Ferguson v. Arctic Transportation Ltd. et al., (1995) 98 F.T.R. 231 (TD)

• Court: Federal Court (Canada)
• Case Date: July 10, 1995
• Jurisdiction: Canada (Federal)
• Citations: (1995), 98 F.T.R. 231 (TD)

Ferguson v. Arctic Transportation Ltd. (1995), 98 F.T.R. 231 (TD)

MLB headnote and full text

James L. Ferguson (plaintiff) v. Arctic Transportation Ltd. and the Owners and all others interested in the Ships "AMT Transporter", "Arctic Nutsukpok", "Arctic Immerk Kanotik", "Arctic Kibrayok", "Arctic Kiggiak", "Arctic Tukta", "Arctic Tender", "Arctic Tender II" and "J. Mattson" (defendants)

(T-1941-93)

Indexed As: Ferguson v. Arctic Transportation Ltd. et al.

Federal Court of Canada

Trial Division

Hargrave, Prothonotary

July 14, 1995.

Summary:

The defendant's ship was being towed to the Panama Canal. While going through the Canal, an emergency tow line became fouled and broke, injuring the plaintiff. The plaintiff sued the defendant. The defendant applied for an order compelling the plaintiff to produce documents, particulars and information requested during its examination of the plaintiff at discovery. The defendant also sought the plaintiff's reattendance for further examination.

A Prothonotary of the Federal Court of Canada, Trial Division, allowed the application in part.

Practice - Topic 4177

Discovery - Examination - Duty of witness to inform himself - A Prothonotary of the Federal Court of Canada, Trial Division, discussed the duty of an individual party to inform himself of matters known to his employees and agents and the duty to make inquiries of nonparties in possession of relevant information, but over whom the party had no control - The Prothonotary stated that "where there is an agency relationship between the party required to produce documents and the person holding the documents, that relationship can establish possession and control" - See paragraphs 4 to 11.

Practice - Topic 4603

Discovery - Production of documents by nonparties - Jurisdiction - The plaintiff, injured outside Canada, sued the defendants for damages - The plaintiff's x-rays and CAT scans were in the possession of a nonparty outside of Canada - Rule 458, dealing with production of documents by nonparties, had no extra-territorial application - The plaintiff requested production of the documents, but could not force production - A Prothonotary of the Federal Court of Canada, Trial Division, declined to order the plaintiff to take further steps (such as personal attendance) to obtain the documents - However, the Prothonotary did order the plaintiff to provide the defendants with suitable authorizations to permit the defendants to attempt to obtain the material - See paragraphs 20 to 29.

Practice - Topic 4603

Discovery - Production of documents by nonparties - Jurisdiction - [See Practice - Topic 4177 ].

Cases Noticed:

Wright v. Schultz (1992), 135 A.R. 58; 33 W.A.C. 58; 10 C.P.C.(3d) 277 (C.A.), refd to. [para. 7].

Poteck v. Pickard (1982), 31 C.P.C. 213 (Ont. S.C. Master), refd to. [para. 7].

Dowhoszyja v. Kachor, [1982] 3 W.W.R. 569; 16 Man.R.(2d) 80 (C.A.), refd to. [para. 7].

Culver et al. v. Lloydminster et al., [1928] 2 D.L.R. 93 (Sask. K.B.), refd to. [para. 7].

Bowen v. Klassen (1981), 115 D.L.R.(3d) 167 (Ont. H.C.), refd to. [para. 7].

Reading & Bates Construction Co. v. Baker Energy Resources Co., Baker Marine Co. and Gaz Inter-Cité Quebec Inc. (1988), 25 F.T.R. 226 (T.D.), refd to. [para. 9].

Wolansky v. Davidson (1992), 67 B.C.L.R.(2d) 211 (S.C.), refd to. [para. 10].

Jones, Gable & Co. v. Price (1977), 5 B.C.L.R. 103 (S.C.), refd to. [para. 10].

Moore v. Moore (1988), 23 B.C.L.R.(2d) 350 (S.C.), refd to. [para. 10].

Taylor et al. v. Canada, [1992] 1 F.C. 316; 46 F.T.R. 53 (T.D.), refd to. [para. 15].

Statutes Noticed:

Federal Court Rules, rule 458(2) [para. 5].

Counsel:

David F. McEwen and Douglas Schmitt, for the plaintiff;

Peter Bernard, for the defendants.

Solicitors of Record:

McEwen, Schmitt, Vancouver, British Columbia, for the plaintiff;

Campney & Murphy, Vancouver, British Columbia, for the defendants.

This application was heard on July 10, 1995, at Vancouver, B.C., before Hargrave, Prothonotary, of the Federal Court of Canada, Trial Division, who delivered the following decision on July 14, 1995.