Date: 20000822
Docket: T-1692-99
BETWEEN:
BAYSIDE TOWING LTD.
EUGENE BECKSTROM and WILLIAM FRIZELL
Plaintiffs
- and -
CANADIAN PACIFIC RAILWAY
B.C. TEL and RIVTOW MARINE LTD.
Defendants
REASONS FOR ORDER
(Delivered orally from the Bench
at Vancouver, BC on August 21, 2000)
EVANS, J.A.
[1] I was not persuaded by Mr. Everett, counsel for the Canadian Pacific Railway ("CPR"), that Prothonotary Hargrave had misapprehended the facts or otherwise erred in law when he held that the CPR had failed to establish that the information that might be provided by Mr. Catherwood was not available from another source by any other reasonable means.
[2] Accordingly, since the CPR had not satisfied Rule 238(3)(b) of the Federal Court Rules, 1998 Prothonotary Hargrave correctly refused the CPR's motion applying to examine Mr. Catherwood, a non-party to the litigation from which the motion arose.
[3] In my opinion, the only purpose for examining Mr. Catherwood would be to elicit information about his use of assist-tugs at the Mission bridge from which the standard practice of tug operators at this bridge might be inferred. I agree with the prothonotary that the practice of other tug operators would be equally relevant to identifying the general practice of tug operators in the use of assist-tugs when transiting the Mission bridge.
[4] Mr. Catherwood may well have unique information about his own practice, but he does not have unique information about a critical fact in the litigation, namely the general practice of tug operators at the bridge. If Mr. Everett's interpretation of Rule 238(3)(b) were correct, then he would be entitled to examine every person who operated tugs at the Mission bridge, because each has information about his or her own practice that others do not posses. This would expand the examination of non-parties well beyond the contemplation of the Rules.
[5] Unless or until the CPR is able to establish that information about the practice of tug operators at the bridge is not reasonably available from other sources, it is not entitled to examine Mr. Catherwood under Rule 238.
[6] The appeal is accordingly dismissed.
(Sgd.) "John M. Evans
J.A.
August 22, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
| COURT FILE NO.: T-1692-99 |
| STYLE OF CAUSE: BAYSIDE TOWING LTD. ET AL. |
v.
CANADIAN PACIFIC RAILWAY ET AL.
| PLACE OF HEARING: VANCOUVER |
| DATE OF HEARING: August 21, 2000 |
| REASONS FOR ORDER OF EVANS, J.A. |
| DATED: August 21, 2000 |
APPEARANCES:
| Mr. David McEwen for Plaintiffs |
| Mr. William Everett for Defendant, Canadian Pacific Railway |
| Mr. John Bromley for Catherwood Towing Ltd. |
SOLICITORS OF RECORD:
McEwen Schmitt
| Vancouver, BC for Plaintiffs |
Lawson Lundell
| Vancouver, BC for Defendant, Canadian Pacific Railway |
Bromley, Chapelski
| Vancouver, BC for Catherwood Towing Ltd. |
Bull, Housser & Tupper
| Vancouver, BC for Defendant, Rivtow Marine Ltd. |