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.