Nickerson v. Canada, docket T-2807-93

Date: 19990505

Docket: T-2807-93

BETWEEN:

     BLANTFORD NICKERSON, of Clyde River, in the

     County of Shelburne, Province of Nova Scotia

     Plaintiff

     - and -

     HER MAJESTY THE QUEEN IN RIGHT OF CANADA

     Defendant

     REASONS FOR JUDGMENT

NADON J.:

[1]      By his statement of claim filed on December 2, 1993, the plaintiff, Captain Blantford Nickerson, seeks damages from the defendant by reason of negligent, improper and misleading instructions given to him by representatives of Transport Canada. The facts relevant to the determination of this action can be summarized as follows.

[2]      The plaintiff is 53 years old. For most of his life, he has been engaged in commercial fishing. He has practised his trade in both the east and west coasts of Canada, in Alaska and in the Gulf of Mexico. At all material times herein, he held a class III master"s certificate issued by Transport Canada which allowed him to serve as Captain on fishing boats, the tonnage of which did not exceed one hundred tons.

[3]      In June 1987, the plaintiff purchased the fishing vessel JOSEPH AND ADA, a wood construction built in 1966 at Pickney Point, Nova Scotia. The vessel, bearing official number 326919, was registered pursuant to the provisions of the Canada Shipping Act, R.S.C. 1985. As appears from the ship"s particulars, the JOSEPH AND ADA was 34.4 feet long, 12.8 feet wide, with a gross registered tonnage of 13.56 tons. Her register tonnage was 12.80.

[4]      The plaintiff paid $25,000.00 for the JOSEPH AND ADA. In order to make the purchase, he borrowed $18,000.00 from Scotia Bank and, as a result, executed a mortgage in favour of the bank on June 8, 1987. At the relevant time, the plaintiff held a number of fishing licences issued by Transport Canada namely long line, hand line, sword fish, mackerel and herring. With the loan from the Scotia Bank, the plaintiff replaced the radar, the automatic pilot and the VHF radio on his vessel.

[5]      The plaintiff practised his trade out of the port of Shelburne and fished cod, haddock, pollock and halibut. According to the plaintiff, the JOSEPH AND ADA was a "fine little craft when I bought it". After a while, a number of problems arose, primarily with the caulking between the wooden planks. As a result, water penetrated the vessel and the bilges had to be pumped regularly. The plaintiff began giving serious thought to recaulking the JOSEPH AND ADA but decided that the best way to tackle the problem was by putting fibreglass on the vessel.

[6]      The plaintiff removed his vessel from the water in September 1987. The JOSEPH AND ADA was taken by truck to the plaintiff"s property near Clyde River where he intended to make a number of modifications to it. Specifically, the plaintiff intended to fibreglass the JOSEPH AND ADA after having built her up and replaced the old deck. The plaintiff was counting on the Scotia Bank to fund the repairs which he intended to make.

[7]      Donald McLeod, a marine surveyor employed by the Marine Safety Branch of Transport Canada, first saw the JOSEPH AND ADA when it was placed in the plaintiff"s yard in the fall of 1987. Mr. McLeod"s area of responsibility covered three counties including Shelburne County where the plaintiff lived and, as a result, he would occasionally drive by the plaintiff"s house. In January 1988, he noticed that the plaintiff had built new sides to his vessel which led him to believe that the repairs might have increased the vessel"s tonnage to fifteen tons, and thus bring it under Transport Canada"s jurisdiction.

[8]      During the second or third week of January 1988, Mr. McLeod again stopped at the plaintiff"s house and left his card asking the plaintiff to telephone him. A week later, Mr. McLeod saw the plaintiff"s car and stopped. He informed the plaintiff that if his vessel"s tonnage reached 15 tons, it would fall within Transport Canada"s jurisdiction and hence would have to be inspected. During the conversation, the plaintiff informed Mr. McLeod that it was his intention to fibreglass the boat himself.

[9]      On February 16, 1988, Mr. McLeod, accompanied by his superior John Fyfe, attended at the plaintiff"s residence to examine the JOSEPH AND ADA . Mr. McLeod took photographs of the plaintiff"s vessel and, with Mr. Fyfe, thoroughly examined it. Both surveyors concluded that the vessel was in poor condition. Mr. Fyfe informed the plaintiff, as Mr. McLeod had done earlier, that, if the vessel"s tonnage exceeded fifteen tons, it would have to meet Transport Canada"s regulations. On February 16, 1988, the JOSEPH AND ADA was not protected in any way from rain or snow. In fact, it was never protected from the moment it came into the plaintiff"s yard in September 1987.

[10]      During the February 16, 1988 visit, it appears that the surveyors asked the plaintiff to provide them with specifications regarding the work he intended to perform. Specifications were provided by the plaintiff to the surveyors shortly thereafter. Following receipt of the plaintiff"s specifications, Mr. Fyfe, on February 25, 1988, wrote to the plaintiff in the following terms:

Your specification has been examined and the following comments are offered.

1.      It is understood that the boat is to be fibreglassed inside and out using the existing boat with ceiling removed as a "core." The boat is being increased in height by two or three feet by inserting spruce 1" x 3" between the existing timbers and "planking" with the same material to the required height, and is to be decked in as well.

I have looked at this as though it were a "sandwich core" construction GRP hull and have applied the "Lloyd"s Provisional Rules" to ascertain the appropriate weight of laminate to be used. This is based on internal stiffening placed a maximum of 26" apart.

The following table shows the comparison of Lloyds tabular values and your own proposal (for a 40 ft. with 20 mm core thickness).

Outside

Shell

Inside

Shell

Keel

Sheer Strake

Lloyds

10 oz.

8 oz.

24 oz.

16 oz.

Lloyds      15%*

11.5 oz.

9.2 oz.

27.6 oz.

18.4 oz.

Nickerson

12.48 oz.

5.66 oz.

30.62 oz.

18.14 oz.

*Allowance for quality control shortcomings.

Certain assumptions are made in arriving at these figures i.e. that each "layer" is alternatively 1 " oz. matt and 24 oz. woven roving. You will have to confirm that this is so.

Normally, the outer and inner faces of the sandwich laminate are to be faired into a solid laminate at the keel and sheerstrake. In your method this, of course, is not possible.

2.      All areas of rot, however small, should be cut out and repaired before glassing and it is recommended that you coat the wood "core" with a suitable wood preservative before encapsulating.

In fact, we would like ideally to see the timbers completely removed, after glassing of exterior hull, so that the internal glassing can be done without void spaces which we feel would result in trying to glass over the timbers in place.

3.      Internal stiffening structure would be based on a maximum space of 36 inches. This could include such items as bunks, cupboards, etc. if glassed in appropriately, as well as gilge stringers, bulkheads, floors, etc. You should prepare a sketch plan indicating how you intend to fit these, showing how they are to be matted in, i.e. weight of GRP angles.

All internal stiffening should be arranged to give continuity of strength.

4.      I am not clear as to the size of deck beams. In one place they are described as 4" x 6" and in another as 2" x 6" and 2" x 4". Spacing is not given, and should be indicated.

5.      The completed hull will be treated as a GRP vessel. This means that the final internal layup in the focsle and engine space should be done with fire retardant resin, and two independent shots of smothering gas (CO2 or Halon 1301) will have to be installed to protect the engine space.

To sum up, your layup specification appears adequate except for the internal shell which would require an extra matt - woven roving.

Our surveyor will drop in from time to time to see how things are going, however, I would recommend that you contact the measuring surveyor (Mr. George Nickerson, telephone # 637-3336) at an early stage to establish if the vessel will exceed 15 tons gross.

[11]      The plaintiff received Mr. Fyfe"s letter but never replied to it.

[12]      On March 30, 1988, Messrs. McLeod and Fyfe again attended at the plaintiff"s residence to examine the JOSEPH AND ADA . They saw the plaintiff"s wife but the plaintiff was not there. They examined the vessel and took photographs. From what they could observe, nothing had been done to the vessel since their previous visit on February 16, 1988. According to both surveyors, no wood preservative had been applied to the boat. Mr. Fyfe was not happy with what he saw that day because, in his view, the plaintiff was covering up rot with wooden timbers. After March 30, 1988, there was no further contact between the plaintiff and Messrs. McLeod and Fyfe.

[13]      On April 12, 1988, the plaintiff visited Transport Canada"s offices in Yarmouth and complained to the surveyor in attendance, Raymond Burney, that surveyors Fyfe and McLeod "were going to put him out of business".

[14]      The plaintiff testified that, as a result of Mr. Fyfe"s letter of February 25, 1988, he decided to purchase a wood preservative to apply to the hull of his vessel. He testified that he purchased three gallons of creosote from a hardware store in Shelburne in April or May 1988. He also purchased a gun to spray the creosote on at the suggestion of the salesman. The plaintiff further testified that, prior to the receipt of Mr. Fyfe"s letter, he had not intended to put a wood preservative on the JOSEPH AND ADA . He explained that, after he had covered nearly three quarters of the hull of his boat with the preservative, "someone came to [his] yard" and informed him that fibreglass would not stick or adhere to a wooden hull on which a preservative had been applied. The plaintiff said that he stopped putting the preservative on the hull. He further testified that, shortly thereafter, he conducted a test by applying creosote to a plywood board and then attempted to coat it with fibreglass. His evidence was that the test proved that fibreglass would not stick if the wood had been coated with a preservative. The plaintiff conceded that, as of March 30, 1988, no creosote had been applied to the JOSEPH AND ADA . His evidence was that he had applied creosote in April or May, 1988.

[15]      In April 1990, the plaintiff asked East Coast Fibre Glass ("East Coast"), a supplier of fibreglass to the boat industry, to conduct a delamination test so as to determine whether fibreglass could be applied to a wooden surface which had been coated with creosote. On July 3, 1990, East Coast issued the following report:

     At the request of Captain Blantford Nickerson, a representative of our company did a delamination test on the following:

Untreated plywood, plywood treated with creosote, and plywood treated with creosote and sanded.

Creosote was thoroughly dried before an attempt was made to apply the fibreglass.

3 layers of 1.5 oz mat were applied with resin catalyzed at 1 and 1/4 percent MEKP 50%.

After twenty four hours, it was found that both pieces of plywood treated with creosote delaminated. The bond between the untreated plywood and the fibreglass remained intact.

     Due to the results of these tests, we do not recommend the use of creosote on wood that is to be fibreglassed.

     If you have any questions regarding the above please do not hesitate to contact our office.

[16]      The test was done by Greg Waybret, an employee of East Coast. Mr. Waybret explained that the plaintiff had supplied the creosote for the test. Mr. Waybret explained that his test demonstrated that fibreglass did not adhere to wood coated with creosote. He indicated that the creosote prevented the fibreglass from penetrating into the wood.

[17]      In cross-examination, Mr. Waybret conceded that he had no background in chemistry and that he had applied the creosote with a paintbrush. He also conceded that he was not familiar with wood preservatives. He stated that East Coast was a supplier of fibreglass to the boat industry but did not build boats. He added that, in 1987-1988, there were a number of fibreglass boat builders in the Shelburne area.

[18]      The plaintiff"s position is that, because he applied creosote to his vessel on the advice of John Fyfe, he could no longer fibreglass it and, as a result, the JOSEPH AND ADA "became valueless". This is how the plaintiff puts his case in his amended statement of claim filed on August 17, 1998.¹

11.      By letter dated the 25^th of February, 1988, the Defendant directed Nickerson as to the manner in which the proposed modifications to the Vessel should be made.

12.      From on or about March 1, 1988, through in or about the month of May, 1988, Nickerson worked on the Vessel in accordance with the direction given by the Defendant, including, inter alia, coating one entire side of the Vessel with a wood preservative.

13.      In or about the month of May, 1988, Nickerson was advised by persons other than the employees of the Defendant that he would not be able to apply fiberglass [sic] over the wood preservative that he had applied to the Vessel, as the fiberglass [sic] would not adhere to the treated wood.

14.      Since May 1988, Nickerson has conducted and has had other conduct tests for him which tests demonstrated that fiberglass [sic] could not be applied over the wood preservative on the Vessel.

15.      Nickerson repeats all of the forgoing and says that as a result the Vessel became valueless, as the proposed modifications to the Vessel were necessary to its continued use as a fishing vessel, and those modifications, in particular the fiberglassing [sic] of the hull of the Vessel, could not then be made.

16.      Nickerson repeats all of the forgoing and says he followed the instructions of the Defendant and Her employees, who were knowledgeable in the area and hold themselves out to be so, and who provided professional advice to Nickerson, knowing and intending that he would rely and act upon which advice, which Nickerson did to his detriment as a consequence of which Nickerson suffered loss and damages.

16a.      On or about 1990 the Defendant became aware though media coverage, and otherwise, that Nickerson was of the view that due to the application of wood preservative to the Vessel, he could not fiberglass [sic] it.

16b.      That the Defendant never advised Nickerson of their view that the vessel would have been acceptable to the Defendant even if the fiberglass [sic] was only bonded to the vessel mechanically and not chemically.

16c.      Nickerson repeats the foregoing and says that the Defendant was negligent in failing to advise Nickerson of their view that the vessel would have been acceptable to the Defendant even if the fiberglass [sic] was only bonded to the vessel mechanically and not chemically.

17.      Nickerson repeats all of the forgoing and says that the Defendant, was negligent in directing him with regard to the proposed modifications to the Vessel, in that those instructions were negligently given and were improper and/or misleading, particulars of which include the following:

1.      the requirement to remove timbers from the Vessel;

2.      the requirement to apply wood preservative to the Vessel before fiberglass, [sic]

3.      the application of an incorrect model, i.e. the use of a "sandwich core" model in considering the proposed modification.

[19]      The defendant, by its amended statement of defence, filed on August 17, 1998, denies most of the plaintiff"s allegations. Paragraphs 10 to 17 of the amended statement of defence read as follows:

10.          He admits paragraph 11 of the Amended Station of Claim but he adds that the Plaintiff had submitted three (3) sheets of handwritten specifications on February 18, 1988 and he says that the Defendant"s February 25, 1988 letter was in response to the Plaintiff"s specifications or proposal.

11.          He does not admit paragraph 12 of the Amended Statement of Claim.

12.          He does not admit paragraph 13 of the Amended Statement of Claim.

    

13.          He does not admit paragraph 14 of the Amended Statement of Claim.

14.          He does not admit paragraph 14 (sic) 15 of the Amended Statement of Claim.

15.          He denies paragraph 15 of the Amended Statement of Claim.

16.          He denies paragraph 16 of the Amended Statement of Claim.

16(a).          As to paragraph 16(a) of the Amended Statement of Claim, the Defendant became aware at some point that in 1990 the Plaintiff was quoted in certain newspaper articles concerning inter alia the suitability of creosote as a wood preservative.

16(b).          As to paragraph 16(b) of the proposed amended Statement of Claim, the Defendant says that mechanical bonding of fibreglass to wooden boats is a known method in the industry and that the Plaintiff"s vessel may not have been repairable in any event considering its condition.

16(c).          As to paragraph 16(c) of the proposed amended Statement of Claim, the Defendant repeats the reply to proposed amendment 16(b) and denies that the Defendant was negligent as alleged or at all.

17.          He denies paragraph 17 of the Amended Statement of Claim.

[20]      The plaintiff claims approximately $500,000.00 for the loss which he claims to have suffered by reason of the negligence of the defendant"s representatives.

[21]      A few more facts are necessary to complete the picture. In June 1988, Colm McDevitt, also a surveyor in the employ of Transport Canada, was asked by Mr. Fyfe to have a look at the plaintiff"s vessel. Mr. McDevitt went to the plaintiff"s home on June 24, 1988. Although no one was present, he was able to have a good look at the JOSEPH AND ADA . While he was there, the plaintiff"s wife arrived and informed him that the plaintiff was out fishing. Mr. McDevitt stood inside the boat and observed that it was in bad condition. The paint had been stripped and the hull had been sanded. Mr. McDevitt did not see any creosote on the hull and observed that no further work appeared to have been done by the plaintiff since Messrs. McLeod and Fyfe took their photographs on March 30, 1988.

[22]      On July 5, 1990, surveyors Burney and McLeod saw the JOSEPH AND ADA in the plaintiff"s yard. The purpose of their visit was to take photographs of the vessel. They had been asked to take photographs by their superiors who had recently become aware of the plaintiff"s complaint regarding the application of the wood preservative on the hull of the JOSEPH AND ADA . Mr. Burney remembered that the vessel had been "sanded down" to bare wood and that no paint had been applied to it. No photographs were taken on that day since the plaintiff"s wife would not allow them to take any. Furthermore, they could not get close to the JOSEPH AND ADA since a large dog was guarding the vessel.

[23]      The first issue which I have to address is whether the plaintiff applied creosote to the JOSEPH AND ADA following the receipt of John Fyfe"s letter of February 25, 1988. The plaintiff"s story, as I have already related it, is quite simple. He received Mr. Fyfe"s letter and, shortly thereafter, he purchased creosote which he applied to the hull of the JOSEPH AND ADA . Before he had completed his task, someone informed him that he could no longer fibreglass his vessel because he had applied creosote to the wooden hull. The plaintiff testified that he conducted a test which confirmed that view and that, shortly thereafter, he retained East Coast to conduct a delamination test. That test, according to Greg Waybret, confirmed that wood treated with creosote could not be fibreglassed. The evidence, however, revealed that the plaintiff had not retained East Coast before the spring of 1990 and that its report had been issued on July 3, 1990. The test conducted by East Coast simply confirmed that plywood, treated with creosote, delaminated. The test did not demonstrate, nor could it, that the JOSEPH AND ADA had been treated with creosote.

[24]      The plaintiff could not recall who had informed him that wood treated with creosote could not be fibreglassed, even though, on his own story, that information had come to him as a shock. In effect, the plaintiff"s case is that the JOSEPH AND ADA became "valueless" following the application of the creosote to the hull because it could no longer be fibreglassed. I indicated to plaintiff"s counsel during final arguments that it was difficult to believe that the plaintiff could not recall the name of the person who had given him this distressing information.

[25]      In the spring of 1990, the plaintiff started to complain about Messrs. Fyfe and McLeod. His complaint appears in a letter which he sent to Bernard Valcourt, the then Federal Minister of Fisheries. That letter reads, in part, as follows:

     During the last part of 1987, I bought a 38" fishing boat with licences, which had been built in 1966. This boat became unsafe for myself and the crew who fished with me, so I took it out of the water and put it in my front yard. The location of my yard is on the main highway #103, where everyone is able to see what I am doing.

     I wanted to fibreglass over half of the boat, to the specifications of Lloyds of London. In the meantime officers from the Federal Department of Transport stopped in my yard, after I had spent approximately $70,000.00 of my own money to get this boat ready to put back in the water. I told them, at that time, that if they did not allow me to get the fibreglass on the boat, and with no paint on her, that dry rot would set in. In the meantime over a period of time, where it was very easy access for Federal government officers, they came onto my property without my permission and stopped me from covering my boat with fibreglass.

     My boat at the present and at that time - approximately six months - started to deteriorate. I had to quit working on my boat as I had spent all my money on automatic baiters, trawl, electronic equipment and the engine had gone. I did the boat completely from the outside to the inside, for which I had used the money that I was making working on other people"s boats as captain.

     In 1988, the Federal Department of Transport sent me a letter telling me that I could go ahead and fibreglass the boat, providing that I tore out all the timbers on the inside of the boat. That meant that I could not afford to do this. In the meantime, I could see my boat deteriorating to an extent where fibreglassing over the wood would not help me. Then I was told that I did not know how to fibreglass when they stopped me the second time. This is not true, of course, as I got an old boat which was much older than mine, together with my brother, and put the boat in a place where the people who had stopped me before could not see it. The we fibreglassed it so that I could prove to the Fisheries officers that I could fibrelgass [sic] and make a boat safe for the water. This boat is in existence today and has been in the fishery since 1988 and you cannot tell whether the fibreglass is right out of the boat shop unless you went aboard the boat.

     Now my boat is completely gone, the planks are off and the money that I put into it is gone. I could have put this money down on the purchase of a brand-new boat. I think that I should be compensated for the time that I have lost since 1987 to the present day, for my boat not being able to fish in the groundfishing industry. An estimated amount of compensation would be $300,000.00. I had to go back into the dragging industry in order to make a living and thought that I would be able to save enough money to get a boat. But with the present quota since 1989, I have just made enough money to care for my family and keep the bill collectors away from my door.

[26]      It is striking that, in complaining to the Minister of Fisheries about the Transport Canada surveyors, the plaintiff does not refer to, nor mention, the fact that John Fyfe had recommended that he apply a wood preservative to the hull of his vessel before fibreglassing it. The nature of the plaintiff"s complaint, as appears clearly from his letter to the Minister of Fisheries, is that the surveyors had initially prevented him from "covering [his] boat with fibreglass". The plaintiff then complained about the extent of the work which the surveyors were asking him to do before they would allow him to fibreglass. He indicated that he "could not afford to do this". Finally, the plaintiff informed the Minister that his "boat is completely gone, the planks are off and the money that [he has] put into it is gone".

[27]      The plaintiff could not provide a reasonable explanation as to why no mention was made of the creosote problem in his letter to the Minister of Fisheries. In my view, had the plaintiff treated the hull of the JOSEPH AND ADA with creosote in April or May 1988, as he says he did, shortly after receiving Mr. Fyfe"s letter, there would surely have been some reference to that problem in his letter to the Minister.

[28]      At about the time that he was writing to the Minister of Fisheries, the plaintiff also took his case to the media. In a newspaper article dated July 3, 1990, entitled COUNCIL GOES TO BAT FOR WILLY, COULD BE BARKING UP WRONG TREE, Kathy Johnson writes about the plaintiff"s fight with the Federal Department of Transport. The article reads, in part, as follows:

     Barrington Municipal Council has received copies of all correspondence between Clyde River resident Blandford (Willie) Nickerson and the federal Department of Transportation.

     Nickerson made a presentation to Council at their June 27 meeting. Tonight is the last straw of seeing government people, said Nickerson.

     Nickerson explained to Council how he had purchased a second hand wooden fishing boat in 1987 and shortly there after decided to fibreglass the hull.

     For a variety of reasons and on different occasions, Nickerson said the Department of Transportation stopped him from working on his boat. Now his vessel has deteriorated beyond repair, his initial investment lost, plus investments in terms of time, money for gear and lost wages.

[29]      Again, there is no complaint by the plaintiff regarding the improper advice received from Mr. Fyfe that he should apply a wood preservative to his boat.

[30]      The first mention of creosote as a problem for the plaintiff appears in a letter dated June 27, 1990, written by Peter L. McCreath, M.P., to Jim Quinn, the executive assistant to the Assistant-Deputy Minister of Transport. In that letter, Mr. McCreath indicates that he was informed by the plaintiff that surveyors from Transport Canada advised him to put a wood preservative on his boat and that, as a result, it became impossible to fibreglass the boat. The creosote problem then appears in a newspaper article of July 3, 1990, which appeared in the Yarmouth "Guardian". The article reads, in part, as follows:

The fisherman explained how ship safety inspectors from Yarmouth delayed his efforts to restore and fibreglass his fishing boat now going to rot in his front yard. Nickerson said that he followed the instruction of the inspection and treated the wood with a preservative to prevent dry rot, a move which local fibreglass experts tell him makes fibreglassing of the boat impossible because of oil now in the wood from the preservative. The fisherman explained the [sic] he is heavily in debt from expenditures to repair the boat which is now useless and that his is facing financial ruin.

[31]      The plaintiff, during the course of his testimony, referred to three photographs (Exhibit P-5) which, he submitted, supported his testimony. These photographs depict the JOSEPH AND ADA in the plaintiff"s yard, allegedly in April or May 1988. These photographs do not, however, support the plaintiff"s contention that he applied creosote in April or May 1988. It is impossible for me, as it was for some of the witnesses who were shown the photographs by counsel for the plaintiff, to say whether the photographs demonstrate that creosote had been applied. What the photographs show is a vessel which appears to have "weathered". This was obviously the case since the JOSEPH AND ADA remained outside, without protection, from September 1987 to the time the photographs were taken.

[32]      George Butler, an employee of Nova Scotia Power, testified that a new pole had been installed in the plaintiff"s yard and that power had been transferred from the old pole to the new one. Mr. Butler referred to a Maritime Telegraph and Telephone Co. Ltd. work order which called for the removal of the old pole by Nova Scotia Power. The work order is dated January 24, 1989. The two poles can be seen on the photographs identified as Exhibit P-5, an old one and a new one. When the photographs were taken, the power line was still attached to the old pole. Mr. Butler indicated that the new pole would have been installed within two weeks of the date of the work order. After the installation of the new pole, Maritime Telegraph and Telephone Co. Ltd. would have informed Nova Scotia Power that the new pole was in and that the electrical power could now be transferred to the new pole. The photographs show the JOSEPH AND ADA next to the two poles and, therefore, the photographs could not have been taken before the end of January 1989. Consequently, if I were willing to accept, on the basis of the P-5 photographs that the plaintiff did apply creosote to his vessel, the photographs would only demonstrate that it had been done by the end of January 1989.

[33]      On the evidence, I must conclude that the plaintiff has not met his burden of proving that creosote was ever applied to hull of the JOSEPH AND ADA. For the reasons which I have already given, the plaintiff is not credible on this point. I know for a fact that, by March 30, 1988, no creosote had been applied to the vessel. That was the evidence of Messrs. McLeod and Fyfe and it was not disputed by the plaintiff. Colm McDevitt, who saw the JOSEPH AND ADA on June 24, 1988, testified that, as far as he could remember, there was no creosote on the vessel.

[34]      The only evidence regarding the application of the creosote is the plaintiff"s viva voce evidence which I cannot accept. The plaintiff did not adduce any evidence, including expert evidence, to demonstrate that creosote had been applied to the hull of his vessel. Consequently, save for the plaintiff"s testimony, there is absolutely no evidence that creosote was ever applied to the JOSEPH AND ADA.

[35]      I find support for the above finding that the plaintiff did not, as he claims he did, apply creosote to the hull of the vessel following receipt of John Fyfe"s letter of February 25, 1988 in the fact that the plaintiff"s real ground of complaint was not that he had applied creosote to his vessel, on the advice of John Fyfe, but about the nature and the extent of the repairs which John Fyfe and Donald McLeod were suggesting that he make. This was the subject matter that the plaintiff discussed with Bruce Atkinson and a Mr. Surette, two boat builders that the plaintiff knew. The plaintiff did not raise, nor discuss, with them John Fyfe"s recommendation that he apply a wood preservative to the hull of his vessel. When the plaintiff appeared at Transport Canada"s offices on April 12, 1988, he did not complain about the creosote but rather that Messrs. Fyfe and McLeod were going to put him out of business. I understand the plaintiff"s complaint to mean that the recommendations made by the surveyors were causing him hardship in that he would have to make extensive and costly repairs before being able to put the JOSEPH AND ADA back to sea. The letter sent by the plaintiff to the Minister of Fisheries clearly explains the reasons why he was upset. In that letter, the plaintiff indicated that the surveyors were forcing him to make repairs which he simply could not afford and, as a result, his vessel had deteriorated to the point where it had lost all of its value. On the evidence of Mr. McDevitt who saw the JOSEPH AND ADA on June 24, 1988, I am satisfied that the plaintiff had not carried out any work to his vessel since March 30, 1988.

[36]      As it appears clearly from the plaintiff"s pleadings and as it appeared during the course of his testimony, the plaintiff was under the impression that the Transport Canada surveyors had prevented him from repairing his boat the way he intended to and had prevented him from fibreglassing it. His evidence was that, initially, the surveyors stopped him from fibreglassing the JOSEPH AND ADA and that, subsequently, they told him he could go ahead and fibreglass her but that, before doing so, he would have to carry out extensive repairs. This appears quite clearly from the letter the plaintiff sent to the Minister of Fisheries.

[37]      I cannot accept that part of the plaintiff"s evidence. I prefer the evidence of Messrs. McLeod and Fyfe who both testified that their concern was that as a consequence of the plaintiff"s work, the JOSEPH AND ADA would reach 15 tons and, hence, fall within their jurisdiction. This is what they attempted to convey to the plaintiff during their visits to his home in February and March 1988. If the JOSEPH AND ADA reached 15 tons, the plaintiff would have to obtain the surveyors" consent regarding the repairs he would be making before being allowed to return the vessel to sea. That is why, in my view, John Fyfe and Donald McLeod attempted to give the plaintiff advice with respect to the manner in which he should repair his vessel before fibreglassing it. There was obviously a problem of communication but, after hearing the evidence, I certainly cannot blame either Mr. McLeod or Mr. Fyfe for the problem. The responsibility for the misunderstanding, if I may refer to it in that way, lies with the plaintiff.

[38]      In his letter of February 25, 1988 to the plaintiff, John Fyfe did not direct the plaintiff to carry out the repairs in a specified way. Rather, he informed the plaintiff regarding the manner in which the surveyors would like him to effect the repairs to his vessel. John Fyfe concluded his letter by informing the plaintiff that he should contact the measuring surveyor so as to determine whether the vessel would reach 15 tons. There was some evidence before me as to whether it was possible for the measuring surveyor to ascertain the tonnage of the JOSEPH AND ADA before the repairs were completed. I need not address that evidence since nothing, in my view, turns on it. After hearing all of the evidence, I do not know if the vessel"s tonnage reached or would have reached 15 tons if the repairs had been completed by the plaintiff. Be that as it may, I cannot conclude, as the plaintiff would like me to, that the Transport Canada surveyors obliged him to carry out the repairs "their way".

[39]      I now turn to another issue. That issue results from the plaintiff"s assertion that he applied creosote to the hull of his vessel on the advice of John Fyfe. Consequently, for the purpose of the following discussion, I will assume that the plaintiff did apply creosote to his vessel.

[40]      Firstly, as I have already indicated, the plaintiff never replied to John Fyfe"s letter, nor did he ever seek advice from him following the receipt of the February 25, 1988 letter. The plaintiff"s story is that, following the receipt of John Fyfe"s letter, he went to a hardware store and bought three gallons of creosote which he applied to the hull of his vessel in April or May 1988. The plaintiff"s evidence is that he did not seek the advice of anyone before purchasing and applying the creosote. Although he knew many people in the boat building industry, including boat builders, the plaintiff never inquired about the suitability of wood preservatives in general and, in particular, about the suitability of the creosote which he purchased. In my view, the plaintiff ought to have taken some advice regarding the suitability of the wood preservative which he intended to apply to the hull of his vessel.

[41]      I have already found that the plaintiff did not apply creosote to his vessel but, if he did, I am of the view that he did not act reasonably in the circumstances. He ought to have spoken to John Fyfe, Donald McLeod or to someone who knew something about fibreglassing. He could have spoken to Bruce Atkinson, a boat builder whom he consulted regarding the contents of John Fyfe"s letter. The plaintiff testified that he showed John Fyfe"s letter to Bruce Atkinson who, after reading the letter, said "Will, they can"t do this to you". The plaintiff asked Mr. Atkinson how much it would cost to effect the repairs suggested by John Fyfe in his letter. Mr. Atkinson informed him that he could do the work for $55,000.00. The plaintiff testified that he did not have $55,000.00. The plaintiff testified that he then consulted another boat builder, Mr. Surette, who wanted $67,000.00 to $70,000.00 to do the work. Mr. Surette is the builder who built the JOSEPH AND ADA . The plaintiff did not show John Fyfe"s letter to Mr. Surette. The plaintiff did not ask either Mr. Atkinson or Mr. Surette what their views were concerning the application of a wood preservative to the JOSEPH AND ADA before fibreglassing.

[42]      In my view, if the plaintiff did apply creosote to the hull of the JOSEPH AND ADA, he cannot blame John Fyfe. In point number 2 of his letter of February 25, 1988, John Fyfe recommended to the plaintiff that he "coat the wood "core" with a suitable wood preservative before encapsulating". Although John Fyfe did not explain to the plaintiff what he meant by a "suitable" wood preservative, that did not, in my view, exempt the plaintiff from enquiring as to the suitability of the wood preservative that he intended to apply. The JOSEPH AND ADA was his vessel and, in my view, it was his duty to make the necessary enquiries before applying a wood preservative to the hull of his vessel. In the circumstances, it is my view, that the plaintiff did not act reasonably if he applied creosote, as he says he did, without trying to ascertain whether the creosote was "suitable".

[43]      I will now deal with the plaintiff"s allegations which appear in paragraphs 16(a), 16(b) and 16(c) of the amended statement of claim. For the sake of clarity, I once again quote these allegations:

16a.      On or about 1990 the Defendant became aware though media coverage, and otherwise, that Nickerson was of the view that due to the application of wood preservative to the Vessel, he could not fiberglass [sic] it.

16b.      That the Defendant never advised Nickerson of their view that the vessel would have been acceptable to the Defendant even if the fiberglass [sic] was only bonded to the vessel mechanically and not chemically.

16c.      Nickerson repeats the foregoing and says that the Defendant was negligent in failing to advise Nickerson of their view that the vessel would have been acceptable to the Defendant even if the fiberglass [sic] was only bonded to the vessel mechanically and not chemically.

[44]      By these allegations, the plaintiff states that, after becoming aware of his complaint regarding the application of the wood preservative to the hull of the JOSEPH AND ADA, the defendant ought to have informed him that the fibreglassing of the JOSEPH AND ADA would have been acceptable to Transport Canada even if the fibreglass "was only bonded to the vessel mechanically and not chemically". In my view, the above allegations cannot succeed.

[45]      On the plaintiff"s own story, it cannot be disputed that the JOSEPH AND ADA was not in good condition by April/May/June 1990, i.e. when Transport Canada became aware of the plaintiff"s allegations that John Fyfe had given him improper advice in respect of the application of a wood preservative to the JOSEPH AND ADA . Suffice it to recall that the plaintiff wrote to the Minister of Fisheries in the spring of 1990 to inform him that his boat was "completely gone, the planks are off and the money that I have put into it is gone". This is also the message conveyed in the June 1, 1990 article which appeared in the "Sou"wester", volume 22, number 17, in which Kathy Johnson wrote the following story:

     Nickerson has spent 32 years of his life on the water, in both the inshore and offshore sectors. In 1987, Nickerson decided to strike out on his own and bought a 33 feet wooden vessel to be used in longline fishing.

     "I was fishing the boat and she almost sunk. So I took her out of the water, brought her home and put her in the yard," said Nickerson.

     Nickerson had plans to do what has been done to well over 200 older, wooden fishing boats in south west Nova Scotia; fiberglass [sic] the exterior of the hull. Nickersons" plans also included building up the sides, replacing the whealhouse and adding a fish hold.

     During the winter of 1987/88, Nickerson worked on his boat, when he wasn"t fishing, stripping off the whealhouse and the interior and building up the sides. "I worked on it all winter so when the warm weather came, I could start glassing it," Nickerson.

     "It was getting closer to summer, so I started sanding the paint off the hull. Had it almost sanded off, when (officials from) the Department of Transport stopped in the year. They said I had to do this and that, I said no problem.

     "Wasn"t too long after that they stopped in again and said I had to ... on my boat.

     In the meantime I had bought all new equipment, gear, automatic baiters, electronics."

     Some of the reasons given to Nickerson why he couldn"t proceed on his boat included, he didn"t plan on putting enough layers of glass on the vessel and he didn"t know how to apply fiberglass [sic ] properly.

     To gain some experience in fiberglassing [sic], Nickerson found out the quantity of glass he was planning to apply to his boat exceeded both what was applied by local boatshops and the recommended application by Lloyds of London.

     Summer was getting on. Nickerson said the Department of Transport stopped in again. "They wanted to know if I planned on putting a solid deck on the boat. I said I had though about it. Then they came down again and said they wanted blueprints because this was a newly constructed boat. Well I guess I was about half grinning, but somewhere, something was clicking in. I was starting to get pretty disgusted with it."

     Apparently the Department of Transport was under the impression Nickerson was going to sandwich glass the hull, meaning the entire hull, inside and out is completely covered with fiberglass [sic], the timbers removed and only the wooden planking left.

     By now the cold weather had set in making the application of fiberglass [sic] difficult if not impossible. "I had to leave it, said Nickerson, hoping the elements wouldn"t take their toll on the exposed wooden planking.

[46]      In the July 3, 1990 article to which I refer in paragraph 28 of my reasons, the writer points out that the JOSEPH AND ADA "has deteriorated beyond repair, ...". It therefore appears that, as of July 3, 1990, the plaintiff considered that his vessel had deteriorated to the point where repairs would be useless. The condition of the JOSEPH AND ADA is also mentioned in the July 3, 1990 article which appeared in the Yarmouth Guardian where the writer, Harold Hart, relates the plaintiff"s story that his boat "is now useless". Bearing in mind that the JOSEPH AND ADA remained in the plaintiff"s yard, without protection, from September 1987 to July 1990, this is not surprising.

[47]      I therefore find that, as of July 1990, the plaintiff"s boat had deteriorated to the point where repairs were out of the question. This finding disposes, in my view, of the plaintiff"s allegations in paragraphs 16(a), (b) and (c) of the amended statement of claim. Since the condition of the J0SEPH AND ADA was beyond repair, any advice given by the surveyors to the plaintiff would have been to no avail. At that point in time, the vessel could no longer be repaired and thus, fibreglassing it, whether by chemical or mechanical bond, had become irrelevant. Even if the surveyors had informed the plaintiff that the JOSEPH AND ADA would have been acceptable to Transport Canada if the fibreglass was bonded mechanically, this advice would have been irrelevant in the circumstances.

[48]      I should add that, at no time, did the plaintiff attempt to make proof of the condition of his vessel during the period of April to July 1990. Consequently, the only finding that I can make, on the evidence, stems from the plaintiff"s own account of the condition of his vessel through the newspaper articles to which I have referred and his letter to the Minister of Fisheries. The condition of the JOSEPH AND ADA , as it appears from the newspaper articles and the letter to the Minister of Fisheries, is that of a vessel which has lost all of its value. It must also be remembered that John Fyfe and Donald McLeod saw the JOSEPH AND ADA in February and March 1988 and they observed that she was in poor condition. The vessel was also seen by Colm McDevitt on June 24, 1988. His testimony was to the same effect as that of his colleagues.

[49]      A final point must be addressed. The plaintiff"s evidence was that he had intended to fibreglass the JOSEPH AND ADA by way of a chemical bond. He says that because of John Fyfe"s improper advice concerning the application of a wood preservative, he could no longer fibreglass his vessel as intended and consequently, the vessel became "valueless". On the evidence before me, I am not satisfied that the plaintiff could have fibreglassed his vessel, in the way he intended to, in April of May 1988, even if he had not applied creosote to his vessel.

[50]      Both sides called experts to give opinions as to whether the application of creosote, or of any other wood preservative, prevented the fibreglassing of a wooden hull. Glen Aylward, for the defendant, opined that the plaintiff could have fibreglassed his vessel, "even with creosote on it", by mechanically fastening the fibreglass to the wooden hull. In Mr. Aylward"s opinion, chemical bonding without mechanical bonding was not advisable.

[51]      Firman LeGay, for the plaintiff, did not agree with Mr. Aylward. Mr. LeGay expressed the view that fibreglass could be mechanically fastened to the hull of a wooden vessel but that, without a good chemical bond between the fibreglass and the wooden hull, mechanical bonding was not something that he would recommend. In his view, a vessel fibreglassed by way of mechanical bonding only would not be a safe vessel.

[52]      However, both experts were agreed that it was crucial, before attempting to fibreglass a vessel, that the wooden hull be dry. In that respect, at paragraph 9 of his affidavit dated October 21, 1997, Mr. Aylward stated:

9.      THAT fibreglassing should be done in good weather and in a building with proper temperature control and protection from weather changes. In outdoor conditions, particularly fall, winter and spring. it [sic] would be extremely difficult (if not impossible) to prevent a wooden hull from absorbing moisture from the atmosphere.

[53]      In chief, Mr. Aylward testified that because moisture or dampness were not conducive to adhesion, he did his fibreglassing jobs "inside" and used heaters to dry the wooden hull. Mr. LeGay did not disagree with Mr. Aylward"s view on this and indicated that it was difficult to remove moisture from an old vessel. In chief, he explained that his firm would remove moisture from a wooden hull by the kiln dry method. In cross-examination, he explained this method by saying that it was a factory process used to remove moisture. He further indicated that a metre was used to verify the moisture content. He concluded on this point by stating that if the wooden hull was not properly dried out, chemical bonding would "not really work". Mr. LeGay further added that he had never seen the JOSEPH AND ADA .

[54]      It was pointed out to Mr. LeGay during cross-examination that the plaintiff"s vessel had remained outside from September 1987 to the spring of 1988 without protection. Mr. LeGay commented by saying that the vessel ought to have been covered "at the very least".

[55]      Since the vessel remained outside without protection for at least eight months, the wooden hull must have absorbed a considerable amount of moisture. That moisture, according to both experts, would have had to have been removed before any attempt could have been made to fibreglass the hull of the JOSEPH AND ADA. The plaintiff adduced no evidence that would lead me to conclude that he could have successfully applied fibreglass in the way he was proposing to do so in April or May 1988.

[56]      For all these reasons, the plaintiff"s action must be dismissed. The defendant shall be entitled to its costs.

Toronto, Ontario          "MARC NADON"

May 5, 1999      JUDGE

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¹ The original statement of claim was filed on December 2, 1993. By his amended statement of claim, the plaintiff added, as new allegations, paragraphs 16(a), 16(b) and 16(c).