Date: 20000117
Docket: T-387-98
MONTRÉAL, QUEBEC, THE 17th DAY OF JANUARY 2000
PRESENT: RICHARD MORNEAU, PROTHONOTARY
| ACTION IN PERSONAM AGAINST ABTA SHIPPING COMPANY LIMITED AND TRADE FORTUNE INC. S.A. |
Between:
REMARLO EVANGELISTA NAPA
CYRUS J. FERRAREN
PETER JULIAN EYMARD D. SORIANA
ALMA MOTILLA NOCES
MILAGROS JAVINES SANORJO
EDWINA VIRAY ORBE
ANNA LIZA AGUDOS CALINGA
and
CONCHITA B. ORTEGA
Plaintiffs
AND
ABTA SHIPPING COMPANY LIMITED
and
TRADE FORTUNE INC. S.A.
Defendants
REASONS FOR ORDER AND ORDER
RICHARD MORNEAU, PROTHONOTARY:
[1] Considering the defendants" motion in this file and in file T-1344-98 under
rule 250 of the Federal Court Rules (1998) for the plaintiffs who survived the FLARE wreckage to undergo a medical examination by a medical practitioner appointed by the Court;
[2] Considering that one order should dispose of both motions;
[3] Considering that the parties have conflicting views not so much as to which medical practitioner should be appointed but rather as to where the respective examinations should be conducted: either in Canada or abroad (in Yugoslavia in file T-1344-98 and in the Philippines in this file);
[4] Considering that for the purpose of this determination, the Court could not hold against the plaintiffs the fact they brought their action in Canada;
[5] Considering that more specifically, despite the opposing arguments put forward by the defendants, the Court is of the view that it must give precedence to the opinion of Dr. Buenaventura, who examined the plaintiffs and believes that the plaintiffs Napa and Ferraren are in no condition at all to travel to Canada to undergo their medical examination;
[6] Considering that in file T-1344-98, the Court is also of the view that the opinion of Dr. Knezevic, who examined the plaintiff and concluded that he is medically unfit to travel to Canada, should take precedence over the medical evidence submitted by the defendants;
[7] Considering, despite the evidence submitted by the defendants in file T-1344-98, that it does not appear to the Court to be inordinately unreasonable or dangerous to require a Canadian medical practitioner to go to Yugoslavia;
[8] Considering what can be taken from Brocklehurst v. Assuncao [Ont.] (1977), 3 C.P.C. 178, at page 181, the Court is of the view that the plaintiffs" health should take precedence over the additional cost to the defendants of medical examinations abroad;
[9] IT IS HEREBY ORDERED:
| 1. That under rule 250(1), the Court appoints Dr. Brian Hoffman (or any other medical practitioner the parties agree on) to conduct a medical examination of the plaintiff Petar Markovic (file T-1344-98) in Bar, Yugoslavia, and plaintiffs Remarlo Evangelista Napa, Peter Julian Eymard Soriano and Cyrus J. Ferraren (in this file) in Quezon, Philippines. |
| 2. That the plaintiffs in both files will cover their own travel expenses and the expenses of any person they have present under rule 250(2). All other expenses related to the examinations will be covered by the defendants. All these expenses will be subject to taxation at a later date. |
| 3. Within 20 days of this order, the parties will submit a draft order covering other procedures that need to be covered for the smooth conduct of the examinations. In particular, the draft order will set a schedule for the examinations. |
| 4. Costs of the motions in the cause. |
| 5. These reasons and order will be placed in file T-1344-98. |
Richard Morneau
Prothonotary
Certified true translation
Peter Douglas
Federal Court of Canada
Trial Division
Date: 20000117
Docket: T-387-98
Between:
REMARLO EVANGELISTA NAPA
CYRUS J. FERRAREN
PETER JULIAN EYMARD D. SORIANA
ALMA MOTILLA NOCES
MILAGROS JAVINES SANORJO
EDWINA VIRAY ORBE
ANNA LIZA AGUDOS CALINGA
and
CONCHITA B. ORTEGA
Plaintiffs
AND
ABTA SHIPPING COMPANY LIMITED
and
TRADE FORTUNE INC. S.A.
Defendants
REASONS FOR ORDER
AND ORDER
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.:
STYLE OF CAUSE:
T-387-98
REMARLO EVANGELISTA NAPA
CYRUS J. FERRAREN
PETER JULIAN EYMARD D. SORIANA
ALMA MOTILLA NOCES
MILAGROS JAVINES SANORJO
EDWINA VIRAY ORBE
ANNA LIZA AGUDOS CALINGA and
CONCHITA B. ORTEGA
Plaintiffs
AND
ABTA SHIPPING COMPANY LIMITED and
TRADE FORTUNE INC. S.A.
Defendants
PLACE OF HEARING:Montréal, Quebec
DATE OF HEARING:January 12, 2000
REASONS FOR ORDER OF RICHARD MORNEAU, PROTHONOTARY
DATE OF REASONS FOR ORDER:January 17, 2000
APPEARANCES:
| Laurent Fortier |
for the plaintiffs |
| Danièle Dion David Colford |
for the defendants |
SOLICITORS OF RECORD:
| Stikeman, Elliott Montréal, Quebec |
for the plaintiffs |
| Brisset Bishop Montréal, Quebec |
for the defendants |