Douglas Mark Atleo v. Neptune Packers Ltd., docket T-360-96

     T-360-96

Between:

     DOUGLAS MARK ATLEO,

     Plaintiff,

     - and -

     NEPTUNE PACKERS LTD.,

     Defendant.

     REASONS FOR ORDER

JOHN A. HARGRAVE

PROTHONOTARY

     These reasons arise out of the Plaintiff's motion, pursuant to Rule 1716(2)(b), to add as Defendants four employees of the Defendant Neptune Packers Ltd.

BACKGROUND

     By way of background, salmon need no longer be off-loaded from fishing vessels, piece by piece, using a pew¹, but rather may be pumped or vacuumed out of a vessel's hold. This process requires the addition of water to the fish hold in order to produce a pumpable slurry of fish and water.

     In the present instance, the Plaintiff brought its small drum seiner, "Drummer Boy", to the Defendant's facility at Beaver Cove, Vancouver Island, to discharge a catch of salmon. There some indication that the "Drummer Boy"'s stability was suspect and that this had to be taken into account during off-loading by alternating the flooding and unloading between the port and starboard sides of the divided hold. The Statement of Claim alleges the vessel was given into the control and supervision of the Defendant's employees and that as a result of their negligence and of the negligence of the Defendant itself, the "Drummer Boy" capsized and sank.

     The Plaintiff says the employees of the Defendant were negligent when, on August 3, 1994, they completely unloaded the starboard side of the hold and then flooding the port side in order to facilitate the pumping out of the catch. In addition, the pump suction line was supported at a substantial height above deck by the "Drummer Boy"'s own rigging. This combination of factors caused a loss of stability sufficient to capsize the "Drummer Boy". The result is a claim for substantial damages including salvage expenses, repair costs, loss of fish, loss of gear and personal effects and loss of fishing income.

     The Plaintiff's surveyor was unable to interview the Defendant's unloading crew. From an affidavit in support of the motion it is apparent that, despite four timely and unanswered letters from counsel for the Plaintiff to counsel for the Defendant, requesting the names of the unloading crew and at least two requests for an Affidavit of Documents, it was not until the Plaintiff examined Mr. Roy Alexander, the president of Neptune Packers Ltd., on October 16, 1996, that counsel for the Plaintiff learned the names of the unloading crew. Mr. Alexander was not at the Defendant's Beaver Cove facility, which consisted of a barge with pumping equipment, when the accident occurred. The Beaver Cove manager for Neptune Packers Ltd., Mr. Harry Moss, was in the area, but was neither at the dock nor was he supervising the unloading when the accident occurred. Rather, three of the Defendant's employees, Alan Mose, Alan Amos and Mike Botley were, to Mr. Alexander's understanding, unloading the "Drummer Boy". The Defendant now seeks to add those four employees, Harry Moss, Alan Mose, Alan Amos and Mike Botley, as Defendants.

     Counsel for the Defendant, among other things, submits that Mr. Mark Atleo, the Plaintiff, knew the identity of Mr. Harry Moss, the Neptune Packers Ltd. manager; that the Plaintiff could have learned the identity of the other three intended Defendants; that limitation against the four proposed Defendants has run; and that the proposed Defendants, in the words of Rule 1716(2)(b), are not ". . . necessary to ensure that all matters in dispute in the action may be effectively and completely determined and adjudicated upon, . . . ".

     Counsel for the Plaintiff contends that the limitation date has not gone by, for limitation under section 6(3) of the Limitation Act, S.B.C. 1979, c. 236, does not commence to run until the Plaintiff knows the identity of a defendant, or in this case, the identity of the Defendant's three-person unloading crew and the Defendants on-site manager.

ANALYSIS

     Were I convinced that the intended Defendants are necessary to ensure that all matters in dispute in the action might be effectively and completely determined and adjudicated, in the face of disagreement as to whether time has run under the BC Limitation Act, it would be appropriate to add the intended Defendants, leaving it open for them to raise limitation as a defence, as did Mr. Justice Strayer (as he then was) in Eastman Kodak Co. v. Hoyle Twines Ltd. (1985), 5 C.P.R. (3d) 264, for the issue as to the running of time was in that action, as here, a difficult question of fact and law. But this is not the conclusion to which I have come.

     I have already referred to a small portion of Rule 1716. The pertinent portion of the Rule, in full, is:

(2)      At any stage of an action the Court may, on such terms as it thinks just and either of its own motion or an application,

. . . . .

(b)      order any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the action may be effectively and completely determined and adjudicated upon, to be added as a party.

     The Plaintiff points out that Rule 1716 does not preclude the joining of a defendant after time has run. The Plaintiff urges I should apply sections 4 and 6(3) of the British Columbia Limitation Act. The relevant portion of section 4(1) provides:

4.      (1)      Where an action to which this or any other Act applies has been commenced, the lapse of time limited for bringing an action is no bar to

. . . .

(d)      adding or substituting of a new party as plaintiff or defendant, under any applicable law, with respect to any claims relating to or connected with the subject matter of the original action.

The submission is that Rule 1716 is the "any applicable law" needed under section 4(1)(d) of the BC Limitation Act.      The Plaintiff then refers to section 6(3) of the BC Limitation Act, touched on above, and which postpones the running of limitation until, among other things, the identity of a defendant is known.

     The Plaintiff's conclusion is that I might add the four Defendants as a "just and convenient" solution, being the test applied by the BC Court of Appeal in Knight Towing Ltd. v. General Motors of Canada Ltd. (1981), 27 B.C.L.R. 335 and in Cementation Company (Canada) Limited v. American Home Assurance Company (1989), 37 B.C.L.R. (2d) 172. The British Columbia rule considered by the BC Court of Appeal in these two cases is Rule 15(5)(a)(iii) which clearly enunciates the test by which a person may be added as a party: it must be "just and convenient". But that is not the test in the Federal Court. Rather, the test, set out in Rule 1716(2)(b) is whether the intended party is necessary in order to effectively and completely determine and adjudicate upon the matter in dispute. There is no need to look either to the Gap Rule, our Rule 5, to import the British Columbia Rule, or to import the British Columbia test by way of section 4 of the BC Limitation Act and the BC Court of Appeal decisions in the Knight Towing and Cementation cases.

     Rule 1716 is discretionary, allowing the Court, on such terms as it considers just, to add parties where it is necessary, in order to effectively and completely determine and adjudicate a matter. By Rule 2(2), which provides for the interpretation of the Rules so as to facilitate the advancement of a case and to ensure that the substantive law is carried out, and by Rule 420, which provides for amendment where it is necessary in order to determine the real question in controversy between the parties, I ought to interpret Rule 1716 broadly, for generally, an amendment ought to be allowed so long as it is sought in good faith and will do no injury to the other side that cannot be compensated for in costs. However, one must not loose sight of the difference between a necessary witness and a necessary party.

     The loading and unloading of cargo, including a catch of fish, is usually looked upon as a joint enterprise. In the present instance the discharge of fish appears to have been a joint enterprise between the Plaintiff, as owner and Master of the "Drummer Boy", who was on deck operating the ship's gear holding the pump's suction line over the fish hold and the Defendant's unloading crew who were operating the fish pump and hold flooding equipment.

     Certainly the three members of the Defendant's unloading crew fall into the category of necessary witnesses and so might the Defendant's manager at Beaver Cove, who would be responsible for the training and supervision of the Defendant's employees. But I am not persuaded that those four individuals are necessary parties. The Defendant, as an employer of the unloading crew, would be vicariously liable for the negligence of those employees. If the Plaintiff succeeds against Defendant, Neptune Packers Ltd., there is nothing in the material to suggest that the corporate Defendant will not be able to pay and that the Plaintiff would have to look to the unloading crew personally for payment of damages. Alternately, if the action were to fail as against Neptune Packers Ltd., it is difficult to see any probability that it might succeed against the Defendant's employees, for there is nothing in the material to suggest that the accident occurred other than in the course of employment of the unloading crew by the Defendant.

     Although it was not argued, there is the question of whether the intended Defendants are necessary in order to find out what happened, in the sense of obtaining adequate and relevant examination for discovery. Examination of the unloading crew members themselves would be more productive than the examination of the president of Neptune Packers Ltd., who was not present at Beaver Cove when the accident occurred, but would have to inform himself by speaking with each of the three members of the unloading crew. It would be more efficient were the Plaintiff able to directly examine the unloading crew for discovery, but that still does not make them necessary parties. In the event that examination for discovery of Mr. Roy Alexander, president of Neptune Packers Ltd., proves unsatisfactory, the Plaintiff always has a remedy by way of a second examination for discovery of someone more suitable.

CONCLUSION

     It is not necessary for the proper determination of this action that the unloading crew and the Defendant's Beaver Cover manager be added as Defendants. It would not be in the interests of justice to require the Defendant's employees to be added, for while it would give the Plaintiff broader discovery, those Defendants would incur substantial legal and related costs, without affecting the ultimate outcome of the action. The Plaintiff's motion is thus dismissed, with costs in the cause.

                             (Sgd.) "John A. Hargrave"

                                 Prothonotary

March 5, 1997

Vancouver, British Columbia

__________________

¹      A pew may be likened to a pitchfork with one prong which salmon (or other moderate-sized fish) are unloaded from a fishing vessel or handled on their way through processing, by forking them and flipping them out of the hold, or into fish totes for weighing and so on during the handling process leading to processing. This is labour intensive and requires some skill, not only to prevent unnecessary damage to the fish, but also to avoid injury to others in an unloading crew.