Campbell River Harbour Authority v. Acor (Vessel)

Campbell River Harbour Authority v. Acor (Vessel)

The motion to reconsider was dismissed because (1) the application should have been brought before the judge who made the original interlocutory injunction, (2) neither Rule 397 nor Rule 399 provided a basis to set aside or vary the order on the facts (no clerical error, not ex parte, and the absence was not due to accident, mistake or insufficient notice), and (3) the applicant failed to adduce any relevant evidence (no affidavit or proof of liability insurance) that would rebut the basis of the injunction.

Citation
2010 FC 844
Parties
Plaintiff/respondent: Campbell River Harbour Authority; Defendant/applicant: E.G. da Costa aka Emanuel Duarte; Defendant (vessel in Rem): S/V ACOR; Defendants: The Owners and All Others Interested in the S/V ACOR
Court
Federal Court
Jurisdiction
Canada
Judgment Date
25 August 2010
Procedural Posture
Simplified Action; Action in Rem and in Personam (interlocutory Injunction) / Motion for Reconsideration of Interlocutory Injunction (motion Dismissed)
Outcome
Motion to reconsider dismissed; costs awarded to respondent.
Legal Topics
Interlocutory Injunction, Reconsideration, Federal Courts Rules Rule 397, Federal Courts Rules Rule 399, Service and Absence From Hearing, Prima Facie Evidence
Source Language
English
Maritime Law Civil Procedure Injunctions Federal Court Practice Interlocutory Injunction Reconsideration Federal Courts Rules Rule 397 Federal Courts Rules Rule 399 +2 more

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Parties

Campbell River Harbour Authority

Plaintiff/respondent

E.G. da Costa aka Emanuel Duarte

Defendant/applicant

S/V ACOR

Defendant (vessel in Rem)

The Owners and All Others Interested in the S/V ACOR

Defendants

Procedural Posture

Simplified Action; Action in Rem and in Personam (interlocutory Injunction) / Motion for Reconsideration of Interlocutory Injunction (motion Dismissed)

Legal Issues

  1. 1 Whether a motion to set aside or vary a recently made order must be brought before the judge who made the order
  2. 2 Whether the applicant proved entitlement to reconsideration or variation under Rule 397 or Rule 399
  3. 3 Whether the applicant disclosed relevant evidence (insurance) to rebut the basis for the injunction

Ratio Decidendi

The motion to reconsider was dismissed because (1) the application should have been brought before the judge who made the original interlocutory injunction, (2) neither Rule 397 nor Rule 399 provided a basis to set aside or vary the order on the facts (no clerical error, not ex parte, and the absence was not due to accident, mistake or insufficient notice), and (3) the applicant failed to adduce any relevant evidence (no affidavit or proof of liability insurance) that would rebut the basis of the injunction.

Court Disposition

Motion to reconsider dismissed; costs awarded to respondent.

Orders

  • This motion to reconsider is dismissed.
  • Costs are awarded to the Respondent in the amount of $500.00.