2019 FC, 2019 FC 1140

Date: 20190905 Docket: T-249-19 Citation: 2019 FC 1140 Ottawa, Ontario, September 5, 2019 PRESENT: The Honourable Mr.

Justice Pamel BETWEEN:HEDDLE MARINE SERVICE (NL) INC.ApplicantandTHE SHIP "KYDY SEA", AND SERVIMAX-SERVICOS LTDRespondents ORDER AND REASONS [1] The Applicant, Halthorn Marine Group Inc. [Halthorn], brings a motion in writing pursuant to Rule 369 of the Federal Courts Rules,SOR/98-106 [Rules or FCR], for an Order under Rule 8 of the FCR for an extension of time within which the Applicant may file with theCourt notice, verified by affidavit, of the Applicant’s claim against the ship KYDY SEA as provided for in paragraph 22 of the Order ofAppraisement and Sale dated April 3, 2019 [Sale Order]. [2] It is also important to note from the outset that the Plaintiff and remaining claimant consent to the present motion being granted,although Servimax-Servicos Ltd [Owners], the owners of the vessel KYDY SEA [Vessel] have not seen fit at this point to participate inthese proceedings.

That said, and as mentioned by Justice McDonald of the Federal Court of Appeal in Canada (Attorney General) vHennelly, (FCA) at paragraphs 1 and 2 [Hennelly]: [1] …We recognize that it is usually routine for parties to consent to extensions of time in circumstances such as these andequally routine for the court to allow an extension on this basis. [2] Nonetheless, the presence or absence of consent for an extension of time is not determinative of the issue.

FACTS [3] Between February and August 2018, Halthorn provided services to the Vessel at the Port of Sydney, Nova Scotia, in the form ofwork with the view of restoring the Vessel in condition to resume trading after being laid up alongside at the Port of Sydney for sometime. [4] On February 7, 2019, Heddle Marine Service [NL] Inc. [Heddle] filed with this Court an ex parte Notice of Application pursuant toArticles 35 and 36 of the Commercial Arbitration Code [Code], set out in the

schedule to the Commercial Arbitration Act, RSC 1985, c 17 (2nd Supp) [Act], as well as Rules 326 et seq of the FCR [Application for Enforcement] for the registration and enforcement of anArbitral Award rendered against the Owners and the Vessel by the Association of Maritime Arbitrators of Canada on January 4, 2019[Arbitral Award]. [5] On February 26, 2019, by Judgment of Mr.

Justice Locke, as he then was, this Court granted the Application for Enforcement andordered: [1] that the Arbitral Award was to be registered as provided for under the Rules; [2] that the Owners and Vessel were to pay theamounts, with interest, set forth therein; [3] that the sale of the Vessel was authorized; and [4] other ancillary matters set out in the saidJudgment [Enforcement Judgment]. [6] On April 3, 2019, Madam Justice Strickland issued the Sale Order whereby this Court ordered the appraisal and sale of the Vessel.The Sale Order provided for the terms upon which such sale was to be undertaken.

Section 22 of the Sale Order stated: All claims against the Ship shall be filed in any registry office of this Court within thirty (30) calendar days of thepublication of the advertisement and notice to creditors referred to in paragraph 11 above failing which such claims shall bebarred. Claims shall be verified by affidavit, setting out the amount and nature of the claim, and asserting full particulars ofany lien or priority right relied upon. [7] In addition, the Sale Order provided that the advertisement for the sale of the Vessel shall include the following notice: NOTICE TO CREDITORS (

e) All claims against the Ship shall be filed in the Federal Court of Canada within thirty [30] running days of thisadvertisement, failing which such claims shall be barred. Claims shall be verified by affidavit, setting out to the amount andnature of the claim, and asserting full particulars of any lien or priority right relied upon. [8] The advertisement for the sale of the Vessel was published on April 10, 2019, and included the Notice to Creditors indicated above.The 30-day time limit for the filing of claims against the Vessel would therefore expire on the close of business on May 10, 2019.

[ 9 ] On May 10, 2019, the Managing Director of Halthorn, Mr. Kiley Sampson, being aware of the Court imposed deadline for the filing of claims, prepared and then attempted to file electronically with this Court documents in support of Halthorn’s claim. Halthorn had not retained counsel at the time. [ 10 ] On May 13, 2019, Halthorn was advised by the Registry of this Court that their documents could not be accepted for filing as they were incomplete and suffered from procedural deficiencies. Mr.

Sampson immediately contacted counsel to seek advice as to what may be done to protect Halthorn’s position. [ 11 ] On May 16, 2019, Mr. Sampson contacted Heddle’s counsel seeking Heddle’s consent to a request for an extension of time for the filing of Halthorn’s claim. Discussions ensued, and an agreement was eventually concluded on or about June 10, 2019, whereby Heddle would agree to a request by Halthorn to seek from this Court an extension of time to file its claim. [ 12 ] In the meantime, by Order of Mr.

Justice Fothergill dated May 30, 2019, this Court ordered the sale of the Vessel to GFY International S.A. [GFY] in the amount of US $230,000.00 [GFY Order]. [ 13 ] Between extensive business trips and meetings, Mr.

Sampson continued to work with Halthorn’s counsel in the preparation of his affidavit and material, and on June 24, 2019, counsel for Halthorn filed the present motion. [ 14 ] On the same day, solicitors for Heddle and the only remaining claimant, CDMS Atlantic – Commercial Diving and Marine Services filed with this Court their consent to the present motion. [ 15 ] GFY failed to pay the balance of the purchase price as provided for under the Sale Order. Consequently, on July 17, 2019, by Order of Mr.

Justice Favel, this Court declared GFY’s initial deposit of US $25,000.00 under the GFY Order forfeited, and approved the sale of the Vessel to South Eastern Shipping Corporation Inc. [South Eastern] in the amount of CA $258,000.00 [South Eastern Order]. CRITERIA TO EXTEND TIME [ 16 ] Rules 8 and 492 of the FCR state: " Extension or abridgement " " " " Délai prorogé ou abrégé " " " " 8(1) On motion, the Court may extend or abridge a period provided by these Rules or fixed by an order. " " " " 8(1) La Cour peut, sur requête, proroger ou abréger tout délai prévu par les présentes règles ou fixé par ordonnance.

" " Directions " " Directives " " " " 492(1) The Court may, in making an order under rule 490 or 491 or at any time thereafter, give directions as to " " " " 492(1) La Cour peut, au moment où elle rend l’ordonnance de vente des biens, au moment où elle statue sur la requête visée à la règle 491 ou à tout moment ultérieur, donner des directives au sujet : " " " " (

a) notice to be given to possible claimants to the proceeds of sale; " " " "

a) des avis à donner aux personnes qui pourraient réclamer un droit sur le produit de la vente; " " " " (

b) advertising for other such claimants; " " " "

b) de la publicité à faire à leur intention; " " (

c) the time within which claimants must file their claims; and " " " "

c) du délai dans lequel ces personnes doivent déposer leur réclamation; " " (

d) the procedure to be followed in determining the rights of the parties. " " " "

d) de la procédure à suivre pour déterminer les droits des parties. " " Claims barred " " " " Fin de non-recevoir "

"

(2) A claim that is not made within the time limited and in the manner prescribed by an order of the Court under subsection (1) is barred, and the Court may proceed to determine other claims and distribute the money among the parties entitled thereto without reference to any claim so barred. " " " "

(2) Une fin de non-recevoir est opposée à toute réclamation qui n’est pas déposée dans le délai et de la manière prévus dans l’ordonnance rendue en vertu du paragraphe (1), et la Cour peut statuer sur les autres réclamations et répartir le produit de la vente entre les parties qui y ont droit sans tenir compte de la réclamation à laquelle une fin de non-recevoir a été opposée.

" " " [ 17 ] Although Rule 492(2) of the FCR bars claims that are made after the expiration of a court imposed time period made pursuant to Rule 492(1), this Court has discretion under Rule 8 to extend the time for the filing of claims. [ 18 ] I should first state that the rules of practice of this Court went through a major overhaul in 1998. Prior to that time, Rules 3(1)(

c) and 1008 of the FCR stated: " Rule 3(1)(

c) the Court may enlarge or abridge the time appointed by these Rules , or fixed by any order, for doing any act or taking any proceeding upon such terms, if any, as seem just, and any such enlargement may be ordered, although the application for the same is not made until after the expiration of the time appointed or fixed;. " " Règle 3(1)(

c) la Cour peut augmenter ou réduire les délais prévus par les présentes Règles, ou fixes par une ordonnance, pour l’accomplissement d’un acte ou l’introduction d’une procédure aux conditions qui, le cas échéant, semblent justes, et une prolongation de ce genre peut être ordonné même si la demande n’en est faite qu’après l’expiration du délai prévu ou fixé; " " " " Distribution of Proceeds of Property Arrested under a Warrant " " " " Répartition du produit de la vente de biens saisis en vertu d’un mandat " " " " Rule 1008(1) When an application is made for payment out of any money paid into court under Rule 1000(7), the Court has power to determine the rights of all claimants thereto and may make such order and give such directions as will enable the Court to adjudicate upon the rights of all claimants to such money and to order payment out to any person of any such money or portion thereof in accordance with its findings.

" " " " Règle 1008(1)

En cas de demande de versement par prélèvement sur de l’argent consigné au tribunal en vertu de la Règle 1007(7), la Cour aura le pouvoir de déterminer les droits de tous les réclamants sur cet argent et elle pourra rendre l’ordonnance et donner les instructions qui lui permettront de statuer sur les droits que possèdent tous les réclamants sur cet argent, et elle a également le pouvoir d’ordonner le versement à une personne de tout ou

partie de cet argent selon ses conclusions. " "

(2) For the purpose of any application under paragraph (1), the Court may, at the time it makes the order for sale of the property, or at any time thereafter, give directions as to notices to be given to other possible claimants to such money, and as to advertising for such other claimants, as to the time within which claimants must file their claims, and generally as to the procedure to be followed to enable the Court properly to adjudicate upon the right of the parties, and to give judgment upon any claim or claims against the money in court; and any claim that is not made within the time limited, and in the manner prescribed, by such an order of the Court shall be barred, and the Court may proceed to determine the other claims and distribute the moneys among the parties entitled thereto without reference to any claim so barred.

" " " "

(2) Aux fins d’une demande faite en vertu de l'alinéa (l), la Cour pourra, au moment où elle rend l’ordonnance de vente des biens à tout moment par la suite, donner des instructions au sujet des avis à donner aux autres réclamants éventuels et de cet argent, et au sujet de la publicité à faire à leur intention, au sujet du délai dans lequel les réclamants sont tenus de déposer leurs demandes et, d’une façon générale, au sujet de la procédure à suivre pour permettre à la Cour de statuer équitablement sur les droits des parties, et de rendre jugement sur une ou plusieurs demandes réclamant de l’argent consigné a la Cour; une fin de non-recevoir doit être opposée a toute demande qui n’est pas faite dans le délai fixé et de la manière prescrite par une telle ordonnance de la Cour, et la Cour pourra procéder au jugement des autres demandes et répartir l’argent entre les parties qui y ont droit.

Sans tenir compte des demandes auxquelles une fin de non-recevoir a été ainsi opposée. "

"

(3) Upon any such application, the Courtmay order payment out at once of any fees orexpenses of the marshal or other person underthis Rule in connection with the arrest,custody, appraisement, or sale of suchproperty. " "

(3) Sur demande de ce genre, la Cour pourraordonner le versement immédiat, parprélèvement sur l’argent consigné, au prévôtou à une autre personne, en vertu de laprésente règle, des droits gagnés ou fraisengagés par eux à l’occasion de la saisie, dela garde, de l’évaluation ou de la vente de cesbiens. " " " [19] Former Rules 3(1)(

c) and 1008(2) find their current iteration in Rules 8 and 492(2) of the FCR. [20] In a case that predated the overhaul of the rules of practice, National Bank of Greece SA v ship The Polar Paraguay, [1986] FCJ No234 (FCA), A-39-86 [The Polar Paraguay number 1], the Federal Court of Appeal was adamant that Rule 1008(2) was a bar to the latefiling of claims. [21] However, two years later in Macoil Inc et al v the ship Polar Paraguay, (A-303-86), an unreported decision of the Federal Court ofAppeal dated April 26, 1988 [The Polar Paraguay number 2], the Court adopted a more equitable position and held that the Court does,in fact, have the authority under then Rule 3 to extend the time referred to in Rule 1008(2) provided that the delay is accounted for in asatisfactory manner.

Mr. Justice Mahoney, speaking for the Court and beginning on page 1, stated: We are of the opinion that the learned trial judge erred in concluding that he had no jurisdiction to enlarge the time fixed forfiling claims on the proceeds of the sale of a ship under Rule 1008(2). Rule (3)(1)(

c) applies to the time fixed under thatRule as it does to others. [22] However, the Federal Court of Appeal exercised its discretion in The Polar Paraguay number 2 not to extend the time for theApplicant to file its claim. Justice Mahoney continued on page 2 of his decision: That said, we have not been persuaded that it would be just in the circumstances to accommodate the Applicants by such anextension, thereby reinstating claims that have been barred. Their delay has simply not been satisfactorily accounted for.They knew of the direction and failed to comply with it.

That failure has not been explained. [23] In Governor and Company of the Bank of Scotland v Nel (The), [1999] 2 FC 417, (FC) [The Nel], ProthonotaryHargrave, relying primarily upon the Polar Paraguay number 1 decision, refused to allow a supplemental affidavit of claim to be filedafter the claims barred date, although the initial affidavit of claim was filed on time.

He held at paragraph 21: [t]o extend time so that the Bank of Scotland might file more affidavit material is contrary to subsection 492(2) of the Rulesand flies in the face of the Court of Appeal’s view in the Polar Paraguay, supra. [24] However, nearly two years later, the issue came up before him again in Royal Bank of Scotland Plc v Kimisis Ii (The), , (2000) 186 FTR 300 (FC) [The Kimissis Ii]. Prothonotary Hargrave reconsidered his position in light of the Polar Paraguaynumber 2, a decision which was not before him at the time of the hearing in The Nel.

He wrote at paragraphs 6 and 7: [6] I have now been referred to a second decision of Mr. Justice Mahoney, Macoil Inc. v. Polar Paraguay, an unreporteddecision of 26 April 1988 in A-303-86. The decision is also written by Mr.

Justice Mahoney, who in the intervening twoyears has changed his view, for he sets out that the Court of Appeal is of the view that “... the learned trial judge erred inconcluding that he had no jurisdiction to enlarge the time fixed for filing claims on the proceeds of the sale of a ship underRule 1008(2).”, there noting that Rule 3(1)(c), the Rule which then allowed the Court to enlarge or abridge time, appliedequally to Rule 1008(2). Here I would observe that former Rules 3(1)(

c) and 1008(2) have their current equal counterparts inRules 8 and 492(2). [7] In Macoil v. Polar Paraguay, Justice Mahoney went on to say that the delay must be satisfactorily accounted for: We have not been persuaded that it would be just in the circumstance to accommodate the appellants by such anextension, thereby reinstating claims that have been barred. Their delay has simply not been satisfactorilyaccounted for. They knew of the direction and failed to comply with it. The failure has not been explained.

This change of direction in Macoil Inc v Polar Paraguay is certainly more equitable than the hard and fast Rulein National Bank of Greece v The Polar Paraguay.

Yet in the present instance it is of no particular assistance toProios Maritime S.A., who have not explained why the document was overlooked, not only in preparing theinitial claim, but also in what was perhaps a cursory overnight search in July of 1999, yet turned up in a similarovernight request and search in May of 2000. [25] It seems to me that since the Federal Court of Appeal’s decision in The Polar Paraguay number 2 followed by this Court’s decisionin The Kimissis Ii, it is well settled that although this Court does have the discretion under Rule 8 to extend the time to file a claim whichis otherwise barred under Rule 492(2), the exercise of that discretion must be undertaken in line with the criteria for the extension of timeunder Rule 8 of the FCR. [26] In Nelson v Commissioner of Corrections (Can) et al (1996), [1996] FCJ No 1492, 206 NR 180 (FCA) [Nelson], the Federal Courtof Appeal allowed an extension of time for the service of material in support of a motion for judicial review previously filed within thetime limit set out by the Rules.

Justice Strayer speaking for the Court stated at page 181: [4] The main considerations for determining whether an extension of time should be granted are well established in this

court [see Grewal v Minister of Employment and Immigration (1985), (FCA), 63 N.R. 106 (F.C.A.)] andinclude the following: an intention, formulated within the time limit, to take proceedings; the existence of an arguable case;the cause and actual length of the delay; and whether there was prejudice caused by the delay. In the present case all of theseelements should have been seen to favour the applicant. The fact that the application for judicial review was filed but notserved within the time limit confirms a timely intention to proceed.

The delay in serving counsel for the respondents was 11days, hardly critical, and there was some explanation for the delay in instituting proceedings involving the applicant being inprison and there being a change of counsel … [27] Subsequently, in Hennelly, a case similar to Nelson involving a request for an extension of time by, in that case, the Crown pursuantto Rule 1614 of the FCR to file its motion record (something that was not done by admitted inadvertence on the part of the Crown) inrelation to a motion for judicial review of a decision of a committee established pursuant to the Family Allowance Act, the Federal Courtof Appeal stated at paragraph 3: [3] The proper test is whether the applicant has demonstrated: (

a) a continuing intention to pursue his or her application; (

b) that the application has some merit; (

c) that no prejudice to the respondent arises from the delay; and (

d) that a reasonable explanation for the delay exists. [28] At the time, Rule 1614(1) and (2) stated: "Rule 1614(1) A judge may, by order, extendor reduce the time limits prescribed in thisPart. " "Règle 1614(1) Un juge peut étendre ouabréger, par ordonnance, les délais prévus parla présente partie. " " ""

(2) The time limits prescribed in this Partcan be varied by order of a judge. " "

(2) Les délais prévus par la présente partiene peuvent être modifiés que par ordonnanced’un juge. " [29] The slight difference in the wording of the test as between Nelson and Hennelly seems to me to be simply a function of the contextin which the Courts found themselves at the time. [30] I am mindful of the importance of finality and certainty so as to allow the parties to move forward with matters (Canada (AttorneyGeneral) v Larkman, 2012 FCA 204 at para 87 [Larkman]).

However, the Federal Court of Appeal has also made it clear that the four-part test in Hennelly (and by extension I would say Nelson) does not constitute an exhaustive list of questions or factors that may berelevant in any given case, nor is the failure of a positive response to one of the criteria necessarily determinative.

In the end, theoverriding consideration is that justice be done (see Alberta v Canada (Citizenship and Immigration) 2018 FCA 83 at para 45 [Alberta];Lesly v Canada (Citizenship and Immigration), 2018 FC 272 at para 22 [Lesly]. [31] As noted by this Court in Yee Tam v Canada (Transport), 2016 FC 105, the weight to be given to each factor depends on thecircumstances of each case. At paragraph 12, Mr.

Justice Mosley stated: [12] The Hennelly criteria, often restated as questions, guide the court in determining whether the granting of an extension oftime is in the interests of justice: Grewal v Canada (Minister of Employment& Immigration), (FCA),[1985] 2 F.C. 263 (C.A.). As noted in Larkman above, at paragraph 62, the importance of each question depends upon thecircumstances of each case. And not all of these four questions need be resolved in the moving party’s favour.

For example,a compelling explanation for the delay may lead to a positive response even if the case appears weak and a strong case mayoutweigh a less satisfactory justification for the delay. The overriding consideration is that the interests of justice be served. [32] I also appreciate that neither Nelson nor Hennelly involved a request for an extension under Rule 8 (or Rule 3, as it was constitutedat the time).

However, the principles enunciated in those decisions apply equally to requests for extension of time under Rule 8 (seeAlberta at para 44). [33] In addition, it has been decided by this Court that the test for granting an extension of time does not vary according to the nature ofthe document at issue, although the nature of such document may be taken into consideration when exercising this Court’s discretion(Kniss v The Telecommunications Workers Union, 2013 FCA 293 at para 21 [Kniss]).

APPLICATION OF THE CRITERIA TO THE FACTS OFTHIS MATTER [34] This is not a case where Halthorn was unaware of the time limit to file its Notice of Claim with this Court. In fact, the contrary istrue.

Not only were they aware of the time limit, but in fact did everything to respect it and to file their claim with this Court within time.As stated by Justice Strayer in Nelson, Halthorn had "“an intention, formulated within the time limit, to take proceedings.”" For purelytechnical reasons, their Notice of Claim was rejected for filing by the Registry. [35] I am also of the view that Halthorn had, in the words of Justice MacDonald in Hennelly, "“a continuing intention to pursue his orher application.”" From May 13, 2019, when Mr. Sampson was advised by the Registry that Halthorn’ s Notice of Claim could not be

filed, he acted quickly.

He retained counsel, communicated with Heddle’s counsel to seek their consent for an extension of time, instructed counsel to negotiate the necessary terms with counsel for Heddle to secure their consent, and met and worked with counsel to prepare the present motion, all while having to pursue a hectic travel and meeting schedule. [ 36 ] In the end, the present motion was filed on June 24, 2019, only 2 weeks following his confirmation to his counsel of Halthorn’ s agreement in order to secure Heddle’s consent to the present motion. [ 37 ] As regards the " “existence of an arguable case” " and the merits of Halthorn’ s claim, on its face, and on the basis of Mr.

Sampson’s affidavit, I must say that there seems to be at least a reasonably arguable case to be made. This of course is all very preliminary, as the next step in the proceedings is, as is customary, the testing of each claimant’s case as part of the process set out by the Sales Order.

Section 23 of the Sale Order provides: Except as otherwise specified herein, all questions relating to the right of any claimant in rem against the Ship or the proceeds of sale of the Ship and all questions respecting the priority of all in rem creditors shall be reserved until further order of the Court. [ 38 ] As regards the reasons for any delay between May 13, 2019 and the filing of the claim on June 24, 2019, I believe the reasons have been well and satisfactorily explained. There is no indication that I can see that Mr.

Sampson did not take the matter very seriously, or that he delayed unnecessarily taking the appropriate action. Until he was advised by the Registry on May 13, 2019, that his Notice of Claim was rejected for technical reasons, Halthorn had not retained counsel. [ 39 ] I accept that ignorance of the law is no excuse. However, it seems to me that the filing of notices of claims in situations such as these should not necessarily necessitate the need for hiring lawyers, especially where the overall amount of the claim may not warrant one. I cannot say that Mr.

Sampson acted unreasonably in not retaining counsel, and in trying to file the Notice of Claim himself on behalf of his company. He showed respect for the timing set out in the Sale Order and acted in accordance therewith. [ 40 ] As regards to any prejudice to be suffered, as indicated, the Plaintiff and the remaining claimant have consented to the present motion. I accept that the Owners have not taken

part in these proceedings thus far, and may ultimately be seen to suffer somewhat in the event a claim, which was heretofore barred, being allowed to be made. However, granting an extension of time to Halthorn to file its claim is not equivalent to allowing the claim.

As is the case with the remaining claimants, Halthorn will have to proceed with proving its claim during a process which the Owners may well decide to attend, and contest the merits of any and all claims that have been filed. [ 41 ] The Federal Court of Appeal in Larkman underscored the need for finality and certainty so as to allow the parties to move forward with matters.

However in this case, with the Owners seemingly not having been involved in the process thus far, the parties which have been striving for finality and certainty are also the very claimants who have consented to the present motion. [ 42 ] Finally, I am also mindful of the overriding consideration that justice be done ( Alberta ; Lesly ) . The reason for the present motion is because of a technical failure on the part of a company having provided services to the Vessel to have its Notice of Claim accepted for filing within the window set out in the Sale Order.

I think, under the circumstances, that justice sides with allowing the present motion. SERVICE UPON OWNERS [ 43 ] There remains the issue of whether or not the Owners should be served with the present motion. They have not been, and I have considered whether it is appropriate for me to order that Halthorn serve the Owners directly with the present motion.

Under the circumstances, I do not see any justifiable reason to put Halthorn in a position where they have to serve the Owners with the present motion. [ 44 ] Rule 145 of the FCR states: " When no further service required " " " " Cas où la signification n’est pas nécessaire " " 145 Subject to subsection 207(2) or unless the Court orders otherwise, a party who has been served with an originating document is not required to be served with any further documents in the proceeding prior to final judgment if " " " " 145

Sous réserve du paragraphe 207(2) et sauf ordonnance contraire de la Cour, si la

partie qui a reçu signification d’un acte introductif d’instance se trouve dans l’une des situations ci-après, il n’est pas nécessaire de lui signifier d’autres documents dans le cadre de l’instance avant le jugement final : " " " " (

a) the party has not filed a notice of appearance or a defence within the time set out in these Rules ; or " " " "

a) elle n’a pas déposé d’avis de comparution ni déposé de défense dans le délai prévu par les présentes règles; " " (

b) the party has no address for service and has not served and filed a notice of consent to electronic service in Form 141A.8 (1). " "

b) elle n’a pas d’adresse aux fins de signification et n’a pas signifié et déposé d’avis de consentement à la signification électronique établi selon la formule 141A. " [ 45 ] The Court record in this matter is replete with examples indicating that the Owners, although aware of the proceedings, have not

seen fit to become directly involved in any substantial way, nor in the arbitration upon which these proceedings are based. [ 46 ] The Arbitral Award which formed the subject matter of the Application for Enforcement under Rule 327 was filed as an exhibit to that Application. As part of the Arbitral Award, the arbitrator indicates that although the Owners were initially represented by counsel who confirmed the arbitrator’s appointment, once the Heddle’s points of claim were served, he received notice from the Owner’s counsel that they were no longer representing the Owners.

Since that time and until the Arbitral Award was actually signed, the arbitrator received nothing from anyone claiming to be a representative of the Owners. Clearly, the Owners were aware of the arbitration proceedings, but chose for their own reasons not to take part, and in fact caused their solicitors to stand down. [ 47 ] With authorization from this Court for service by email, on February 28, 2019, the Owners were served with the Enforcement Judgment.

Evidence of such service is found as an exhibit to an affidavit filed in support of the Application for Enforcement as well in an affidavit of service to that effect filed with this Court on March 11, 2019. [ 48 ] Although the Application for Enforcement was made ex parte as permitted under Rule 328, the Owners were aware of the Application for Enforcement as well as the Enforcement Judgment at least since February 28, 2019.

They have elected not to file an appearance as provided for in Rule 305 of the FCR . [ 49 ] On April 12, 2019, the Owners were served by Heddle with the Sale Order along with copies of the advertisements published in the newspapers with respect to the sale of the Vessel. In addition, the Court record includes an affidavit of service upon the Owners of the Notice of Motion for the cancellation of the sale to GFY, and confirmation of the sale of the Vessel to South Eastern. [ 50 ] To this day, neither an appearance nor any other sign that the Owners wish to take

part in the present proceedings have been filed with this Court. The fact that this Court has authorized service upon the Owners by email does not create an obligation of service. It merely provides for a mechanism in the event service is to be undertaken. [ 51 ] Under the circumstances, given that Owners have not filed an appearance, nor have they shown to this Court any interest in any other way to participate in the present proceedings, I see no reason to deviate from the provisions of Rule 145 of the FCR .

Under the circumstances, I do not believe that compelling the service of the present motion is warranted. ORDER in T-249-09 THIS COURT ORDERS that : 1 . Halthorn Marine Group Inc.’s motion for an extension of time for the filing of its Notice of Claim is granted, with the delay extended to September 11, 2019, to file its Notice of Claim; 2 . No costs are awarded as regards to this matter. "Peter G.

Pamel" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-249-19 STYLE OF CAUSE: HEDDLE MARINE SERVICE (NL) INC. v THE SHIP "KYDY SEA", AND SERVIMAX-SERVICOS LTD MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES ORDER AND reasons: PAMEL J. DATED: SEPTEMBER 5, 2019 APPEARANCES : Mr. Eric Machum For The Applicant

Mr. A. William Moreira For HALTHORN MARINE GROUP INC. Mr. Seamus Ryder FOR CDMS ATLANTIC – COMMERCIAL DIVING AND MARINE SERVICES SOLICITORS OF RECORD : Metcalf & Company Barristers & Solicitors Halifax, Nova Scotia For The Applicant Stewart McKelvey Halifax, Nova Scotia For HALTHORN MARINE GROUP INC. Metcalf & Company Barristers & Solicitors Halifax, Nova Scotia FOR CDMS ATLANTIC – COMMERCIAL DIVING AND MARINE SERVICES