Ferguson v. Arctic Transportation Ltd.
T-1941-93
Hargrave P.
19/6/95
9 pp.
Motion to require defendant to provide outstanding answers and documents from examination for discovery of its employee -- Defendant vessel, Arctic Nutsukpok, towing barge through Panama Canal when pick-up wire breaking and injuring plaintiff -- Although doubtful captain could see incident, log entries giving rise to questions regarding whether Panama Canal Company's locomotives causative -- Notebook-diary, kept by defendant's operations manager referring to matters unrelated to proceedings in addition to references in connection with tow, not corporate document -- In light of absence of formal application for production of notebook pursuant to R. 454 and of understanding between counsel regarding production of notebook, Court declining to order production -- Plaintiff claiming employee produced by defendant for discovery having duty to interview captain of defendant's vessel in order to set out captain's evidence on examination for discovery -- Defendant shipowner contending captain ought to be called as witness to give evidence first hand and to be subject to cross-examination as defendant not agreeing with captain's views and dealing with them during discovery rendering captain's evidence admissions -- Employee produced by defendant to re-attend for further examination but not at expense of defendant -- Employee, neither officer nor director of defendant, obviously putting effort into preparation for discovery; outstanding items arising not out of refusal to answer questions but rather out of need to make further inquiries -- Sanction of further discovery, at expense of party being discovered, ought to be limited to special circumstances, i.e. counsel wrongly refusing to allow deponent to answer questions; improperly refusing to make proper inquiries; or failing to answer undertakings -- Purpose of discovery to examine knowledgeable person, having authority to bind corporate party for whom he is replying, about facts in pleadings (Newfoundland Processing Ltd. v. The Ship "South Angela" (No. 2) (1988), 24 F.T.R. 116 (F.C.T.D.)) -- Although captain's log admissible in evidence due to duty of master to make factual reports to owner, impression or opinion of master not evidence binding shipowner (The Solway, [1885] 10 P.D. 137) -- As captain not seeing incident and proving to be cooperative, captain's opinions not to be put into record as admissions by way of discovery; such opinions, if admissible, best be tested by cross-examination- Employee directed to make inquiries of captain to inform himself with respect to facts known by captain and relevant to pleadings; however, captain's opinions deferred until tested by cross-examination -- Federal Court Rules, C.R.C., c. 663, R. 454 (as am. by SOR/90-846, s. 15).