In this issue:
1. Firm and Industry News
2. Defamation in the Internet Age
3. Verbal Notice of a Claim
4. Bailment Not Applicable in Carriage Contract
5. Registration of Foreign Arbitration Awards in Federal Court
6. Halsbury's Laws of Canada - Transportation
1. Firm and Industry News
- January 13th, 2012, Toronto: Fernandes Hearn
LLP Annual Maritime and Transportation Conference
- January 14-15, 2012, New Orleans: Conference
of Freight Counsel
- January 20th, 2012, Chicago: Transportation
Lawyers Association Chicago Regional Seminar
- January 20th, 2012, Toronto: Marine Club
- February 8-9, 2012, Miami: Trucking Industry
Defence Association Advanced Seminar
- April 19 - 22, 2012, Athens: Institute of
Air & Space Law Conference on Aviation Law and Insurance
- May 8-9, 2012, Toronto: Supply Chain Canada
- May 23 & 24, 2012, Banff Springs: Semi-Annual
Meeting Canadian Board of Marine Underwriters
Halsbury's Laws of Canada has just published
its Transportation - Carriage of Goods and its Transportation
- Railways titles in one text. Rui Fernandes is the author
for both of these works. See the summary of the works below
in item 7.
Gordon Hearn will be representing the firm at the Conference
of Freight Counsel being held in New Orleans, LA. on January
Kim Stoll will be representing the firm at the Chicago
Regional Conference of the Transportation Lawyers Association
in Chicago, IL. on January 20th, 2011.
The Fernandes Hearn LLP 12th Annual Maritime & Transportation
Conference 2012 "Winning Cases with Experts" will
take place as per below:
Date: Thursday January 19th, 2012
Location: Royal & Sun Alliance Lecture Theatre (Courtesy RSA)
10 Wellington St. East, Toronto ON
Cost: $50.00 - Includes light lunch and materials on
Registration: Shannon Manna, Fernandes Hearn LLP 416-203-9500
BY INVITATION ONLY
Send cheques to: Fernandes Hearn LLP,
155 University Ave. Suite 700, ON M5H 3B7
Limited to 100 attendees RIBO Credits (Technical)
||Registration & Coffee
||Use of Experts at Trial
||Insurance Issues: Reservation of Rights,
Non-Waiver Agreements, Additional Insureds, Coverage Gaps
and Overlaps, Subrogation
||Frozen & Refrigerated Foods
||Determining Cause in Engine Failures
||Coffee Break - Sponsored by Zurich Canada
||Valuations of Economic Losses
Rail & Forwarders
||Expert Panel: TBA
IN THE INTERNET AGE: HYPERLINKS ARE NOT NECESSARILY "PUBLICATION"
TO A THIRD PARTY
The Supreme Court of Canada recently released its
decision in Crookes v Newton (*1) (no relation to the author).
In Crookes, the Court considered the issue of whether having
hyperlinks on a webpage constituted a "publication" of
defamatory material to a third party for the purposes of a defamation
lawsuit. The judgment of the majority was delivered by Justice Abella.
who concluded that "mere reference" to content by hyperlink
is not publication, but that publication exists where the reference
to the hyperlinked website "actually repeats the defamatory
Chief Justice McLachlin and Justice Fish agreed with
the majority, but proposed a different test: in some circumstances,
"the combined text and hyperlink may amount to publication
of defamatory material" such as where "the text indicates
adoption or endorsement of the content of the hyperlinked text".
Finally, Justice Deschamps dissented as to the relevant
test, (but agreed with the other judges on the outcome of the appeal)
and considered the particular issue on appeal in the broader context
of communications media and preferred to revise the publication
rule. He held that a more nuanced approach, compared to that of
Justice Abella, is to consider whether the defamatory content can
satisfy the requirements of the publication rule, in particular
considering that only deliberate acts can lead to liability for
The respondent Jon Newton operated a website containing
commentary about free speech and the internet, including an article
titled "Free Speech in Canada" which contained hyperlinks
to other websites which, in turn, contained information about the
appellant, Mr. Wayne Crookes (*2). Mr. Wayne Crooks was the president
and sole shareholder of West Coast Title Searches Ltd., and he commenced
lawsuits against Mr. Newton and others, claiming that they published
allegedly defamatory articles by using the hyperlinks (*3).
The hyperlinks (identified by underlining in the decision)
with which Mr. Crooks took issue were:
Under new developments, . . . I've just met Michael
Pilling, who runs OpenPolitics.ca. Based in Toronto, he,
too, is being sued for defamation. This time by politician Wayne
We've decided to pool some of our resources to focus more attention
on the appalling state of Canada's ancient and decrepit defamation
laws and tomorrow, p2pnet will run a post from Mike [Pilling]
on his troubles. He and I will also be releasing a joint press
statement in the very near future. (*4)
The "OpenPolitics.ca" hyperlink, a "shallow"
hyperlink, took viewers to the "OpenPolitics" website
where ten articles were posted, three of which Mr. Crookes alleged
were defamatory (*5). The "Wayne Crookes" hyperlink, a
"deep" hyperlink, took viewers directly to an allegedly
defamatory article published on www.USGovernetics.com (*6).
Mr. Crookes and his lawyer asked Mr. Newton to remove
the hyperlinks, but Mr. Newton refused (*7). Mr. Crookes alleged
in his defamation suit that Mr. Newton defamed him by "creating
hyperlinks to the allegedly defamatory articles, or by refusing
to remove those hyperlinks when told of their defamatory character,
Mr. Newton himself became a publisher of the articles" (*8).
Mr. Crookes' website had been viewed 1,788 times but there was no
information "about whether, or how many times, the hyperlinks
themselves had been clicked on" (*9). Mr. Crookes argued before
the Supreme Court of Canada that inserting a hyperlink on a webpage
should result in a presumption that the hyperlinked content "has
been brought to the knowledge of a third party and has therefore
been published" (*10).
Abella J. for the Majority
The test for an action in defamation was set out by
the Supreme Court of Canada in Grant v Torstar Corp (*11),
wherein it was stated that the plaintiff must "prove on a balance
of probabilities that the defamatory words were published; that
is, that they were 'communicated to at least one person other than
the plaintiff'" (*12). Courts have held that "any act
which has the effect of transferring the defamatory information
to a third person constitutes a publication", such that the
actual form of the defendant's act of publication is irrelevant
Initially, "publication" was held to exist
in a wide variety of circumstances, such as pointing at a sign or
speaking loudly enough to be overheard in another room. However,
more recently, courts have moved toward the notion that "some
acts are so passive that they should not be held to be publication"
(*14). After referring to several older U.S. cases, Justice Abella
stated that she agreed with the approach of the British Columbia
Court of Appeal in Carter v BC Federation of Foster Parents Assn (*15) where the court held that "reference to an article containing
defamatory comment without repetition of the comment itself should
not be found to be a republication of such defamatory comment"
Justice Abella first described references to other
content in general, and then hyperlinks specifically:
 A reference to
other content is fundamentally different from other acts involved
in publication. Referencing on its own does not involve exerting
control over the content. Communicating something is very different
from merely communicating that something exists or where it exists.
The former involves dissemination of the content, and suggests
control over both the content and whether the content will reach
an audience at all, while the latter does not. Even where the
goal of the person referring to a defamatory publication is to
expand that publication's audience, his or her participation is
merely ancillary to that of the initial publisher: with or without
the reference, the allegedly defamatory information has already
been made available to the public by the initial publisher or
publishers' acts. These features of references distinguish them
from acts in the publication process like creating or posting
the defamatory publication, and from repetition.
 Hyperlinks are,
in essence, references. By clicking on the link, readers are directed
to other sources. Hyperlinks may be inserted with or without the
knowledge of the operator of the site containing the secondary
article. Because the content of the secondary article is often
produced by someone other than the person who inserted the hyperlink
in the primary article, the content on the other end of the link
can be changed at any time by whoever controls the secondary page.
Although the primary author controls whether there is a hyperlink
and what article that word or phrase is linked to, inserting a
hyperlink gives the primary author no control over the content
in the secondary article to which he or she has linked.
 Although the person
selecting the content to which he or she wants to link might facilitate
the transfer of information (a traditional hallmark of publication),
it is equally clear that when a person follows a link they are
leaving one source and moving to another. In my view, then, it
is the actual creator or poster of the defamatory words in the
secondary material who is publishing the libel when a person follows
a hyperlink to that content. The ease with which the referenced
content can be accessed does not change the fact that, by hyperlinking,
an individual is referring the reader to other content. (See Dell
Computer Corp. v. Union des consommateurs, 2007 SCC 34, 
2 S.C.R. 801, at paras. 97-102.)
 Hyperlinks thus
share the same relationship with the content to which they refer
as do references. Both communicate that something exists, but
do not, by themselves, communicate its content. And they both
require some act on the part of a third party before he or she
gains access to the content. The fact that access to that content
is far easier with hyperlinks than with footnotes does not change
the reality that a hyperlink, by itself, is content neutral -
it expresses no opinion, nor does it have any control over, the
content to which it refers.
Justice Abella noted that this interpretation accords
with the fact that defamation actions involve not only the plaintiff's
"interest in protecting his or her reputation, but also the
public's interest in protecting freedom of expression", (*17)
and that a proper balance must be struck between these two factors.
Thus, excluding mere references from the test of defamation accords
with such balancing of the two factors, and "also with the
dramatic transformation in the technology of communications"
(*18). Facilitating use of the internet's capacity to disseminate
information should be encouraged, and without hyperlinks "the
web would be like a library without a catalogue: full of information,
but with no sure means of finding it" (*19).
The internet cannot "provide access to information
without hyperlinks", and "subjecting them to the traditional
publication rule would have the effect of seriously restricting
the flow of information and, as a result, freedom of expression"
(*20). Justice Abella and the majority of the Court did not wish
to risk the functional impairment of the internet by stifling the
use of hyperlinks. Her Honour recognized that the internet has "tremendous
power" to harm the reputation of others, but she was not convinced
that applying the traditional publication rule to hyperlinks would
protect those reputations (*21). Use of hyperlinks may result in
liability for defamation, however, where, "understood in context",
the hyperlink itself expresses something defamatory.
 Making reference to the existence
and/or location of content by hyperlink or otherwise, without
more, is not publication of that content. Only when a hyperlinker
presents content from the hyperlinked material in a way that actually
repeats the defamatory content, should that content be considered
to be "published" by the hyperlinker. Such an approach
promotes expression and respects the realities of the Internet,
while creating little or no limitations to a plaintiff's ability
to vindicate his or her reputation. While a mere reference to
another source should not fall under the wide breadth of the traditional
publication rule, the rule itself and the limits of the one writer/any
act/one reader paradigm may deserve further scrutiny in the future.
Justice Abella for the majority, therefore, held that,
because nothing on Mr. Newton's webpage was itself defamatory, and
because the court decided that the use of a hyperlink cannot by
itself amount to publication, Mr. Crookes did not succeed in his
action for defamation. Even when taken in context, the hyperlinks
did not express any opinion, defamatory or otherwise, of Mr. Crookes.
Chief Justice McLachlin and Justice Fish
This is one of the relatively few Supreme Court of
Canada decisions where the Court is not unanimous in its pronouncement
of its decision. Here, the Chief Justice and Justice Fish issued
separate concurring reasons, proposing a different test for when
a hyperlink constitutes a publication for the purposes of an action
in defamation. They stated that, in some circumstances, "the
combined text and hyperlink may amount to publication of defamatory
material", such as where "the text indicates adoption
or endorsement of the content of the hyperlinked text",
but a mere reference is not enough (*22).
Finally, Justice Deschamps also issued lengthy separate
reasons concurring with the result, but with a different analysis
than that of the other judges. His decision framed the issue as
whether "notwithstanding these defences [to liability for defamation],
the scope of conduct that may attract prima facie liability
for defamation is itself too broad and in need of adjustment to
further promote freedom of expression" (*23).
Defamation requires proof of publication, and publication
involves "(1) an act that makes the defamatory information
available to a third party in a comprehensible form, and (2) the
receipt of the information by a third party in such a way that it
is understood" (*24). Justice Deschamps noted that while this
appeal dealt with internet hyperlinks, the "answer must [also]
be adaptable to other modes of communication and to future technological
Justice Deschamps disagreed with the approach taken
by Justice Abella and the majority. A "blanket exclusion"
of hyperlinks from the publication rule "exaggerates the difference
between references and other acts of publication", but also
"treats all references, from footnotes to hyperlinks, alike"
(*26). Rather, Justice Deschamps preferred a different approach:
A more nuanced approach to revising the
publication rule, and one that can be applied effectively to new
media, would be for the Court to hold that in Canadian law, a
reference to defamatory content can satisfy the requirements of
the first component of publication if it makes the defamatory
information readily available to a third party in a comprehensible
form. In addition, the Court should make it clear that not every
act, but only deliberate acts, can lead to liability for defamation
The requirement of a deliberate act has already been
applied in internet defamation cases. In Godfrey (as noted
by Justice Deschamps), an ISP was found to have published defamatory
material when it failed to act after being alerted that its news
server contained defamatory information and a request that it be
removed. In Bunt, (as noted by Justice Deschamps), an ISP
did not publish defamatory material because their role was passive.
These cases illustrate that "not every act that makes
the defamatory information available" constitutes publication;
rather, the plaintiff must prove "that the act is deliberate",
which requires proving that "the defendant played more than
a passive instrumental role in making the information available"
Justice Deschamps proposed that the proper approach,
rather than Justice Abella's approach to exclude hyperlinks from
the scope of the publication rule, is:
(1) to explicitly recognize the
requirement of a deliberate act as part of the Canadian common
law publication rule, and (2) to continue developing the rule
incrementally in order to circumscribe the matter in which a deliberate
act must make defamatory information available if it is to result
in a finding of publication (*29).
Justice Deschamps did provide some guidance with respect
In determining whether hyperlinked
material was readily available, a court should consider a number
of factors, including whether the hyperlink was user-activated
or automatic, whether it was a shallow or a deep link, and whether
the linked information was available to the general public (as
opposed to being restricted). This list of no factors is by no
There is no presumption of liability for persons posting
hyperlinks. Rather, the plaintiff must prove that "the hyperlinker
performed a deliberate act that made defamatory information readily
available to a third party in a comprehensible form" and that
"a third party received and understood the defamatory information"
(*31). A legal test that "focuses on how a hyperlink makes
defamatory information available" versus the bright line test
advocated by Justice Abella "offers a more contextual and more
nuanced response to developments in communications media" (*32).
Determining whether a third party received and understood
the defamatory hyperlinked material by clicking on the link, will
depend on "a variety of factors" that are similar to those
considered to determine whether the defamatory information was readily
available, but which also add:
whether the page contained more
than one hyperlink and, if so, where the impugned link was located
in relation to others; the context in which the link was presented
to users; the number of hits on the page containing the hyperlink;
the number of hits on the page containing the linked information
(both before and after the page containing the link was posted);
whether access to the Web sites in question was general or restricted;
whether changes were made to the linked information and, if so,
how they correlate with the number of hits on the page containing
that information; and evidence concerning the behaviour of Internet
Justice Deschamps disagreed with Justice Abella for
the majority that a simple reference to defamatory material does
not constitute publication to the extent that it means "a simple
reference cannot form the basis for a finding of publication without
actually expressing something defamatory" (*34).
However, if the person referencing the hyperlink did
not know the information in the hyperlinked material was defamatory,
and was aware of no circumstances to put him or her on notice to
suspect that the material was defamatory, then the defence of innocent
dissemination should be made available (*35). This defence should
also mitigate any "chilling effect" on free speech. If
the defence of innocent dissemination is not available, the defences
of fair comment and reasonable communication of matters on public
interest then may apply.
It should be evident that the law of defamation,
viewed as a whole, is the result of a sustained effort to maintain
a balance between the protection of reputation and freedom of
expression. An approach that limits the discussion to the fact
that what is in issue is a reference and disregards the context,
including the nature of the reference and the various aspects
of the law of defamation, is too narrow. In my view, the question
of publication must be approached from a wider perspective, bearing
in mind the incremental adjustments made to the law of defamation
in recent years (e.g., WIC and Grant). Moreover, any further adjustments
to defamation law should also be made incrementally, not by way
of a sweeping declaration that treats all forms of reference alike
and rules out the possibility of a reference to defamatory material
supporting a finding of publication (*36).
Justice Deschamps noted that Mr. Newton "acted
as more than a mere conduit in making the hyperlinked material available";
rather, his actions were deliberate (*37). The shallow link to OpenPolitics
did not make the defamatory content readily available because "the
reader would have to take further action in order to find the defamatory
material" (*38). However, the deep link to www.USGovernetics.com
did make content readily available because "all the reader
had to do to gain access to the article was to click on the link"
(*39). However, there was no evidence indicating that a third party
received and understood the information, therefore the second part
of the test was not satisfied.
This decision illustrates the degree of care that
should be taken with regard to information one posts online, in
either private or commercial posts. Both approaches stipulated by
the Supreme Court of Canada leave this area relatively unclear.
The majority held that mere reference to a hyperlink does not constitute
defamation (even if the hypelinked material is defamatory), but
that publication does occur when the content of that hyperlink is
published. The question of what constitutes publication of the content
still very much depends on the context of that publication. In addition,
an element of uncertainty has been added by the concurring opinion
of the Chief Justice and Justice Fish, and that of Justice Deschamps.
Particularly given Justice Deschamps' disagreement with the majority's
pronouncement that a mere hyperlink reference is not defamatory,
persons or companies posting material on the internet should be
particularly careful to review hyperlinked material to ensure there
is no defamatory content in the hyperlinked material, and to properly
review and respond to allegations from third parties that any material
*1 2011 SCC 47 [Crookes].
*2 Crookes, supra note 1 at para 5.
*3 Ibid at paras 4 and 6.
*4 Ibid at para 7.
*5 Ibid at paras 6 and 8.
*7 Ibid at para 9.
*8 Ibid at para 10.
*10 Ibid at para 14.
*11 2009 SCC 61,  3 SCR 640.
*12 Crookes, supra note 1 at para 1.
*13 Ibid at para 16, citing Stanley v Shaw, 2006 BCCA
467 at para 5, 231 BCAC 186.
*14 Ibid at paras 18-21.
*15 2005 BCCA 398, 42 BCLR (4th) 1.
*16 Crookes, supra note 1 at paras 24 and 25.
*17 Ibid at para 31.
*18 Ibid at para 33.
*19 Ibid at para 34.
*20 Ibid at para 36.
*21 Ibid at paras 37 and 39.
*22 Ibid at para 48.
*23 Ibid at para 54.
*24 Ibid at para 55.
*25 Ibid at para 56.
*26 Ibid at para 58.
*27 Ibid at para 59.
*28 Ibid at para 91.
*29 Ibid at para 92.
*30 Ibid at para 99.
*31 Ibid at para 100.
*32 Ibid at para 106.
*33 Ibid at para 110.
*34 Ibid at para 111.
*35 Ibid at para 113-114, citing Society of Composers,
Authors and Music Publishers of Canada v Canadian Assn of Internet
Providers, 2004 SCC 45,  2 SCR 427.
*36 Ibid at para 117.
*37 Ibid at para 63.
*38 Ibid at para 124.
*39 Ibid at para 125.
3. A "Verbal" Notice of Claim: The Door
Is Open in Quebec
The recent decision of the Quebec Superior Court, 6357318 Canada Inc v. Transport Verville Ltée, 2011
QCCS 5475 (CanLII) could be a game changer for the insurers and
adjusters involved with cargo claims in Quebec. The three conditions
regarding the validity of a cargo notice of claim prescribed by
section 2050 of the Quebec Civil Code (being 1) a written notice,
2) detailing the claim and 3) that same be sent within 60 days of
the delivery of the goods) could now be more flexibly interpreted
This decision is a classic example of a cargo claim
in Canada. The Plaintiff 6357318 Canada Inc., a shipper, contracted
with the Defendant, Transport Verville Ltée, a carrier, for
the carriage of cargo. Upon delivery to the consignee, the cargo
was found to be damaged. A representative of the shipper was immediately
advised of the damage, who in turn, advised a representative of
the carrier. The same day, representatives of both companies together
inspected the damage to the cargo. The incident was followed by
a lawsuit brought by the shipper against the carrier for damages
pursuant to the contract of carriage.
The Motion for Dismissal of the Action for Lack
of Written Notice
The Defendant sought the dismissal of an action, through
the Quebec equivalent of a motion for summary judgment, regarding
the cargo claim on the basis that the written notice of claim had
been delivered 62 days after the delivery of the goods, hence two
days too late.
The Plaintiff defended that motion on the basis that
while, on the one hand the written notice of claim might have been
delivered two days too late on the other hand the carrier had been
advised immediately of the loss and, as a result of that verbal
notice, it had the chance to conduct a thorough inspection of the
goods the same day.
After review of the case law regarding the requirement
of a written notice of claim pursuant to section 2050 of the Quebec
Civil Code, the Honourable Judge found that the Court in the past
had put more importance on the ultimate purpose of the Notice of
Claim, which is to advise the carrier and to provide him with the
opportunity to conduct an inspection, than the actual form of that
Given the high burden upon a Defendant seeking a dismissal
of an action at a preliminary stage as in this case and the possibility,
based on the jurisprudence on the topic, that in fact, a verbal
notice of claim could be sufficient to fulfill the first or written
notice requirement of section 2050 of the Quebec Civil Code, the
Honorable Judge in this case refused to dismiss the action and found
in favour of the Plaintiff.
It is still highly recommended that anyone involved
with cargo claims in Quebec should send written notice of claim
within 60 days. However, it appears that a verbal notice of claim
could serve the same ultimate purpose as a written notice of claim
and could, therefore, be sufficient to fulfill the first requirement
of section 2050 of the Quebec Civil Code.
4. Bailment Not Applicable in Carriage Contract
In Pro Transport Ltd. v. Day & Ross Inc.,
2011 NBCA 104, the New Brunswick Court of Appeal had occasion to
comment on the relationship between the law of bailment and the
limitation of liability under a bill of lading. The trial judge
held the amount for which the carrier was liable, after losing the
appellant's hydraulic pump, was limited to the amount fixed in accordance
with the bill of lading.
According to the bill of lading, the carrier's liability
for non-delivery was limited to $2/lb, unless the consignor declared
the value of the goods on the face of the bill of lading. The consignor
had failed to do so and, hence, the carrier insisted that its liability
was to be calculated by reference to the weight of the pump (2,815
lb) and not the value of a new replacement pump ($18,785) as claimed
by the appellant. The trial judge accepted the carrier's argument
and fixed the damages at $5,630, while provisionally assessing the
appellant's loss at $5,910, in the event the limitation of liability
clause should be declared inapplicable.
An issue arose as to whether the bill of lading applied
or whether the law of bailment applied. The trial judge rejected
the appellant's contention that, in fact, the pump had arrived in
Edmonton, Alberta, from Bathurst, New Brunswick and was mistakenly
transferred or delivered to another consignor. On a balance of probabilities,
the trial judge concluded the pump was lost in transit. This finding
was central to the appellant's bailment argument. The appellant
had argued that, once the goods had arrived in Edmonton, the contractual
relationship between the parties was governed by the law of bailment
and the Warehouse Receipts Act, R.S.N.B. 1973, c. W-3, (now
R.S.N.B. 2011, c. 236), and, therefore, the respondent carrier could
no longer rely on the limitation clause found in the bill of lading.
The appellant insisted that the trial judge made a palpable and
overriding error in concluding, as a matter of fact, that the pump
was lost in transit.
The Court of Appeal, however, concluded that:
it makes no difference whether the pump
was lost in transit or lost after it arrived in Edmonton. In either
case the bill of lading prevails. There is no logical reason or
legal support for the proposition that the contractual relationship
between the parties was transformed from a contract for the carriage
of goods to a bailment contract once the goods arrived in Edmonton.
The reality is that the bill of lading placed an express limitation
on the carrier's liability with respect to the "non-delivery
of the goods" to the consignor (the appellant). The law of
bailment simply has no application and nothing found in the provincial
legislation alters this legal reality. Hence, this case comes
squarely within the legal framework, governing bills of lading
and limitation of liability clauses, outlined in Day &
Ross v. Beaulieu, 2005 NBCA 25 (CanLII), 2005 NBCA 25, 280
N.B.R. (2d) 201.
The Court of Appeal dismissed the appeal. No additional
analysis is provided but it clearly appears that, in a carriage
situation where a bill of lading is issued, bailment does not play
5. Registration of Foreign Arbitration Awards in Federal Court
In the recent decision of Orient Overseas Container
Line Limited v. Sogelco International, 2011 FC 1466, Justice
Harrington of the Federal Court of Canada had occasion to consider
the application of Rule 326 of the Federal Courts Rules, which allows
for the registration and enforcement of a foreign arbitral award.
In September 2009, the applicant carrier "OOCL,"
obtained an arbitration award from Manfred W. Arnold, a New York
arbitrator, against Sogelco International ("Sogelco")
for unpaid freight, demurrage and related charges arising from five
shipments of frozen fish from Halifax to Antwerp. Sogelco has always
maintained the position that the arbitrator did not have jurisdiction
as it had never agreed, in writing or otherwise, to arbitrate.
In February 2010, OOCL applied ex parte for
the registration and enforcement of the award in accordance with
rule 326 to 334 (and following) of the Federal Courts Rules.
Sogelco was given leave to contest the application.
By order dated 27 April 2010, Prothonotary Morneau
dismissed Sogelco's opposition and granted the application for registration
Sogelco appealed the order of Prothonotary Morneau.
Justice Harrington reviewed the OOCL arbitration and
the application for registration and enforcement and stated:
OOCL's motion is founded on rule 326 of the
Federal Courts Rules which defines a "foreign judgment"
as including an arbitral award that may be registered here in
accordance with articles 35 and 36 of the Commercial Arbitration
Code, set out in the Schedule to the Commercial Arbitration Act.
It is important to note that rule 326 refers only to articles
35 and 36 of the Code, rather than the entire code. The Code is
based on, but is not identical, to the Model Law on International
Commercial Arbitration as adopted by the United Nations Commission
on International Trade Law in 1985. More particularly, article
1(2) explicitly states: "The provisions of this Code, except
articles 8, 9, 35 and 36, apply only if the place of arbitration
is in Canada." This point seems to have been lost. Furthermore,
the Code only applies if one of the parties is Her Majesty, or
if in relation to maritime or admiralty matters. This is unquestionably
a maritime matter. The Court has to ensure that the claim is maritime
in nature (Compania Maritima Villa Nova S.A. v Northern Sales
Co, reflex,  1 FC 550, 137 NR 20).
Justice Harrington reviewed Article 35. He concluded
that Article 35 sets out what OOCL had to do to have the award recognized
in Canada as binding and subject to enforcement. It was required
to provide copy of the award, which it did, and the original or
a certified copy of the "arbitration agreement referred to
in article 7
" Article 7 provides that the arbitration
agreement shall be in writing. The agreement need not be signed,
as "a writing" would include an exchange of letters, telex,
telegrams or other means of telecommunication, which can record
Justice Harrington then reviewed the evidence to determine
whether there was an agreement to arbitrate. He found that:
The undisputed evidence before the arbitrator,
and before the Prothonotary, is that on 10 April 2006 an OOCL
Services Contract was signed by Mr. Elbaz, the president of Sogelco,
and by the pricing director of OOCL. It is Mr. Elbaz' uncontradicted
evidence that he only signed and received the one page. That one
page, however, states that it is page one of eight. There is no
evidence that Mr. Elbaz ever asked for the other seven pages.
Clause 12 on page four of eight provides that the contract is
governed by the law of the United States and "any dispute
in connection with the Contract shall be resolved by arbitration
in New York, NY, or as may be mutually agreed
parties did not agree to resolve their dispute in any other way.
Justice Harrington dismissed Sogelco's appeal. Moral
of the story - if you get a one page contract and it says that it
is page one of eight - get the rest of the document.
6. Halsbury's Laws of Canada - Transportation Law
Transportation - Carriage of Goods
Rui M. Fernandes, B.Sc., J.D., LL.M.
With carriage of goods law often at the forefront of commercial
transactions, Halsbury's Transportation - Carriage of Goods title offers the ideal resource for lawyers who require a concise
explanation of how this specialized area of law operates. Timely
and accessible, and written by one of Canada's leading transportation
lawyers, this valuable reference delivers a clear narrative of the
legislative framework and identifies the relevant case law that
practitioners need to be aware of. It contains useful answers to
questions on a wide range of topics, including:
- Federal and provincial powers and areas of responsibility
- Carriage of goods by road
- Federal legislation regulating extra-provincial
- Provincial licensing of carriers
- Powers and procedures of transport authorities
- Equipment and personnel
- Duties and responsibilities of carriers
- Passenger and luggage liability issues
- Hazardous goods
- Carriage of goods by rail
- Contractual arrangements
- Loss, damage or delay
- Accommodation for goods
- Connecting carriers
- Carriage of goods by water
- Formation and interpretation of Charter parties
- Loading and discharge of goods
- Frustration of contracts
- Hague-Visby rules regarding bills of lading
- Responsibilities, liabilities, rights and immunities
- Arbitration clauses, letters of indemnity
Transportation - Railways
Rui M. Fernandes, B.Sc., J.D., LL.M.
Once at the very heart of commercial activity and the Canadian Dream,
railways still play an important part in the transport of passengers
and goods, and rail lines are omnipresent in virtually every populated
region in Canada. Transportation - Railways provides a comprehensive
and national treatment of the law governing the construction, operation,
safety and oversight of federal and provincial railways, including
matters such as:
- The legislative framework
- Role and powers of the Canadian Transportation
- Orders, enforcement and appeals
- Mediation and arbitration
- Violations and offences under the legislation
- Regulation of railway construction
- Expropriation of land
- Location, re-location and approval procedures
- Construction and maintenance costs
- Safety standards and regulation
- Duty of care, rights of way and railway
- Environmental protection
- Passenger car safety requirements
- Powers, responsibilities and management of
- Traffic operations and rules
- Carriage of passengers
- Service requirements, persons with disabilities
and personnel training
- Baggage issues
- Tariffs, rates and freight
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