PRACTICE |
Variation of Time |
Global Enterprises International Inc. v. Aquarius (The)
T-16-01
2001 FCT 605, Hargrave P.
6/6/01
13 pp.
Motion on behalf of Polish trustee in bankruptcy to extend time to appeal ship sale order and for stay of sale proceedings--Motion dismissed--Three Polish factory fishing vessels arrested at Vancouver by plaintiff necessaries supplier--As apparent owner had abandoned ships, plaintiff successfully moved for order vessels be sold pendente lite--At about same time, trustee in bankruptcy may have been appointed in Poland--Trustee in bankruptcy, through counsel, became aware of sale order on April 26, 2001--Prothonotary's order must be appealed within 10 days--Nothing to explain delay (one month) in bringing present application--Court must look at all circumstances and consider and balance those Court held to be relevant, or those circumstances which, in particular circumstances, relevant--Proper test for extension of time within which to appeal set out in Canada v. Hennelly (1999), 244 N.R. 399 (F.C.A.): whether applicant has demonstrated: (1) continuing intention to pursue application; (2) application has some merits; (3) no prejudice to respondent arising from delay; (4) reasonable explanation for delay exists--(1) No evidence to show continuing intention to appeal--(2) Nothing in material of trustee in bankruptcy to show arguable case for time extension--(3) Applicant has submitted no material on matter of prejudice--Furthermore, established that delay that would result from appeal of sale order may be fatal to best interest of creditors as whole and thus be prejudicial to creditors--(4) Negotiations with claimants not sufficient explanation for delay--In sum, applicant failed to deal either adequately or at all with any of requirements to be established for time extension--As to stay of proceedings, nothing in applicant's affidavit dealing with any of requirements therefor: serious issue, irreparable harm and balance of convenience (RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311)--Each party and lien claimant whose counsel attended and participated in motion entitled to costs in lump sum amount of $500 each payable by trustee.