Snook v. Cape Mariner (The), docket T-1877-96

Date: 19990326

Docket: T-1877-96

BETWEEN:

     ALLAN SNOOK, DALE TOBIN, BARRY KIRBY,

     AMBROSE BILLARD, GERARD COOMBS, GRANT KIRBY,

RICK KIRBY, BAZIL SKINNER, JOHN BRUSHETT,

     ROGER PERRY, FREEMAN SAVOURY, WADE SKINNER,

     TERRY BILLARD, CHRIS STROWBRIDGE

     PLAINTIFFS

AND:

     THE OWNERS AND ALL OTHERS INTERESTED IN

     THE SHIP "CAPE MARINER"

     DEFENDANTS

     REASONS FOR ORDER

LEMIEUX J.:

[1]      This is a motion in writing under rule 369 of the Federal Court Rules, 1998 (the Rules) by the plaintiffs for an order, pursuant to rule 238 which provides that the Court may grant leave to examine for discovery any person who is not a party to the action, other than an expert witness for a party, who might have information on an issue in the action.

[2]      Rule 238 reads as follows:

238. (1) A party to an action may bring a motion for leave to examine for discovery any person not a party to the action, other than an expert witness for a party, who might have information on an issue in the action. (2) On a motion under subsection (1), the notice of motion shall be served on the other parties and personally served on the person to be examined. (3) The Court may, on a motion under subsection (1), grant leave to examine a person and determine the time and manner of conducting the examination, if it is satisfied that      (a) the person may have information on an issue in the action;      (b) the party has been unable to obtain the information informally from the person or from another source by any other reasonable means;      (c) it would be unfair not to allow the party an opportunity to question the person before trial; and      (d) the questioning will not cause undue delay, inconvenience or expense to the person or to the other parties.

238. (1) Une partie à une action peut, par voie de requête, demander l'autorisation de procéder à l'interrogatoire préalable d'une personne qui n'est pas une partie, autre qu'un témoin expert d'une partie, qui pourrait posséder des renseignements sur une question litigieuse soulevée dans l'action. (2) L'avis de la requête visée au paragraphe (1) est signifié aux autres parties et, par voie de signification à personne, à la personne que la partie se propose d'interroger. (3) Par suite de la requête visée au paragraphe (1), la Cour peut autoriser la partie à interroger une personne et fixer la date et l'heure de l'interrogatoire et la façon de procéder, si elle est convaincue, à la fois :      a) que la personne peut posséder des renseignements sur une question litigieuse soulevée dans l'action;      b) que la partie n'a pu obtenir ces renseignements de la personne de façon informelle ou d'une autre source par des moyens raisonnables;      c) qu'il serait injuste de ne pas permettre à la partie d'interroger la personne avant l'instruction;      d) que l'interrogatoire n'occasionnera pas de retards, d'inconvénients ou de frais déraisonnables à la personne ou aux autres parties.

[3]      The defendants, who are also plaintiffs by counterclaim, oppose the plaintiffs' motion.

A.      BACKGROUND

[4]      On August 16, 1996, the plaintiffs issued a statement of claim in this Court naming as defendants "The Owners and all Others Interested in the Ship 'Cape Mariner'."

[5]      The plaintiffs were employed as seamen on the ship "Cape Mariner" and their claim is for the payment of wages in respect of a particular fishing voyage in July/August of 1996. During that voyage, scallops were caught and off-loaded at St.-John's, Newfoundland, on August 2, 1996.

[6]      On November 21, 1996, a statement of defence and counterclaim to the action were filed by "John Hickey as owner and Hickey & Sons Fisheries Ltd., as operator of the defendant ship 'Cape Mariner'."

[7]      The defendants admit the plaintiffs were seamen employed on the fishing voyage for scallops which were off-loaded the "Cape Mariner" on August 2, 1996.

[8]      The defendants say that the scallops were off-loaded by the defendant Hickey & Sons Fisheries Ltd. and that the scallops, in accordance with normal procedure, were trucked immediately in ice to the owners' fish plant, repackaged and re-iced and shipped by two refrigerated trucks to New Bedford, Massachussetts.

[9]      The defendants say that the scallops were rejected in New Bedford, Massachussetts and such rejection was valid. The defendants say in their defence and counterclaim that the reason the scallops were rejected was because the plaintiffs failed to take proper care of the scallops and remained at sea in hot weather for too long a period. The defendants say that the plaintiffs were negligent and committed breach of contract for which they are liable to the defendants in damages.

[10]      On January 22, 1999, the plaintiffs filed their motion record in this Court in support of the order seeking to compel discovery of persons who they say are non-parties to the action. These persons sought to be examined are:

(a)      Todd Hickey;

(b)      Craig Hickey;

(c)      Tony Gilbert;

     (d)      Stephen Brennan.

[11]      The motion is supported by an affidavit dated January 15, 1999, of Gregory F. Kirby, an associate of the law firm representing the plaintiffs. Mr. Kirby also signed the written representations in support of this motion.

[12]      The thrust of Mr. Kirby's affidavit, which appends extracts from discovery transcripts, is to identify the four persons whom the plaintiffs wish to discover, with leave of the Court, as being present at the off-loading of the scallops on August 2, 1996 and therefore having knowledge of the physical state of the scallops which is said to be material to the liability in this action.

[13]      On February 3, 1999, written representations were filed on behalf of John Hickey and Hickey & Sons Fisheries Ltd. opposing this motion on the following grounds:

(a)      Mr. Kirby's affidavit of January 15, 1999, cannot be used under rule 82 of the Rules of this Court because he signed the notice of motion, swore the affidavit in support and appears as the author of the plaintiffs' written representations;

(b)      nothing in the record indicates service of the motion on the alleged non parties;

(c)      Todd Hickey, Craig Hickey and Tony Gilbert are not non parties and, at all material times, were servants and agents of the owner and operator of the vessel and discovery of the owner and operator of the vessel has already been held;

(d)      plaintiffs have failed to show that Stephen Brennan may have information on an issue in the action and failed to show that they have been unable to obtain the information informally from Mr. Brennan or from another source by any other reasonable means;

    

[14]      On February 4, 1999, John Hickey swore an affidavit in this matter which was only filed in this Court on February 12, 1999, in which he says:

(i)      at all times material to the action, the ship "Cape Mariner" was owned by him and was operated by Hickey & Sons Fisheries Ltd.;

(ii)      that he was examined for discovery on August 20, 1998 and he was nominated by Hickey & Sons Fisheries Limited as its representative at the discovery;

(iii)      Todd Hickey and Craig Hickey are his sons and, at all material times, were servants and agents of the owners and all others interested in the ship "Cape Mariner";

(iv)      Tony Gilbert was also a servant and agent of the owners and all others interested in the ship "Cape Mariner".

[15]      On February 9, 1999, Mr. Kirby filed a second affidavit dated that day and signed additional written representations.

[16]      In this second affidavit, Mr. Kirby appends transcripts of discovery and corporate searches to show that Mr. Hickey admitted in discovery that the "Cape Mariner" is owned by Cape Mariner Enterprises Limited and the corporate search reveals:

(a)      Cape Mariner Enterprises Limited was incorporated on April 14, 1997;

(b)      the incorporator and current sole director is one of the solicitors for the defendants;

(c)      neither Todd Hickey nor Craig Hickey are directors of Cape Mariner Enterprises Limited.

[17]      In reply submissions submitted on February 9, 1999, the plaintiffs said:

(a)      rule 82 does not apply because any argument before the Court in the form of a hearing will not be presented by Mr. Kirby;

(b)      service of the plaintiffs' motion record is being effected on the non-parties;

(c)      the persons sought to be examined are non-parties and Todd Hickey as well as Craig Hickey are not Directors of Cape Mariner Enterprises Limited;

(d)      the plaintiffs have contacted Stephen Brennan, have obtained some information from him, but Mr. Brennan has additional information which can no longer be obtained informally given that he is no longer employed with Fisheries and Oceans Canada.

B. DISCUSSION

(1)      The preliminary objection

[18]      The defendants raise rule 82 against the plaintiffs and submit that Mr. Kirby's affidavits cannot be used.

[19]      Rule 82 reads as follows:

82. Except with leave of the Court, a solicitor shall not both depose to an affidavit and present argument to the Court based on that affidavit.

82. Sauf avec l'autorisation de la Cour, un avocat ne peut à la fois être l'auteur d'un affidavit et présenter à la Cour des arguments fondés sur cet affidavit.

[20]      While rule 82 is new with no corresponding rule in the former Rules, it does reflect longstanding jurisprudence dealing with the impropriety of having a solicitor taking an affidavit and that solicitor then relying on that affidavit before the Court.

[21]      The impropriety of this practice extends to motions in writing under rule 369 (see College Marketing and Research Canada (CMC) Corporation et al. v. Volkswagon Werke A/G (1980), 53 C.P.R. (2d) 37 and Pescador et al. v. The Ship "Brant Point" et al. (1986), 1 F.T.R. 273.

[22]      However, this jurisprudence recognized that, in some circumstances, a solicitor's affidavit could be relied upon by that solicitor in proceedings before a Court.

[23]      Rule 82 recognizes the exceptions created by the jurisprudence through the use of the words "except with leave of the Court".

[24]      Addy J. in Lex Tex Canada Limited v. Duratex Inc., [1979] 2 F.C. 722, considered where the line should be drawn in this respect.

[25]      Addy J. said that permissible use of a solicitor's affidavit by that solicitor before the Court includes a situation where the solicitor's affidavit is limited to identifying documents or correspondence. Addy J. identified impermissible use of such an affidavit in circumstances where that affidavit deals with substantive matters and might expose the solicitor to cross-examination (see also Martinoff v. Gossen, [1978] 2 F.C. 537, where Collier J. excluded an affidavit of counsel appearing on a motion before him which was characterized as containing potentially controversial material).

[26]      In the case before me, I am prepared to grant leave for the use of Mr. Kirby's affidavits. Mr. Kirby's affidavits are largely limited to identifying extracts from the transcripts of discovery and corporate documents on file with the Government of Newfoundland. In other aspects, Mr. Kirby's affidavits can be said to be argument.

[27]      In coming to this conclusion, I am also guided by rule 3 of the Federal Court Rules, 1998, which reads:

3 . These Rules shall be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits.

3. Les présentes règles sont interprétées et appliquées de façon à permettre d'apporter une solution au litige qui soit juste et la plus expéditive et économique possible.

     (2)      The application of rule 238 in this case

[28]      Rule 238 makes it a precondition that there be personal service of the motion on the person sought to be examined.

[29]      The affidavit of service of Dave Carroll dated February 15, 1999, was filed by the plaintiffs on February 16, 1999. That affidavit attests to personal service of the motion on Stephen Brennan, Todd Hickey and Craig Hickey. This affidavit of service does not attest to personal service on Tony Gilbert.

[30]      Leave to examine Tony Gilbert must be denied on this ground.

[31]      There are four tests or criteria which the Court must be satisfied are met before leave to examine can be granted under rule 238. All four criteria must be met.

[32]      I am satisfied that all persons sought to be examined by the plaintiffs:

(a)      have information on the physical state of the scallops when off-loaded and that this information is material to the action;

(b)      it would be unfair not to allow the plaintiffs to question those persons before trial. I am persuaded that an examination of the proposed persons would narrow the issues and would reduce matters to be determined at trial;

(c)      the questioning will not cause undue delay, inconvenience or expense to the parties or the persons and indeed no such allegations have been put forward.

[33]      The fourth criteria or test requires some material put before the Court on the part of the plaintiffs demonstrating that the party has been unable to obtain the information informally from the person or from another source by any other reasonable means.

[34]      The plaintiffs have satisfied me, in their written representations, they meet this criteria with respect to Stephen Brennan, an employee of the Government of Canada at the time of the off-loading of the scallops.

[35]      The plaintiffs stated to the Court that they contacted Mr. Brennan and obtained certain information from him. Additional information, it is said, can only be provided upon discovery because that information which Mr. Brennan has, is reflected in further records he made from his previous employer, the Department of Fisheries and Oceans.

[36]      I am not satisfied, however, that the plaintiffs have met the test of paragraph 238(3)(b) of the Rules in respect of Todd Hickey, Craig Hickey and Tony Gilbert.

[37]      The plaintiffs have not made any representations to me or provided me with any evidence whatsoever that the information sought from these persons on discovery has even been requested of them informally, much less that this information has been denied to the plaintiffs. (See Pakistan National Shipping Corp. v. Canada et al. (1995), 94 F.T.R. 250 and Delphi Petroleum v. Derin Shipping and Trading Ltd. (1993), 73 F.T.R. 242.)

[38]      In order to be satisfied that this criteria has been met, the Court needs an indication from the party seeking discovery that some efforts have been made by them to obtain the information informally or reasonably from other sources and their efforts have not been productive or have been frustrated.

[39]      Unfortunately, nothing in the plaintiffs' material touches on this point and, on this basis, leave must be denied to examine Todd Hickey, Craig Hickey and Tony Gilbert.

[40]      Given the conclusion I have reached, it is not necessary for me to decide whether Todd Hickey, Craig Hickey and Tony Gilbert are non-parties in the action for purposes of rule 238.

[41]      In reaching a conclusion on this point, reference would have to be made to the definition of "party" in section 2 of the Federal Court Rules, 1998, which reads:

2. The following definitions apply in these Rules. "party" means      (a) in respect of an action, a plaintiff, defendant or third party;      (b) in respect of an application,          (i) where a tribunal brings a reference under section 18.3 of the Act, a person who becomes a party in accordance with rule 323,          (ii) where the Attorney General of Canada brings a reference under section 18.3 of the Act, the Attorney General of Canada and any other person who becomes a party in accordance with rule 323, and          (iii) in any other case, an applicant or respondent;      (c) in respect of an appeal, an appellant or respondent; and      (d) in respect of a motion, the person bringing the motion or a respondent thereto.

2. Les définitions qui suivent s'appliquent aux présentes règles. "_parties_"      a) Dans une action, le demandeur, le défendeur et la tierce partie;      b) dans une demande :          (i) dans le cas d'un renvoi fait par un office fédéral en vertu de l'article 18.3 de la Loi, toute personne qui devient partie au renvoi aux termes de la règle 323,          (ii) dans le cas d'un renvoi fait par le procureur général du Canada en vertu de l'article 18.3 de la Loi, le demandeur et toute personne qui devient partie au renvoi aux termes de la règle 323,          (iii) dans tout autre cas, le demandeur et le défendeur;      c) dans un appel, l'appelant et l'intimé;      d) dans une requête, le requérant et l'intimé. (party)

[42]      In addition, in Agrex, S.A. v. Canadian Dairy Commission et al. (1980), 49 C.P.R. (2d) 215, this Court held that production of documents could be compelled from agents or contractors of a party.

     François Lemieux

    

     J U D G E

OTTAWA, ONTARIO

MARCH 26, 1999