Alaska ( State ) v. Pacific Shore (The)
T-1552-97
Nadon J.
3/11/97
12 pp.
In action where plaintiffs seek damages for blockade of their passenger and motor vehicle ferry Malaspina at Prince Rupert, B.C., applicants, owners and operators of fishing vessels in B.C., seeking order declaring action against Schedule A defendants, other than those defendant ships named in statement of claim, not properly commenced-Original statement style of cause listing 17 ships "and others", and persons unknown-In amended statement of claim pursuant to R. 421(1), style of cause amended by adding "ships and owners and managing owners listed on Schedule A"-Schedule listing names of 94 ships and owners/managing owners-Whether applicants should have proceeded under R. 1716-Issue whether Schedule A defendants, save 17 ships named in statement of claim, new parties to action or simply identification of "Doe" defendants-Application of Lord Devlin's test in Davies v. Elsby Brothers Ltd., [1960] 3 All E.R. 672 (C.A.)-Action directed only against defendants who "wrongfully and with intent to cause damage to plaintiffs" "positioned various ships directly in path or near Malaspina"-Therefore, action not aimed at all ships present at Prince Rupert Harbour-No evidence with respect to whereabouts of Schedule A ships at relevant time-Therefore, Schedule A ships would not be certain that plaintiffs' litigating finger pointed at them-Plaintiffs had burden of adducing some evidence in order to show Schedule A defendants were "Doe" defendants named in statement of claim-Plaintiffs did not succeed in making proof thereof-By amendment, plaintiffs were not attempting to correct misnomer-Application allowed-Service of statement of claim or amended statement of claim invalid-Federal Court Rules, C.R.C., c. 663, RR. 421, 1716.