Haylock v. The ship "Norway", 2003 FC 932

Date: 20030729

Docket: T-1027-01

T-304-03

Citation: 2003 FC 932

Admiralty Action In Rem

and In Personam

Docket: T-1027-01

BETWEEN:

                                  ROSITA HAYLOCK, CECILE ADAIR, DONALD BURGESS,

JENNIFER COLLEY, SOPHIE GEOFFRION, EILEEN HINKLEY,

JUDY MARCHE, HEATHER REARDIGAN,

DANIELLE SEGALL, LONNIE TYACKE

and IRENE WALD

Plaintiffs

and

NORWEGIAN CRUISE LINES LIMITED

and THE OWNERS AND ALL OTHERS INTERESTED IN

THE SHIPS "NORWAY", "NORWEGIAN CROWN",

"NORWEGIAN DREAM" (ex "DREAMWARD"),

"CROWN DYNASTY" (ex "NORWEGIAN DYNASTY"),

"SUPERSTAR TAURUS" (ex "LEEWARD"),

"NORWEGIAN MAJESTY",

"NORWEGIAN SEA" (ex "SEAWARD"),

"NORWEGIAN SKY",

"NORWEGIAN STAR" ("ex "ROYAL ODYSSEY"),

"NORWEGIAN WIND" (ex "WINDWARD") and "SEAWING"

Defendants

Docket: T-304-03

BETWEEN:

JO-ANNE GRAHAM, JUDE LISKOWICH,

JANE McCLAIN, DIANA PLANTE

and JULIA STRAUTMAN

Plaintiffs

and

NORWEGIAN CRUISE LINES LIMITED

and THE OWNERS AND ALL OTHERS INTERESTED IN

THE SHIPS "NORWAY", "CROWN ODYSSEY" (ex "NORWEGIAN CROWN"), "NORWEGIAN DREAM" (ex "DREAMWARD"),

"BRAEMAR" (ex "CROWN DYNASTY", ex "NORWEGIAN DYNASTY"),

"SILJA OPERA"" ex SUPERSTAR TAURUS", ex "LEEWARD"),

"NORWEGIAN MAJESTY", "NORWEGIAN SEA" (ex "SEAWARD"),

"NORWEGIAN SKY", "NORWEGIAN STAR" ("ex "ROYAL ODYSSEY"),

"NORWEGIAN SUN" and "NORWEGIAN WIND" (ex "WINDWARD")

Defendants

                                                            REASONS FOR ORDER

HARGRAVE P.

[1]                  This action is a claim by ship board medical personnel, 15 nurses and one doctor, who served aboard of 11 passenger vessels operated by the Defendant, Norwegian Cruise Lines Limited. Those Plaintiffs reside in various Canadian provinces, from coast to coast, in the United States and, in one instance, in Norway.

[2]                  The Defendant Cruise Lines, quite reasonably and to avoid ambush at trial, wishes discovery of each of the Plaintiffs, but in an effort to minimize costs, would like to examine each Plaintiff using written discovery and then, as may be necessary, go on to select several of the Plaintiffs for further oral discovery. This is not a usual approach in the Federal Court, but for the reasons which follow is an approah which I am prepared to allow, for in this instance it is a sensible procedure which has substantial promise of saving both time and money on a route to achieving a just result on the merits.

CONSIDERATION

[3]                  The parties have agreed that these actions be heard together. Further, as agreed by counsel, the original case management timetable which counsel proposed is to be modified as may be agreed by counsel and approved by the Court. This leaves the issue of whether there may be both the initial written discovery of all the Plaintiffs and then oral discovery of at least some of the Plaintiffs. I would pause to note that, while in some jurisdictions written discoveries are referred as interrogatories, the scope of interrogatories has been narrowed over the years. The Federal Court has rejected the idea that written discoveries are more restrictive than oral discoveries and here I would refer to Wewayakum Indian Band v. Canada (1991), 42 F.T.R. 40 (F.C.T.D.) at 48 where Mr Justice Addy equated written discovery with oral discovery.

[4]                  A rationale for requesting two forms of discovery has various facets. Here I do not need to consider whether the advice of senior counsel for the Defendant Cruise Lines, given by way of the affidavit of a second person, as to a number of advantages offered by this procedure, constitute opinion to be ignored. Nor do I give any evidentiary weight to assertions by counsel for the Plaintiffs that any advantages are illusory. Instead, I rely on common sense, the experience in practice in British Columbia as to the use of interrogatories to provide basic clerical or technical information on which further oral discovery may be planned, the views of Mr Justice Hugessen in Montana v. Canada, [2000] 1 F.C. 267 and changes which the practice of law has undergone since Associate Senior Prothonotary Giles decided Satellite Earth Station Technology Inc. v. Canada (M.N.R.), [1994] 2 C.T.C. 61 (F.C.T.D.).

[5]                  Written discovery, or its nearest equivalent in other jurisdictions, interrogatories, has long been considered a relatively inexpensive means of obtaining answers to questions which are of a technical or clerical nature. Indeed, in some jurisdictions, but not in the Federal Court, they are limited, including to admissions of facts that are needed to establish a litigant's case in order to assist in security a justice, speedy and inexpensive determination on the merits by providing, among other things, a foundation for cross-examination by way of later oral discovery. This is clearly set out in Tse-Ching v. Wesbild Holdings Ltd. (1994), 98 B.C.L.R. (2d) 92 (B.C.S.C.) at pages 97 and 98, which include the following material:

Some interrogatories can become remote, ambiguous and burdensome, requiring much research. However that is not the present case, for the Defendant's draft example of intended oral discovery questions, is within the spirit of the bounds put on the practice by Madam Justice Baker in Wesbild Holdings. It is also important to observe that, in the British Columbia practice, interrogatories can be a part of a continuing and integrated discovery process and that they are not, in any sense, considered a second discovery.

        Also of interest is Weir-Jones Engineering Consultants Ltd. v. Perimeter Technology Corp. (1995), 35 C.P.C. (3d) 83 (B.C.S.C) and to the reference in that case to McLachlin and Taylor, in British Columbia Practice on the use of written discovery in order to obtain basic information on which further questioning may be planned:

While the Weir-Jones case was decided under the British Columbia rules, it is of assistance, delineating written discovery as a tool to obtain information or admissions by which to assist in preparation for oral discovery.

[7]                  In the Federal Court there has been a general move to encourage written discovery. I have in mind, at a basic level, a requirement for written discovery in simplified actions and at a broader level the observations of Mr Justice Hugessen in Montana v. Canada (supra) at page 273:

I would emphasise the reasonable common sense view of Mr Justice Hugessen that interrogatories, or as I am calling the process in this instance, written discovery, is likely to be far less time-consuming and has developed into a means of doing away with a need to adjourn an oral discovery to allow the witness to make enquiries in order to inform himself or herself. Putting these two concepts into the present context, the proposal put forward by counsel for the Defendant Cruise Lines could avoid the expense of bringing witness from great distances, only to have them arrived ill-prepared, or without relevant material, and have to be brought back again.

[8]                  The observations that written discovery is likely to be less time-consuming and less expensive, made by both Madam Justice Baker and Mr Justice Hugessen, are particularly important given the Federal Court's emphasis, in recent years, on Rule 3:

Indeed, of special important, in present day litigation, is the need to reduce the costs of a trial, and the need that a trial occur as quickly as possible. Mr Hugessen, in Visx, Inc. v. Nidek Co. (1998), 150 F.T.R. 92 (F.C.T.D.) at page 93, points to the "... importance of reducing the cost of trial and bringing matters on to trial as quickly as possible, which are paramount considerations in the application of the Federal Court Rules, 1998 ...": Mr Justice Hugessen then goes on to refer, by way of a footnote, to Rule 3, which I have set out above. Here it is interesting to compare Rule 3 with its nearest equivalent in the pre-1998 rules, Rule 2(2):

There is a distinct change in direction and emphasis when one compares former Rule 2(2) with present Rule 3. The former emphasizes an effective rendering of substantive law and an application of the Rules to facilitate, rather than delay or prematurely end "the normal advancement of cases". In contrast, Rule 3 now requires not only a just determination on the merit, but that it be the "most expeditious and least expensive determination" of the case on its merits. I expect this change of emphasis has at least in part been brought about by the sharply rising costs of litigation and the overload of cases with which the Federal Court must cope. This leads to the Satellite Earth Station case (supra) which was decided under the old Rules.

[9]                  From the reasons in Satellite Earth Station (supra) it is apparent that an expeditious and least expensive determination was not argued before Mr Giles. The case was decided purely on the wording of the Rules then enforced which provided for examination for discovery by way of either an oral or written examination, as set out in Rule 455(1) and that both oral and written examination might be had only by agreement or with leave, as set out in Rule 455(2). Mr Giles looked upon the oral and written discoveries in Satellite Earth Station as two separate discoveries. In Satellite Earth Station, because the analysis was that of two separate discoveries, Prothonotary Giles was of the view that oral discovery ought not to be granted until written discovery had been completed and that oral discovery, that is the second discovery, should only be granted in exceptional circumstances. However, in the present instance, what is being sought is not a second discovery, but a preliminary portion of the discovery to provide, if there is a continuation of the discovery, a foundation upon which the cross-examination of oral discovery may be based.

[10]            In the present instance, while I am well aware of Rule 234 requires the leave of the Court (or consent) to have both written examination and oral examination, the emphasis on the use of written discovery as an efficient tool by which to achieve the ends of Rule 3, a just, most expeditious and least expensive determination of a case of its merit, indicates that any test for both oral and written discovery ought not to be "the exceptional circumstances" test applied in Satellite Earth Station case (supra) and the second discovery analysis employed in that case is no longer relevant. Indeed, so long as the Court does not act in a manner contrary to express provisions of the Rules, one should keep in mind that "as a general principle, the Rules of procedure should be a servant of substantive rights and not the master": Reekie v. Messervey, [1990] 1 S.C.R. 219 at 222. This observation of Mr Justice Sopinka formed the basis on which the Federal Court of Appeal granted an equitable bill of discovery in Glaxo Wellcome PLC v. M.N.R. (1998), 162 D.L.R. (4^th) 433 at 452 and following.

[11]            In Glaxo Wellcome (supra) the Court went beyond the Rules and granted an equitable bill of discovery, event though it was a novel remedy. Mr Justice Appeal Stone, in writing for the Court, observed that "Canadian jurists have not shied away from developing new equitable causes of action to temper the rigidity of the law where the circumstances require" (page 453). What is relevant in the present instance is that Mr Justice of Appeal Stone went on to emphasis the test of appropriateness in the circumstances. Given the changes that have taken place in the practice of law, the changes in the philosophy of the Court toward promotion of written discovery in appropriate cases and the change of emphasis Federal Court Rule 3 to a just, most expeditious and least determination, the appropriate circumstances test is applicable. Here I have not lost sight of Rule 55, requiring special circumstances in order to dispense with compliance with the Rules, however that exceptional circumstance test does not apply to the case of both oral and written examinations, for Rule 234 only specifies that there be leave of the Court.

CONCLUSION

[12]            The Defendant Norwegian Cruise Lines Limited, having demonstrated appropriate circumstances, may have initial written discovery, as a part of the discovery process of each of the Plaintiffs, in addition to such oral discovery as it may reasonably require. Here the Defendant should keep in mind that such written discovery must not be so burdensome as to require days or weeks of research and to that end I do not see that the specimen written examination, that proposed for the Plaintiff, Rosita Haylock, is oppressive. Indeed, it appears to cover relevant basic information and will give each witness and both counsel a good idea of what might be to come should the discovery continue in an oral format.

[13]            I thank counsel for interesting presentations. Given that at issue was a distinguishment and departure from earlier approach taken by the Court, the time for which had come, costs will be in the cause.

(Sgd.) "John A. Hargrave"

                                                                                              Prothonotary

Vancouver, British Columbia

29 July 2003

                                                                 FEDERAL COURT

                             NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                            T-1027-01 and T-304-03

STYLE OF CAUSE:                        Rosita Haylock et al. v. Norwegian Cruise Lines Limited et al.

and

Jo-Anne Graham et al. v. Norwegian Cruise Lines Limited    et al.

PLACE OF HEARING:                   Vancouver, British Columbia

DATE OF HEARING:                      21 July 2003

REASONS FOR ORDER:            Hargrave P.

DATED:                                              29 July 2003

APPEARANCES:                          

SOLICITORS OF RECORD: