Date: 19990309
Docket: T-1674-96
BETWEEN:
LAROSA FOOD IMPORTING LTD.,
Plaintiff,
- and -
THE OWNERS AND ALL OTHERS
INTERESTED IN THE SHIP "CIELO DI LIVORNO",
THE SHIP "CIELO DI LIVORNO", KG m.s. "SANTA MARGHERITA"
OFFEN REEDEREI GmbH & CO., THE OWNERS AND ALL
OTHERS INTERESTED IN THE SHIP "CALIFORNIA",
THE SHIP "CALIFORNIA", ITALIA DI NAVIGAZIONE S.P.A.
and D'AMICO SOCIETA DI NAVIGAZIONE S.P.A.
and FRASER SURREY DOCKS LTD.,
Defendants.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
1 These reasons deal with the nature of written discovery in a simplified action. In a simplified action there ought, for the most part, to be no motions until the pre-trial conference: see Rule 298. However, in this instance, the motion was as to the form of written discovery questions and the adequacy of answers. Without some determination of the issues at this point the parties could well receive no real benefit from the action, short of the uncertainty of a trial without full information, and indeed might be discouraged from giving the simplified action process a fair trial. In the present instance the special circumstances of the case allow me to apply Rule 55 and deal with this motion at this time.
2 As to the general nature of written discovery, English case law on interrogatories must be viewed with some caution for there the process of interrogatories seems to have been narrowed over the years. Indeed, in contrast, this Court has rejected the idea that written discovery is more restrictive than oral discovery: see Wewayakum Indian Band v. Canada et al. (1991), 42 F.T.R. 40 at 48 and following. In that case Mr. Justice Addy equates written discovery with oral discovery.
FORMAT OF ANSWERS
3 The most basic question is the format of the answers. Rule 296 merely provides:
296. Limited examination for discovery - An examination for discovery in a simplified action shall be in writing only, and shall not exceed 50 questions.
The Rule does not set out any procedure, but by referring to discovery in writing it is reasonable to look at Rules 99(3) and (4), which deal with verification of written discovery answers by affidavit in the usual form of action. The form of the affidavit is generic (see form 99B), being merely a verification of the truth of scheduled answers. This requirement, applied to a simplified action, is neither unreasonable nor onerous. Moreover, the affidavit format does not require the questioning party to waste any of the 50 questions allowed on merely establishing the identity of the witness. It would be helpful, although it is not perhaps required, if the scheduled answers were, in each instance, preceded by the question.
DEFINING A QUESTION
4 The next basic issue is whether a complex question, consisting of a number of interconnected parts or involved particulars, counts in itself for more than one of the 50 allowed questions. In the present instance the Defendants have asked 25 questions, reserving the further 25 for follow-up questions. However, the Plaintiff says that there are not 25 questions, but perhaps about three times that number. I make no determination of the actual number of questions. The questions asked are not in any sense a fishing expedition or marginally useful meanderings, but rather explore the most basic elements needed to reasonably understand and test the Plaintiff's case. Here the Plaintiff's case, a cargo claim, is no more involved than many. It involves a container of bottled water carried from Livarno, Italy, to Los Angeles and transhipped to another vessel for onward carriage to Vancouver. The Plaintiff suggests that at some point between the packing of the cargo into a container in Italy and its delivery to the Plaintiff at Vancouver, in an apparently intact container, the container must have been dropped hard enough to break the glass bottles of water.
5 Roger Hughes on the Federal Court Act and Rules, 1998/99 (Butterworths) suggests the 50 question maximum for written discovery represents a compromise between no discovery and limited oral discovery. However, examination for discovery is probably the most important portion of pre-trial procedure, both in terms of avoiding any ambush through a full understanding of the case and by allowing the parties to assess the relative strengths and weaknesses of their cases and as a settlement tool. Thus, to make the simplified action format work in any meaningful way, the written discovery rule must be interpreted to give the broadest discovery reasonably consistent with the legitimate needs of the parties and the aims of the simplified action procedure, which include a procedure commensurate with the economics of claims of lower value.
6 I do not believe that the reference in Rule 296 to a question ought to be given the interpretation which the Plaintiff would like to place upon it, that of a simple single inquiry on one narrow point. Indeed, the Oxford English Dictionary, as a primary definition of question, defines it as "A sentence of interrogative form, addressed by one person to another in order to elicit information; ...".
7 This definition does not limit a question to an inquiry to a simple form. Moreover, it is well established that questions requiring an answer in narrative form are proper on discovery. This is not to encourage the drafting of run-on sentences containing unrelated inquiries ending with a question mark. However, sentences may be complex structures made up of a number of clauses. Moreover, a question to elicit related information on a point may be posed through several sentences in a paragraph, as the Defendants have done in this instance, for example question 3 dealing with the Plaintiff's relationship with the named shipper of the mineral water, as shown on the bill of lading, who appears to have been neither a producer nor a supplier, but merely a freight-forwarder:
3.Advise what dealings, if any, you had with the shipper, Globe Transport Freight Forwarders, including:
(a)whether you hired Globe Transport Freight Forwarders for any purpose, and if so for what purpose;
(b)whether you paid Globe Transport Freight Forwarders and if so what did you pay them and when; and
(c)whether you had an agreement with Globe Transport Freight Forwarders and if so what the terms of that agreement were.
This is one perfectly legitimate broad question with a request that in the answer the Plaintiff include certain information. In contrast, question 21 deals with two distinct concepts: first, the manner in which the Plaintiff normally removes cargo from a container at its premises; and second, the repackaging and salvage capability of the Plaintiff. Question 21 is the sort of inquiry that should be broken down into two questions.
SEEKING INFORMATION FROM OTHERS
8 A subsidiary issue in this instance, not fully argued at this point, is the extent to which the party answering written discovery must seek information from others. On the basis of the Wewayakum case (supra) the ordinary rules of discovery would seem to apply. If that is so, a party answering written discovery questions must give all information which he or she personally has at the time and should make relevant inquiry of other employees and officers, but would not be bound to go outside to seek information except to servants or agents, and then only as to their knowledge acquired in the course of their employment by the party. As I say, this point has been reserved to be more fully argued later, however the Wewayakum case may prove a useful starting point.
SUPPLEMENTAL QUESTIONS
9 In the present instance, counsel for the Defendants acknowledges that he has saved half of his 50 questions for follow-up or supplemental questions. I should therefore touch upon Satellite Earth Station Technology Inc. v. Canada, [1994] 2 C.T.C. 61, a decision of Associate Senior Prothonotary Mr. Giles. That decision, made under the old Rules, stands for the proposition that there may be no follow-up questions in written discovery because then Rule 466.1 allowed one list of questions. Under the equivalent provision of the new Rules, Rule 99(1), the one list stricture has been omitted. Further, under Rule 296 the limited discovery allowed in a simplified action is merely a 50 question cap. There is no reason why supplemental questions may not be included and, with a view to making written discovery a useful tool, every reason to now allow supplemental or follow-up questions, so long as the total does not exceed 50 questions. Of course, a party to this limited written discovery ought not to save questions with a view to splitting a discovery.
CONCLUSION
10 It may well be that written discovery answers will not prove to be as responsive as those contained on oral discovery. But of course, counsel preparing written discovery questions does not have the benefit of observing and listening to the witness and then being able to build subsequent questions to fit the situation and to obtain a useful answer and indeed perhaps an answer tailored by counsel asking the question in such a way as to produce an answer to fit a required need. By the same token, written answers allow time for reflection. Here I would commend counsel for the Plaintiff for passing along answers exactly as received. However it may be that counsel will have to direct the attention of the witness to the question that is actually being asked. Having said all of this counsel putting written questions may have to accept written answers which are less responsive and less useful than those on oral discovery, but that is the nature of the process.
11 The application of these principles, to the specific questions at issue, are not of general interest. They are therefore contained in a separate direction to counsel.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
March 9, 1999
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: March 8, 1999
COURT NO.: T-1674-96
STYLE OF CAUSE: Larosa Food Importing Ltd.
v.
The Ship "Cielo Di Livorno" et al.
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY
dated March 9, 1998
APPEARANCES:
Ms. Shelley Chapelski for Plaintiff
Mr. Peter Swanson for Defendants Italia Di Navigazione S.P.A. and D'Amico Societa Di Navigazione
SOLICITORS OF RECORD:
Shelley Chapelski
Bromley, Chapelski for Plaintiff
Peter Swanson
Campney & Murphyfor Defendants Italia Di Navigazione S.P.A. and D'Amico Societa Di Navigazione
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