T-3109-80
Wedgeport Canners Limited, Joan Marie Gar
land, and Joan Marie Garland as Administratrix
of the Estate of Cyril Garland, deceased
(Plaintiffs)
v.
The owners and all others interested in the ship
Garcilaso, and the ship Garcilaso (Defendants)
Trial Division, Walsh J.—Ottawa, January 14,
1981.
Practice — Motion by defendants for particulars and for
dispensation from filing a Preliminary Act under Rule 1013
Allegation by plaintiffs that their vessel was struck by defend
ants' vessel — Defendants denying any involvement in collision
— Motion dismissed — Action being one for damage by
collision between vessels, Rule 1013 applies unless the Court
otherwise orders — Preliminary Act filed by plaintiffs; hence
defendants precluded from demanding particulars — Federal
Court Rules 1013(l)(a),(b),(c), 1016.
MOTION.
COUNSEL:
James E. Gould for plaintiffs.
J. A. Laurin for defendants.
SOLICITORS:
McInnes, Cooper & Robertson, Halifax, for
plaintiffs.
McMaster Meighen, Montreal, for defend
ants.
The following are the reasons for judgment
rendered in English by
WALSH J.: Defendants move for particulars and
for dispensation from filing a Preliminary Act.
The matter is to be dealt with pursuant to Rule
324. Full and complete submissions have been
made by counsel for the plaintiffs objecting to the
motion, by counsel for defendants in reply to this,
and in a further reply to this submission by counsel
for plaintiffs. The situation is a most unusual one.
Plaintiffs' fishing vessel Clissie Eldora was
allegedly struck and sunk "at or about 0000 hours
on the 24th day of June, 1979, while engaged in
fishing approximately 75 miles off the southeast
coast of the Province of Nova Scotia" by the
defendant ship Garcilaso, with the Master of
plaintiff vessel going down with his ship. Defend
ants in the affidavits supporting the motion and
the submissions made with respect thereto deny
any knowledge of any collision, or defendant vessel
having struck any other vessel. It is evident there
fore that any information which they can supply in
a Preliminary Act would be very limited in extent
and could not possibly fully comply with para
graph (2) of Rule 1013 stating what a Preliminary
Act must contain. It would appear that at most
they could merely give information, under reserve
of not admitting any collision, the name of the
Master of the Garcilaso at that date, the approxi
mate location of the defendant vessel and her
course at the alleged time of collision, the state of
the weather, the direction and force of the wind
and current and the speed of the vessel at the
alleged time.
Although plaintiffs will have to prove in order to
have any claim at all that there was a collision
with defendant vessel, and this is by no means
certain since an investigation by the Canadian
Coast Guard (although this in itself is not conclu
sive) was unable to establish the identity of the
vessel involved in the collision, I believe that the
action must be considered as "an action for
damage by collision between vessels" within the
meaning of Rule 1013 dealing with Preliminary
Acts. Whether or not a collision took place with
defendant vessel is a matter for proof but the
action itself is clearly one for damage by collision
and therefore the rules relating to Preliminary
Acts apply unless the Court otherwise orders.
Plaintiffs filed their Preliminary Act and it
therefore appears that Rule 1013 (1) (c) applies and
that defendants are precluded from demanding
particulars by applying the general Rule 415 relat
ing to particulars.
It is true that, as defendants contend, plaintiffs
in addition to filing a Preliminary Act gave certain
details in their statement of claim including exten
sive allegations as to the alleged fault of defend
ants which would normally invite an application
for particulars. Rule 1013(1)(a) provides that "the
statement of claim or declaration need not contain
any more particulars concerning the collision than
are necessary to identify it to the opposing party"
but it is significant that the words "need not" are
used and I do not believe that the fact that the
statement of claim contains unnecessary allega
tions in view of the filing of the Preliminary Act
justifies a departure from the Rules so as to permit
an order for particulars. Similarly the defendants
in filing a Preliminary Act which must necessarily
be incomplete since defendants do not admit being
involved in any collision, can avail themselves of
Rule 1013(1)(b) and file a defence which does not
contain any particulars concerning the alleged
collision.
Moreover Rule 1016 provides as follows:
Rule 1016. Paragraph (2) of Rule 465, which provides for
examination for discovery before the defence has been filed, has
no application in an action for damage by collision between
vessels.
It is clear that to throw any light on the matter at
all both parties will have to be examined for
discovery and this would be best accomplished if
defendants file a defence denying their involve
ment in collision with plaintiffs' vessel, accom
panied by a Preliminary Act giving what informa
tion they can with respect to the Garcilaso on or
about 00:00 hours on the 24th day of June, 1979,
the time indicated by plaintiffs as that of the
alleged collision.
After the discoveries pleadings can be amended
with leave of the Court pursuant to Rule 420 even
if as a result further discoveries become necessary.
Defendants further contend that no details were
given with respect to amounts of damages claimed
by plaintiffs, but this is unnecessary to enable
defendants to plead at this stage of the proceed
ings, and in any event in the circumstances of this
case there might well be a determination of the
issue of the liability of defendants on the merits
with a subsequent reference as to damages.
Defendants' motion to be dispensed from filing a
Preliminary Act is therefore dismissed as well as
their demand for particulars at this stage of the
proceedings, with costs.
ORDER
Defendants' motion to be dispensed from filing a
Preliminary Act and requiring plaintiffs to file
particulars with respect to certain allegations of
their statement of claim is dismissed with costs.
Defendants shall file a statement of defence within
15 days accompanied by a Preliminary Act pursu
ant to Rule 1013.
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.