PRACTICE |
Affidavits |
Unitor ASA v. Seabreeze I (The)
T-1705-00
2001 FCT 416, Rouleau J.
1/5/01
11 pp.
Application for order directing intervener to respond to questions exploring whether resold, or arranged to resell defendant vessel, Seabreeze I, following judicial sale--Intervener mortgagee of Seabreeze I--Seabreeze I arrested, sold pursuant to judicial sale to company related to intervener--Shortly after Court approved sale, vessel lost in storm--Subsequently Court ordering certain claims against proceeds of sale (initial claims), be severed for early adjudication--Included in initial claims were intervener's claims for reimbursement of amounts paid for repatriation of crew, maintenance of vessel while under arrest, reimbursement of amounts based on priority as subrogee of crew's position as maritime lien holders, claim for value of bunkers on board vessel at time of sale--Grounds for within application: intervener's bid based on scrap value of vessel; media reports suggesting intervener arranging to resell vessel as going-concern following judicial sale--Legal principles applicable to cross-examinations stated in Merck Frosst Canada Inc. v. Canada (Minister of Health) (1997), 80 C.P.R. (3d) 550 (F.C.T.D.) including "rules of relevance are more limited"--Merck Frosst defining relevance--Formal relevance determined by reference to issues of fact separating parties--Cross-examination of deponents of affidavit limited to facts sworn to by deponents--As to legal relevance, even when fact sworn to in proceeding, not having legal relevance unless existence, non-existence can assist in determining whether remedy can be granted--Demands for documentary production, proposed inquiries on cross-examination herein relating to identity of purchaser at judicial sale, corporate relationship to intervener; whether ship resold prior to her loss; whether any agreement to resell ship at any relevant time; particulars of ship's insurance at time of loss--But no facts on record concerning any of these matters--Press clippings attached as exhibits to affidavit filed in support of motion evidence of existence of media accounts, but assertion of facts contained therein not facts sworn to by deponent--No factual basis supporting formal relevance of inquiries--Test for legal relevance also not met--None of applicant's proposed inquiries legally relevant to issues to be determined following cross-examination of intervener's deponents--Substantive issues, in respect of which cross-examination pending, only those initial claims--As documents demanded, matters on which cross-examination proposed, not assisting in determining whether remedy can be granted, not legally relevant--Impact sought-after evidence may have on intervener's claim as mortgagee not legally relevant to remedies sought in intervener's initial claims--Application dismissed.