Discovery - Case Summaries
The database contains 25 case summaries relating to Discovery. The summaries are sorted in reverse date order with 20 summaries per page. If there are more than 20 summaries, use the navigation links at the bottom of the page.
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Discovery - Privilege - Appeals - Whether Order of Prothonotary Discretionary
Webasto (Hagedorn) v. Shasta Equities Ltd. (The Helios), 2013 FC 101 2015 FCA 135
Précis: The Federal Court of Appeal held that preliminary investigation reports were not privileged even though counsel had been retained.
Facts: A fire broke out on board the defendants’ ship “Helios” and spread to other nearby vessels. The broker of the “Helios” appointed a surveyor and fire expert to attend the scene and investigate the fire on behalf of underwriters. The surveyor and fire expert were told they were being retained by counsel and would report directly to counsel. The broker next retained counsel who in turn retained a claims service to interview one of the owners of the “Helios”. The moving party brought an application to compel production of various documents over which privilege was claimed including survey reports, the report of the fire expert and reports from the claims service which attached an interview and pre-fire survey reports. At first instance the Prothonotary was not convinced the documents were created “wholly or mainly” with litigation in mind and held they were not privileged. The “Helios” defendants appealed.
On appeal (reported as Hagedorn v Helios I (Ship), 2013 FC 101), the appeal Judge held that the order of the Prothonotary was not discretionary and the correct standard of review was one of correctness. The appeal Judge further held that, with the exception of some pre-fire survey reports, the documents were privileged as the parties were in an adversarial position from the outset. A further appeal was taken to the Federal Court of Appeal.
Decision: Appeal allowed, in part.
Held: Litigation privilege requires both that litigation be ongoing or reasonably contemplated at the time of the creation of the document and that the dominant purpose of creating the document is for that litigation. Relevant considerations include: the author and the authority upon whose direction a report is prepared; the date of the report; when counsel was appointed; the person to whom the report was addressed; and, the content of the report. The initial report of the surveyor and the report of the fire investigator were prepared at a time when, although there was the possibility of litigation, neither party was in a position to assess the incident. The parties were in the preliminary stage of investigation. Litigation had not commenced and was not reasonably contemplated. These reports are not privileged as was held by the Prothonotary. The report from the claims service, on the other hand, is protected by privilege. The investigator was directly retained by counsel, the report was prepared when litigation was more clearly contemplated and the attached interview is detailed and extensive and in the nature of what one would expect of an interview of a possible witness. The balance of the documents were prepared when litigation was in reasonable contemplation and are privileged.
Practice – Discovery- Appeals from Prothonotary
Galerie au Chocolat Inc. v. Orient Overseas Container Line Ltd., 2010 FC 327 (CanLII)
Technically this was an application to appeal a case management order of a prothonotary, however, it raised issues relating to discovery. Specifically, the defendant had requested a case management conference to address whether the plaintiff had failed to provide satisfactory answers to requests/undertakings given at discovery. The prothonotary refused the request and ordered the defendant to produce a pre-trial conference memorandum. The appeal Judge noted that “a discretionary order of a prothonotary ought not to be disturbed unless the issues it raises are vital to the final disposition of the case or the prothonotary exercised his or her discretion on the basis of a wrong principle or of a misapprehension of the facts”. The Judge held that issues relating to discovery are not “vital to the final disposition of the case”. The appeal was accordingly dismissed.
Possessory Liens - Practice - Court Ordered Inspection
Chadwick et al. v. Philbrooks Boatyard Ltd., 2006 BCSC 1607
This was an application by the Plaintiff for an order that it be permitted to inspect two engines in the possession of the Defendant. The Defendant opposed the application on the grounds that it had a possessory lien over the engines which would be lost if the engines were removed from its possession for inspection. The Court agreed with the Defendant that the possessory lien would be extinguished if the engines were removed from its possession. The Court did, however, grant the application ordering that the Plaintiff post security in an amount sufficient to cover the work done to the engines by the Defendant. No security was ordered in respect of amounts attributable to work done on the vessel (as opposed to the engines) since the Defendant was not in possession of the vessel and did not have a possessory lien for those amounts.
Discovery – Non-Parties
The Administrator of the Ship-Source Oil Pollution Fund v. The “Anangel Splendour”,, 2006 FCA 212
This was an action by the Administrator of the Ship-Source Oil Pollution Fund to recover pollution clean-up costs it had paid to two claimants, QCM and the Department of Fisheries and Oceans (DFO), pursuant to the statutory scheme in the Marine Liability Act. The Defendant brought this motion for an order that the Administrator put forward as its discovery representatives individuals from QCM and DFO. The motion was denied by the Prothonotary on the grounds that QCM and DFO were not parties to the proceeding. However, the Prothonotary did allow for the possibility of an examination of QCM and DFO in the future as non-parties pursuant to Rule 238 if the Defendants were able to satisfy the Court that were not able to obtain the information informally from these entities. Appeals from the Prothonotary's order to a Judge and then to the Court of Appeal were dismissed.
Discovery – Examination of Non-Parties
Thyssenkrupp Materials NA Inc. v. The “Stewart Island”, 2005 FC 23
The Plaintiff brought this application for leave to examine the Chief Engineer of the Defendant vessel under Rule 238 of the Federal Court Rules, 1998. The Prothonotary at first instance accepted that the Chief Engineer had relevant information and that his examination would not cause undue delay, inconvenience or expense but nevertheless denied the application on the grounds that the information could be obtained from other sources such as production of documents or examination for discovery. On appeal, the appeal Judge dismissed the appeal holding that the Plaintiff had failed to demonstrate that the Prothonotary's order was clearly wrong in the sense that it was made upon an incorrect principle of law or misapprehension of the facts.
Discovery – Implied Undertaking Rule – Contempt
N.M. Patterson & Sons Limited v. The St. Lawrence Seaway Mgt. Corp., 2004 FCA 210
This was an appeal from a motion in which a solicitor was found in contempt of court for disclosing to the media information obtained on examination for discovery. The appeal was dismissed. This important case reminds practitioners that documents and information received through the discovery process are subject to an implied obligation of confidentiality. Such documents and information may not be disclosed to any third parties or used for any purpose other than the litigation in which it is produced or given. The implied undertaking is only released if and when the document or information becomes publicly available by being tendered as evidence at trial. The Court of Appeal judgment clarifies that the public availability of the information is a defence to the charge of contempt and not an element of the offence. Therefore, the onus is on the accused to prove the information is publicly available.
Examination for Discovery – Production of Documents – Scope
Seaspan International Ltd. et al. v. The Ship “Ewa”, 2004 FC 124
This was a motion by the Defendant to compel the re-attendance of various discovery witnesses to answer questions which had been refused at examinations for discovery. The questions related generally to claims and settlement agreements as between the Plaintiffs and sought the production of any settlement agreements. As a preliminary point the Prothonotary considered whether the scope of production of documents under the Federal Court Rules, 1998 was narrower than under the previous rules. Relying on Smithkline Beecham Animal Health Inc. v The Queen  4 C.T.C. 93, he held that the “train of inquiry” test under the old rules was substantially the same as the current test requiring production of documents that a party intends to rely on or that tends to adversely affect the party's case or support another party's case. With respect to the substance of the motion the Prothonotary referred to various authorities and concluded that settlement agreements are, for the most part, privileged. However, provisions as to release or not to sue or reservation of rights ought to be disclosed and evidentiary arrangements in those agreements might also be required to be disclosed at or shortly before trial.
Examination for Discovery – Prior Practices – Opin
Seatech Construction Ltd. v. “Inlet Challenger”, 2003 FC 1186
This was an application by the Defendant for an order that the Plaintiff's representative re-attend to answer questions objected to at the examination for discovery. The case involved a claim by the Plaintiff for damage to a barge towed from Campbell River to Mimmo Bay. The Plaintiff was not required to answer questions related to its prior practices or that asked for the opinions of witnesses who were not experts.
Discovery – Written and Oral Examination
Haylock et al. v. Norwegian Cruise Lines et al., 2003 FC 932
This was an application by the Defendant shipowner in two actions for an Order that examinations for discovery of the 16 Plaintiffs, all cruise ship medical officers claiming wages for overtime, take place by way of written examination and then by such oral examination as the Defendant may reasonably require. The Prothonotary acknowledged that this was not a usual approach in the Federal Court but granted the Order because it had the substantial promise of saving both time and money. The Prothonotary considered, in particular, the use of both written and oral examinations in the Supreme Court of British Columbia and the “general move to encourage written discovery “ in the Federal Court.
Simplified Action - Striking of Affidavits Contradicting Interrogatories
Tempo Marble & Granite Ltd. v. The “Mecklenburg I”, 2002 FCT 1190
This was an application by the Defendants to strike two affidavits containing the evidence in chief of the Plaintiff in this simplified action. The basis for the application was that the evidence in the affidavits contradicted earlier evidence given at the discovery phase in answers to interrogatories. The Prothonotary found that the evidence did, in fact, contradict the earlier evidence and further found that the Defendants were prejudiced by the affidavits in that they did not have sufficient time to mount a proper defence. The Prothonotary noted that the policy today is to provide evidence in advance so each party knows the case it has to meet and is not taken by surprise. In result, the Prothonotary ordered that the affidavits be struck.
Discovery Witness Travel Expenses - Business Class
Goodman Yachts Llc. v. The “Gertrude Oldendorff”, 2002 FCT1168
The sole issue in this matter was whether discovery witnesses travelling from India and Singapore to Vancouver were entitled to Business Class air travel. The Prothonotary held that in the circumstances of the case Business Class was appropriate. The Prothonotary cautioned, however, that such a premium mode of travel would not be appropriate in all instances.
Discovery - Failure to Provide Documents - Contempt of Court
Island Tug & Barge Ltd. v. The “99 Haedong Star”, 2002 FCT 432
This case once again illustrates the dangers of failing to comply with court orders. The Prothonotary had ordered that the Defendants provide the Plaintiff with originals of various documents and that the Plaintiff’s surveyor be allowed to inspect the defendant vessel. The Defendants failed to provide all of the documents required and failed to allow the Plaintiff’s surveyor to conduct the required inspection. As a consequence, the Defendants were found in contempt. The corporate Defendants were fined $25,000.00 and the Master of the defendant ship was fined $5,000.00.
Documents - Production - Average Adjusters Reports
Fiddler Enterprises Ltd. et al. v. Allied Shipbuilders Ltd., 2002 FCT 44
This was an application by the Defendant shipyard for production of a Statement of Particular Average. The underlying case was for fire damage caused to the Plaintiffs’ vessel. The Defendant sought production of the adjuster’s report as it would disclose owner’s work from fire damage work. The Prothonotary ordered that the report be produced. In so doing he noted that although reports of average adjusters have no legal effect they are rarely questioned by the courts and are often looked upon as prima facie evidence of the matters disclosed.
Dismissal for Failure to Produce Documents
Finora Canada Ltd. v. Clipper Spirit Shipping Ltd., 2001 BCSC 862
This was an application by the Defendant carrier to dismiss the claims of three Plaintiffs for failure to produce documents which had previously been ordered to be produced. Two of the Plaintiffs had produced the required documents but did so after the deadline imposed by the order requiring production. The other Plaintiff had failed to produce the invoices but advised that the documents had been destroyed. The Court dismissed the claim of the Plaintiff that had failed to produce the documents but declined to mete out this “drastic remedy” for the other two Plaintiffs.
Discovery - Examination of a Non-Party
Bayside Towing Ltd. v. Canadian Pacific Railway,  F.C.J. No. 1534
This was an application to examine a non-party for discovery pursuant to Rule 238 of the Federal Court Rules. The underlying action was a limitation action brought by the tug owner to limit its liability for damage done to a bridge owned by the Defendant. The Defendant brought this motion to examine an experienced tug boat operator who had transited the bridge on various occasions. The Defendant wished to have this evidence to show the general practice of tug boat operators in transiting the bridge. The application was refused on the basis that the Defendant had not shown that it could not obtain the required information from other sources.
Examinations for Discovery - Second Examination
Ghadban v. The "Cleo D",  F.C.J. No. 420
This was an application by the Defendant for leave to continue the examination for discovery of the Plaintiff. The ground advanced in support of the application was that the Defendant’s former solicitors had not dealt properly with the various issues relevant to the case. The Court declined the application holding that there must be special reasons to order a further discovery and that the reason given by the Defendant was not sufficient.
Dismissal for Failure to Produce Documents
Pioneer Grain Company Ltd. v. Far Eastern Shipping Co. et al., 1999 CanLII 9198
This was an application to dismiss the Plaintiff's action on the grounds that the Plaintiff failed to comply with four successive orders of the court requiring production of specified documents. The court granted the order holding that the actions of the Plaintiff in ignoring the court orders amounted to an abuse of process.
Discovery - Production of Report -Privilege
B.C. Hydro & Power Authority v. The "CSL Cabo", 1999 CanLII 9212
This was a motion to compel production of a report prepared by the Plaintiff. The evidence established that the Plaintiff was requested to prepare the report by its counsel. Plaintiff's counsel requested the report "for use in litigation". A later memo of the Plaintiff recorded that the report was required "for file and legal purposes". The Plaintiff claimed the report was protected from production by litigation privilege. The major issue on the motion was whose intention was relevant in determining whether the dominant purpose for the preparation of the report was for use in contemplated litigation. The court held that it was Plaintiff's counsel that procured the genesis of the report and that his intention ought to govern. Accordingly, the report was held to be privileged.
Production of Documents
Galehead Inc. v. The "Trinity", 1998 CanLII 8769
This was a motion for production of documents. The significant issue in the motion was whether production of documents under the Federal Court Rules, 1998 was wider than under the old rules. The Prothonotary reviewed Rules 223(1) and 222(2) and determined that the definition of relevancy under the new rules was, if anything, narrower than under the old rules. Nevertheless, under either set of rules, the Prothonotary held that a party seeking additional production must produce persuasive evidence that additional documents are available or relevant information has been suppressed. A mere suspicion is not enough.
Failure to Attend Examination
Westwood Shipping Lines v. Geo International et.al, 1998 CanLII 8531
In this matter the Defendant was found to have converted three containers of hikers shoes and was ordered to pay into court a substantial sum. When the Defendant failed to pay the money into court, the Plaintiff brought a motion for a writ of sequestration against the property of the President of the Defendant. The Plaintiff's initial motion was refused as premature but the court order that the President of the Defendant attend an examination in aid of execution. The President did not appear and, in fact, appeared to have left the country. The Plaintiff brought a further motion for a bench warrant against the President of the Defendant, a writ of sequestration against his property and an order requiring him to show cause why he should not be found in contempt of court. The Plaintiff's motion was granted.