Theologus v. Golden Harvester ( The )
T-2764-92
Stinson T.O.
11/5/93
16 pp.
Determination of bail -- Defendant vessel arrested coincident with institution of action in rem for non-payment of $18,516.48 for duties as skipper thereof -- Defendant (co-owner) Armitstead alleging no monies due and claiming set-off of $11,400 -- Defence to counterclaim denying defence and counterclaiming under various new heads of relief -- Parties not agreeing on bail -- R. 1005 only Rule addressing concept of satisfactory bail -- "Satisfaction" as to bail within jurisdiction of prothonotary or approving officer -- R. 1005 not defining "satisfaction" so as to preclude issues of quantum of bail -- Practice to schedule formal hearings on affidavit evidence for approving officer to achieve "satisfaction" -- Although change in Rules vesting authority for issues of quantum in judge anticipated, present Rule still operative -- As plaintiff's maximum claim less than value of res, bail must focus on dollars relative to claim -- Only $18,516.48 in plaintiff's statement of claim considered relative to bail -- Defendant entitled to defend and counterclaim under R. 1717 -- R. 1720 permitting plaintiff to defend against counterclaim, but no provision allowing plaintiff to adduce new claims in defence to counterclaim -- R. 404 precluding pleadings subsequent to answer or reply without leave of Court -- R. 1717, confining counterclaims to defendants, and R. 404 precluding succession of counterclaims building upon one another -- According to text by Sgayias et al., Federal Court Practice, counterclaim essentially independent action grafted procedurally onto existing action and jurisdiction to entertain counterclaim must be found as if claim advanced in separate action -- Consistent with Jowitt's Dictionary of English Law, 2nd ed. re "counterclaim" and "set-off" -- Inclusion of counterclaims within file jacket of main claim maximizing efficiency of litigation, not creating additional rights -- According to Halsbury's Laws of England, 4th ed. reissue, 1989, provisions with regard to bail apply equally to arrests at instance of defendants as to arrests at instance of plaintiffs -- Principles underlying R. 1005 set out -- Function of approving officer relative to bail to measure in circumstances of material on file whether plaintiff asserting reasonably arguable claim in rem and assign approximate dollar value -- Evidence and argument not convincing plaintiff's claim of $3,746.48 for expenses should not be argued at trial -- That conclusion on bail must not be construed as confirmation of claim in rem or as indication all or any of claim in rem for this amount will likely succeed -- Simply finding claim arguable and not so unreasonable as to preclude plaintiff from continuing in rem -- Same rationale applied to claim for purchase of vessel -- Both defendants connected in dispute related to interest in possession of vessel and at this preliminary stage of bail, plaintiff not required to distinguish between them for purposes of claim in rem -- Statement of claim not specifically mentioning claim relative to purchase but general construction of its language might embrace such claim -- Bail set at $18,431.38 and interest at average prime rate for 1992-1993 plus costs of $2,500 -- Federal Court Rules, C.R.C., c. 663, RR. 404, 1005, 1717, 1720 -- Federal Court Act, R.S.C., 1985, c. F-7, s. 22.