T-1750-83
Arnold J. Hansen, et al. (Plaintiffs)
v.
The Ocean Victoria Daichi Tanker K.K., Monsura
K.K., Empire Shipping Company Limited, Canada
Ports Corporation (Defendants)
Trial Division, Muldoon J.—Vancouver, Decem-
ber 6, 1984.
Practice — Motion to strike pleadings — Motions to strike
statement of defence as abuse of process, for non-production
of documents and for judgment — Ship pleading guilty to
pollution under Canada Shipping Act — Filing statement of
defence to damages action arising from same facts
Admissibility in evidence of guilty plea — Whether conclusive
— Nexus between negligence and damages to be made out —
Motion dismissed — Motion to strike for non-production of
documents dismissed as insufficiently documented — Canada
Shipping Act, R.S.C. 1970, c. S-9, s. 752 (as enacted by R.S.C.
1970 (2nd Supp.), c. 27, s. 3) — Federal Court Rules, C.R.C.,
c. 663, RR. 419(1)(f), 451, 460.
Some 120 plaintiffs commenced an action in respect of
damage to their property resulting from a discharge of bunker
oil by the defendant ship into Vancouver Harbour. Charged
with pollution, contrary to section 752 of the Canada Shipping
Act, the ship pleaded guilty by her agent and a fine of $10,000
was imposed. Nevertheless, the defendants filed a defence in
the civil proceedings denying that oil was discharged. The
plaintiffs then moved, under Rules 419(1)(/) and 460, to strike
out the statement of defence and for judgment. The plaintiffs
argue that, in view of the guilty plea, the defence is a mere
sham intended to gain time and constitutes an abuse of the
Court's process.
Held, the motions should be dismissed.
Remmington v. Scoles, [1897] 2 Ch. 1 (C.A.), relied on by
the plaintiffs, was an exceptional case and not in point. Nor
was the case Critchell v. London and South Western Railway
Company, [1907] 1 K.B. 860 (C.A.), in which the defendant's
solicitor put in a defence while giving an undertaking to
plaintiff's solicitors not to contest liability at trial, of assistance
to the plaintiffs herein.
Hollington v. F. Hewthorn & Co., Ltd., [1943] 2 All E.R.
Annot'd 35; [1943] K.B. 587 (C.A.) was authority for the
proposition that a conviction cannot be received as evidence in a
civil case arising from the same circumstances. It is, however,
pointed out in the Canadian text The Law of Evidence in Civil
Cases by Sopinka and Lederman, that Hollington had been
severely criticized and that a guilty plea is admissible, though
not conclusive, in subsequent civil proceedings.
The ship's guilty plea did not carry the plaintiffs so far a3
they need to go in this civil action. They must demonstrate not
only negligence, but also a nexus between the negligence and
their damages. For that reason, the Rule 419(1)(/) motion
cannot succeed.
The motion to strike under Rule 460 based on failure to
make discovery of documents was insufficiently documented to
found an order. The Court disapproved of the juvenile conduct
on the part of the parties' solicitors which impaired a profes
sional devolution of this action. The Rule 460 motion should be
dismissed without costs.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
R. in right of Canada v. Saskatchewan Wheat Pool,
[1983] I S.C.R. 205; [1983] 3 W.W.R. 97.
DISTINGUISHED:
Remmington v. Scoles, [1897] 2 Ch. 1 (C.A.); Critchell
v. London and South Western Railway Company, [1907]
1 K.B. 860 (C.A.).
CONSIDERED:
Hollington v. F. Hewthorn & Co., Ltd., [1943] 2 All E.R.
Annot'd 35; [1943] K.B. 587 (C.A.).
REFERRED TO:
English v. Richmond and Pulver, [1956] S.C.R. 383;
Ferris v. Monahan (1956), 4 D.L.R. (2d) 539 (N.B.S.C.,
C.A.); Re Charlton (1968), 3 D.L.R. (3d) 623 (Ont.
C.A.); R. v. The Vessel "Gulf Hathi" (1981), 121 D.L.R.
(3d) 359 (B.C.C.A.).
COUNSEL:
Margaret Young for plaintiffs.
R. Breivik for defendants.
SOLICITORS:
Margaret Young, Vancouver, for plaintiffs.
Campney & Murphy, Vancouver, for defend
ants.
The following are the reasons for order ren
dered in English by
MULDOON J.: This is a motion on behalf of the
plaintiffs for an order to strike out the statement
of defence and to enter judgment accordingly,
pursuant to Rules [Federal Court Rules, C.R.C.,
c. 663] 419(1)(j) and 460. The motion is support
ed by the affidavit of the plaintiffs' solicitor.
The plaintiffs, 120 of them despite the
abbreviated style of cause, sue for damages inflict
ed upon their property by a discharge of bunker oil
into Vancouver Harbour, in March, 1983, from
and by the defendant ship Ocean Victoria. The
first four above-cited defendants (i.e., all but
Canada Ports Corporation) have filed a joint state
ment of defence in which they deny that oil was
discharged into the waters of Vancouver Harbour
by the defendant ship, among few other denials
and even fewer admissions.
The pertinent passages of Rule 419 follow:
Rule 419. (1) The Court may at any stage of an action order
any pleading or anything in any pleading to be struck out, with
or without leave to amend, on the ground that
(J) it is ... an abuse of the process of the Court
and may order the action to be stayed or dismissed or judgment
to be entered accordingly.
Why do the plaintiffs allege abuse of process? The
answer resides in the affidavit filed in support of
this motion.
Exhibit A to the supporting affidavit is a copy of
the information of one, J. C. Young, Pollution
Control Officer, sworn before a justice of the
peace in and for British Columbia on March 9,
1983. The informant swore that he had reasonable
and probable grounds to believe, and he did believe
that
... on or about the 9th day of March, 1983, the vessel OCEAN
VICTORIA did discharge a pollutant, to wit: oil, into Burrard
Inlet being Canadian waters south of the sixtieth parallel of
north latitude, in contravention of Section 5 of the Oil Pollution
Prevention Regulations, and did thereby commit an offence
contrary to Section 752 of the Canada Shipping Act, Revised
Statutes of Canada 1970-71, c. 27.
The information (number 34638) bears a written
note, dated March 22, 1983, to the effect that:
Mr. Lowry, agent, pleads
Guilty on behalf of
Ocean Victoria
(J. Kent)
The proceeding appears to have been remanded to
the following day for sentence. The information
also bears a stamped form, filled in to certify that
the accused vessel was sentenced for the offence to
pay a fine of $10,000, and in default of payment
distress would be levied. That certificate is signed
by L. Wayne Smith, a Judge of the Provincial
Court of British Columbia. There also appears to
be the traces of a machine-stamped receipt for the
full amount of the fine paid on April 11, 1983.
Exhibit B to the affidavit is a copy of a tran
script of the sentencing proceedings of March 23,
1983, which records that counsel appeared for the
Crown and the accused, respectively and evidently
made representations to the sentencing Judge. The
vessel Ocean Victoria was represented by Mr. P.
D. Lowry who sought from the Judge one month's
time—and actually secured until April 30, 1983—
in which to pay the fine.
In these circumstances, the plaintiffs contend
that the defendants' pleadings constitute a "sham
defence ... framed with a view to gain time and
hinder and delay the plaintiffs" and that, accord
ingly, those defence pleadings amount to an abuse
of the Court's process. Cited in support of the
plaintiffs' contention is Remmington v. Scoles,
[1897] 2 Ch. 1 (C.A.), in which a statement of
defence denied statements which had been earlier
admitted on oath by the defendant in previous
proceedings. The Court of Appeal upheld the strik
ing out of the defence but cautioned that such was
a "very unusual" and "exceptional case". It is not
in point here. Nor is Critchell v. London and
South Western Railway Company, [1907] 1 K.B.
860 (C.A.) where the defendant's solicitor ten
dered a statement of defence but simultaneously,
in a letter purposely and expressly not marked
"without prejudice", informed the plaintiff's solici
tors that the pleading was "merely to secure that
the money paid into Court may remain there until
trial unless taken out in satisfaction" and
"unreservedly" undertook "not to contest liability
at the trial, when you will be at liberty to use this
letter as an admission of liability...." The Court
of Appeal struck out the defence, but permitted
the defendant to take its money out of Court and
to plead afresh within ten days. Neither case cited
for the plaintiffs is an authority for striking out
these four defendants' statement of defence.
The circumstances here bring to mind Holling-
ton v. F. Hewthorn & Co., Ltd., [1943] 2 All E.R.
Annot'd 35; [1943] K.B. 587 (C.A.), in which it
was held by the English Court of Appeal that a
conviction of an offence cannot be received as even
prima facie evidence in a civil case arising from
the same circumstances. The subject is mentioned
in The Law of Evidence in Civil Cases, Butter-
worth & Co. (Canada) Ltd., 1974 by Sopinka &
Lederman, at pages 26 and 27, thus:
Before the Hollington case was overruled by statute, it was
severely criticized by judges and writers alike.
There appears, therefore, to be ample justification for Canadi-
an courts to cease to follow the Hollington case.
On the other hand, a plea of guilty in a criminal case is
admissible against the accused person in subsequent civil pro
ceedings in which he is a party, in the same manner as any
other admission. While not conclusive against the person plead
ing guilty, it is usually accorded great weight. Any explanation
as to why a plea of guilty was entered goes to its weight and not
to its admissibility.
Canadian authorities supporting the above recited
propositions are: English v. Richmond and Pulver,
[1956] S.C.R. 383, at pages 386-387 and 392;
Ferris v. Monahan (1956), 4 D.L.R. (2d) 539
(N.B.S.C., C.A.), at page 541 (per McNair
C.J.N.B.); and Re Charlton (1968), 3 D.L.R. (3d)
623 (Ont. C.A.), at page 626.
In law, a "guilty" plea is an admission of all of
the elements and ingredients which go to make up
the offence. However, an admission is not an
abject confession, for those who plead guilty to
secular offences may have motives and purposes
other than clearing their consciences. But, this
admission by the defendant ship of its having
discharged a pollutant, oil, into Burrard Inlet,
while it does not of itself summarily win for the
plaintiffs a conclusive judgment on liability, could
furnish weighty and admissible evidence of negli
gence on the defendants' part at the trial of this
action.
In this case, the plaintiffs have, in paragraph
119 of their statement of claim, alleged negligence
on the part of the defendants. In order to succeed
in their action they will have to demonstrate negli
gence on a balance of probabilities. They will be
armed with the admissions inherent in the plea of
"guilty" to the offence on the part of the defend
ant vessel. However, as Mr. Justice Hinkson for
the unanimous British Columbia Court of Appeal
said in R. v. The Vessel "Gulf Hathi" (1981), 121
D.L.R. (3d) 359, writing of the offence created by
section 752 of the Canada Shipping Act [R.S.C.
1970, c. S-9 (as enacted by R.S.C. 1970 (2nd
Supp.), c. 27, s. 3)], at page 362:
But the offence contained in s. 752 is not limited to an offence
resulting from the act or neglect of a person on board.
The defendant ship's guilty plea does not carry the
plaintiffs quite so far as they need to go in order to
succeed. They will need to establish negligence at
least, as well as a nexus between such negligence
and whatever damages are proved to have been
suffered by the plaintiffs in order to fix the defend
ants with liability.
In R. in right of Canada v. Saskatchewan
Wheat Pool, [1983] 1 S.C.R. 205; [1983] 3
W.W.R. 97, the present Chief Justice of Canada,
for the Court, wrote (at page 226 S.C.R.; at page
115 W.W.R.):
It must not be forgotten that the other elements of tortious
responsibility equally apply to situations involving statutory
breach, i.e. principles of causation and damages. To be relevant
at all, the statutory breach must have caused the damage of
which the plaintiff complains. Should this be so, the violation of
the statute should be evidence of negligence on the part of the
defendant.
That passage illustrates that the plaintiffs indeed
have more to do, in order to fix the defendants
with civil liability in damages.
For the foregoing reasons, then, the plaintiffs
cannot succeed, on an interlocutory motion pursu
ant to Rule 419(1)(f), in having the statement of
defence struck out in these circumstances only.
The motion is brought pursuant also to Rule
460. The plaintiffs' solicitor is seeking to inspect
and/or be furnished with copies of the documents
listed in the defendants' list of documents. She
swore on November 14, 1984, that she had not
received compliance with her requests to that date.
In this regard the defendants also lodged an
affidavit complaining about the plaintiffs' tardi
ness in complying with requests for documents. In
that regard, in the meanwhile on December 3,
1984, the plaintiffs' solicitor consented to an order
for documents pursuant to Rule 451. Juvenile
fulminations by the parties' solicitors in avoidance
of an orderly, professional devolution of this action
will not be accepted with avuncular equanimity by
the Court. In this age of economical air transport,
the defendants' solicitors should not be sitting by
while the vessel lumbers around the world, waiting
to retrieve documents from it.
This branch of the plaintiffs' motion, pursuant
to Rule 460 is insufficiently documented to found
an order to strike out the statement of defence. It
should be dismissed without costs, but with leave
to the plaintiffs to recast their motion if necessary.
According such leave is no invitation to the parties
or their solicitors to engage in a barrage of inter
locutory motions.
ORDER
IT IS HEREBY ORDERED that
1. the plaintiffs' motion to strike out the state
ment of defence pursuant to Rule 419(1)(f) is
dismissed with costs in the cause to the success
ful parties;
2. the plaintiffs' motion to strike out the state
ment of defence pursuant to Rule 460 is dis
missed, without costs for or against any party
hereto, and with leave to the plaintiffs to recast
their motion, if necessary.
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