Date: 20000616
Docket: T-32-99
T-38-99
T-119-99
BETWEEN:
T-32-99
THE ROYAL BANK OF SCOTLAND plc.,
Plaintiff,
- and -
THE OWNERS AND ALL OTHERS
INTERESTED IN THE SHIP "GOLDEN
TRINITY" AND GOLDEN TRINITY MARITIME INC.,
Defendants.
AND BETWEEN:
T-38-99
THE ROYAL BANK OF SCOTLAND plc.,
Plaintiff,
- and -
THE OWNERS AND ALL OTHERS
INTERESTED IN THE SHIP "KIMISIS III"
AND MADONNA NAVIGATION (MALTA) LIMITED,
Defendants,
AND BETWEEN:
T-119-99
THE ROYAL BANK OF SCOTLAND plc.,
Plaintiff,
- and -
THE OWNERS AND ALL OTHERS
INTERESTED IN THE SHIP "YPAPADI"
AND YPAPADI MARITIME INC.,
Defendants.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] The present proceeding is one which will lead to determination of priorities to ship sale proceeds. The Plaintiff, The Royal Bank of Scotland plc. ("Bank of Scotland"), as mortgagee, filed various affidavits in support of the ship sales and of its claim to the proceeds. One of the claimants to the ship sale proceeds, Tramp Oil & Marine Ltd. ("Tramp Oil"), on the basis of an unsatisfactory cross-examination on a portion of the affidavits, seeks to strike out the affidavits or, as an alternative, based on written requests, to require a better prepared witness for cross-examination.
[2] At the conclusion of lengthy argument I decided that a second representative of the Bank of Scotland, who had sworn some of the affidavits at issue, be produced for cross-examination. I now consider this in more detail.
[3] In February of 1999 Robert Manners of the Bank of Scotland swore three affidavits in connection with the sale of the Golden Trinity, the Kimisis III and the Ypapadi. Those affidavits also contained background material which may be relevant to the issue of priorities. Subsequently, in March and December of 1999, Andrew Morgan of the Bank of Scotland swore six further affidavits. As the relevant events deposed to were spread over a number of years and involved many aspects of the loans to finance a fleet owned or controlled by the owner of the three vessels, much of what Messrs. Manners and Morgan deposed to was on information and belief, from what they had gathered from the files and from other personnel at the Bank of Scotland. For the most part the affidavits are corporate affidavits.
[4] In an effort to save expense Tramp Oil agreed with the Bank of Scotland that it would examine only Mr. Morgan upon both his six affidavits and Mr. Manners" three affidavits. Despite apparent substantial preparation on the part of Mr. Morgan, preparation set out in affidavit material in opposition to this present motion, Tramp Oil was disappointed in the cross-examination which was either largely or entirely on the contents of Mr. Morgan"s own affidavits. Some of the disappointment may be merely that Tramp Oil did not obtain cross-examination answers it liked. However there were definite gaps in Mr. Morgan"s knowledge and further, some of what he deposes to in his affidavits, or gave evidence about on cross-examination, was incorrect. It may well be that the time Mr. Morgan spent on preparation for cross-examination was not productive, or that he was not briefed properly by his co-workers, or that he lacked the knowledge that a person in his position ought to be privy to, however I am persuaded both that the cross-examination was, in a number of aspects, unsatisfactory and that some of the material deposed to and the answers given on cross-examination were in fact wrong.
[5] Tramp Oil, as an alternative to the relief sought in the motion, that of striking out affidavits and cross-examination evidence, sought further cross-examination, preferably not of Mr. Morgan, but rather of Mr. Manners.
[6] In the present instance, the cross-examination of Mr. Morgan was not without value and thus, while it was in other aspects unsatisfactory, I was not prepared to bar the Bank of Scotland from relying on its claim affidavits: that would not be a remedy for Tramp Oil but a penalty to the Bank of Scotland and would, by a procedural motion, deprive the decision maker at the priority hearings of relevant and pertinent facts upon which to reach a substantive conclusion. Thus the issue on the motion became that of further cross-examination of either an informed Mr. Morgan or of a fresh deponent and witness, Mr. Manners. As I have said, Tramp Oil indicated they preferred a new witness, Mr. Manners, for cross-examination.
[7] Normally I would lean decidedly toward further cross-examination of an informed Mr. Morgan, particularly when, in conjunction with the present relief, I have required the Bank of Scotland to provide answers or better answers to questions Mr. Morgan was unable to handle. However, and even given the corporate nature of the affidavits, I was not convinced that Mr. Morgan could inform himself so as to give meaningful further cross-examination on the affidavits. Yet a second witness for cross-examination, as opposed to a second witness for examination for discovery, is most unusual. Here, assuming that Tramp Oil is entitled to further cross-examination, the cross-examination of another witness can be justified in that the affidavits are, as I have said, corporate affidavits and Mr. Manners, who does have some first hand information, swore some of them.
[8] I considered but rejected Rule 83, which allows cross-examination on affidavits as a right, as a rationale for ordering the examination of Mr. Manners as a deponent. A substantial part of the force of the Manners affidavits, which were sworn in support of earlier motions, is spent. In view of the corporate nature of the affidavits I therefore decided to look upon the issue as one analogous to a second discovery witness when the first witness has not been able to inform himself adequately so as to give an objectively satisfactory discovery, being the test set out in Westcoast Transmission Co. v. Interprovincial Steel & Pipe Corp. (1985), 59 B.C.L.R. 43 (B.C.S.C.) at 52-53:
| The test whether an examination for discovery has been "satisfactory" on an application for the examination of a second officer is not a subjective test depending on the view of the examiner. The question is whether there has been a full inquiry into all matters which may be relevant to the issues raised on the pleadings, and whether those inquiries have been answered either of the witness"s own knowledge, or upon his informing himself. An examination of a corporate litigant is not unsatisfactory only because the witness has had to inform himself, and thereafter has given answers on hearsay. The examination is not unsatisfactory because the informing process has limited the cut and thrust of "cross-examination". Nor is it unsatisfactory because the examiner is uncertain of the party"s position. It is for the examiner to clarify and remove any doubt by his questions, and by requiring answers to them. |
| To show that an examination for discovery has been unsatisfactory so as to entitle a party to a further examination, it is necessary to demonstrate that questions asked have not been answered, or that answers given are incomplete, unresponsive or ambiguous, or that followup questions have similarly not been answered in a clear complete and responsive way. |
Considering all the circumstances the present cross-examination has been unsatisfactory not only because questions have not been answered, but also because some answers were clearly wrong. Further, the witness showed a substantial lack of basic knowledge both as to the content of the affidavits and as to basic facts surrounding the Bank of Scotland itself.
[9] In the present instance I am not convinced that it would be time and money reasonably spent to order Mr. Morgan to again inform himself and then to return for further cross-examination. On the basis of the cross-examination transcript to date, I have serious doubts whether Mr. Morgan has the background knowledge, either about the Bank of Scotland, or about this particular transaction, to be able to brief himself and to inform himself in order to give an objectively satisfactory cross-examination.
[10] While invited to do so, I did not, at the conclusion of the hearing the motion, give any views as to the scope of further cross-examination, for without the actual cross-examination proposed, that would be dealing with abstractions and hypotheticals. However, I did say that further cross-examination, in the view of the cross-examination to date, ought to be limited.
(Sgd.) "John A. Hargrave"
Prothonotary
June 16, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-32-99,
T-38-99,
T-119-99
STYLE OF CAUSE: ROYAL BANK OF SCOTLAND plc.,
v.
| THE "GOLDEN TRINITY", "KIMISIS" and "YPAPADI" et al. |
PLACE OF HEARING: VANCOUVER, BC
DATE OF HEARING: June 9, 2000
REASONS FOR ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY
DATED: June 16, 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. |