernational in nature and ought to be interpreted within the modern context of commerce and shipping (Chartwell at 691-692, per Justice McLachlin in concurring reasons). The importance of uniformity between jurisdictions in maritime mattershas long been recognized (Ordon Estate at paras 71 and 79; Wärtsilä at paras 55-56).

[38] Ultimately, there is no simple answer to the question of what is Canadian maritime law.

The sources of Canadian maritime law have been summarized in Canadian Maritime Law at p. 173, and include: • Federal statutes, including the Federal Courts Act , the Admiralty Act 1890, and the Admiralty Act 1934, and any other maritime law statute enacted by the Parliament of Canada, such as the Canada Shipping Act 2001 and the Marine Liability Act 2001; • Caselaw, namely, jurisprudence of English courts until 1934, the jurisprudence of Canadian courts before 1934 and since then, both federal and provincial; • Principles of civil law and the common law as may be determined as applicable through a comparative methodology in a maritime law setting by the courts; • International maritime law conventions. [39] In Ordon Estate and Wärtsilä , the Supreme Court highlighted that Canadian maritime law has sources that are both statutory and non-statutory, national and international, common law and civilian, and such sources include but are not limited to the specialized rules and principles of admiralty, and the rules and principles applied in admiralty cases, first as administered in England, and since then as amended by the Canadian Parliament and developed by judicial precedent to date ( Wärtsilä at para 21 ; Ordon Estate at para 75 ). [ 36 ] I turn now to the Supreme Court’s decision in Wärtsilä .

This decision forms the basis for much of the Defendant’s submissions, and as such it is worthwhile discussing the judgment in detail. The landscape of constitutional analysis in terms of Canadian maritime law (and non-statutory federal law) has shifted somewhat following Wärtsilä ( Duval at para 33 ). The Plaintiff submits that the approach in terms of applicable law has changed in that there is no longer only one applicable law, rather both federal and provincial laws may apply – being the double aspect.

In a maritime matter where both apply and regardless of which one prevails, in the Plaintiff’s view, this Court’s jurisdiction remains unaffected. The Defendant submits that it is this double aspect and the finding that the Civil Code prevailed which results in this Court no longer having jurisdiction to hear the matter. [ 37 ] As noted above, in Wärtsilä , the central issue was whether a manufacturer and supplier of marine engines was entitled to rely on the limitation of liability clause in its contract with the vessel owner, who had suffered loss and damage when the engine failed.

The question on appeal was whether Canadian maritime law or the Civil Code governed the vessel owner’s claim. The choice of law clause in the contract provided for the " “laws in force at the registered office of the Supplier” " , which the trial judge interpreted as the manufacturer’s place of business in Montréal, Quebec (at para 6). [ 38 ] The Supreme Court held that notwithstanding that the sale of marine engine parts for use on a commercial vessel is governed by Canadian maritime law, the Civil Code

article pertaining to warranties in contracts of sale was also directed at the same factual situation, thereby giving rise to a double aspect scenario (para 5). The fact that Canadian maritime law extended to the matter at issue, did not mean that the overlapping provincial rule could also not validly govern the sale (paras 80-81). [ 39 ] The majority highlighted that " “a valid provincial enactment will be allowed to have incidental effects on a federal head of power – in this case navigation and shipping – unless either interjurisdictional immunity or federal paramountcy is found to apply” " (para 87).

The majority found that the contractual issue raised in the case was not at the core of navigation and shipping, with the result that the doctrine of interjurisdictional immunity was not applied so as to render the relevant

article of the Civil Code inapplicable to the matter (paras 5, 94, 97). In considering the issue of interjurisdictional immunity, the majority provided the example of issues of maritime negligence as being at the core of federal power because it is essential to establish a consistent, uniform body of specialized rules to regulate the behaviour of those who engage in marine activities (para 96). [ 40 ] The majority distinguished the contractual issues raised by the shipowner from issues of maritime negligence.

The majority noted that sophisticated parties to a sale contract for marine equipment could have determined in advance that the " “federal body of rules tailored for the practical realities of commercial actors in the maritime sector” " (i.e., Canadian maritime law) applied to their contract (para 97). Similarly, " “had the parties referred explicitly to the CCQ in the clause dealing with the choice of law, there would be no question that it would govern the dispute and therefore no division of powers analysis to undertake” " (at para 97).

The majority explained its reasoning as follows: [97] … As Laskin C.J. wrote in Tropwood , it is indeed possible that, in the exercise of its concurrent jurisdiction over maritime matters, the Federal Court might apply foreign law as elected by contract (pp. 166-67).

In our view, this is a clear indication that, contrary to what was necessary for maritime negligence, it is not essential for the exercise of federal competence over navigation and shipping that only one body of law — Canadian maritime law — regulate such contracts. [ 41 ] Having found that interjurisdictional immunity did not apply, the majority considered the issue of federal paramountcy.

The majority found that " “it would run contrary to the purpose of the federal paramountcy doctrine to declare that the non-statutory rules of Canadian maritime law can prevail over valid provincial legislation.” " (at para 103). The majority declined the manufacturer’s invitation to render the provision of the Civil Code inoperative based on a conflict with the rule expressed in the Sale of Goods Act , 1893 (UK), 56 & 57 Vict, c 71, that allows for the limitation of the seller’s liability, and which had been subsequently applied by Canadian and English admiralty courts (para 103).

The majority further rejected the manufacturer’s argument that

section 2 of the Federal Courts Act , describing the substantive content of Canadian maritime law, much of which is non-statutory, had the effect of rendering Canadian maritime law as a whole paramount to provincial legislation (para 104). The majority concluded that the provision of the Civil Code was operative and governed the dispute between the parties as they found that it prevailed over Canadian non-statutory maritime law, in line with the principle of the primacy of a legislative enactment (at para 106). [ 42 ] In

summary, the majority found that both Canadian maritime law and the Civil Code validly governed the dispute, but ultimately the Civil Code applied with respect to the contractual warranty since Canadian non-statutory maritime law did not prevail over a legislative enactment. The majority reinforced that the federal power over navigation and shipping, and consequently the scope of Canadian

maritime law, is broad. The majority’s reasoning is summarized in the following introductory paragraph of the decision: [5] Parliament’s authority over navigation and shipping, and consequently the scope of Canadian maritime law, is broad. Aswe see it, the sale of marine engine parts intended for use on a commercial vessel is sufficiently connected to navigation andshipping so as to be validly governed by Canadian maritime law.

However, there is also no doubt that art. 1733 C.C.Q. —pertaining to warranties in contracts of sale — is a validly enacted provincial law that, in pith and substance, concerns amatter of property and civil rights pursuant to s. 92(13) of the Constitution Act, 1867. In this case, the sale of marine engineparts thus gives rise to a double aspect scenario: a non-statutory body of federal law and a provincial law both validlydirected at the same fact situation overlap. However, art. 1733 C.C.Q. remains applicable and operative.

Neitherinterjurisdictional immunity nor federal paramountcy ousts the application of art. 1733 C.C.Q.: interjurisdictional immunityis inapplicable because contractual issues surrounding the sale of marine engine parts are not at the core of navigation andshipping, and federal paramountcy cannot be triggered by Canadian non-statutory maritime law.

Left with two applicablebodies of law, art. 1733 C.C.Q. is ultimately the law governing this dispute; since it is a legislative enactment, Canadiannon-statutory maritime law does not prevail over it. [43] What is clear from the Supreme Court’s judgment is that the matter was sufficiently connected to navigation and shipping to bevalidly governed by Canadian maritime law.

The majority in Wärtsilä emphasized the comprehensive nature of Canadian maritime lawas espoused in ITO, QNS Paper Co v Chartwell Shipping Ltd, (SCC), [1989] 2 SCR 683, and Bow Valley Husky(Bermuda) Ltd v Saint John Shipbuilding Ltd, (SCC), [1997] 3 SCR 1210, such that it is a "“seamless web of law thatexists in parallel to the common law and that is capable of resolving any dispute falling within the scope of its application [and]…[i]nthis way, there are no ‘gaps’ in Canadian maritime law…”" (Wärtsilä at para 17). [44] What differs between Wärtsilä and the three Supreme Court cases cited above is that at the time the older cases were rendered,notably ITO, there was the view that once the subject matter under consideration is found to be integrally connected to maritime mattersso as to fall within the scope of Canadian maritime law, this operates so as to exclude the application of provincial law.

Later, in BritishColumbia (Attorney General) v Lafarge Canada Inc, 2007 SCC 23 [Lafarge], the Supreme Court noted that the realities of an activeshipping industry, combined with commercial and residential development along the waterfront in Vancouver "“pose[s] a challenge tothe venerable ‘watertight compartments’ division of federal legislative jurisdiction over navigation and shipping, on the one hand, andprovincial jurisdiction over property and civil rights on the other.”" (Lafarge at para 1]. [45] By the time of Wärtsilä, the compartmentalized view and the notion of "“watertight compartments”" had become a relic of the past.The Supreme Court was clear that, when applying constitutional doctrines, it "“has preferred a flexible approach that in many instancesallows both orders of government room to act instead of creating ‘watertight compartments’”" (Wärtsilä at para 86).

The Supreme Courtspecified that "“the federal power over navigation and shipping is not ‘watertight’ and remains subject to this flexible understanding ofthe division of powers”" (Wärtsilä at para 87). The Supreme Court further highlighted how more recent cases have "“displaced priorjurisprudence on the interaction between the rules of Canadian maritime law and provincial statutes” "(Wärtsilä at para 88). [46] What does that mean for the present case?

The Supreme Court in Wärtsilä concluded that a contractual dispute over the sale ofmarine engine parts for a vessel is integrally connected to navigation and shipping even though they ultimately concluded that the CivilCode governed the dispute (at para 30).

Had Wärtsilä been decided at the time of ITO, prior to the movement away from acompartmentalized approach in favour of a flexible approach, one would have expected Canadian maritime law to govern therelationship between the parties given the Supreme Court’s finding that the matter was integrally connected to navigation and shipping.Similarly, had the present case been instituted at the time of ITO, one would equally have expected that the application of provincial lawwould not have been at issue. [47] The debate over this Court’s jurisdiction now arises because of the double aspect scenario in the present case, namely twoapplicable bodies of law - non-statutory Canadian maritime law and the Civil Code.

As found by Associate Judge Steele on the basis ofWärtsilä and the jurisprudence cited therein, and I see no reason to disturb this finding, a dispute arising from a sale of a ship is integrallyconnected to shipping and navigation such that Canadian maritime law may validly apply (Order at para 30; Wärtsilä at paras 74, 75,77). Given the ruling in Wärtsilä, where non-statutory Canadian maritime law is applicable, it may not prevail over any applicableprovisions of the Civil Code.

In the Defendant’s view, there is no "“existing body of federal law which is essential to the disposition ofthe case and which nourishes the statutory grant of jurisdiction”", thereby running afoul of the second limb of the ITO test. This issuewould arguably not arise had this case come before the Court immediately following ITO in 1986. [48] If one considers the ruling in Wärtsilä and the language of the second limb of the ITO test, namely that Canadian maritime law "“isessential to the disposition of the case”", one can fully appreciate why the Defendant has advanced their argument.

While at first blushthere does appear to be some merit in the Defendant’s position, it is bound to fail. It simply cannot be that the combined effect of theruling in Wärtsilä and the language used in the ITO test, decades ago at a time of "“watertight compartments”", is the following: todeprive this Court and the Federal Court of Appeal of jurisdiction in maritime matters where (

i) there are two bodies of applicable law,non-statutory Canadian maritime law and statutory provincial law, and (ii) the non-statutory Canadian maritime law does not prevail overthe statutory provincial law. [49] The Supreme Court recognized a broad understanding of the federal power over navigation and shipping and of Canadian maritimelaw, alongside a modern conception of federalism and overlapping heads of power (Wärtsilä at paras 5, 43, 81-82).

The Federal Court isthe successor of the Exchequer Court, to whom the Admiralty Act 1891, SC 1891, c 29 conferred the jurisdiction exercised by theEnglish High Court of Admiralty in admiralty and maritime matters. This jurisdiction has continued to expand over time with successivelegislation culminating in the Federal Courts Act, which the Supreme Court described as including "“an unlimited jurisdiction in relationto maritime and admiralty matters”" (ITO at 774).

Had the Supreme Court in Wärtsilä intended to deprive the Federal Courts ofjurisdiction in admiralty and maritime matters, then clear and express language would have been required. I find no such language in themajority’s reasons. [50] Moreover, the position advanced by the Defendant would have a significant impact where a maritime matter has a connection withQuebec, given the fact that the province’s private law is codified. The Plaintiff submits that the logical conclusion of the Defendant’s

position is that once a maritime matter involving a contractual dispute has a connection to Quebec, the Federal Court will not havejurisdiction.

The Plaintiff raises the example of carriage of goods by sea where the federal legislation, the Marine Liability Act, SC 2001,c 6, is only applicable to certain types of documentation and only covers the cargo for a defined portion of the voyage (tackle-to-tackle).As the commercial practice is frequently port-to-port shipments or beyond, and not all contracts for the carriage of goods by sea attractthe application of the federal legislation, this could result in the Federal Court being deprived of jurisdiction with respect toquintessentially maritime matters.

Furthermore, as noted by the Plaintiff, the Civil Code contains provisions that address the carriage ofgoods by sea, notably, articles 2059 – 2084, entitled Special Rules Governing the Carriage of Property by Water.

These Civil Codearticles, however, have traditionally not been relied upon and the courts of Quebec have instead applied Canadian maritime law -statutory and non-statutory (see for example Traversier Le Passeur inc c Royale du Canada (La), compagnie d'assurances, (QC CA) at para 8; Allianz Global Risks US Insurance Company c Moosonee Transportation Ltd, 2009 QCCQ 7569). [51] The same is true for articles 2001 to 2029 of the Civil Code, entitled Affreightment, governing the leasing of all or a part of a vessel,for which there is no corresponding federal legislation.

The law of charterparties and affreightment, meaning the chartering (leasing) ofvessels, forms part of the body of non-statutory Canadian maritime law. There is equally no federal legislation governing contractsbetween private parties for the sale, construction, repair, equipping, supplying, or victualling of a vessel. It cannot be, in my view, thatthe Federal Court, Canada’s national admiralty court, would have no jurisdiction to hear such disputes where there is a connection withthe province of Quebec.

This is especially the case where the Federal Courts Act specifically grants jurisdiction to hear such claims (s22). [52] The Plaintiff submits that Wärtsilä did not alter this Court’s jurisdiction but rather broadened the applicable law to include mattersthat, constitutionally, have a double aspect. During the hearing, the Plaintiff referred to a level of uncertainty and confusion that followedthe decision in Wärtsilä, and noted the articles and commentary cited in Duval at paragraph 49.

The parties, along with the legalcommunity who advise their clients, require a measure of clarity and, to the extent possible, certainty. [53] To the extent that I may provide such clarity, where there is a double aspect scenario and provided that Canadian maritime law isone of the applicable bodies of law, then the Federal Court retains jurisdiction to hear the matter. This remains the case even whereprovincial legislation ultimately prevails over non-statutory Canadian maritime law.

The fact that the Plaintiff may now be entitled toavail itself of certain provisions of the Civil Code along with Canadian maritime law in order to seek recovery from the Defendant, doesnot curtail or lessen this Court’s "“unlimited jurisdiction in relation to maritime and admiralty matters”" (ITO at 774). [54] Given the flexible approach to the division of powers, as described in Wärtsilä (paras 86-88), where Canadian maritime law is oneof two applicable bodies of law to a dispute - this is sufficient to satisfy the second limb of the ITO test.

The potential that Canadianmaritime law that is otherwise applicable may not ultimately prevail over provincial legislation in a double aspect scenario is immaterialfor the purposes of satisfying the second limb of the test for this Court’s jurisdiction. [55] Once this Court finds that Canadian maritime law can validly regulate a dispute, the modern conception of federalism as expressedin Wärtsilä does not operate to deprive this Court of jurisdiction to hear a claim that is integrally connected to maritime matters.

In myview, it would not be in the interests of justice to foster uncertainty and jurisdictional skirmishes by placing this Court’s unlimitedjurisdiction in relation to maritime and admiralty matters in doubt. Nor would it be in the interests of justice to do so in the context ofother areas of non-statutory federal law that fall within this Court’s jurisdiction. [56] In the context of a motion to strike, as noted at the outset of this analysis, the moving party must demonstrate that it is plain andobvious that the claim discloses no reasonable cause of action for want of jurisdiction.

Associate Judge Steele concluded that, at thisstage, it was not plain and obvious that Canadian maritime law does not apply to all or part of the Plaintiff’s claim (Order at paras 39,43). In so finding, I have not been persuaded that she erred. [57] The Defendant argues that Associate Judge Steele erred in concluding that she did not, at this stage, have to determine whetherCanadian maritime law and/or the Civil Code applied to the claim as that would ultimately be tasked to a judge of this Court (Order atpara 41). I disagree.

The Associate Judge concluded that Canadian maritime law is entirely able to resolve matters such as those at issuein this case (Order at para 41). That finding on her part was sufficient to found jurisdiction for the purposes of this motion, regardless ofwhether it is Canadian maritime law and/or the Civil Code and/or both that ultimately govern the rights and obligations as between theparties.

All that is required for a motion to strike to be dismissed, is that it is not plain and obvious that this Court is without jurisdiction(Canadian National Railway Company v Hanjin Shipping Co Ltd, 2017 FC 198 at para 9 [Hanjin]).

In appropriate cases, where, after atrial, it is demonstrated on the facts that a matter may ultimately fall outside this Court’s subject matter jurisdiction, a party is notprecluded from raising that argument (Hanjin at para 9). [58] The Associate Judge also concluded, relying on Wärtsilä, that if this Court can apply foreign law when exercising its maritimejurisdiction, then surely it can apply the Civil Code in the exercise of its maritime jurisdiction (Order at para 38).

The majority inWärtsilä found, relying on the Tropwood, that it is indeed possible for this Court in the exercise of its concurrent jurisdiction overmaritime matters to apply foreign law as elected by contract (Wärtsilä at para 97).

The majority found that it is not essential for theexercise of federal competence over navigation and shipping that only one body of law, namely Canadian maritime law, regulatecontracts of sale of marine equipment (ibid). [59] The Plaintiff submits that the Supreme Court in Tropwood concluded that once the matter in dispute was determined to be maritimeor integrally connected with maritime matters, then Canadian maritime law, which includes conflicts of law principles, provides asolution to the dispute and the Court retains jurisdiction.

In Tropwood, the cargo owner instituted a claim for damages to goods shippedfrom France to Montréal and the governing law of the contract was an international convention as enacted into French law. The carrierargued that the Federal Court did not have jurisdiction because the cargo owner was not seeking a remedy by virtue of Canadianmaritime law.

The Supreme Court held that Canadian maritime law embraces conflicts of law rules and entitled the Federal Court to findthat foreign law should be applied to a claim (Tropwood at 166-167). [60] The Plaintiff also relied on Ballantrae Holdings Inc v Phoenix Sun (Ship), 2016 FC 570 [Phoenix Sun], where Justice SeanHarrington found, relying on Tropwood, that he may take into account the Ontario Personal Property Security Act, a provincial statute of

general application applying to marine and non-marine property alike: "“If this Court may take into account foreign law, it certainly maytake into account provincial law”" (at para 129). [61] The Defendant submits that foreign law is not an appropriate analogy to provincial law, as one must prove foreign law. I agree thatthey are not identical, but I do not find the distinction to be material for the present purposes.

Moreover, there are several instanceswhere this Court has applied provincial law in the context of maritime matters (Phoenix Sun at para 129; National Bank of Canada vRogers, 2015 FC 1207 at para 41-43 [National Bank]; Canada (Ship-Source Oil Pollution Fund) v Dr Jim Halvorson Medical ServicesLtd, 2019 FC 35 at paras 79-82; Governor and Company of the Bank of Scotland v Nel (The) (TD), (FC), [1999] 2 FC578 [The Nel]). In National Bank, this Court applied the law of Ontario, the province where the sale took place (at para 41).

In the TheNel, this Court applied the British Columbia Sale of Goods Act, RSBC 1979, c 30, with respect to an agreement for the sale of bunkers(fuel) to a vessel. As noted above, the majority in Wärtsilä found that this Court can apply foreign law and it is not essential for theexercise of federal competence over navigation and shipping that only Canadian maritime law regulate contracts of sale of marineequipment (at para 97).

In any event, the conflicts of law rules that form part of Canadian maritime law permit this Court, whenexercising its admiralty jurisdiction, to apply a law other than Canadian maritime law, be it provincial law or the law of a foreigncountry. [62] In the present case, the parties did not include a governing law clause in their contract. Whether the parties have selected agoverning law or whether the Court must determine the applicable law of the contract, does not in my view alter the analysis with respectto the jurisdiction of this Court in relation to maritime and admiralty matters.

Furthermore, in The Nel, the parties had not selected agoverning law. [63] I therefore find that Associate Judge Steele did not err in concluding that this Court can apply the Civil Code in the exercise of itsmaritime jurisdiction. Indeed, this Court and the Federal Court of Appeal are well equipped to apply the provisions of the Civil Code tomaritime and admiralty matters following the decision in Wärtsilä. The Federal Courts are Canada’s national bilingual and bijural courts.Pursuant to

section 5.4 of the Federal Courts Act, "“[a]t least five of the judges of the Federal Court of Appeal and at least 10 of thejudges of the Federal Court must be persons who have been judges of the Court of Appeal or of the Superior Court of the Province ofQuebec, or have been members of the bar of that Province.”" A significant number of the members of our Court have been members ofthe Barreau du Québec. [64] I note with interest that the Quebec Code of Civil Procedure, CQLR c C-25.01, recognizes that the Federal Court and Federal Courtof Appeal have jurisdiction in certain civil matters in Quebec: "PRINCIPLES OF PROCEDUREAPPLICABLE BEFORE THE COURTS " "LES PRINCIPES DE LA PROCÉDUREAPPLICABLE DEVANT LESTRIBUNAUX DE L’ORDRE JUDICIAIRE""8.

Public civil justice is administered by thecourts under the legislative authority ofQuébec. The Court of Appeal, the SuperiorCourt and the Court of Québec exercise theirjurisdiction throughout the territory ofQuébec. " "8. La justice civile publique est administréepar les tribunaux de l’ordre judiciaire quirelèvent de l’autorité législative du Québec.Ceux qui exercent leur compétence surl’ensemble du territoire du Québec sont laCour d’appel, la Cour supérieure et la Courdu Québec.

""Municipal courts exercise civil jurisdictionin the matters assigned to them by specialActs, but only within the territory specifiedby those Acts and by their constitutinginstruments. " "Les cours municipales exercent unecompétence civile dans les matières qui leursont attribuées par les lois particulières, maissur le seul territoire délimité par ces lois etleurs actes constitutifs. ""The Supreme Court of Canada, the FederalCourt of Appeal and the Federal Court ofCanada have jurisdiction in some civilmatters in Québec, as provided for in the Actsof the Parliament of Canada.

" "La Cour suprême du Canada, la Courd’appel fédérale et la Cour fédérale peuventavoir compétence en matière civile auQuébec, selon ce qui est prévu dans les loisdu Parlement du Canada. " [65] In addition, I am guided by the recent comments of the Federal Court of Appeal in Salt Canada Inc v Baker, 2020 FCA 127 [Baker].In Baker, the Federal Court of Appeal addressed the Court’s jurisdiction to interpret an agreement where there was a clause assigningtitle to the patent at issue, subject to a reversionary clause.

I acknowledge that the context in Baker differs, however, I find the statementsby Justice Stratas to be instructive: [24] The rule in Kellogg is simple: the Exchequer Court (and now the Federal Court) can interpret contracts between privatecitizens as long as it is done under a sphere of valid federal jurisdiction vested in the Federal Court. … … [31] … The bounds of the Federal Court’s jurisdiction do not rest on the nebulous exercise of assessing whether somethingis “primarily a case in contract” or whether contractual

interpretation will “dictate” the end result. To do this is to take aGoldilocks approach to jurisdiction, taste-testing each case for the appropriate amount of federal flavour and assertingjurisdiction only in cases where the federal content is, in the personal opinion of a judge, “just right”. Jurisdiction should notdepend on the palate of individual judges. And for reasons of access to justice and minimization of litigation expense,Parliament does not set fuzzy tests for jurisdiction but rather adopts more certain, brighter lines. Courts should analyzejurisdictional issues with that front of mind. … …

[33] The continuation of a Federal Courts system in Canada under the Federal Courts Act and its predecessors was meant toensure the uniform application and

interpretation of federal law. However, it was not meant to complicate Canadian law,requiring parties to litigate in two sets of courts instead of one. This has been stressed in legislative debates concerningpossible amendments to the Federal Courts Act. … … [40] This express rejection tears at the notion that Parliament regards the

interpretation of agreements as a task alien to theFederal Courts or that its judges are incapable of applying contractual principles. Sometimes the Federal Courts have to do itunder the jurisdiction they have lawfully been given.

Where contractual disputes arise within its jurisdiction, the FederalCourts are empowered to resolve these disputes just as any other court does, and they do so all the time. [41] If the Federal Courts declined cases that “primarily” involved contracts, it would be forced to divide many of its casesacross different superior court jurisdictions across the country. [Emphasis added.] [66] During the hearing, the Plaintiff relied on Kellogg Company v Kellogg, (SCC), [1941] SCR 242 [Kellogg],referenced by the Federal Court of Appeal in Baker, above, for the proposition that once the Court is seized of a matter within itsjurisdiction, it may interpret contracts governed by provincial law.

This proposition is consistent with the jurisprudence cited above(Phoenix Sun; National Bank; The Nel). [67] I turn now to the Defendant’s argument that because the Civil Code governs the entire relationship between the parties, i.e., it is acomplete code, then in fact no remedy is sought by the Plaintiff under or by virtue of Canadian maritime law that would foundjurisdiction (Federal Courts Act, ss 22(1)). On the facts of this case, the Associate Judge was not persuaded that the seaworthiness of thevessel is not at issue or that Canadian maritime law would not apply (Order at paras 40, 41, 43).

Associate Judge Steele noted that thePlaintiff expressly relies on Canadian maritime law in its Statement of Claim (Order at para 41). [68] I am not persuaded that Associate Judge Steele erred in concluding that it was not plain and obvious that Canadian maritime lawdoes not apply and that the Plaintiff expressly relied on Canadian Maritime law as one of the legal basis for its action against theDefendant. On the facts of this case, the Associate Judge was entitled to find that a remedy was sought under Canadian maritime law andthat, at this stage, the Court has jurisdiction.

The Statement of Claim raises issues relating to the alleged failure to winterize the vessel,the alleged failure to ready the vessel for transport, the damage to the engine and the deck, the resulting impact on the seaworthiness ofthe vessel and the potential for the ingress of water and premature failures. I see no reason to intervene. [69] Finally, the Defendant submits that Associate Judge Steele erred in finding that the Court’s judgment in 9171-7702 Québec Inc vCanada, 2013 FC 832 [9171-7702 Québec] should be approached with caution.

The Defendant relied on 9171-7702 Québec, in whichthe Court concluded that the obligations contained in the Civil Code governed the sale of a vessel by the Crown. The Court suggested,although it did not have to deal with the issue, that it would likely not have jurisdiction with respect to a counterclaim by reason of theapplication of the Civil Code to the dispute. The Associate Judge noted that 9171-7702 Québec had been considered by the minority inWärtsilä, but was not considered, discussed or applied by the majority.

The Associate Judge found that 9171-7702 Québec "“and moreparticularly the incidental remarks made by the Federal Court at that time regarding the Federal Court’s jurisdiction, should beapproached with caution and read in light of the majority ruling ""in [""Wärtsilä""]”" (Order at para 33). [70] The Defendant pleads that the majority did in fact adopt the minority’s reasoning with respect to 9171-7702 Québec, by referring tothe paragraph in which the minority considered, among other things, the issues discussed in 9171-7702 Québec and the application ofprovincial law to the sale of vessels (Wärtsilä at paras 77, 175).

While I note that the majority acknowledges that there are instanceswhere courts have applied provincial law to the sale of vessels and refers to a point made by the minority (Wärtsilä at para 77), I do notconsider that this constitutes a reviewable error on the part of the Associate Judge, nor do I consider that her analysis of 9171-7702Québec is flawed. The comments in obiter made on this Court’s jurisdiction in 9171-7702 Québec, rendered in 2013, are an outlier andrun counter to the jurisprudence cited above (Phoenix Sun; National Bank; The Nel).

I agree that the remarks therein with respect tojurisdiction should be treated with caution. V. Conclusion [71] Associate Judge Steele concluded that the Defendant had failed to discharge its burden of showing that it is plain and obvious thatthis Court has no jurisdiction. Consequently, she dismissed the Defendant’s motion to strike. The Defendant has failed to convince methat Associate Judge Steele committed a reviewable error in coming to this conclusion. This motion to appeal the Order of AssociateJudge Steele dated December 12, 2022, is therefore dismissed. [72] The Plaintiff seeks costs.

Considering my discretion pursuant to Rule 400 of the Rules, costs in the amount of $1,500.00 shall beawarded to the Plaintiff. ORDER in T-1416-20 THIS COURT ORDERS that: 1. The Defendant’s appeal of the Order of Associate Judge Steele dated December 12, 2022 is dismissed. 2. All the time limits under

Part 4 of the Federal Courts Rules [Rules] are reset. For clarity, the time provided under Rule 204 of theRules for the Defendant to serve and file its Statement of Defence shall start to run from the date of this Order, subject to any

extension of time agreed to by the parties under the Rules and/or ordered or directed by the Court. 3 . All subsequent time limits shall be in accordance with

Part 4 of the Rules . 4 . Costs in the amount of $1,500.00 are awarded to the Plaintiff. “Vanessa Rochester” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1416-20 STYLE OF CAUSE: FRASER POINT HOLDINGS LTD. v VISION MARINE TECHNOLOGIES INC. PLACE OF HEARING: MONTRÉAL, QUEBEC DATE OF HEARING: MARCH 20, 2023 ORDER AND REASONS: ROCHESTER j. DATED: MAY 25, 2023 APPEARANCES : David G. Colford For The PLAINTIFF Isabelle Pillet For The DEFENDANT SOLICITORS OF RECORD : Brisset Bishop Montréal, Quebec For The Applicant De Man Pillet Montréal, Quebec For The DEFENDANT