T-1107-73
Irish Shipping Ltd. (Plaintiff)
v.
The Queen, Leslie Arthur Davis Jones, Arthur
Joseph Warren and Pacific Pilotage Authority
(Defendants)
Trial Division, Collier J.—Vancouver, February
21; Ottawa, March 1, 1974.
Practice—Discovery—Officer of defendant Crown to be
examined—Disagreement as to person designated by plain-
tiff—Crown nominating another—Officer requested by plain
tiff chosen by Court Rule 465(1Xc).
In an action for damages arising out of the grounding of
its vessel, the plaintiff wished to examine "a departmental
or other officer" of the defendant Crown. The latter reject
ed the officer requested by the plaintiff and nominated a
different officer.
Held, there is no presumption that the person nominated
by the Deputy Attorney General is necessarily the depart
mental or other officer who ought to answer on behalf of the
Crown. The question is primarily one of fact. If the opposite
party can satisfy the Court that it is in the interest of justice
that another departmental or other officer, within the mean
ing of the Rule, is more suitable than the person nominated
on behalf of the Crown, and is in a position of sufficient
responsibility to provide answers binding on the Crown, the
Court should nominate the more suitable person. Here the
Court nominated the person requested by the plaintiff. The
nominee, although junior in rank to the person designated by
the Crown, was a senior officer, with more personal knowl
edge, than the Crown nominee, of many of the practical
matters in issue.
Yarmolinsky v. The King [1944] Ex.C.R. 85; Central
Canada Potash Co. Ltd. v. Attorney-General for Sas-
katchewan (1974) 39 D.L.R. (3d) 88; Canadian Dough
nut Co. Ltd. of Toronto v. Canada Egg Products Ltd. of
Saskatoon (1952) 5 W.W.R. (N.S) 428; Morrison v. G.
T. Ry. Co. [1940] S.C.R. 325; Nichols & Shephard Co.
v. Skedanuk (1912) 2 W.W.R. 1002, 5 Alta L.R. 110;
Leitch v. G.T. Ry. Co. (1888) 12 P.R. 671; City of
Regina v. Robinson's Clothes Ltd. (1922) 66 D.L.R.
820, [1922] 2 W.W.R. 807, applied.
MOTION.
COUNSEL:
J. Jessiman for plaintiff.
G. Eggertson for defendants.
SOLICITORS:
Macrae, Montgomery, Spring & Cunning-
ham, Vancouver, for plaintiff.
Deputy Attorney General of Canada for
defendants.
COLLIER J.—The plaintiff wishes to examine
for discovery a departmental or other officer of
the defendant Crown. It asked that one Captain
C. E. Burrill be produced. The Crown did not
agree, and pursuant to Rule 465(1)(c) one Her-
bert Ogg Buchanan was nominated by the
Deputy Attorney General of Canada.
The plaintiff then applied to the Court for an
order nominating Captain Burrill. Two affidavits
(by the same deponent) were filed in support of
the plaintiff's motion. An affidavit by Mr.
Buchanan was filed in opposition. Cross-exami
nation on these affidavits was carried out.
The action as against all defendants is for
damages arising out of the grounding of the
vessel Irish Stardust on Haddington Island,
British Columbia, on January 24, 1973. As a
result of the grounding, the vessel was damaged
and there was a fuel oil spill. Among other
things, prosecutions were launched and I under
stand there is another action in this Court in
which a claim is made on behalf of the Crown
against the vessel and her owners in respect of
the damages and expenses caused by the fuel oil
spill.
I am told there is a considerable sum of
money involved in all this litigation.
The allegation against the Crown is set out in
paragraph 10 of the statement of claim as
follows:
The said grounding and damages suffered by the Plaintiff
were caused by the negligence of the servants of Her
Majesty the Queen in right of Canada (hereinafter called
"the Crown") in the improper design and marking of the
traffic separation scheme with respect to the passing of
Haddington Island from the West, in the inadequate and
improper installation of such lights, beacons and buoys and
other aids to navigation which were provided with respect to
the said scheme, and in the failure to install proper aids to
navigation with respect to the said scheme.
I do not think it necessary for the purposes of
this judgment to refer to the defence filed on
behalf of Her Majesty the Queen.
The relevant portions of the Rule in question
are as follows:
Rule 465. (1) For the purposes of this Rule, a party may be
examined for discovery, as hereinafter in this Rule provided,
(a) if the party is an individual, by questioning the party
himself,
(b) if the party is a corporation or any body or group of
persons empowered by law to sue or to be sued, either in
its own name or in the name of any officer or other
person, by questioning any member or officer of such
corporation, body or group,
(c) if the party is the Crown, by questioning any depart
mental or other officer of the Crown nominated by the
Attorney General of Canada or Deputy Attorney General
of Canada or by order of the Court, and
(d) in any case, by questioning a person who has been
agreed upon by the examining party and the party to be
examined with the consent of such person,
Counsel for Her Majesty contends that once a
person has been nominated (pursuant to the
Rule) by the Attorney General or his Deputy,
then the Court should not lightly interfere with
that nomination. I do not think that is the cor
rect manner in which to approach the Rule in
question. It seems to me that in the case of
examination for discovery of a departmental or
other officer of the Crown there are three
possibilities:
(a) the opposite party may request a certain
person to be produced and the Crown may
consent to that request and produce him as
the departmental or other officer for discov
ery purposes;
(b) the opposite party may have no knowledge
as to the identity of the most desirable or
proper person to be examined in a particular
case and may ask the Crown to name
someone;
(c) in the case of a dispute between the par
ties as to the departmental or other officer to
be produced for discovery (as arose here) the
Attorney General may exercise whatever
rights he has under the Rule and nominate a
person on behalf of the Crown.
In my view there is no presumption that the
person nominated in the latter situation is neces
sarily the departmental or other officer who
ought to answer on behalf of the Crown. As I
see it, the question is primarily one of fact and
if the opposite party can satisfy the Court that it
is in the interests of justice that some other
person, who is a "departmental or other officer"
within the meaning of the Rule, is more suitable
than the person nominated, and is at the same
time in a position of sufficient responsibility to
provide answers binding on the Crown, then the
Court ought to nominate the more suitable
person.
That approach seems to me to be in accord
ance with the general views expressed by Thor-
son P. in Yarmolinsky v. The King [1944]
Ex.C.R. 85. The Rule of Court at that time was
somewhat different. The Crown did not nomi
nate an officer. If a person was not produced by
consent then a motion could be made for an
order that "a departmental or other officer of
the Crown" could be examined for discovery.
There was a further Rule (Rule 138) which
provided that the whole or any part of this
discovery might be used in evidence. Thorson P.
expressed the view it was desirable the opposite
party should have full discovery of facts from
the Crown and that party should be in no differ
ent position than if he were a litigant in a suit
against a private person (be it a person or a
corporation).
The only qualification the president asserted
was that the departmental or other officer of the
Crown should be a responsible person in the
sense that he could bind the Crown by any
admissions made. The essence of the general
observations made by Thorson P. in the Yar-
molinsky case is found at page 95:
In my view, similar principles should be adopted in this
Court as long as Rules 130 and 138 remain in their present
form. Rule 130 providing for the examination for discovery
of a departmental or other officer of the Crown contem
plates that the person ordered to be examined shall be a
person in a position of responsibility and authority who is
qualified to represent the Crown on the examination, make
discovery of the relevant facts with the knowledge of the
Crown and make such admissions on its behalf as may
properly be made. Beyond this general statement I do not
think it possible to go. I agree with the remarks made by
Moss J.A. in the Morrison Case (supra), at page 43:
The question of what persons are examined under the
Rule as officers of a corporation must always become
more or less a question of fact, and it may generally be
found more easy to say who is not an officer within the
Rule than to lay down any rule for general guidance.
On the particular facts of that case it was held a
Lance Corporal driving a Crown vehicle
involved in a motor accident was not a "depart-
mental or other officer".
The tendency in the Courts of this country in
recent years has been to provide all litigants
with full and complete discovery prior to trial
and to remove as much as possible what used to
be known as the "ambush" tactics of the adver
sary system. In my view that is the general
intention of the Federal Court Rules. Purely as
an illustration, I refer to Rule 482 dealing with
evidence to be given by expert witnesses. This
is a form of pre-trial discovery still not found in
the Rules of many of the provinces.
To my mind the general approach in an
application of this kind under Rule 465(1)(c)
ought to be that set out in Central Canada
Potash Co. Ltd. v. Attorney-General for Sas-
katchewan (1974) 39 D.L.R. (3d) 88. There, the
plaintiff sought to examine for discovery the
Minister of Mineral Resources of Saskatche-
wan. The defendant, the Government of Sas-
katchewan, sought to put forward the Deputy
Minister. It is true the Saskatchewan statute and
Rules are not identical to the Rule in question
here, but in my opinion the principles stated in
the Potash case are applicable. I quote Disbery
J. at pages 90-91:
The correct approach of the Court when designating the
proper officer of a corporation to be examined for discovery
was aptly stated by Thorson, J., in Canadian Doughnut Co.
Ltd. of Toronto v. Canada Egg Products Ltd. of Saskatoon
(1952), 5 W.W.R. (N.S.) 428 at p. 430, as follows:
The purpose of an examination of an officer of a
corporation under our R. 233(3) is two-fold: Firstly, to
obtain a full discovery of the facts and, secondly, to
obtain admissions which may be used against the com
pany whose officer is being examined. Ordinarily the
proper person to be examined is the officer who is best
able to give information respecting the matters at issue in
the action and who, at the same time, occupies a position
of such responsibility and importance as would, under the
circumstances of the case, qualify him to speak on behalf
of the corporation he represents. Whether essential or not,
it is, at least, desirable that the officer to be examined
should be one who has some connection with the transac
tion or occurrence out of which the action arose or has
some knowledge of the facts or matters at issue in the
action. Generally speaking, as pointed out by Moss, J.A.
(later C.J.O.) in Morrison v. G. T. Ry. Co., supra, at p.43,
a proper officer to be examined in the first instance is the
one who, if there was no action, would be looked upon as
the proper officer to act and speak on behalf of and bind
the corporation in the kind of transaction or occurrence
out of which the action arose. See also Nichols & Shep-
hard Co. v. Skedanuk (1912) 2 W.W.R. 1002, 5 Alta LR
110, Harvey, C.J.A. at 1004, and Leitch v. G.T. Ry. Co.
(1888) 12 PR 671, Armour C.J. at 672.
These reasons, in my opinion, are equally applicable to the
designation of an officer of the Crown for the purpose of an
examination for discovery as authorized by s. 13 of the
Proceedings against the Crown Act: see also City of Regina
v. Robinson's Clothes Ltd. (1922), 66 D.L.R. 820 [1922] 2
W.W.R. 807, and Yarmolinsky v. The King [1944] 4 D.L.R.
217, [1944] Ex.C.R. 85.
On the facts here there is no doubt Captain
Burrill had an active, though not the sole part, in
the work and planning culminating in the recom
mendations made to higher officials in Ottawa
in regard to the traffic separation scheme for
the passing of Haddington Island from the
West. I need not detail the evidence supporting
that statement. Captain Burrill was in the words
of Mr. Buchanan, a "senior officer" reporting to
Buchanan as his immediate superior. Buchanan
in turn reported to other officers in Ottawa.
Buchanan was at the material times the Region
al Director of Marine Services for Western
Canada. Burrill was the Regional Superintend-
ent of Nautical Services. (His title has since
changed, but his responsibilities have
increased.)
Buchanan was the senior man in Western
Canada, but on his own admission, was primari
ly concerned with "administration and control".
Reports came across his desk and recommenda
tions were forwarded to Ottawa. Neither Burrill
nor Buchanan had any authority to make any
final decision as to whether or not any traffic
separation scheme would be put into service at
Haddington Island, nor could they make any
decision as to the kind of scheme that might be
adopted. It was conceded by counsel for the
Crown that the ultimate decisions were in the
office of the appropriate Minister or perhaps his
Deputy.
Some concern was expressed by counsel for
the Crown that the proper officer in this case
should be someone senior to Captain Burrill.
Buchanan was said to meet this requirement. I
am satisfied on the facts here that Burrill quali
fies as a "departmental or other officer" as does
Buchanan'. As I have indicated, I have no doubt
Burrill has more personal knowledge than
Buchanan of many of the factual matters in
issue in this action. Personal knowledge is not
the ultimate test as to what officer should be
nominated, but is a factor to be considered. I am
further satisfied both Buchanan and Burrill are
persons "... in a position of responsibility and
authority" to properly make admissions on
behalf of the Crown 2 .
The weight of the circumstances here is there
fore in favour of nominating Burrill, and I there
fore so order. If Mr. Buchanan had been clothed
with decision-making powers in respect of the
Haddington Island traffic separation scheme,
then I probably would not have intervened in
I I disregard Mr. Buchanan's statement in his affidavit
that Burrill is not a departmental officer. This is a question,
in this case, to be decided by the Court.
2 See the excerpt from the Yarmolinsky case quoted
above.
this matter. Equally, if, for example, the Attor
ney General had nominated, in this case, the
appropriate Deputy Minister, I do not think the
plaintiff could have succeeded in its application.
The plaintiff is entitled to its costs of this
motion.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.