Date: 20000405
Docket: T-1288-95
ACTION IN REM AGAINST THE VESSEL "CLEO D" AND IN PERSONAM AGAINST THE OWNERS AND ALL OTHERS INTERESTED IN THE VESSEL
"CLEO D", SEACHART MARINE INC., SEACHART AIR & OCEAN FREIGHT INC. AND DIOGENIS SHIPPING CO. LTD.
BETWEEN: FAYEZ GHADBAN
Plaintiff
AND:
THE VESSEL "CLEO D"
-and-
THE OWNERS AND ALL OTHERS
INTERESTED IN THE VESSEL "CLEO D"
-and-
SEACHART MARINE INC.
-and-
SEACHART AIR & OCEAN FREIGHT INC.
-and-
DIOGENIS SHIPPING CO. LTD.
Defendants
REASONS FOR ORDER AND ORDER
BLAIS, J.:
[1] This is a motion from the Defendants SEACHART MARINE INC. and SEACHART AIR & OCEAN FREIGHT INC. for leave to continue the examination for discovery of the Plaintiff.
[2] The Defendants based their motion on the fact that the Plaintiff was first examined for discovery by the Defendants" former solicitors on June 23, 1999 and on December 13, 1999, the Defendants appointed McMaster Gervais, now Borden Ladner Gervais LLP, as solicitors of record.
[3] The Respondent suggest that after reviewing the file it appears that the examination of the Plaintiff conducted on June 23, 1999 did not deal properly with various issues relevant in this matter.
[4] The Defendants also suggest that it is necessary to continue the examination of the Plaintiff in order to be aware of his position with respect to the said issues and to prevent the Defendants from being taken by surprise.
[5] The Plaintiff suggests that the Defendants" motion should be dismissed.
[6] The Plaintiff suggests that as appears from the Affidavit of Mr.Peter J. Cullen, the lawyer who examined Mr. Ghadban, Ms Andrea Sterling, was fully familiar with this matter, had time to prepare and had all the time necessary to conduct the examination of Mr. Ghadban.
[7] Counsel for the Plaintiff also suggests that Mr. Ghadban himself and his solicitor were fully cooperative.
[8] No objections were made during the examination. There were no questions put to Mr. Ghadban to which he could not answer from his own knowledge, and that the only questions taken as undertakings were for the production of documents. And only six (6) undertakings had to be given.
[9] Counsel for the Plaintiff suggests that the Defendants" solicitors chose to conduct the examination on discovery of Mr. Ghadban and the way they did. They were not forced by time, the circumstances or the Plaintiff"s actions to limit the scope, depth or subject matter of the examination.
[10] Counsel for the Plaintiff suggests that pursuant to Rule 235 there is no valid reason to continue the examination on discovery of Mr. Ghadban.
ANALYSIS
[11] Pursuant to the Affidavit of Manon Gauthier the Defendants suggest that the "said examination" did not deal properly with the following issues which are in dispute in this matter:
the discussions concerning the formation of the contract;
the condition of the Cargo prior to loading on board the vessel;
the value of the Cargo prior to loading on board the vessel;
| the circumstances surrounding the signing of the release and the Plaintiff"s understanding of the release; |
| the ownership of the Cargo; |
the Quantum (loss of revenue)
[12] Relating to the ownership of the Cargo, counsel for the Plaintiff suggests that paragraph 1 of the Statement of Claim is clear concerning the ownership of the Cargo and paragraph 1 of the Defence admits paragraph 1 of the Statement of Claim suggesting that there is no valid reason to examine the Plaintiff on that question and I agree with the Plaintiff.
[13] Concerning the Quantum, counsel for the Plaintiff suggests that the loss of revenue of $68,000.00 was not raised during the discovery but it could be for any reason even question of strategy and that does not justify to re-open the discovery on that question. I also agree with counsel for the Plaintiff.
[14] Concerning the four (4) other issues mentioned in the Affidavit of Manon Gauthier, questions were asked by the former solicitor on all those issues and even though the new solicitor for the Defendants seems not to be satisfied with the answers, yet, it is not valid reason to re-open examination for discovery of the Plaintiff.
[15] Section 235 of the Federal Court Rules, 1998, says:
| except with leave of the Court, a party may examine for discovery any adverse party only once |
sauf autorisation contraire de la Cour, une partie ne peut interroger au préalable une partie adverse qu"une seule fois. |
[16] In Alec Chingee et al. v. Harry Chingee et al.1, Prothonotary Hargrave said on page 5
| To require Harry Chingee, whose discovery has been concluded, to answer further questions, the Plaintiffs must establish a special reason to do so. Here I have in mind Rule 235 which provides that "Except with the leave of the Court, a party may examine for discovery any adverse party only once." This rule is a watering down of what was, until about 1990, Rule 465(19) which required special reason in an exceptional case in order to obtain further discovery. The present form of the rule, however, ought not to be interpreted so as to easily allow further discovery, once an examination has been concluded, for discovery must, at some point, come to an end. In the present instance I would deny further discovery because the material on which counsel wishes to examine was available at the time of the discovery of Harry Chingee and, wiht diligence, might have been to him at that time. |
[17] Counsel for the Defendants failed to convince me that there is a valid reason to allow leave of this Court to conduct another examination for discovery of the Plaintiff.
[18] For those reasons the motion for leave to continue the examination for discovery is dismissed.
[19] Costs in the cause.
Montreal, Quebec Pierre Blais
this 5th day of April 2000 Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20000405
Docket: T-1288-95
BETWEEN:
FAYEZ GHADBAN
Plaintiff
AND
THE VESSEL "CLEO D" ET AL
Defendants
REASONS FOR ORDER
AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1288-95
STYLE OF CAUSE: FAYEZ GHADBAN
Plaintiff
| AND |
| THE VESSEL "CLEO D" ET AL |
Defendants
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: April 3, 2000
REASONS FOR ORDER
| AND ORDER OF THE HONOURABLE MR. JUSTICE BLAIS |
| DATED: April 5, 2000 |
APPEARANCES:
Ms. Mireille A. Tabib for the Plaintiff
Mr. Peter Pamel for the Defendants
SOLICITORS OF RECORD:
STIKEMAN ELLIOTT
Montreal, Quebec for the Plaintiff
BORDEN LADNER & GERVAIS
Montreal, Quebec for the Defendants
| MEMORANDUM / NOTE DE SERVICE |
| Comments / Remarques |
| NUMÉRO DE LA COUR: T-1288-95 |
| COURT NO./ |
STYLE OF CAUSE/ |
FAYEZ GHADBAN Plaintiff AND THE VESSEL "CLEO D" ET AL Defendants
|
| DOCUMENT(S) REÇUS/DOCUMENT(S) RECEIVED: |
| Reasons for Order and Order |
| DE/FROM: THE HONOURABLE MR. JUSTICE BLAIS |
| DATE: On April 5, 2000 |
| PAR/PER: ________________________ |
| HEURE/TIME: |
MEMORANDUM / NOTE DE SERVICE
Comments / Remarques
DATE: Montreal, April 5, 2000
NUMÉRO DE LA COUR: T-1288-95
COURT NO.:
| INTITULÉ DE LA CAUSE: STYLE OF CAUSE/ |
FAYEZ GHADBAN Plaintiff AND THE VESSEL "CLEO D" ET AL Defendants
|
La présente autorise la Cour à reproduire pour fin de distribution la copie ci-jointe des motifs de l'ordonnance dans le dossier cité en rubrique.
This is to authorize that the attached copy of the reasons for order in the above-mentioned matter be used for reproduction purposes of the Court.
| Juge/Judge |
MEMORANDUM / NOTE DE SERVICE
Comments / Remarques
À/TO: L'ADMINISTRATEUR/ADMINISTRATOR
DE/FROM: THE HONOURABLE MR. JUSTICE BLAIS
OBJET/RE: DEMANDE DE TRADUCTION /
REQUEST FOR TRANSLATION
NUMÉRO DE LA COUR: T-1288-95
COURT NO.:
Prière de faire traduire le(s) document(s) ci-annexé(s) selon les Règles de la Cour fédérale et en conformité de la Loi sur les langues officielles.
Please have the attached document(s) translated in accordance with the Federal Court Rules to ensure compliance with the Official Languages Act.
DOCUMENT Motifs/Reasons x
Ordonnance/Order x
TRADUCTION Français/French x
TRANSLATION Anglais/English
RÈGLE DE PRIORITÉ Règle/Rule 2(1)
PRIORITY RULE Règle/Rule 2(2) x
NOMBRE DE MOTS
WORD COUNT
| April 5, 2000 |
| Date Juge/Judge |
1 Unreported decision of Trial Division, May 8, 1998, T-2327-97