Date: 19980128
Docket: T-3030-94
MONTRÉAL, QUEBEC, THIS 28th DAY OF JANUARY 1998
Present: RICHARD MORNEAU, PROTHONOTARY
ACTION IN REM AGAINST THE SHIP "CITY OF
NANAIMO" AND IN PERSONAM AGAINST CANADIAN
TRANSPORT COMPANY LIMITED, CARILLON
ENTERPRISES LTD., GOLDEN OCEAN (U.K.) LTD., AND
THE OWNERS AND CHARTERERS OF THE VESSEL
"CITY OF NANAIMO"
Between:
PACIFIC FOREST PRODUCTS LIMITED,
and
ALL THOSE CARGO INTERESTS AS ENUMERATED
IN ANNEX "A" ATTACHED HERETO,
Plaintiffs,
AND
CANADIAN TRANSPORT COMPANY LIMITED,
and
CARILLON ENTERPRISES LTD.,
and
GOLDEN OCEAN (U.K.) LTD.,
and
THE OWNERS AND CHARTERERS
OF THE VESSEL "CITY OF NANAIMO",
and
THE VESSEL "CITY OF NANAIMO",
Defendants.
ORDER
It is ordered that the defendants pay the following amounts within twenty days of the date of this order:
| - the stenography expenses incurred by the plaintiffs in relation to the examination of the defendants' representatives on November 27, 1997, at Rotterdam, the amount of which will be determined by counsel for the parties; |
- the sum of $13,500, comprising $7,500 plus $6,000;
| - the costs of this motion in accordance with column III of Tariff B. |
Richard Morneau
Prothonotary
Certified true translation
C. Delon, LL.L.
Date: 19980128
Docket: T-3030-94
ACTION IN REM AGAINST THE SHIP "CITY OF
NANAIMO" AND IN PERSONAM AGAINST CANADIAN
TRANSPORT COMPANY LIMITED, CARILLON
ENTERPRISES LTD., GOLDEN OCEAN (U.K.) LTD., AND
THE OWNERS AND CHARTERERS OF THE VESSEL
"CITY OF NANAIMO"
Between:
PACIFIC FOREST PRODUCTS LIMITED,
and
ALL THOSE CARGO INTERESTS AS ENUMERATED
IN ANNEX "A" ATTACHED HERETO,
Plaintiffs,
AND
CANADIAN TRANSPORT COMPANY LIMITED,
and
CARILLON ENTERPRISES LTD.,
and
GOLDEN OCEAN (U.K.) LTD.,
and
THE OWNERS AND CHARTERERS
OF THE VESSEL "CITY OF NANAIMO",
and
THE VESSEL "CITY OF NANAIMO",
Defendants.
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY:
[1] This is a motion by the plaintiffs under rule 344 of the Federal Court Rules asking that the Court award them the costs they claim to have incurred in respect of the re-examination of two of the defendants' representatives which they had to conduct in Rotterdam, in the Netherlands, on November 27, 1997.
[2] According to the plaintiffs, this re-examination was necessary since they had not been provided with two reports central to their case (the reports) in time for them to be able to question the representatives in question concerning those reports at their examinations, which were held on December 12, 1996 and January 30, 1997, respectively. The plaintiffs argued forcefully that the defendants had deliberately concealed these reports from them, the reports apparently being of great assistance to them in their case.
[3] Accordingly, the plaintiffs are now claiming the expenses they incurred in relation to the re-examination held on November 27, 1997, without the entire matter being referred to the judge who will preside at the trial to begin on February 23; they are claiming:
| - stenography expenses; |
| - travel and lodging expenses for one lawyer, and |
| - $22,500 representing the cost of the hours for preparing and conducting the examination. |
[4] The defendants acknowledge that the reports are material but argue that their failure to disclose and deliver the reports on time was purely inadvertent. According to them, they delivered the reports as soon as they remembered them. In addition, they contend that the re-examination held on November 27, 1997 had little to do with the actual content of the reports. Lastly, they submit that the matter of costs should be referred to the trial judge.
[5] I do not believe that the possibility of awarding costs must be left to be decided by the judge who will preside at the upcoming trial. I therefore intend to decide it now.
[6] Generally, and without concluding that the defendants acted in bad faith as the plaintiffs contend, I am nonetheless of the opinion that having regard to all of the evidence in the record the defendants' failure to disclose the existence of the reports in their affidavits of documents, or in the period immediately surrounding the examinations held on December 12, 1996 and January 30, 1997, was the result of a certain amount of negligence on their part. Accordingly, I find that they violated rules 448(2)(a)(i), 449(2) and (3) and 460(1), which essentially provide that there is an obligation to disclose all relevant documents. Those provisions read as follows:
| 448.(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, |
...
| 449.(2) The deponent of an affidavit of documents shall, prior to making the affidavit, become informed by making all reasonable inquiries of any present or former officer, servant, agent and employee of the party, including any who are outside Canada, who might reasonably be expected to have knowledge relating to any matter in question in the action. |
| (3) The solicitor on the record for the party shall |
| ( a) explain to the deponent of an affidavit of documents the necessity of making full disclosure under Rule 448 and the possible consequences of failing to do so; and |
| ( b) certify on the affidavit of documents or on a document attached to the affidavit that those explanations have been given. |
...
| 460.(1) A party who was examined for discovery and who discovers that the answer to a question in the examination was inaccurate or deficient when given shall, without delay, correct the inaccuracy or deficiency in writing. |
(Emphasis mine)
[7] Based on that conclusion, I believe that it is appropriate under rule 344 to award the plaintiffs certain costs.
[8] With respect to the stenography expenses, I believe that they must be paid by the defendants. There is no direct evidence as to the cost of that service, but counsel for the parties assured me that they would agree as to the precise amount of those costs.
[9] With respect to the travel and lodging expenses of one lawyer for the plaintiffs, I also think that the plaintiffs must be allowed a reasonable amount to cover those costs. However, the parties are not in agreement as to the amount to be awarded. The defendants suggest a figure of $4,000 while the plaintiffs are claiming $11,000. It seems to me that $7,500 would be reasonable in the circumstances, and that will also be ordered.
[10] With respect to the $22,500 claimed by the plaintiffs for the time spent preparing and conducting the examination in Rotterdam, it seems to me that something must be awarded. In my view, however, the amount must be lower than the amount claimed by the plaintiffs.
[11] It must be acknowledged, to start with, that part of the preparation time would have come about at some point or another, even if the reports had been delivered on time. However, we can agree with counsel for the plaintiffs that in order to prepare for November 27, 1997, they had to review much of the documentation a second time that had been gone over at the initial examinations.
[12] On the other hand, it appears that not all of the examination (that apparently lasted between four and seven hours) dealt with the direct content of the reports.
[13] Lastly, the evidence is quite lacking in details as to the hours spent by either counsel.
[14] Having regard to all these factors, it seems to me that $6,000 for this item is more than satisfactory.
[15] The costs of this motion will be awarded to the plaintiffs under column III of Tariff B.
[16] An order will issue accordingly.
Richard Morneau
Prothonotary
MONTRÉAL, QUEBEC
January 28, 1998
Certified true translation
C. Delon, LL.L.
Federal Court of Canada
T-3030-94
BETWEEN
PACIFIC FOREST PRODUCTS LIMITED,
and
| ALL THOSE CARGO INTERESTS AS ENUMERATED IN ANNEX "A" ATTACHED HERETO, |
Plaintiffs,
" AND "
| CANADIAN TRANSPORT COMPANY LIMITED and |
| CARILLON ENTERPRISES LTD. and |
| GOLDEN OCEAN (U.K.) LTD. and |
| THE OWNERS AND CHARTERERS OF THE VESSEL "CITY OF NANAIMO" and |
| THE VESSEL "CITY OF NANAIMO", |
Defendants.
REASONS FOR ORDER
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: T-3030-94
STYLE OF CAUSE: PACIFIC FOREST PRODUCTS LIMITED,
and
| ALL THOSE CARGO INTERESTS AS ENUMERATED IN ANNEX "A" ATTACHED HERETO, |
Plaintiffs,
" AND "
| CANADIAN TRANSPORT COMPANY LIMITED and |
| CARILLON ENTERPRISES LTD. and |
| GOLDEN OCEAN (U.K.) LTD. and |
| THE OWNERS AND CHARTERERS OF THE VESSEL "CITY OF NANAIMO" and |
| THE VESSEL "CITY OF NANAIMO", |
Defendants.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 26, 1998
REASONS FOR ORDER BY RICHARD MORNEAU, PROTHONOTARY
DATE OF REASONS FOR ORDER: January 28, 1998
APPEARANCES:
Francis Rouleau for the plaintiffs
Darren McGuire for the defendants
SOLICITORS OF RECORD:
Francis Rouleau for the plaintiffs
Sproule, Castonguay, Pollack
Montréal, Quebec
Darren McGuire for the defendants
McMaster Meighen
Montréal, Quebec