Sydney Steel Corp. v. Ship Omisalj et al., (1992) 52 F.T.R. 144 (TD)

• Judge: MacKay, J.
• Court: Federal Court (Canada)
• Case Date: January 14, 1992
• Jurisdiction: Canada (Federal)
• Citations: (1992), 52 F.T.R. 144 (TD)

Sydney Steel Corp. v. Ship Omisalj (1992), 52 F.T.R. 144 (TD)

MLB headnote and full text

Action in rem against the Ship "Omisalj".

Between:

Sydney Steel Corporation, a body corporate (respondent/plaintiff) v. The Ship "Omisalj", Jugolinija and the owners, charterers and all others interested in the Ship "Omisalj" (applicants/defendants)

(T-2379-90)

Indexed As: Sydney Steel Corp. v. Ship Omisalj et al.

Federal Court of Canada

Trial Division

MacKay, J.

January 28, 1992.

Summary:

The defendant ship struck a mooring dol­phin owned by the plaintiff. The plaintiff sued for damages in negligence. The defen­dants denied the negligence and pleaded inevitable accident. During discovery, the defendant applied for a determination as to whether it had to answer five of the plain­tiff's questions.

The Federal Court of Canada, Trial Divi­sion, determined the issues accordingly.

Practice - Topic 4252

Discovery - Examination - Range of - Questions related to issues between the parties - While docking, a ship struck a mooring dolphin owned by Sydney Steel Corp. - Sydney Steel sued for damages - During discovery, Sydney Steel asked for details concerning events subsequent to the incident - Specifically, whether the inci­dent had given rise to any disciplinary action by the shipowner - Also, had the owner amended the Standing Orders - The owners submitted that it did not have to answer because the questions were not relevant - Also, it was against public policy because defendants would not take remedial measures if they could be used to support a negligence claim - The Federal Court of Canada, Trial Division, held that the defendants had to answer the questions - See paragraphs 14 to 18.

Practice - Topic 4256

Discovery - Examination - Range of - Opinion - While docking, a ship struck a mooring dolphin owned by Sydney Steel Corp. - Sydney Steel sued for damages - During discovery, Sydney Steel asked for an opinion from the Master of the ship as to the consequences of hypothetical helm actions if taken immediately prior to the incident - Sydney submitted that the ques­tions were valid as exceptions to the opin­ion rule because the Master's expertise was in issue in the negligence claim - The defendants claimed that the Master was not an expert in the sense employed in the exception to the rule against opinion evi­dence - The Federal Court of Canada, Trial Division, held that the Master did not have to answer those questions - See paragraphs 19 to 23.

Practice - Topic 4259

Discovery - Examination - Range of - Relevant evidence - During discovery, the defendant applied for a determination as to whether it had to answer five of the plain­tiff's questions - In determining the matter, the Federal Court of Canada, Trial Divi­sion, noted "that the standard for propriety of a question asked in discovery is less strict than the test for admissibility of evidence at trial and the appropriate stan­dard is whether the information solicited by a question may be relevant to the mat­ters which at the discovery stage are in issue on the basis of pleadings filed by the parties." - See paragraph 5.

Practice - Topic 4259

Discovery - Examination - Range of - Relevant evidence - While docking, a ship struck a mooring dolphin owned by Sydney Steel Corp. - Sydney Steel sued for damages - During discovery, Sydney Steel asked for details concerning previous incidents involving ships on which the Master was in command or was officer of the watch at the relevant time - The de­fendants submitted that information about prior incidents was irrelevant - The Fed­eral Court of Canada, Trial Division, held that the question was to be answered because it might be relevant, not to the issue of possible negligence in this instance, but to the knowledge of the ship's owners and to their claim to limit liability - See paragraphs 7 to 13.

Practice - Topic 4259

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

Cases Noticed:

McKeen & Wilson Ltd. v. Gulf of Georgia Towing Ltd. et al., [1965] 2 Ex. C.R. 480, consd. [para. 5].

Philips Export B.V. and Philips Electronics Ltd. v. Windmere Consumer Products Inc. (1986), 1 F.T.R. 300, refd to. [para. 5].

Invacare Corp. v. Everest & Jennings Canadian Ltd. (1984), 55 N.R. 73 (F.C.A.), consd. [para. 6].

Royal Specialty Sales v. Mayda Industries Ltd. (1986), 4 F.T.R. 77, refd to. [para. 7].

Simonar v. Braybrook et al. (1989), 76 Sask.R. 206; 33 C.P.C.(2d) 89 (Q.B.), refd to. [para. 9].

Savoie v. Bouchard and Board of Trustees of Hotel Dieu d'Edmundston (1983), 49 N.B.R.(2d) 424; 129 A.P.R. 424 (C.A.), refd to. [para. 11].

Mielleur v. U.N.I.-Crete Canada Ltd. et al. (1982), 30 C.P.C. 80 (Ont. H. Ct.), refd to. [para. 11].

Clif-Den Holdings Ltd. et al. v. Auto­mated Concrete Ltd. et al. (1986), 70 A.R. 327 (Q.B.), consd. [para. 11].

Algoma Central Railway v. Fraser (Herb) and Associates Ltd. et al. (1988), 31 O.A.C. 287; 66 O.R.(2d) 330; 36 C.P.C.(2d) 8 (Div. Ct.), folld. [para. 15].

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

Canadian Pacific Railway Co. v. City of Calgary (1966), 58 W.W.R.(N.S.) 124 (Alta. C.A.), refd to. [para. 16].

Cominco Ltd. v. Phillips Cables Ltd. et al., [1987] 3 W.W.R. 562; 54 Sask.R. 134 (C.A.), refd to. [para. 16].

James et al. v. River East School Division No. 9 et al., [1976] 2 W.W.R. 577 (Man. C.A.), refd to. [para. 16].

Gliddon v. Town of Woodstock (1895), 33 N.B.R. 388 (C.A.), refd to. [para. 16].

Rivtow Straits Ltd. v. B.C. Marine Ship­builders Ltd. (1976), 14 N.R. 314 (F.C.A.), consd. [para. 21].

R & B Fishing Ltd. et al. v. Canada (1986), 1 F.T.R. 305, refd to. [para. 21].

Smith, Kline & French Laboratories Ltd. et al. v. Attorney General of Canada (1982), 29 C.P.C. 117 (F.C.T.D.), refd to. [para. 21].

Drake v. Overland and Southam Press Ltd. (1979), 19 A.R. 472 (C.A.), dist. [para. 22].

Opron Construction Co. Ltd. v. Alberta (1988), 85 A.R. 143 (Q.B.), dist. [para. 22].

Statutes Noticed:

Federal Court Rules, rule 458(1)(a) [para. 5].

Counsel:

John D. Murphy, for the respon­dent/plaintiff;

A. William Moreira, for the appli­cants/defendants.

Solicitors of Record:

Stewart McKelvey Stirling Scales, Halifax, Nova Scotia, for the respondent/plaintiff;

Daley, Black & Moreira, Halifax, Nova Scotia, for the applicants/defendants.

This matter was heard in Halifax, Nova Scotia, on January 14, 1992, by MacKay, J., of the Federal Court of Canada, Trial Divi­sion, who delivered the following decision on January 28, 1992.