Date: 20001206
Docket: A-52-00
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
NOËL J.A.
ADMIRALTY ACTION IN REM AND IN PERSONAM
BETWEEN:
MARIANA MARITIME S.A.
THE OWNERS OF THE SHIP "MARIANA"
APPELLANTS
(Defendants)
AND:
STELLA JONES INC.
- and -
AXA BOREAL ASSURANCE INC.
RESPONDENTS
(Plaintiffs)
Heard at Ottawa, Ontario, Wednesday, December 6, 2000
Judgment delivered from the Bench at Ottawa, Ontario, Wednesday, December 6, 2000
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU J.A.
Date: 20001206
Docket: A-52-00
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
NOËL J.A.
ADMIRALTY ACTION IN REM AND IN PERSONAM
BETWEEN:
MARIANA MARITIME S.A.
THE OWNERS OF THE SHIP "MARIANA"
APPELLANTS
(Defendants)
AND:
STELLA JONES INC.
- and -
AXA BOREAL ASSURANCE INC.
RESPONDENTS
(Plaintiffs)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario
on Wednesday, December 6, 2000)
LÉTOURNEAU J.A.
This is an appeal against a decision of a motions judge dismissing the appellants' motion to compel Mr. Joseph Kaddis, a representative of the plaintiff, Stella-Jones Inc., to answer questions posed during cross-examination on his affidavits and to produce documents relating to the issues raised by these questions. These affidavits were given in reply to affidavits filed in support of a motion for an Order staying the action launched in the Federal Court in favour of an arbitration in London, England.
The appellants' contention is that the contract issued for the return shipment to Canada of some of the goods rejected in Syria by their purchaser contained the said arbitration clause. The initial contract of affreightment to carry the goods to Syria was a "Conlinebooking" liner booking note dated March 3, 1998 which, it is alleged, contained the arbitration clause. It was superseded by a bill of lading which, it is said, also contained the clause. For the return shipment, an addendum was made to that booking note and a bill of lading was issued after a fire had broke out in the ship and the cargo had been damaged.
The appellant Mariana Maritime S.A. wants to establish through these questions that the reason why the negotiations for the bill of lading contract took the abbreviated form that it did is because its agent, Hawknet Ltd. who was a co-defendant in the action, had negotiated previous contracts with the plaintiff, Stella-Jones Inc., on the same standard forms. Thus, it wants to establish that, as a result of previous dealings between these parties, the plaintiff was aware of the existence of the arbitration clause when both the initial and the return contracts were issued.
The motions judge appears to have excluded the second affidavit of Mr. Kaddis, dated June 25, 1999 which had been filed without prejudice to plaintiff's contention that the matters deposed to which are the subject of the present litigation were irrelevant.
In our view, the motions judge erred in holding that evidence of previous dealings was irrelevant at this juncture. It may well be that the judge called upon to hear the pending application for a stay will come to that conclusion. However, at this stage, it was not open to the motions judge to exclude the possibility that previous dealings may shed light on the terms of the contract.
We also believe that the motions judge could not deny the appellants the possibility of cross-examining Mr. Kaddis on the basis that they could have obtained the information sought from a co-defendant in the proceedings. In so concluding, he deprived the appellants of their right to cross-examine an adverse party on potentially relevant issues as well as the possibility of obtaining concessions and admissions from that party on these issues.
For these reasons, the appeal will be allowed with costs, the decision of the motions judge will be set aside and rendering the decision that he should have rendered, an Order will be issued directing Mr. Joseph Kaddis:
| a) to re-attend the cross-examination on his affidavit of June 25, 1999 to answer the following questions: |
| 7. d) Did any of the documents relating to previous shipments include the following provision: |
| "This bill of lading is governed by English law. Any dispute or claim to be settled in arbitration in London under English law. Centrocon clause to apply and amended so that both arbitrators and umpire are members of the L.M.A.A." |
| e) Did you have any discussions with Mr. Walker, or anyone else at Hawknet, with respect to the insertion of the said arbitration clause? |
| 10. a) Is it a fact that you were familiar with the terms and conditions on the other side of the Conlinebooking liner booking note? |
| b) Had you been provided with copy by Hawknet in the past? |
| 25. a) Did you inform Mr. Walker that Stella-Jones did not want a bill of lading? |
| b) Did you tell Mr. Walker that bills of lading were not necessary? |
| c) Is it not a fact that you specifically requested Mr. Walker to cause a bill of lading to be issued for the return shipment to Canada? |
and
| b) to produce all booking notes and previous bills of lading with respect to previous shipments of telephone poles arranged between himself and Mr. Guy Walker. |
"Gilles Létourneau"
J.A.