Date: 20060621
Docket: T-573-04
Citation: 2006 FC 797
Montréal, Quebec, June 21, 2006
Present:
Richard Morneau, Prothonotary
BETWEEN:
ALSTOM CANADA INC.
and
AREVA T&D CANADA INC.
Plaintiffs
and
CANADIAN
NATIONAL RAILWAY COMPANY
Defendant
REASONS FOR ORDER AND ORDER
[1]
UPON the plaintiffs’ motion to oblige the
defendant to answer to undertakings made by its lawyer at the February 27, 2006
examination of counsel for the defendant and to obtain rulings on a series of
objections made at that time by the defendant.
[2]
UPON the motion records of the parties and the
submissions made by their lawyers at the hearing.
[3]
WHEREAS, as far as the undertakings are
concerned, the vast majority of them seem to have been abided by, although
belatedly, and some of them still remain unanswered.
[4]
WHEREAS the objections were grouped into four
categories and should be dealt with as such.
Category I
[5]
WHEREAS questions 1, 3, 5, 6 and 11 in this
category seek specific and limited information about two shipments by rail that
had to be made by the defendant in order to, following the initial shipment
during which the transformer was damaged (March 20, 2001 to March 30, 2001,
Trip I), return the transformer to England (April 24, 2001 to May 3, 2001,
Trip II) and then deliver the repaired transformer back to Manitoba
(October 2002, Trip III).
[6]
WHEREAS, in spite of the fact that the damages
claimed by the plaintiffs were apparently caused during Trip I, Trips II and
III were also made by the defendant and necessarily involved the same transformer
as in Trip I. In addition, the defendant used the same railway car for Trip II
as for Trip I.
[7]
WHEREAS, for these reasons, the specific and
limited Category I questions are relevant because they could, within the
meaning of Reading & Bates Construction Co. v. Baker Energy Resources
Corp. (1988), 24 C.P.R. (3d) 66, at pages 70 to 72, entail answers
demonstrating variables in the positioning of the railway car used for carriage
during trips II and III which could, by comparison with Trip I, help or hinder
either party’s case.
[8]
WHEREAS, in addition, the defendant did not
prove by affidavit that seeking additional information would be excessive in
relation to the value of such information.
[9]
CONSEQUENTLY, the questions in this category
must be answered.
[10]
In allowing these Category I questions, the
Court understands from the affirmations made by the plaintiffs that such
questions concern very specific aspects of Trips II and III and that these
questions are not and must not be a gateway in a broader attempt to deal with
Trips II and III.
Category II
[11]
WHEREAS this category includes questions 2, 4
and 7, and the Court agrees with the defendants that questions 2 and 4 are
drafted in such a way as to constitute a trap for the witness because they are
premised on a finding of failure to comply with instructions, questions 2 and 4
will not have to be answered. However, question 7 is different and will have to
be answered.
Categories III and IV
[12]
The Court notes that the defendant now
undertakes to answer the questions in these categories.
[13]
As far as costs are concerned, they are allowed
in favour of the plaintiffs according to the maximum amount of Column III of
the Tariff, considering that the plaintiffs have largely won this motion, and
considering that this motion most surely forced the defendant to act to ensure
that the delay already incurred with regard to the undertakings did not get any
longer.
ORDER
The defendant will complete its answers to the
remaining undertakings within the time limit to be mutually determined by the
parties and specified in draft order sought by the direction of this Court
dated June 16, 2006.
Likewise, the defendant must answer the Category
I questions, question 7 of Category II, and the Category III and IV questions.
Costs are allowed in favour of the plaintiffs
according to the maximum amount in column III of the Tariff.
The plaintiffs’ motion is otherwise dismissed.
“Richard
Morneau”
Certified
true translation
Michael
Palles
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