Digests

Seaspan International Ltd. v. Ewa (The)

T-261-00

2004 FC 124, Hargrave P.

26/1/04

17 pp.

Motion for discovery answers--Action for damage to plaintiffs' barges, docks, facilities allegedly caused by defendant ship's excessive speed, which generated heavy waves causing first plaintiff's barges to break loose, collide with other plaintiffs' facilities--Motion for re-attendance of plaintiffs' witnesses, Mr. Vermeulen and Mr. Brule, to answer questions previously refused to answer--Consideration of relevant case law on scope of production of documents--Test set out in Everest & Jennings Canadian Ltd. v. Invacare Corporation, [1984] 1 F.C. 856 (F.C.A.), i.e. parties may have broad discovery of documents that may fairly lead to train of inquiry which may directly, indirectly advance case, damage opponent's case--Decided under Federal Court Rules in force before 1990, 1998 amendments--Whether still current given rr. 222, 223--In SmithKline Beecham Animal Health Inc. v. Canada, [2002] 4 C.T.C. 93, F.C.A. holding train of inquiry test still applicable--Regarding breadth of discovery, party has right to properly prepare case or defence, but must be reasonable limits (Boxer v. Reesor (1983), 43 B.C.L.R. 352 (B.C.S.C.))--Regarding sort of information required to be disclosed, in Canadian Pacific Forest Products Ltd. v. Termar Navigation Co. (1994), 87 F.T.R. 1 (F.C.T.D.), where ongoing dispute between defendants, documents relevant to show whether interest of parties as counter-claimants--In British Columbia Children's Hospital v. Air Products Canada Ltd. (2003), 224 D.L.R. (4th) 23 (B.C.C.A.) Court holding confidential settlement agreement privileged for most part, possible admissions of defendants who had already settled irrelevant, evidentiary arguments more properly disclosed at or shortly before trial, but provisions as to release, or not to sue, or to reserve rights appropriate information for disclosure --Defendants here moving to look into brief of counsel for plaintiffs--Facts, documents in brief not privileged from discovery if, otherwise, party bound to give discovery of them (Susan Hosiery Ltd. v. Minister of National Revenue, [1969] 2 Ex. C.R. 27)--Consideration of questions in present case--First category of questions dealing with existence of agreements between some of plaintiffs--No such agreements exist, but bare question as to existence thereof proper--Should questions turn up documents outside counsel's brief, access to be governed by Court's analysis of what is producible in B.C. Children's Hospital--Question as to whether anyone from plaintiff Seaspan said Seaspan would cover plaintiff Lafarge's costs irrelevant given each plaintiff suing in own right, and question not within principles in B.C. Children's Hospital-- Second category of questions dealing with whether claims made by plaintiffs West Bay or Lafarge against Seaspan-- Court not convinced questions relevant--Termar Navigation distinguished--Here, no evidence of claim or action between plaintiffs--Questions going beyond reasonable limit (Boxer) --Third category of questions dealing with possible existence of correspondence between Seaspan and Lafarge in relation to damage caused by Seaspan's barge--Question dealing with breaking away of barges and resulting damage, relevant, answerable discovery question as set out in Reading & Bates Construction Co. v. Baker Energy Resources Corp. (1988), 25 F.T.R. 226 (F.C.T.D.)--Question dealing with existence of correspondence, not touching on counsel's brief, not falling within ambit of agreements, settlements, thus not objectionable--Question not dealing with settlement agreement, thus reasonable and coming within Reading & Bates criteria--As to re-attendance of witnesses, single question for Vermeulen capable of being dealt with in writing --As questions for Brule more complex, defendants may require him to re-attend--Motion allowed in part--Federal Court Rules, 1998, SOR/98-106, rr. 222, 223.