Date: 19980609
Docket: T-359-98
BETWEEN:
WESTWOOD SHIPPING LINES INC.,
Plaintiff,
- and -
GEO INTERNATIONAL INC. and
GARRY HUNTLEY,
Defendants.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
1� Sometime during the fall of 1997, Westwood Shipping Lines Inc. ("Westwood") received three containers of hiking shoes from Yancheng Eagle Shoes Co. Ltd. ("Yancheng") of Tianjin, China, for intended delivery, against original bills of lading, to Geo International Inc. ("Geo") of Toronto. The Plaintiff says, in the strongest possible terms, that it was induced to deliver the containers of shoes to the Defendant, Geo, by the representations of the Defendant, Garry Huntley, that the bills of lading had been endorsed by Yancheng in favour of Geo and that Geo would have them shortly. To release goods in such circumstances is not a good practise, however, for some reason, Westwood did release the shoes to Geo. In the result, Yancheng, which has not been paid for the shoes, claims their value against the Plaintiff, $160,515 (U.S.).
2� During interlocutory proceedings as to an injunction in this matter, on 25 March 1998, Garry Huntley, the General Manager of Geo and Collin Farnum, the President of Geo, swore affidavits upon which they were cross-examined on 9 April and on 20 April, 1998, respectively. Plaintiff's counsel intends to use the cross-examination material both in proceedings to obtain a permanent injunction and in an upcoming summary judgment application.
3� On 1 May 1998, counsel for the Plaintiff wrote counsel for the Defendants requesting that outstanding undertakings be provided and seeking answers and documents requested on the cross-examinations. On 1 June 1998, counsel for the Plaintiff wrote counsel for the Defendants advising of the present motion which is for three sets of documents and answers to four questions.
4� On their cross-examination, the representatives of Geo undertook to produce two of the sets of documents and answers to two of the questions. Production of the third set of documents was refused. Two of the four questions were subject to consultation in due course with counsel for the Defendants. The only issue is whether the questions and the set of documents are properly within the scope of cross-examination on an affidavit. Rule 91(2)(c) requires production of all relevant documents in the control, possession or person of the person being examined. The sales invoices requested are relevant both for the summary judgment application and for an application for a permanent injunction. The two outstanding questions on which undertakings were not given deal with sales of the shoes, to whom and at what price. A cross-examination question that is relevant, fair and directed to an issue in the proceeding, or to credibility, is proper: Merck Frosst Inc. v. Canada (1994), 75 F.T.R. 97 at 99 - 100 (T.D.) affirmed, (1994), 169 N.R. 342 (F.C.A.) leave to appeal to Supreme Court of Canada refused (1995), 58 C.P.R. (3d) vii. The questions fall within this principle.
5� The present motion, filed 3 June 1998, takes on some urgency for on 28 May 1998 the Court set 12 June 1998 as the date on which to hear the Plaintiff's application for summary judgment.
6� Under the 1998 Rules, which have been in effect a number of weeks, both an applicant and a respondent are required, with limited exception, to file motion records. To fail to file a motion record wastes time at a hearing and may verge on ambush. The Defendants have filed neither a motion record nor any material in opposition to the present motion. Counsel merely says that if required he will provide the documents and answers, but cannot do so by 12 June 1998 for he is unable to reach his principals until next week.
7� While this action has been outstanding for only a little more than three months, it is of a serious nature and will not improve with age. The Defendants have had ample time within which to put their tackle in order by preparing answers and assembling documents. They have delayed and have failed to file material on this motion, both at their own peril.
8� The Defendants shall provide the outstanding answers and documents by 4 p.m., Vancouver time on 11 June 1998, failing which the defence of Geo International Inc. and of Garry Huntley shall be deemed struck out and the Plaintiff may forthwith enter an application for default judgment.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
June 9, 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: June 9, 1998
COURT NO.: T-359-98
STYLE OF CAUSE: Westwood Shipping Lines Inc.
v.
Geo International Inc. and Garry Huntley
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF MR. JOHN A. HARGRAVE,
PROTHONOTARY, dated June 9, 1998, 1998
APPEARANCES:
Mr. David McEwen for Plaintiff
Mr. Peter Auvinen for Defendants
SOLICITORS OF RECORD:
McEwen, Schmitt
Vancouver, BC for Plaintiff
Miller, Thomson
Toronto, ON for Defendants