Date: 20031010
Docket: T-1357-01
Citation: 2003 FC 1186
BETWEEN:
SEATECH CONSTRUCTION LTD.
and NIMMO BAY RESORT LTD.
Plaintiffs
- and -
THE OWNERS AND ALL OTHERS INTERESTED
IN THE SHIP "INLET CHALLENGER",
THE SHIP "INLET CHALLENGER",
GENERAL TOWING LTD. and BILL ROSS
Defendants
REASONS FOR ORDER AND ORDER
ROULEAU J.
[1] In this action, the Plaintiffs allege breach of contract and negligence which they attribute to the Defendants in their failure to deliver a barge that the Defendants had been hired to tow and deliver in good order from Campbell River, B.C. to Nimmo Bay, B.C.
[2] The agreement to tow the barge, entered into in July of 2000, was a verbal agreement by which General Towing Ltd. undertook to transport an accommodation barge on behalf of the Plaintiff, Seatech Construction Limited.
[3] Upon arrival and after inspection, damage to the barge was assessed and in the Statement of Claim the Plaintiffs allege that the damage caused should be attributed to the Defendant's negligence, General Towing Ltd. The master of the "Inlet Challenger" was the Defendant, Bill Roos, an employee of the defendant corporation.
[4] Examination for discovery of Mr. Bruce Colegrave, a representative of the Plaintiff Seatech, was conducted on July 9, 2002, and certain questions were objected to by counsel and answers were refused.
[5] The motion entertained by the Court on October 6, 2003, was an application by the Defendants in which they sought an Order of the Court requiring the re-attendance of Mr. Colegrave and that he answer questions put to him and objected to; the Defendants also sought costs for the application.
[6] The questions in dispute are the following:
(a) [Question 44] Besides General Towing, what other tug companies did Seatech retain for marine towing prior July 8, 2000?
(b) [Questions 360 - 361] After you and Mr. Winiski inspected the barge when you flew up to Nimmo Bay, -- did you discuss with him what you thought caused the damage?
(c) [Question 368] And what did you say to Mr. Winiski about the probable cause?
(d) [Questions 373 - 374] Is it - is it standard for Seatech to obtain "suitability-to-be-towed surveys" on all barges that are towed today?
[7] The Applicant submits the following
(a) Question 44: that pre-existing contractual relationships between the Plaintiffs and other towing companies is relevant to the issue of breach of contract. The Respondent argues that prior practices of the Plaintiffs are irrelevant. I agree; the question need not be answered.
(b) Questions 360 - 361 - 368: the Court takes the view that these questions are related.
The Applicant argues that the cause of the damages is relevant since the witness admitted to designing the barge; that comments made to Mr. Winiski regarding probable cause of the incident are relevant to the proceeding. The Respondent is of the view that these questions require an expression of opinion from the witness whose expertise is not challenged in the pleading. Counsel relies on a decision in Federal Court of Appeal Rivtow Straits Ltd. v. B.C. Marine Shipbuilders Ltd. [1977] 1 F.C. 735. My review of the pleadings does not suggest that Mr. Colegrave is being held out as an expert witness. As the jurisprudence reveals only when "the witness is an expert whose expertise is put in issue" should be ordered to answer. If he has actual knowledge of what caused the accident, it should be disclosed; but that is not the intent or tenure of questions 360 - 361 and 368. They need not be answered.
(c) Questions 373 - 374
The Applicant suggests actions undertaken by the Plaintiff with respect to other tow undertakings prior to this engagement are relevant since suitability for towing would be in the domain of the Plaintiff and it should have insured itself as to suitability of this tow undertaking beforehand. The Respondent objects to the after the fact "surveys". I agree. The Plaintiff should nevertheless respond to any question that may relate to actions or enquiries undertaken prior to the engagement with respect to "suitability-to-be-towed survey".
[8] No order as to costs.
(Sgd.) "P. Rouleau"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1357-01
STYLE OF CAUSE: Seatech Construction Ltd. et al. v. The Ship "Inlet Challenger" et al.
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: October 6, 2003
REASONS FOR ORDER AND ORDER : ROULEAU J.
DATED: October 10, 2003
APPEARANCES:
John W. Bromley FOR PLAINTIFFS
Murray Harris FOR DEFENDANTS
SOLICITORS OF RECORD:
Bromley Chapelski FOR PLAINTIFFS
Vancouver
Whitelaw Twining FOR DEFENDANTS
Vancouver
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