Date: 20000121
Docket: T-1942-98
ADMIRALTY ACTION IN REM AND IN PERSONAM
BETWEEN:
STELLA-JONES INC.
-and-
AXA BOREAL ASSURANCES INC.
Plaintiffs
AND
HAWKNET LTD
.-and-
SUNLIGHT COMPANIA NAVIERA S.A.
-and-
SEBILAN COMPANIA NAVIERA S.A.
-and-
THE OWNERS AND ALL OTHERS INTERESTED
IN THE SHIP MARIANA (Ex "ANAMELI")
Defendants
REASONS FOR ORDER AND ORDER
BLAIS J.:
[1] This is a motion by the defendant Mariana Maritime S.A., owner of the ship Mariana for an order compelling Mr. Joseph Kaddis to answer questions and to produce documents.
[2] By order of this Court dated June 7, 1999, the defendant Mariana Maritime S.A. was ordered to furnish a list of questions relating to the previous dealings between the plaintiff Stella-Jones Inc. and the defendant Hawknet Ltd. The defendant Mariana Maritime S.A. was then entitled to ask questions arising out of the answers given by Mr. Kaddis thereto. The whole without prejudice to the plaintiffs" right to object to questions and the defendants" right to seek rulings should the need arise.
[3] A list of questions was furnished to the plaintiff's solicitors by letter dated June 10, 1999.
[4] Mr. Kaddis was cross-examined on September 24, 1999, an agreement was reached between Mr. Louis Buteau, solicitor for the plaintiffs and Mr. Sean Harrington, solicitor for the defendant Mariana Maritime S.A., that the questions which were objected to by Mr. Buteau during the cross-examination would be contained in a separate transcript.
[5] It is admitted by both parties that questions 7 a) b) d) and e) were answered and, pursuant to question 7 c), documents were not provided pending the decision by the Court.
[6] Counsel for Mariana Maritime S.A. agreed to withdraw question 24 and admitted that questions 25 a) b) c) were never asked.
[7] The questions before the Court today are 1) whether the Court should allow Mariana Maritime S.A. to file the transcript under reserve and 2) whether Mr. Joseph Kaddis should be compelled to produce all relevant documentation in the possession of the plaintiff Stella-Jones Inc., relating to previous shipments between the plaintiff and the defendant Hawknet Ltd.
[8] The defendant suggests that the contractual relationship between Stella Jones Inc. as commercial owner and Mariana Maritime S.A. as owner of the ship Mariana was negotiated between Stella-Jones Inc. and Hawknet Ltd., agent for the ship Mariana.
[9] The defendant suggests that a number of previous contracts have been negotiated between Stella-Jones Inc. as owners of the cargo and Hawknet Ltd. as agent for various shipowners.
[10] The defendant suggests that the previous courses of dealings between Stella Jones Inc. and Hawknet Ltd. is germane to the documents which were issued or not issued covering the shipment at bar, and why it was necessary, or not necessary, to specifically discuss certain documents, or certain clauses, to draft fresh copies of standard contract forms.
[11] The defendant suggests that it is in the interest of justice that this Court has all the material before it when it comes to decide whether or not Mariana Maritime S.A.'s pending application for a stay of proceedings in favour of London Arbitration should be granted.
[12] The plaintiff suggests that cross-examination on affidavits is far more limited in scope than an examination for discovery. The questions which can be asked at a cross-examination are restricted to the relevant matters arising from the affidavit itself or which are necessary for the determination of the very issue of the subject motion.
[13] The plaintiff suggests that the owner's present application related to questions put or to be put to the deponent of plaintiffs' affidavits in reply, Mr Joseph G. Kaddis concerning prior courses of dealings between Stella-Jones Inc. or its predecessor (Domtar Inc.) and the former co-defendant Hawknet Ltd. and that those courses of dealings occurred themselves prior to the dealings between Stella-Jones Inc. and Hawknet Ltd. which led to the carriage of the cargo from Canada to Syria (i.e. before Mariana Maritime S.A. became the owner of the vessel).
[14] The plaintiff suggests that no reference is made to the prior courses of dealings in the owners' own affidavit material contained in their initial motion Record.
[15] The plaintiff suggests that neither is there any reference made to those prior courses of dealings in the affidavit of Mr. Joseph Kaddis served in reply to the owners' stay application.
[16] The plaintiff suggests that reference was first made to those dealings in the owners' affidavit of Mr. Guy Walker served after plaintiffs had advised the owners that they would object to the cross-examination of Mr. Kaddis on prior dealings other than those concerning the subject cargo of poles.
[17] The plaintiff suggests that the "previous dealings" are irrelevant in the present instance as no probative inference could be drawn from previous dealings in the normal course of business and the extraordinary and particular circumstances of the return voyage.
[18] Relating to the scope of the cross-examination in Hoffmann-La Roche Ltd. v. Canada (Minister of National Health and Welfare), this Court provided:1
| There is no obligation on the respondent to produce any affidavit at all, but where either party files an affidavit there is, of course, opportunity for the opposite party to cross-examine thereon. Such cross-examination is far more limited in scope than examination for discovery and, apart from questions going to the witness' credibility, is limited to relevant matters arising from the affidavit itself. |
[19] As it has been demonstrated by counsel for the plaintiffs, there is no mention of previous dealings between the parties in Mr. Kaddis' affidavit.
[20] Relating to the request that Mr. Kaddis should be compelled to provide documents that were not mentioned in his affidavit, Prothonotary Morneau in Canadian Shipowners Association et al. v. Canada2 said:
| Counsel for the respondents objected to having Mr. Thomas comply, on the ground that the examination was an examination on affidavit in relation to an application for judicial review and not an examination for discovery in relation to an action. As a result, according to counsel for the respondents, the applicants cannot obtain documents not attached by the affiant to his affidavit, which is true a fortiori of drafts of a document. He based this argument on Apotex Inc. v. A.G. of Canada et al. (1992), 41 C.P.R. (3d) 390, at page 391, and Merck Frosst v. Minister of National Health and Welfare (1994), 53 C.P.R. (3d) 368, at page 375. |
| In my view, the objection of counsel for the respondents must be sustained. |
[21] In my view, it would be irrelevant to force the Plaintiff to provide documentation of previous dealings between Hawknet Ltd. and Stella-Jones Inc. and also Domtar Inc. and even compel Mr. Kaddis to answer questions on those documents.
[22] This is a cross-examination on an affidavit signed by Mr. Kaddis and there is no mention whatsoever of those previous dealings.
[23] Moreover the defendant Mariana Maritime S.A. had all opportunities to have access to those documents from its co-defendant Hawknet and from Mr. Walker who had signed different affidavits relating to those documents.
[24] In my view, the plaintiff was entitled to object to the questions asked by counsel for the defendants.
[25] For those reasons, the defendant"s motion is dismissed and the defendant will not be allowed to file part of cross-examination of Mr. Kaddis that was under reserve.
| [26] Costs in the cause. |
Pierre Blais
Judge
OTTAWA, ONTARIO
January 21, 2000
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