Date: 20000518
Docket: T-186-99
BETWEEN:
NEDSHIP BANK N.V. PREVIOUSLY KNOWN AS
NEDERLANDSE SCHEEPSHYPOTHEEKBANK N.V.,
Plaintiff,
- and -
THE OWNERS AND ALL OTHERS
INTERESTED IN THE SHIP "ZOODOTIS"
AND ZOODOTIS NAVIGATION INC.,
Defendants.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] In this priorities determination proceeding the Plaintiff, being unable to produce the deponent of its three affidavits of claim for cross-examination, seeks leave to substitute another witness for cross-examination on the affidavits.
[2] There is a well established general rule that if a deponent of an affidavit, who is subject to cross-examination, does not appear, the affidavit is struck out and, unless there are justifiable grounds, a replacement affidavit will not be allowed:
| However, it is important to note that, as a general rule, affidavits will be struck out if the deponent does not appear for cross-examination and replacement affidavits will not be allowed if there are no justifiable grounds." (Bayer A.G. v. Apotex Inc. (1999), 154 F.T.R. 229 at 232 - Mr. Justice Rothstein, as he then was) |
Here, to strike out the affidavits without allowing the Plaintiff any replacement affidavit material would be unjust and unjustifiable. Granted, the Plaintiff was at least short-sighted in letting the deponent of its affidavit leave through some form of "restructuring", a departure which has resulted in the deponent of the affidavit refusing to attend for cross-examination. However, still dealing with justifiable grounds for a replacement affidavit, the original deponent, Mr. Noordermeer, was merely swearing a corporate affidavit identifying documents, of which he had little personal knowledge, documents bearing on events of which he probably had less knowledge. Perhaps not a great choice of deponent, but also perhaps in keeping with the historic approach to proof of a mortgage claim in a priorities action. To leave the Plaintiff without any proof of its claim would be far to severe an outcome.
[3] The Plaintiff has volunteered a Mr. Hessels as a substitute witness for cross-examination. In opposition to the motion for the substitution of Mr. Hessels, a lien claimant, Tramp Oil & Marine Limited, submits that Mr. Hessels would be an unsatisfactory substitution, for the claimant wishes to deal with historic aspects of the loan to the owner of the Zoodotis: Mr. Hessels is only directly familiar with more recent events. Tramp Oil would prefer to cross-examine Mr. Krijthe, a Managing Director of the Plaintiff in Rotterdam, who spent some time as the Manager of the Pireas office of the Plaintiff, when the Zoodotis Navigation Inc. loan was put in place and indeed, who was personally involved both in the loan and in three re-negotiations of terms.
[4] I am not aware of any law directly on point as to who ought to choose a substitute deponent for cross-examination in a situation such as this. However, I am prepared to borrow from discovery law to the effect that it is the choice of the examining party as to who ought to be discovered, a choice not to be lightly displaced by the Court:
| In my opinion, the examining party"s choice of the person to give the discovery should not be lightly displaced. The party or his solicitor should know best what is required to support his case, what it is that he is interested in discovering and who among the officers or members referred to in the Rule is most likely to be able to give the discovery he requires. To displace the choice at the request of an adverse party represents an interference with the conduct of his case. The corollary of this is when choosing the person to be examined he takes and must except the risk that the choice may not be a good one. (Polylok Corporation v. Montreal Fast Print (1975) Ltd. , [1984] 1 F.C. 713 at 723 - Chief Justice Thurlow.) |
While Tramp Oil takes the risk of making a poor choice of a witness, the Plaintiff, having escaped loss of its affidavits of claim and having received the dispensation of a substitute witness, will have to produce the witness in a properly briefed state.
[5] The choice of Tramp Oil as to the witness to cross-examine being Mr. Rene Krijthe, he is the witness who shall be produced.
[6] I do not wish to establish a practice, even on ad hoc basis, of a wholesale filing of new affidavit material in a priorities determination proceeding after the time for filing affidavits has run. Therefore, as suggested by counsel for the Plaintiff, the transition from one deponent to another will be accomplished through a short affidavit, by which Mr. Krijthe adopts the original affidavits. Given the special circumstances he will then be subject to full cross-examination on those affidavits as if he were the original deponent.
[7] Time for completion of cross-examination of Mr. Krijthe, on the original Noordermeer affidavits, is extended to and including 30 June 2000. The parties shall have liberty to apply, by telephone if necessary, on matters relating to or during this cross-examination, so that the cross-examination may be completed as scheduled.
[8] Tramp Oil may have the costs of this motion, mid range column III, payable at this time.
(Sgd.) "John A. Hargrave"
Prothonotary
May 18, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-186-99
STYLE OF CAUSE: NEDSHIP BANK N.V.
v.
| THE "ZOODOTIS" |
PLACE OF HEARING: VANCOUVER, BC
DATE OF HEARING: May 18, 2000
REASONS FOR ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY
DATED: May 18, 2000
APPEARANCES:
Mr. Peter Bernard FOR PLAINTIFF
| Mr. Glenn Morgan FOR CLAIMANT, TRAMP OIL & MARINE LTD. |
SOLICITORS OF RECORD:
Campney & Murphy
Vancouver, BC FOR PLAINTIFF
Davis & Co.
| Vancouver, BC FOR CLAIMANT, TRAMP OIL & MARINE LTD. |