Date: 20050112
Docket: T-15-05
Citation: 2005 FC 23
ACTION IN REM
AGAINST THE SHIP "STEWART ISLAND"
AND IN PERSONAM
BETWEEN:
THYSSENKRUPP MATERIALS NA, INC.
Plaintiff
and
THE OWNERS AND ALL OTHERS INTERESTED
IN THE SHIP "STEWART ISLAND", AND
THE SHIP "STEWART ISLAND"
Defendants
[1] This is an appeal by the Plaintiff of a discretionary decision made by Prothonotary Hargrave, on January 7, 2005, denying its request for the examination, pursuant to Rule 238, of the Chief Engineer who was on board the relevant vessel at the time of its engine failure.
[2] In his decision, the Prothonotary stated:
Examination of the Chief Engineer, pursuant to Rule 238, is denied. While the Chief Engineer, in all likelihood, has relevant information and while his examination would be unlikely to cause undue delay, inconvenience or expense, I am not convinced either that the information, which the Chief Engineer could provide, cannot be obtained from another source, such as production of documents or timely examination for discovery, or that there is inherent or actual unfairness in denying examination of the Chief Engineer at this point.
[3] Upon hearing counsel for the parties and upon reading the material filed, I am not prepared to conduct a de novo review of the merits of the Prothonotary's decision and to consider exercising my own discretion differently because the Plaintiff has failed to demonstrate that the impugned decision is "clearly wrong", in that it was made upon an incorrect principle of law or misapprehension of the facts, or that the question raised is vital to the "final issue" in the case (see Canada v. Aqua-Gem Investments Ltd. [1993] 2 F.C. 425 (F.C.A.)). I am rather satisfied that the Prothonotary applied Rule 238 correctly, exercised his discretion in a rightful manner and based his decision on the evidence before him.
[4] Consequently, the appeal is dismissed, with costs against the Plaintiff payable forthwith, upon taxation, in any event of the cause.
(Sgd.) "Yvon Pinard"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-15-05
STYLE OF CAUSE: Thyssenkrupp Materials NA, Inc. v
The Owners and all others interested in the Ship "Stewart Island", the Ship "Stewart Island"
PLACE OF HEARING: Vancouver BC
DATE OF HEARING: January 11th, 2005
REASONS FOR ORDER: Pinard J.
DATED: January 12, 2005
APPEARANCES:
Shelley Chapelski FOR PLAINTIFF
Michael Bird FOR DEFENDANT
Peter Bernard FOR SK SHIPPING CO. LTD.
SOLICITORS OF RECORD:
Bromley Chapelski FOR PLAINTIFF
Vancouver BC
Bull, Housser & Tupper FOR DEFENDANTS
Vancouver BC
Bernard & Partners FOR SK SHIPPING CO. LTD.
Vancouver BC