Westwood Shipping Lines Inc. v. Geo International Inc.
T-359-98
Rothstein J.
26/8/98
11 pp.
Motion for (1) order defendant Colin Farnum be apprehended, brought before Court to be examined in capacity as president of defendant Geo International Inc., as to Geo's ability to satisfy order to pay into Court US $159,684.07; (2) writ of sequestration against Farnum's property; (3) order requiring Farnum to show cause why should not be found guilty of contempt of Court-In summary judgment proceedings defendant Geo found to have converted three containers of hiker shoes-Pursuant to r. 218, Geo ordered to pay US $159,684.07 into Court prior to July 15, 1998-Because Geo not obeying Court order, plaintiff moving for writ of sequestration pursuant to r. 429(1)(b) against property of Farnum-Counsel for Geo, Farnum persuading Court premature to issue writ of sequestration against Farnum personally before steps exhausted against defendant Geo to satisfy Court order-For purposes of exhausting recourse against Geo, Court ordering Farnum, in capacity as president of Geo, to appear to be examined-Athough examination adjourned at Farnum's request, Farnum not appearing-R. 46 basis for bench warrant-R. 46 giving Court authority to issue warrant when witness required to attend hearing, failing to do so-Rr. 87 to 100 pertaining to examinations in aid of execution under heading "Examinations Out of Court"-Farnum's counsel submitting rr. 97, 98 providing complete code indicating consequences for failure to attend oral examination i.e. contempt proceedings-Arguing r. 46, Court's power to compel attendance at hearing, not applicable-R. 97 setting forth series of remedies open to party when person failing to attend oral examination out of court, one of which order to attend-Even though no express connection between rr. 46, 97 no reason why r. 46 may not be invoked when order made under r. 97 for person to attend oral examination at hearing before Court, and fails to do so-Nothing precluding examinations before Court and no reason why r. 46 not applicable to enforce order made to compel appearance where examination scheduled before Court-Farnum's absence from Canada not reason for not issuing warrant as Farnum having Canadian business, place of residence at, near Toronto-As proceedings to date characterized by Farnum's non-cooperation, failure to abide by Court orders, judicial exercise of discretion would be to issue warrant under r. 46-Nothing in Rules requiring either attachment, contempt proceedings to precede sequestration-R. 429 providing for sequestration-Setting forth remedy Court may order when person failing to perform act (payment into Court) within specified time-Amount owing to plaintiff and Geo, through Farnum's failure to attend to be examined, frustrating any attempt to ascertain Geo's ability to pay into Court amount ordered-Since Geo taking no steps itself to try to resolve precise amount owing, all conditions precedent to issue of writ of sequestration against Farnum personally met-No reason why r. 429 writ of sequestration should not be invoked-No argument against commencement of contempt proceedings-Motion granted-Federal Court Rules, 1998, SOR/98-106 rr. 46, 97, 98, 218, 429, 472.