PRACTICE |
Discovery |
Examination for Discovery |
Bayside Towing Ltd. v. Canadian Pacific Railway
T-1692-99
Hargrave P.
28/6/00
14 pp.
Motion pursuant to Federal Court Rules, 1998, r. 238 for leave to examine for discovery person not party to action--Barge, in tow of plaintiff Bayside Towing Ltd.'s tug, struck and damaged CPR's Mission railway bridge--Limitation of liability action under Canada Shipping Act--If CPR establishing failure to use assist-tug to transit bridge reckless as pleaded in its defence, plaintiffs would be denied limitation of liability--CPR seeking to take evidence of local tug boat operator, Ernie Catherwood, as to circumstances in which his firm, Catherwood Towing Ltd., used assist-tugs in moving barges through swing span of bridge--Firm operating number of tugs in area of bridge--Catherwood refusing to respond to question on ground not wanting to become involved--R. 238(3) setting out requirements potential examining party must satisfy--While all four terms must be satisfied, only first two at issue: whether Catherwood having information to contribute; whether other sources for same information which CPR ought to have explored--Motion denied--From evidence of Catherwood's experience, CPR might be able to develop general practice as guide to proper way to approach bridge with tug and tow and use of assist tug may be information bearing on issues set out in pleadings and bearing on limitation of liability--CPR therefore satisfying first criteria under r. 238--But CPR not trying to obtain equivalent information elsewhere--No evidence either that Catherwood's tugs and plaintiff's tug only tugs moving barges through bridge or that Catherwood having unique information--R. 238 extending discovery process--Ought to be construed, applied carefully--Requires reasonable extent of canvassing to find those who might have information on issue and refusal to give information before additional discovery of person not party allowed--Federal Court Rules, 1998, SOR/98-106, r. 238.