[1993] 1 F.C. 547
T-2981-90
Lady Tanya Fisheries Limited, Van A. Pham, Curtis Ritchie, Wayne Ritchie and Harold Jarvis (Plaintiffs)
v.
Sunderland Marine Mutual Insurance Company Limited, LLoyd’s and I.L.U. Companies, Royal Insurance Company, Insurers Per Marine Underwriters Canada Limited, Insurers Per Eastern Marine Underwriters Limited and Sunderland Marine Mutual and Subscribers (Defendants)
Indexed as: Lady Tanya Fisheries Ltd. v. Sunderland Marine Mutual Insurance Co. (T.D.)
Trial Division, MacKay J.—Halifax, December 8 and 23, 1992.
Practice — Discovery — Production of documents — Application for order requiring defendants to file affidavit of documents including plaintiffs’ statements to RCMP, defendants’ solicitor — Plaintiffs’ credibility at issue — Defendants intending to use statements in cross-examination — Seeking exemption from general rules relating to disclosure by implication from R. 494(8) — R. 448, requiring full disclosure of all documents relevant to any matter in issue, outweighing defendants’ concerns.
This was an application for an order requiring the defendants to file an affidavit of documents, including statements taken from the plaintiffs and third parties involved in plaintiffs’ rescue at sea by the RCMP and a solicitor retained by the defendants to investigate the loss of plaintiffs’ fishing vessel. The plaintiffs’ action was to recover under a policy of insurance. The defendants were seeking an exemption from the general rules relating to disclosure in an affidavit of documents by implication from Rule 494(8), which permits the use of documents not referred to in the affidavit of documents when used solely as a foundation for cross-examination. As the defendants say that the vessel was lost in suspicious circumstances, plaintiffs’ credibility is at issue. The defendants concern is that disclosure of the statements may enable the plaintiffs to tailor their evidence to coincide with the statements, thus frustrating efforts to expose possible perjury through cross-examination.
Held, the application should be allowed.
Rule 448 requires full disclosure of all documents relevant to any matter in issue. Rule 494(8) does not provide an exemption from that general principle, the purpose of which is to assist in the determination of the truth concerning matters in issue, to narrow the issues in dispute, and to expedite the trial of the real issues. An exemption of the sort claimed would permit a party to determine what relevant documents would not be disclosed before trial in the expectation that they may be used upon cross-examination. It would also permit that party to decide not to produce relevant documents even at trial, thus denying the Court access to relevant documents concerning matters in issue. That would not serve the ends of the judicial process in doing justice between the parties. The requirements for full disclosure of relevant documents in advance of trial outweigh the defendants’ concerns. Perjury at trial or fraud should be dealt with by the trial judge or in separate criminal proceedings.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Civil Procedure Rules, RR. 20, 31.15(1),(2) (N.S.).
Federal Court Rules, C.R.C., c. 663, RR. 448 (as am. by SOR/90-846, s. 15), 450 (as am. idem), 494, Form 19 [as am. idem, s. 27].
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Faulkner v. Inglis and Barkhouse (1989), 94 N.S.R. (2d) 411; 247 A.P.R. 411 (S.C.T.D.).
APPLICATION for an order requiring the defendants to comply with Rule 448 by filing an affidavit of documents including the plaintiffs’ statements made to the RCMP and a solicitor retained by the defendants. Application allowed.
COUNSEL:
Russell Cushing for plaintiffs.
Eric LeDrew for defendants.
SOLICITORS:
Hood & Associate, Yarmouth, Nova Scotia, for plaintiffs.
McInnes, Cooper & Robertson, Halifax, for defendants.
The following are the reasons for order rendered in English by
MacKay J.: This is an application by the plaintiffs for an order pursuant to Federal Court Rule 450 [Federal Court Rules, C.R.C., c. 663 (as am. by SOR/90-846, s. 15)] to enforce the defendants’ obligations under Rule 448 [as am. idem] to file an affidavit of documents. The order sought would include within its terms directions that the affidavit of documents to be produced include those which counsel have variously referred to as statements of individual plaintiffs or former plaintiffs, or of crew members of a vessel that participated in a rescue at sea following the loss of the F/V Lady Tanya Ltd.
Pleadings in this matter closed with the filing of the plaintiffs’ reply to the defence filed by the defendants. Thus, the defendants, who have not yet filed an affidavit of documents, have failed to comply with Rule 448 which required filing of such an affidavit “within 30 days from the close of pleadings or such other period as the parties agree or the Court orders”. The action is based on a claim to recover benefits under an insurance policy of the defendants following loss of the plaintiffs’ fishing vessel the Lady Tanya Ltd. On the joint application of the parties, trial in this matter is now scheduled to commence on January 13, 1993.
The application was heard on December 8, 1992 in Halifax, when counsel for the plaintiffs requested an opportunity to provide written submissions with regard to the defendants’ submission at the hearing, that statements in issue are exempt from the general rules relating to disclosure in an affidavit of documents, by implication from Rule 494(8). At the conclusion of the hearing the Court ordered that a draft affidavit of documents, excluding the statements in issue, be provided forthwith to counsel for the plaintiffs and the original affidavit when executed abroad, be filed on or before December 31, 1992. The order also provided for opportunity for both counsel to comment in writing on or before December 21, in regard to disclosure and inclusion in the defendants’ affidavit of documents of the statements in issue. Written submissions have been filed and those have now been considered.
This Court has this day ordered, pursuant to Rule 450, that written statements within the knowledge or control of the defendants described as statements taken from the plaintiffs, former plaintiffs, or third parties involved in rescue of the plaintiffs at sea be included in the affidavit of documents of the defendants. That order further provides that a draft affidavit, including those statements, be provided forthwith to counsel for the plaintiffs and that access to documents for which no privilege is claimed be provided forthwith, that a final affidavit of documents, executed as required by the Rules be filed on or before January 11, 1993, and that any question arising about privilege claimed for any document be raised for consideration by the trial judge at the commencement of trial, or by a judge at any earlier motions day.
The reasons for that order, in light of the facts alleged, the Court’s Rules and the submissions of the parties are as follows.
The plaintiffs allege that they have requested the defendants’ affidavit of documents on numerous occasions throughout the past year following the close of pleadings, in particular they seek production of statements taken from the plaintiffs by the RCMP and by Bruce Outhouse, a solicitor retained by the defendants. Defendants have provided no reason for non-disclosure until, at the hearing of this application on December 8, it was argued that the statements should not be produced on the ground that Rule 494(8) implies an exception to the general rule, Rule 448, for disclosure of documents. The defendants have not thus far claimed that the statements are privileged.
Rule 448, upon which the plaintiffs rely, provides in part:
Rule 448. (1) Every party to an action shall file an affidavit of documents and serve it on every other party to the action within 30 days from the close of pleadings or such other period as the parties agree or the Court orders.
(2) An affidavit of documents (Form 19) shall contain
(a) separate lists and sufficient descriptions of all documents relevant to any matter in issue that
(i) are in the possession, power or control of the party and for which no privilege is claimed,
(ii) are or were in the possession, power or control of the party and for which privilege is claimed,
(iii) were but are no longer in the possession, power or control of the party and for which no privilege is claimed, and
(iv) the party believes are in the possession, power or control of a person who is not a party to the action;
(b) a statement of the grounds for each claim of privilege in respect of a document;
(c) a description of how the party lost possession, power or control of any document and its current location, so far as the party can determine;
(d) a description of the identity of each person referred to in paragraph (a)(iv), including the person’s name and address, if known; and
(e) a statement that the party is not aware of any other relevant document other than those that are listed in the affidavit or those that are or were only in the possession, power or control of another party to the action.
Form 19 [as am. idem, s. 27] referred to in paragraph (2) of Rule 448 includes the following clauses to be included in the affidavit of documents to be sworn by the person who is deponent on behalf of a corporation, as each of the defendants here is,
affidavit of documents
...
2. I have conducted a diligent search of my/(name of party’s) records and have made appropriate inquiries of others to inform myself in order to make this affidavit.
3. This affidavit discloses, to the full extent of my information, knowledge and belief, all of the documents relevant to any matter in issue in the action that are in my/(name of party’s) possession, power or control, that were but are no longer in my/(name of party’s) possession, power or control or that I believe are in the possession, power or control of a person who is not a party to the action.
...
8. I am not aware of any other relevant document other than those that are listed in this affidavit or that are or were only in the possession, power or control of another party in the action.
In addition Form 19 requires a certificate of a solicitor in the following terms:
I, (full name of solicitor), certify that I have explained to the deponent of this affidavit of documents the necessity of making full disclosure under Rule 448 of the Federal Court Rules and the possible consequences of failing to do so.
Rule 494 of the Court’s rules deals with general arrangements for trial, and paragraphs (7) and (8) provide for the use of documents in evidence at trial as follows
Rule 494....
(7) Unless the Court otherwise directs, except with the consent in writing of the other parties or where discovery of documents has been waived by the other parties, no document shall be used in evidence by a party unless
(a) reference to it appears in the pleadings, or in a list or an affidavit filed and served by that party or some other party to the action;
(b) it has been produced by one of the parties, or some person being examined on behalf of one of the parties, on examination for discovery;
(c) it has been produced by a witness who is not, in the opinion of the Court, under control of the party; or
(d) it is a plan or photograph in respect of which the requirement in Rule 481 has been satisfied.
(8) Paragraph (7) does not apply to a document that is used solely as a foundation for or as part of a question in cross-examination or re-examination.
The defendants allege that the F/V Lady Tanya Ltd. was lost in suspicious circumstances which led to an investigation, not yet completed, by the RCMP. In light of those circumstances the defendants retained a solicitor to investigate the loss in order to assess whether the present or former plaintiffs were responsible for the loss, thereby providing defendants with a good defence in this proceeding and a basis for denial of liability under the insurance policy. In the course of his investigation the solicitor retained for that purpose is acknowledged by the defendants to have interviewed some or all of the present or former plaintiffs and to have obtained from the RCMP certain statements from those plaintiffs and from some of the crew of the vessel which rescued the crew of the lost fishing vessel.
The defendants’ position in regard to the statements in issue is set forth in written submissions in the following terms:
6. Rule 448 requires every party to an action to file an affidavit of documents listing and describing “… all documents relevant to any matter in issue …”. Rule 494(7) provides the sanction to backup Rule 448 by providing that no document shall be used in evidence unless it appears in the affidavit of documents or has been disclosed in some other manner. It is respectfully submitted that the next subparagraph, namely Rule 494(8) provides a limited exception to the general rule for disclosure. It is as follows:
(8) Paragraph (7) does not apply to a document that is used solely as a foundation for or as part of a question in cross examination or re-examination.
It is respectfully submitted that this Rule is a limited preservation of the common law position that certain documents may be withheld from an opposing party to control perjury by preventing that party or a witness from tailoring his or her evidence to coincide with the document in question. This also allows a party the chance to expose perjury through cross-examination and to serve the ends of justice; namely by discovering the truth! The documents to which this Rule are most applicable are statements because they provide the best opportunity for cross examination on prior inconsistent utterances.
7. Rule 494(8) is identical to Nova Scotia Civil Procedure Rule 31.15(2). Indeed, it may have been adopted from Nova Scotia as a note in Carswell’s Federal Court Practice at p. 524 states that the previous version of the Federal Court Rules regarding production of documents was “... replaced with a regime having many of the features found in the Ontario, Nova Scotia and British Columbia rules of practise.”
8. In Faulkner v. Inglis and Barkhouse (1989), 94 N.S.R. (2d) 411 (S.C.T.D.), Mr. Justice Davison interpreted Nova Scotia’s Civil Procedure Rule 31.15(2). That case was concerned with a motor vehicle accident and the plaintiff said in his direct evidence that he saw no indication that the defendant intended to turn left. In cross examination he was faced with a statement which he gave to an insurance adjuster where he stated he thought the defendant’s vehicle was “stopping”. The plaintiff’s counsel objected to the use of the statement as it had not been included in the defendant’s list of documents. Mr. Justice Davison referred to Civil Procedure Rule 31.15 and then went to say at p. 413:
It is clear that the Civil Procedure Rules promote substantial disclosure of one party’s case to the other party, but the object is not disclosure per se. The object is to ensure the discovery of the truth and to permit justice to be done among the parties. One of the most important weapons available in the search for truth is cross examination. Previous statements and evidence under oath are often used to test credibility and if a statement was produced and submitted to the other side prior to trial, the effect of it would be to render impotent the cross examination and impair the search for truth. In my view, it was the intention of the drafters of the Rules to prohibit such a result when they set out the exception in Civil Procedure Rule 31.15(2).
In the case before this Honourable Court, the crucial question is whether some or all of the Plaintiffs deliberately destroyed the f/v “lady tanya ltd.” in order to collect the insurance proceeds. Thus there is a very high burden on the Defendants and the credibility of the Plaintiffs is at the heart of the issue. Obtaining statements is one of the few means Defendants have to test the credibility of the Plaintiffs both at the investigation stage and, most importantly, at trial.
9. One must question why the Plaintiffs are so concerned to obtain statements they gave to the Defendants’ previous solicitor. If they told the truth presumably they have nothing to fear as the same evidence will be given by them at trial. If however they did not tell the truth, these statements are the best, if not only, method of exposing the lies. If the Plaintiffs obtain copies of these statements, they will obviously have the opportunity to ensure that their testimony is consistent with what was said earlier. It is submitted that this is the evil which Rule 494(8) was intended to combat.
10. With respect to any statements obtained from those on board the vessel which rescued the crew of the f/v “lady tanya ltd.”, the Defendants submit that the same considerations apply because it is their theory that one or more of the crew of that vessel conspired with the Plaintiffs in the destruction of the f/v “lady tanya ltd.”.
In addition, the defendants urge that the plaintiffs’ distinguishing of the purposes of Rule 448 and Rule 494(8), the former relating to pre-trial processes and the latter to the use of documents at trial, is not a basis for denying the implicit exception to the general rule for disclosure provided by the latter Rule. Moreover, the plaintiffs’ analogy to criminal law proceedings and the modern emphasis on full pre-trial disclosure to an accused has no relevance in civil proceedings where the rules for disclosure are different.
The plaintiffs urge that Rule 448 requires an affidavit of documents including all relevant documents in pre-trial proceedings and that Rule 494 paragraphs (7) and (8) relate to trial proceedings. Faulkner v. Inglis and Barkhouse (1989), 94 N.S.R. (2d) 411 (S.C.T.D.) concerns the application of the equivalent of paragraph (8) in circumstances where the statement involved is not discovered until trial. Here the existence of the statements in issue has been known, and the plaintiffs have sought their production for the past year in advance of trial. The plaintiffs urge a liberal interpretation of Rule 448 to require full disclosure of all relevant documents. To do otherwise would permit a party to withhold documents, and to exclude them from the affidavit of documents required, when it is planned to use them for the purpose of cross-examination. That would defeat the purposes of full disclosure and permit a party to determine what documents will be revealed in pre-trial proceedings. In the alternative, the plaintiffs urge that paragraphs (7) and (8) of Rule 494 are discretionary and it is for the Court to determine whether statements here in issue should be disclosed after examination of the documents.
In my view the defendants’ comparison of Federal Court Rule 494 paragraphs (7) and (8) with the Nova Scotia Civil Procedure Rule [Civil Procedure Rules] 31.15 paragraphs (1) and (2) is interesting and Faulkner v. Inglis and Barkhouse may be persuasive in dealing with a similar situation under Rule 494(8), where a document, not included in a party’s affidavit of documents, is sought to be used at trial for the limited purposes covered by that Rule. Of course, the Rule is broad enough to include documents other than those of the kind in issue in this case, or in the Faulkner case, and it may include documents from sources other than the opposing party or its representatives, which may not have appeared as relevant in advance of trial or direct examination of the party who in cross-examination is confronted with documents as a foundation for or part of a question in cross-examination or re-examination.
I note that Mr. Justice Davison in Faulkner does not comment on the issue before me, that is whether Rule 494(8) implicitly exempts from pre-trial disclosure a document intended to be relied upon for cross-examination purposes at trial. Moreover the requirements for pre-trial disclosure are somewhat different under the Federal Court Rules and the Nova Scotia Civil Procedure Rules, though both may serve the same general purposes. Under the Nova Scotia Rules, Rule 20 provides for pre-trial disclosure of relevant documents by a party serving and filing a list of documents. Somewhat similar procedures prevailed under this Court’s Rules until these were amended by Amending Order No. 13, SOR/90-846, effective December 7, 1990. Changes then introduced include the form in which the list of documents is now required to be provided, by affidavit sworn by a deponent party or one acting on behalf of a party, which affidavit is to include the paragraphs specified above from the new Form 19 and a certificate of a solicitor, an officer of the Court, who certifies that he or she has explained to the deponent of the affidavit of documents the necessity of making full disclosure under Rule 448.
Perhaps the defendants’ reluctance to file its affidavit of documents is understandable for their deponent cannot in truth swear an affidavit in the form required under Rule 448 if it omits reference to the statements here in issue. There is no argument they are not relevant to issues in this action. The affidavit required is that the deponent discloses, to the full extent of his or her information, knowledge and belief “all of the documents relevant to any matter in issue in the action” and that he or she is not aware of any other relevant document other than those that are listed in the affidavit (Form 19 of the Rules).
Whatever the position under the common law, Rule 448 as it now applies requires full disclosure of all documents relevant to any matter in issue. Rule 494(8) does not, in my view, provide for an exemption from that general principle, the purpose of which is to assist in determination of the truth concerning matters in issue, to narrow the issues in dispute and to expedite trial of the real issues outstanding.
The defendants’ concern that disclosure of the statements here in issue may assist the plaintiffs to tailor their evidence to coincide with the statements, and thus may frustrate efforts to expose possible perjury through cross-examination, even if well founded, does not in my view warrant an exception from disclosure in advance of trial of the existence of the statements by omitting them from the affidavit of documents, and if no privilege is claimed, from disclosure of the documents themselves. An exemption of the sort here claimed would permit a party to determine what relevant documents will not be disclosed in advance of trial in the expectation they may be used for purposes of cross-examination or re-examination at trial pursuant to Rule 494(8). It would also permit that party to determine not to bring forward relevant documents even at trial, when depending upon its assessement of evidence offered in direct or cross-examination at trial it might decide not to use the documents even for purposes within Rule 494(8). That would preclude the Court from access to relevant documents concerning matters in issue and this would not serve the ends of the judicial process in doing justice between the parties.
For these reasons I am persuaded that the requirements for full disclosure of relevant documents in advance of trial, under Rule 448, outweigh the defendants’ claim to avoid disclosure of relevant documents known to them because they anticipate the documents may be used in cross-examination of the plaintiffs’ witnesses. If there should be perjury at the trial, or if as the defendants’ argument here implies there be a threat of fraud by the plaintiffs, those threats if they become a reality are subject to control by the trial judge or by proceedings of a criminal nature apart from the trial now scheduled.
Thus the order issued requires inclusion of the written statements taken from the plaintiffs or others about matters relevant to the plaintiffs’ claim, which are known by, or within the power or control of, the defendants, to be included in the defendants’ affidavit of documents. Any statements for which no privilege is claimed are to be disclosed forthwith. In view of the early scheduled date for trial, any issue of privilege in relation to statements included on the list is to be raised either at the commencement of trial for consideration of the trial judge, or at an earlier motions day for consideration by the motions judge. The executed affidavit of documents is to be filed not later than January 11, 1993.
Plaintiffs sought costs of this motion. While the motion is allowed, the defendants’ argument warranted consideration particularly in relation to the scope of Rule 448 as recently amended. In the circumstances it is my view that it is appropriate for costs to be in the cause and determined as the trial judge may see fit following trial.