PRACTICE |
Preliminary Determination of Question of Law |
Gearbulk Pool Ltd. v. SCAC Transport Canada Inc.
T-447-01
2002 FCT 353, Pelletier J.
27/3/02
8 pp.
Effect to be given to Mutual Release given by parties in another action arising out of same factual nexus--Plaintiff Gearbulk entered into voyage note agreement with defendants by which 10 transformers to be shipped from Sorel, Quebec, to Antwerp, Belgium aboard vessel Thuleland--When first crated transformer being brought aboard, fell to ground and damaged--Fact other 9 crates identical to first leading to conclusion crates not suitable for loading--Thuleland sailed without transformers--Owners of damaged transformer brought action seeking damages for damage to their property (Cargo Action)--Cargo Action settled by means of Mutual Release signed by all parties to action--Subsequently, Gearbulk brought present action on voyage agreement note seeking damages for lost freight (Freight Action)--Defendants raising Mutual Release as defence to action--Proceeding herein appeal from Prothonotary's decision Mutual Release not bar to plaintiff's claim, and ordering matter on to trial--Plea of res judicata applies, except in special cases, not only to points upon which Court actually required by parties to form opinion and pronounce judgment, but to every point which properly belonged to subject of litigation and which parties, exercising reasonable diligence, might have brought forward at time: Ostapowich v. Bank of Montreal (1998), 165 Sask. R. 231 (Q.B.)--However, in multi-party, multi- transaction, multi-recourse universe, before release can be extended to all possible claims between two parties, must be some evidence parties intended to achieve that result--Here, express terms of documents limit releases granted to claims arising out of damage to cargo--Nothing to do with voyage note agreement between Gearbulk and defendants--In absence of evidence of claim between Gearbulk and defendants, Court not in position to hold that Mutual Release acts as release of claims which Gearbulk could have but did not advance against defendants--Significant possibility record before Prothonotary defective--Applying standard of correctness, on basis of record before him, Prothonotary's decision correct and not subject to review.