Algoma Central Railway v. Fraser (Herb) and Associates Ltd. et al., (1988) 31 O.A.C. 287 (DC)

• Judge: White, McKeown and Chilcott, JJ.
• Case Date: September 30, 1988
• Jurisdiction: Ontario
• Citations: (1988), 31 O.A.C. 287 (DC)

Algoma Central Railway v. Fraser & Assoc. (1988), 31 O.A.C. 287 (DC)

MLB headnote and full text

Algoma Central Railway (plaintiff) v. Herb Fraser and Associates Ltd., Paul Bernard Reles, Ronald Gordon St. Jean and James Richard White (defendants)

Indexed As: Algoma Central Railway v. Fraser (Herb) and Associates Ltd. et al.

Ontario Divisional Court

White, McKeown and Chilcott, JJ.

November 21, 1988.

Summary:

The plaintiff railway sued the defendants for damages resulting from a fire which occurred on the railway's ship while the ship was being repaired by the defendant company. The railway alleged negligence or breach of contract by the defendants, especially a failure to establish and follow proper welding and fire safety practices and procedures.

At examination for discovery of the defendants, the defendants objected to answering a number of questions.

A Master ordered the defendants to answer certain questions. The defendants appealed.

Montgomery, J., allowed the appeal. The railway applied for leave to appeal.

Boland, J., granted leave. The Ontario Divisional Court, White, J., dissenting, allowed the appeal and restored the Master's order. In the result the defendants were ordered to answer the impugned questions.

See also the next case in this volume.

Practice - Topic 4252

Discovery - Examination - Range of - Questions related to issues between the parties - The plaintiff sued for damages after its ship was damaged by fire while being repaired by the defendant company, alleging failure to establish and follow proper welding and fire safety practices and procedures - At issue was whether the defendant could be discovered on fire safety practices and procedures adopted after the fire - The Ontario Divisional Court held that questions relating to evidence of precautions or remedial measures taken subsequent to the accident were proper at the examination for discovery stage - The court held that matters of admissibility and the weight to be given to such evidence at trial should be left for the trial judge to determine - See paragraphs 4 to 25.

Practice - Topic 4259

Discovery - Examination - Range of - Relevant evidence - [See Practice - Topic 4252 above].

Cases Noticed:

Cole v. C.P.R. (1900), 19 O.P.R. 104 (H.C.), not appld. [para. 9].

City of London v. Grand Trunk Railway (1914), 32 O.L.R. 642 (C.A.), appld. [para. 9].

Murphy v. St. Catharines General Hospital, [1964] 1 O.R. 239, refd to. [para. 10].

Meilleur v. U.N.I.-Crete Canada Ltd. et al. (1982), 30 C.P.C. 80 (Ont. H. C.), refd to. [para. 12].

Algoma Central Railway v. Herb Fraser and Associates Ltd. et al. (1988), 63 O.R.(2d) 493 (H.C.), refd to. [para. 14].

Dorland v. Apollo Leading Ltd. (1982), 35 O.R.(2d) 537 (H.C.), refd to. [para. 15].

Canada Cement Lafarge Ltd. v. Caterpillars Tractor Co. (No. 1) (1982), 29 C.P.C. 205 (Ont. H.C.), refd to. [para. 15].

Bigras v. C.N.R. (1987), 8 W.D.C.P. 27 (Ont. H.C.), refd to. [para. 15].

C.P.R. v. City of Calgary (1966), 59 D.L.R.(2d) 642 (Alta. S.C. App. Div.), refd to. [para. 15].

James v. River East School Division No. 9 (1975), 64 D.L.R.(3d) 388 (Man. C.A.), refd to. [para. 15].

Cominco Ltd. v. Phillips Cables Ltd., [1987] 3 W.W.R. 562; 54 Sask.R. 134 (C.A.), refd to. [para. 15].

Toll v. C.P.R. (1908), 8 W.L.R. 795, refd to. [para. 46].

Statutes Noticed:

Rules of Court (Sask.), Queen's Bench Rules, rule 222 [para. 21].

Rules of Practice (Ont.), rule 326(1) [para. 22].

Rules of Civil Procedure (Ont.), rule 31.06(1) [para. 22].

Federal Rules of Evidence (U.S.A.), rule 403 [para. 39]; rule 407 [para. 32].

Authors and Works Noticed:

Ontario Law Reform Commission, Report on Evidence, December 1975, Evidence Code - Title IV, Part I - Exclusionary Rules, p. 24 [para. 6].

Sopinka and Lederman, Evidence in Civil Actions, p. 17 [para. 29].

Wigmore on Evidence (Chadbourn Rev. Ed. 1979), vol. 2, para. 283, p. 175 [para. 31].

McCormick on Evidence (3rd Ed.), p. 817 [para. 34].

Counsel:

Kristine Arnet Connidis, for the plaintiff/appellant;

John D. Holding, Q.C., for the respondents/defendants.

This appeal was heard before White, McKeown and Chilcott, JJ., of the Ontario Divisional Court, on September 30, 1988. The decision of the Divisional Court was released on November 21, 1988, when the following opinions were filed:

Chilcott, J. (McKeown, J., concurring) - see paragraphs 1 to 26;

White, J., dissenting - see paragraphs 27 to 47.