Date: 19990902
Docket: T-2488-95
BETWEEN:
COMMERCIAL UNION ASSURANCE COMPANY PLC.,
UNDERWRITERS AT LLOYD'S, CANADIAN GROUP
UNDERWRITERS INSURANCE COMPANY, CANADIAN
SURETY COMPANY, THE GENERAL ACCIDENT
ASSURANCE COMPANY OF CANADA,
MARITIME INSURANCE COMPANY LIMITED,
CONTINENTAL INSURANCE COMPANY, and
ROYAL INSURANCE COMPANY OF CANADA,
Plaintiffs,
- and -
M.T. FISHING CO. LTD. and
RICHARD WOOD,
Defendants.
REASONS FOR ORDER
REED J.
[1] The plaintiffs bring a motion to have the defendants" defence and counterclaim struck out and to have judgment issued for the plaintiffs. The grounds of the motion are that the defendant Richard Wood failed to comply with an order of Mr. Justice Noël made on March 30, 1998, and failed to comply with an order of Madame Justice Tremblay-Lamer made on March 17, 1999.
[2] The plaintiffs" statement of claim alleges that Richard Wood deliberately set a fire aboard the vessel "Radiant" and that the plaintiffs paid money to him pursuant to a policy of insurance, believing the fire to have been accidentally caused. The statement of claim was filed on November 24, 1995. The record discloses that the plaintiffs have been seeking information from Mr. Wood with respect to: the amount of money he spent on the "Radiant" (the policy was a builder"s risk policy); what had been removed from the vessel prior to the fire; what had been removed from the vessel after the fire and used on the replacement vessel, the "Sea Lion". The defendant Richard Wood has not provided this information.
[3] I do not, however, find that a breach of Mr. Justice Noël"s order occurred. He did not order Richard Wood to answer the question "How much was actually spent on the vessel "Radiant" as of April 25, 1995?" He was advised by counsel that the part of the motion in which that question is found had been "resolved without the need for the intervention of the Court". Mr. Justice Noël so endorsed the record as an explanation for why he did not make an order.
[4] Madame Justice Tremblay-Lamer"s order of March 17, 1999, has not been complied with in three respects. Mr. Wood has not yet filed a supplementary affidavit of documents (he was ordered to do so within 30 days after March 17, 1999); he has not given the plaintiffs the information they sought in questions 1182, 1183, 1187 and 1249 of the examination for discovery of November 4, 1998; he has not complied with the order that he reattend for discovery after producing the relevant documents. The questions that have not been answered ask him to prepare a list of the amounts that were spent on the "Radiant", cross-referenced to the invoices that evidence each claimed expenditure, together with an indication of what expenses, if any, that appear on the list were for items not in fact on the vessel when the fire occurred, as well as a similar indication of what items, if any, were subsequently used on the "Sea Lion".
[5] Counsel for the plaintiffs argues that the defendant is not taking the orders of the Court seriously, that he is taking a very lackadaisical approach to this litigation. Counsel for the defendants argues that the orders of the Court in question have been substantially complied with, that the invoices have been provided (although not cross-referenced to the defendant"s list of expenditures), that the defendant substantially answered the questions about what was not on the vessel and about what was on the vessel but later used on the "Sea Lion". Counsel for the defendants argues that all the questions other than those asking for a cross-referenced list of expenditures, that were ordered answered by Madame Justice Tremblay-Lamer, were answered and that while an affidavit of documents was not produced, an unsworn schedule of documents was provided to counsel.
[6] The plaintiffs are entitled to complete answers to the questions that were ordered to be answered. The defendant is required to comply with all the terms of the March 17, 1999 order.
[7] I am not prepared, however, to strike the defence and the counterclaim. I will issue a peremptory order requiring that those aspects of Madame Justice Tremblay-Lamer"s order that have not been complied with, must be complied with within two weeks of the present order or the defendants" defence and counterclaim are dismissed. The parts that I understand not to have been complied with are: the production of a supplementary affidavit of documents; answers to questions 1182, 1183, 1187 and 1249 (described above); attendance for further examination for discovery.
(Sgd.) "B. Reed"
Judge
Vancouver, British Columbia
2 September 1999
[8]
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-2488-95
STYLE OF CAUSE: Commercial Union Assurance Company PLC. et al.
v.
| M.T. Fishing Co. Ltd. and Richard Wood |
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: August 30, 1999
REASONS FOR ORDER OF REED J.
DATED: September 2, 1999
APPEARANCES:
| Mr. Roger Watts for the Plaintiffs |
| Mr. Murray Blok for the Defendants |
SOLICITORS OF RECORD:
| McEwen Schmitt for the Plaintiffs |
| Russell DuMoulin for the Defendants |