Shinwa Kaiun K.K. v. Queen of Alberni (The), docket T-659-92

     T-659-92

Between:

     SHINWA KAIUN K.K.,

     Plaintiff,

     - and -

     THE SHIP "QUEEN OF ALBERNI", CENTRAL

     TRUST CO., BRITISH COLUMBIA FERRY

     CORP., AND ALL OTHERS INTERESTED IN

     THE SHIP "QUEEN OF ALBERNI",

     Defendants.

     REASONS FOR ORDER

JOHN A. HARGRAVE

PROTHONOTARY

     These reasons arise out of the Plaintiff's motion for some sixty answers and documents requested on the examination for discovery of a representative of British Columbia Ferry Corp., whom I shall refer to as the "Defendant". I reserved my decision on three questions which would require the Defendant's discovery witness to locate and inform himself from past employees, in this instance two former BC Ferry Corporation masters and an individual from management, apparently all now retired.

     In objecting to the requirement that the Defendant's witness seek out and inquire of those directly involved, counsel for the Defendant relies upon Sperry Corporation v. John Deere Ltd. (1984), 82 C.P.R. (2d) 1. The Sperry case was decided before Rule 458(2), setting out explicit duty on the part of a discovery witness, to inquire of former employees, came into being. I wished to look at the overall case law and particularly any decisions involving Rule 458(2), as to the extent of searches that need be made for former employees, thus the reservation.

     Formerly, the duty of the discovery witness, to inform himself or herself, was governed by Rule 465(15), which required the witness to answer questions within the knowledge or means of knowledge of the witness. In Carling O'Keefe Breweries v. Anheuser-Busch Inc. (1982), 60 C.P.R. 200, Mr. Justice Mahoney (as he then was) allowed it would be neater if a party were able to obtain information from former employees, but that he could not order a party to produce information from a source not under its control. He went on to say that in the absence of co-operation such an individual could be subpoenaed for the trial. A subpoena may not be a practical answer in this instance, for the Plaintiff wishes to determine, at this point, what happened, not wait and be ambushed at trial.

     In the Sperry case (supra), the case relied upon by counsel for the Defendant, Mr. Justice McNair referred to the duty of discovery witnesses to inform themselves by inquiring of other officers, servants or agents of a corporation, but did not extend it to former employees who were neither within the control of the corporation, nor readily available (page 12).

     In Control Data Canada Ltd. v. Senstar Corporation (1987), 10 F.T.R. 153 Mr. Justice Cullen examined an number of cases. He preferred the view of Mr. Justice Cattanach expressed in Geo. Vann, Inc. v. N.L. Industries (1985), 1 C.P.R. (3d) 277 (F.C.T.D.) to the effect that merely because a person is a former employee is not a sufficient excuse in itself, to fail to make inquiry, but rather a witness must show it is unreasonable to be required to obtain information from someone apparently readily available. Mr. Justice Cullen noted the positive duty in Rule 465(15) to answer questions within the witnesses' means of knowledge. As I say, in Data Control, the source of information was readily available and there was no indication that he would not supply the required information. Mr. Justice Cullen ordered that if that person were unwilling or unable to provide the information, such might be explained by affidavit (page 155).

     The last case to which I will refer, decided under the pre-1990 Rules, is Crestbrook Forest Industries Ltd. v. M.N.R. (1993), 153 N.R. 122. There the Federal Court of Appeal noted that while there was case law indicating discovery ought to be broad, so a party is not ambushed at trial, a party should not be expected to answer questions for which it has no ability to find an answer (page 130).

     At this point, before the introduction of Rule 458(2) in December of 1990, it is fair to put the standard at a best efforts level, for if a party had, with reasonable effort, the ability to find an answer, by consulting with a former employee, it ought to be diligent in doing so..

     In December of 1990, the Federal Court Rules for examination for discovery were amended, including as to a duty explicitly set out in Rule 458(2) requiring the discovery witness to make reasonable inquiries of past and former officers, servants, agents and employees:

This is, at least to the extent of the relevant provisions of the Rule, a codification of what was found to be implicit in former Rule 465(15). Indeed, Mr. Justice Dubé in The CSL Group Inc. v. The Queen an unreported 10 June 1994 decision in action T-1307-90, merely noted, in a Crown context, that "Lack of knowledge.... is no excuse for refusing to answer relevant questions." (page 2) and that the discovery witness "... shall, prior to the examination, become informed by making all reasonable inquiries of any present or former officers of the Crown who might reasonably be expected to have knowledge related to any matter in question in the action." (loc. cit.). This is a reasonable and clear standard, a standard in keeping with broad discovery rights, by which to assure the side examining that it will not likely be ambushed by facts elicited from a witness who cannot be found and consulted during the discovery process, but suddenly becomes available at trial.

     In the present instance, the Defendant's witness says, without any elaboration either on his part or on the part of counsel, that the Defendant does not know the location of any of the three former employees. This conclusion appears to have been reached on the basis of little or perhaps no research by the Defendant.

     Counsel for the Plaintiff suggests, at the least, that inquiries ought to be made by the Ferry Corporation as to where these three retired individuals received their superannuation cheques. There are also a number of other reasonable inquiries that might easily be made, for the maritime community in British Columbia is a fraternity with many links and affiliations. Indeed one might well be surprised if former B.C. Ferry masters and management personnel did not keep in touch with their contemporaries, including those still employed by the Defendant. Perhaps reasonable inquiries have been made: if so it is for the Defendant to show that its duty under Rule 458(2), that of making all reasonable inquiries, has been met.

     The Defendant, if it has not already done so, will use best efforts, in the immediate future, to locate the three former employees and to obtain the requested information from each. In the event of any inability either to locate the witnesses or to obtain their co-operation, the Defendant shall provide an explanation by way of a filed affidavit.

                             (Sgd.) "John A. Hargrave"

                                 Prothonotary

Vancouver, British Columbia

August 27, 1997

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

STYLE OF CAUSE:          SHINWA KAIUN K.K.

                     - and -

COURT NO.:              T-659-92

PLACE OF HEARING:          Vancouver, BC

DATE OF HEARING:          July 29, 1997

REASONS FOR ORDER OF

JOHN A. HARGRAVE, Prothonotary

dated August 27, 1997

APPEARANCES:

     Mr. D. G. Morrison          for Plaintiff

     Mr. G. Wharton              for Defendant

SOLICITORS OF RECORD:

     Bull, Housser & Tupper

     Vancouver, BC              for Plaintiff

     Campney & Murphy

     Vancouver, BC               for Defendant