MARITIME LAW |
Practice |
Fiddler Enterprises Ltd. v. Allied Shipbuilders Ltd.
T-842-99
2002 FCT 44, Hargrave P.
15/1/02
9 pp.
Motion for disclosure of statement of particular average arising out of fire damage to fishing vessel Knight Dragon and owner's work done at same time as insured fire damage repairs--Defendant seeking disclosure in order to divide owner's work from fire damage work, and to see whether time for repairs extended by reason of owner's work (resulting in possible deduction from loss-of-use claim)--Federal Court Rules, 1998, r. 225 providing for order for disclosure in affidavit of documents of all relevant documents in possession, power or control of party--Where particular average claim, underwriter appointing adjuster to compile, allocate all of relative expenses--Compilation of particular average showing those items proximately caused by insured peril and those items for account of owner, usually work commissioned by owner done concurrently with insured repairs--Compagnie Financière du Pacifique v. Peruvian Guano Company (1882), 11 Q.B.D. 55 (C.A.) holding every document relevant which may, not must, either directly or indirectly enable party requiring affidavit either to advance own case or damage case of adversary--Courts generally look upon average statements as prima facie evidence of details of computations and of allocation of average because profession of average adjusting both old, honourable with established rules of practice which are of great assistance in ascertaining how claims ought to be determined--Furthermore average adjuster's report neutral--Defendant establishing prima facie case for disclosure of particular average statement as relevant document (pursuant to Peruvian Guano and within r. 222(2))--That particular average statement referring to irrelevant items i.e. terms of policy, what is recoverable from underwriters, not detracting from likelihood of relevance--Production not measured in terms of great relevance or marginal relevance: even marginally relevant document must be produced--Even if other side already has document from another source, still must be produced--That particular average statement containing irrelevant information not protecting document from production if containing any residual relevance--Allocation of work relevant--No cogent reason why report should not be disclosed--Motion allowed--Federal Court Rules, 1998, SOR/98-106, rr. 222(2), 225.