Discovery - Case Summaries
The database contains 29 case summaries relating to Discovery. The summaries are sorted in reverse date order with 20 summaries per page. If there are more than 20 summaries, use the navigation links at the bottom of the page.
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Environmental Assessment Process — Fish Mortality — Documents — Disclosure — Records
R. v. DP World Prince Rupert Inc., 2019 BCPC 302
Précis: The BC Provincial Court allowed an application in part for production of documents from government and third party sources relating to the approval of a marine terminal expansion and work related thereto.
Facts: The defendants brought an application for the order for inspection and production of all records in possession of DFO relating to authorization of the Prince Rupert Fairview Terminal Phase II Northern Expansion (the “Project”) and the federal assessment process under the Canadian Environmental Assessment Act 1992 from March 2008 through to 31 December 2013. The defendants/applicants also sought production of records in possession of DFO relating to the Fisheries Act authorization from 1 January 2014 to 5 November 2014. The types of documents requested included notes and memoranda, reports and articles, policies, notes to file, presentations, telephone and email calls between DFO staff. The underlying charges stemmed from marine dredging of intertidal and subtidal habitat for the Project which resulted in the death of some fish, an offence under s. 35(1) of the Fisheries Act. Although the defendants received an authorization to undertake the Project, that authorization did not explicitly allow for the killing of fish. It was contended by the defendants that DFO had considered the expected impact of potential fish mortality in granting the authorization. As such the defendants sought these documents to assist the Court in interpreting the authorization and whatever DFO examined for making its determination of the same.
Decision: Application allowed, in part.
Held: It was ultimately agreed by all parties that the application must meet the test for disclosure as was laid down in R v. O’Connor  4 S.C.R. 411 and therefore it was held an applicant seeking third party disclosure must show by evidence or information that the documents sought will likely be relevant to a material issue at trial. Based on the Court’s review of the application for disclosure it was held that the defendant Port was in possession of many, if not all, of the documents that range from 1 March 2008 to 31 December 2013. It was further held that it was “pure speculation” that DFO possessed documents connecting the statutory amendments with the Project in any way. The Court agreed with the defendants that documents in DFO’s possession would have considered fish mortality but held that the defendant Port was already in possession of such documents and did not satisfy the test for third party disclosure application. The application for production of all records in DFO possession from 1 January 2015 to 5 November 2014 was denied as DFO’s sworn, unchallenged evidence was that such records did not influence the authorization process. However, the co-accused’s application was granted and production of March 2008 to December 2013 records in possession of DFO was ordered.
Collisions - Claim for Repair & Business Interruption - Summary Trial - Cause of Action
Graymar Equipment (2008) Inc. v. Cosco Pacific Shipping Ltd., 2018 FC 974
Précis: The Federal Court ordered the defendant to pay damages arising from a collision between their moving container ship and a stationary scow.
Facts: On 28 October 2016 the Cosco Pacific was involved in an allision striking a stationary scow, the FRPD Rupert, and a derrick, the T.L. Sharpe, both of which were owned by the plaintiff Graymar and on charter to the plaintiff Fraser River. The scow and the derrick were part of a construction operation to extend a dock at the Fairview Container Terminal in Prince Rupert. The T.L. Sharpe was damaged, and it took eight days to repair. The Cosco Pacific had a pilot onboard who admitted liability and had a consent judgment entered against him for $1000.00 under his statutory limit of liability plus interests and costs. The plaintiffs claimed $513,955.53 for cost of repair, business interruption due to lost business of another derrick, the Peter D. Anderson, supervisory, construction and administrative staff expenses for those on site an additional eight day, and indirect costs for maintaining facilities, access roads, offices and project security for those additional eight days. With liability admitted, quantum proceeded by way of summary trial.
Decision: The defendants were jointly and severally liable to pay combined damages and pre-judgment interest of $485,506.89 to the plaintiff Fraser River. Failing payment, the Cosco Pacific is ordered to be sold with Fraser River to be paid out of the proceeds thereof.
Held: Fraser River had standing as bailee in possession to sue for both the cost of repair and business interruption. Graymar, as owner, had standing to sue for the cost of repair, but suffered no loss.
Without any contest by the defendants as to the cost of repairs, the Court accepted the cost of repairs of the T.L. Sharpe as $187,865.5. The $31,320.00 reduction in the plaintiffs’ claim arose after it was discovered in examination that the Peter D. Anderson was not idle for the whole 8 days. The defendants argued that the plaintiffs did not prove what business the Peter D. Anderson would have had and at what rate, which was said to be necessary for establishing a claim of business interruption and additional expenses with reasonable certainty in the shipping context. Yet, the defendants took no position on the cost of repairs for the Peter D. Anderson, and the Court allowed the claim less $31,320.00 for a total of $186,544.00.
As for costs to staff, the defendants argued that evidence including payrolls should have been tendered by the plaintiffs. Dismissing that argument, the Court found that on a motion for summary trial, such evidence is not needed and would be “excessive” to require evidence from the payroll master, as the project director’s affidavit contained the required evidence to support the claim. Without any cross-examination or other evidence tendered by the defendants, the Court found that no evidence of pay-stubs would be required. In reducing the overhead from 15% to 10%, the Court allowed the claim of $87,183.82 for supervisory construction and administrative staff expenses.
The claim for project security, maintenance of access roads and facilities and offices was disallowed as the Court could not say with any certainty that Fraser Rivers presence on site was extended solely due to the Costco Pacific. As the project with a joint venture between Fraser River and another contractor, it was not clear when Fraser River’s work was actually completed.
Priorities Proceedings - Production of Documents
DP World Prince Rupert Inc. v. The Hanjin Vienna, 2017 FC 761
Précis: The court ordered that claimants proceeding by way of action produce documents that may be relevant.
Facts: Following the well publicized bankruptcy of Hanjin Shipping Co. Ltd. in 2016, the “Hanjin Vienna”, a ship under long term time charter to Hanjin, was arrested at Vancouver and sold by order of the Federal Court. Various claims were made against the proceeds of sale, some by way of action and some by way of affidavits of claim. All of the claims were subject to common case management in the Federal Court. The owner of the “Hanjin Vienna” brought this application for better production of documents from the various claimants.
Decision: Application granted, in part.
Held: The owner seeks production of documents from the claimants which might show they knew of Hanjin’s perilous financial circumstances and the steps they took to deal with that. This is a reasonable request but the motion as drafted is too broad. The request for contracts and invoices should be limited to the year 2016, since there is no evidence of financial difficulties before that time. The documents should be further limited to those involving the “Hanjin Vienna” and her alleged sistership the “Hanjin Geneva”.
Priorities Procedures - Supplementary Affidavit of Claim - Place of Cross examinations
Offshore Interiors Inc. v. Worldspan Marine Inc., 2017 FC 479
Précis: The court permitted the filing of a supplementary affidavit and addressed questions relating the scope of cross-examinations and documents to be produced.
Facts: Under a vessel construction agreement (“VCA”) Sargeant commissioned Worldspan to build a luxury yacht. Disputes arose during the course of construction which resulted in the vessel being arrested by Offshore, an unpaid supplier of materials and services. Various in rem claims were filed against the vessel totalling approximately $3.1 million. Sargeant claimed $20 million based on a builder’s mortgage granted to it by Worldspan to secure the advances made towards the construction of the vessel. Worldspan claimed $5 million in respect of amounts alleged to be due and owing to it by Sargeant. The vessel was sold by the Federal Court for $5 million. Worldspan brought this motion: to file a supplementary affidavit of claim; to have the Sargeant affiants attend cross-examination in Canada; for production of documents on cross-examination; and for an order defining the scope of the cross-examinations.
Decision: Motion granted in part.
Held: Worldspan wishes to file a supplementary affidavit of claim attaching various change orders during the construction of the vessel. The relevance of these change orders is not clear but there is no prejudice to the other parties and in the absence of prejudice this part of the motion is granted. With respect to the motion for cross-examination, the witnesses of Sargeant who have filed affidavits are reluctant to attend in Vancouver for cross-examination and wish to be examined in Detroit. However, it is more practical to have the witnesses travel to Vancouver than to have a “gaggle” of lawyers travel to Detroit. Moreover, these are witnesses for a party that has chosen to conduct business in Canada and to litigate in Canada. They must accept the minor inconvenience of having to attend here for cross-examination. Additionally, it is normal for a witness at cross-examination to bring documents with them and they must do so. Finally, with respect to the scope of the cross-examination, the court should not make advance rulings on the relevancy of questions.
Discovery - Privilege - Appeals - Whether Order of Prothonotary Discretionary
Webasto (Hagedorn) v. Shasta Equities Ltd. (The Helios), 2013 FC 101 2015 FCA 135
Précis: The Federal Court of Appeal held that preliminary investigation reports were not privileged even though counsel had been retained.
Facts: A fire broke out on board the defendants’ ship “Helios” and spread to other nearby vessels. The broker of the “Helios” appointed a surveyor and fire expert to attend the scene and investigate the fire on behalf of underwriters. The surveyor and fire expert were told they were being retained by counsel and would report directly to counsel. The broker next retained counsel who in turn retained a claims service to interview one of the owners of the “Helios”. The moving party brought an application to compel production of various documents over which privilege was claimed including survey reports, the report of the fire expert and reports from the claims service which attached an interview and pre-fire survey reports. At first instance the Prothonotary was not convinced the documents were created “wholly or mainly” with litigation in mind and held they were not privileged. The “Helios” defendants appealed.
On appeal (reported as Hagedorn v Helios I (Ship), 2013 FC 101), the appeal Judge held that the order of the Prothonotary was not discretionary and the correct standard of review was one of correctness. The appeal Judge further held that, with the exception of some pre-fire survey reports, the documents were privileged as the parties were in an adversarial position from the outset. A further appeal was taken to the Federal Court of Appeal.
Decision: Appeal allowed, in part.
Held: Litigation privilege requires both that litigation be ongoing or reasonably contemplated at the time of the creation of the document and that the dominant purpose of creating the document is for that litigation. Relevant considerations include: the author and the authority upon whose direction a report is prepared; the date of the report; when counsel was appointed; the person to whom the report was addressed; and, the content of the report. The initial report of the surveyor and the report of the fire investigator were prepared at a time when, although there was the possibility of litigation, neither party was in a position to assess the incident. The parties were in the preliminary stage of investigation. Litigation had not commenced and was not reasonably contemplated. These reports are not privileged as was held by the Prothonotary. The report from the claims service, on the other hand, is protected by privilege. The investigator was directly retained by counsel, the report was prepared when litigation was more clearly contemplated and the attached interview is detailed and extensive and in the nature of what one would expect of an interview of a possible witness. The balance of the documents were prepared when litigation was in reasonable contemplation and are privileged.
Practice – Discovery- Appeals from Prothonotary
Galerie au Chocolat Inc. v. Orient Overseas Container Line Ltd., 2010 FC 327 (CanLII)
Technically this was an application to appeal a case management order of a prothonotary, however, it raised issues relating to discovery. Specifically, the defendant had requested a case management conference to address whether the plaintiff had failed to provide satisfactory answers to requests/undertakings given at discovery. The prothonotary refused the request and ordered the defendant to produce a pre-trial conference memorandum. The appeal Judge noted that “a discretionary order of a prothonotary ought not to be disturbed unless the issues it raises are vital to the final disposition of the case or the prothonotary exercised his or her discretion on the basis of a wrong principle or of a misapprehension of the facts”. The Judge held that issues relating to discovery are not “vital to the final disposition of the case”. The appeal was accordingly dismissed.
Possessory Liens - Practice - Court Ordered Inspection
Chadwick et al. v. Philbrooks Boatyard Ltd., 2006 BCSC 1607
This was an application by the Plaintiff for an order that it be permitted to inspect two engines in the possession of the Defendant. The Defendant opposed the application on the grounds that it had a possessory lien over the engines which would be lost if the engines were removed from its possession for inspection. The Court agreed with the Defendant that the possessory lien would be extinguished if the engines were removed from its possession. The Court did, however, grant the application ordering that the Plaintiff post security in an amount sufficient to cover the work done to the engines by the Defendant. No security was ordered in respect of amounts attributable to work done on the vessel (as opposed to the engines) since the Defendant was not in possession of the vessel and did not have a possessory lien for those amounts.
Discovery – Non-Parties
The Administrator of the Ship-Source Oil Pollution Fund v. The “Anangel Splendour”,, 2006 FCA 212
This was an action by the Administrator of the Ship-Source Oil Pollution Fund to recover pollution clean-up costs it had paid to two claimants, QCM and the Department of Fisheries and Oceans (DFO), pursuant to the statutory scheme in the Marine Liability Act. The Defendant brought this motion for an order that the Administrator put forward as its discovery representatives individuals from QCM and DFO. The motion was denied by the Prothonotary on the grounds that QCM and DFO were not parties to the proceeding. However, the Prothonotary did allow for the possibility of an examination of QCM and DFO in the future as non-parties pursuant to Rule 238 if the Defendants were able to satisfy the Court that were not able to obtain the information informally from these entities. Appeals from the Prothonotary's order to a Judge and then to the Court of Appeal were dismissed.
Discovery – Examination of Non-Parties
Thyssenkrupp Materials NA Inc. v. The “Stewart Island”, 2005 FC 23
The Plaintiff brought this application for leave to examine the Chief Engineer of the Defendant vessel under Rule 238 of the Federal Court Rules, 1998. The Prothonotary at first instance accepted that the Chief Engineer had relevant information and that his examination would not cause undue delay, inconvenience or expense but nevertheless denied the application on the grounds that the information could be obtained from other sources such as production of documents or examination for discovery. On appeal, the appeal Judge dismissed the appeal holding that the Plaintiff had failed to demonstrate that the Prothonotary's order was clearly wrong in the sense that it was made upon an incorrect principle of law or misapprehension of the facts.
Discovery – Implied Undertaking Rule – Contempt
N.M. Patterson & Sons Limited v. The St. Lawrence Seaway Mgt. Corp., 2004 FCA 210
This was an appeal from a motion in which a solicitor was found in contempt of court for disclosing to the media information obtained on examination for discovery. The appeal was dismissed. This important case reminds practitioners that documents and information received through the discovery process are subject to an implied obligation of confidentiality. Such documents and information may not be disclosed to any third parties or used for any purpose other than the litigation in which it is produced or given. The implied undertaking is only released if and when the document or information becomes publicly available by being tendered as evidence at trial. The Court of Appeal judgment clarifies that the public availability of the information is a defence to the charge of contempt and not an element of the offence. Therefore, the onus is on the accused to prove the information is publicly available.
Examination for Discovery – Production of Documents – Scope
Seaspan International Ltd. et al. v. The Ship “Ewa”, 2004 FC 124
This was a motion by the Defendant to compel the re-attendance of various discovery witnesses to answer questions which had been refused at examinations for discovery. The questions related generally to claims and settlement agreements as between the Plaintiffs and sought the production of any settlement agreements. As a preliminary point the Prothonotary considered whether the scope of production of documents under the Federal Court Rules, 1998 was narrower than under the previous rules. Relying on Smithkline Beecham Animal Health Inc. v The Queen  4 C.T.C. 93, he held that the “train of inquiry” test under the old rules was substantially the same as the current test requiring production of documents that a party intends to rely on or that tends to adversely affect the party's case or support another party's case. With respect to the substance of the motion the Prothonotary referred to various authorities and concluded that settlement agreements are, for the most part, privileged. However, provisions as to release or not to sue or reservation of rights ought to be disclosed and evidentiary arrangements in those agreements might also be required to be disclosed at or shortly before trial.
Examination for Discovery – Prior Practices – Opin
Seatech Construction Ltd. v. “Inlet Challenger”, 2003 FC 1186
This was an application by the Defendant for an order that the Plaintiff's representative re-attend to answer questions objected to at the examination for discovery. The case involved a claim by the Plaintiff for damage to a barge towed from Campbell River to Mimmo Bay. The Plaintiff was not required to answer questions related to its prior practices or that asked for the opinions of witnesses who were not experts.
Discovery – Written and Oral Examination
Haylock et al. v. Norwegian Cruise Lines et al., 2003 FC 932
This was an application by the Defendant shipowner in two actions for an Order that examinations for discovery of the 16 Plaintiffs, all cruise ship medical officers claiming wages for overtime, take place by way of written examination and then by such oral examination as the Defendant may reasonably require. The Prothonotary acknowledged that this was not a usual approach in the Federal Court but granted the Order because it had the substantial promise of saving both time and money. The Prothonotary considered, in particular, the use of both written and oral examinations in the Supreme Court of British Columbia and the “general move to encourage written discovery “ in the Federal Court.
Simplified Action - Striking of Affidavits Contradicting Interrogatories
Tempo Marble & Granite Ltd. v. The “Mecklenburg I”, 2002 FCT 1190
This was an application by the Defendants to strike two affidavits containing the evidence in chief of the Plaintiff in this simplified action. The basis for the application was that the evidence in the affidavits contradicted earlier evidence given at the discovery phase in answers to interrogatories. The Prothonotary found that the evidence did, in fact, contradict the earlier evidence and further found that the Defendants were prejudiced by the affidavits in that they did not have sufficient time to mount a proper defence. The Prothonotary noted that the policy today is to provide evidence in advance so each party knows the case it has to meet and is not taken by surprise. In result, the Prothonotary ordered that the affidavits be struck.
Discovery Witness Travel Expenses - Business Class
Goodman Yachts Llc. v. The “Gertrude Oldendorff”, 2002 FCT1168
The sole issue in this matter was whether discovery witnesses travelling from India and Singapore to Vancouver were entitled to Business Class air travel. The Prothonotary held that in the circumstances of the case Business Class was appropriate. The Prothonotary cautioned, however, that such a premium mode of travel would not be appropriate in all instances.
Discovery - Failure to Provide Documents - Contempt of Court
Island Tug & Barge Ltd. v. The “99 Haedong Star”, 2002 FCT 432
This case once again illustrates the dangers of failing to comply with court orders. The Prothonotary had ordered that the Defendants provide the Plaintiff with originals of various documents and that the Plaintiff’s surveyor be allowed to inspect the defendant vessel. The Defendants failed to provide all of the documents required and failed to allow the Plaintiff’s surveyor to conduct the required inspection. As a consequence, the Defendants were found in contempt. The corporate Defendants were fined $25,000.00 and the Master of the defendant ship was fined $5,000.00.
Documents - Production - Average Adjusters Reports
Fiddler Enterprises Ltd. et al. v. Allied Shipbuilders Ltd., 2002 FCT 44
This was an application by the Defendant shipyard for production of a Statement of Particular Average. The underlying case was for fire damage caused to the Plaintiffs’ vessel. The Defendant sought production of the adjuster’s report as it would disclose owner’s work from fire damage work. The Prothonotary ordered that the report be produced. In so doing he noted that although reports of average adjusters have no legal effect they are rarely questioned by the courts and are often looked upon as prima facie evidence of the matters disclosed.
Dismissal for Failure to Produce Documents
Finora Canada Ltd. v. Clipper Spirit Shipping Ltd., 2001 BCSC 862
This was an application by the Defendant carrier to dismiss the claims of three Plaintiffs for failure to produce documents which had previously been ordered to be produced. Two of the Plaintiffs had produced the required documents but did so after the deadline imposed by the order requiring production. The other Plaintiff had failed to produce the invoices but advised that the documents had been destroyed. The Court dismissed the claim of the Plaintiff that had failed to produce the documents but declined to mete out this “drastic remedy” for the other two Plaintiffs.
Discovery - Examination of a Non-Party
Bayside Towing Ltd. v. Canadian Pacific Railway,  F.C.J. No. 1534
This was an application to examine a non-party for discovery pursuant to Rule 238 of the Federal Court Rules. The underlying action was a limitation action brought by the tug owner to limit its liability for damage done to a bridge owned by the Defendant. The Defendant brought this motion to examine an experienced tug boat operator who had transited the bridge on various occasions. The Defendant wished to have this evidence to show the general practice of tug boat operators in transiting the bridge. The application was refused on the basis that the Defendant had not shown that it could not obtain the required information from other sources.
Examinations for Discovery - Second Examination
Ghadban v. The "Cleo D",  F.C.J. No. 420
This was an application by the Defendant for leave to continue the examination for discovery of the Plaintiff. The ground advanced in support of the application was that the Defendant’s former solicitors had not dealt properly with the various issues relevant to the case. The Court declined the application holding that there must be special reasons to order a further discovery and that the reason given by the Defendant was not sufficient.