Riverside Towing Ltd. v. Hodder Tugboat Co. Ltd.
T-1107-95
Hargrave P.
15/8/96
6 pp.
Application to allow de bene esse evidence of Captain Pollock, master of assist tug J.R. Hodder when bundle boom tow, in tow of plaintiff's tug, did damage during transit of Marpole Railway Bridge-Counsel not advising clients of trial date-Captain Pollock leaving August 21 for England where to be wed October 11, then travelling through Europe -Flight booked in May, 1996-Plaintiff's experts' reports not available until weeks of August 19, 26 respectively-Federal Court Rules, R. 477(1) providing if any party desirous of having evidence of any person and if owing to expense of taking evidence, or for any other reason convenient so to do, Court may order issue of commission-Application allowed-Application of requirements set out in Doyle (JC) v. MNR, [1978] CTC 597 (F.C.T.D.) for issuing commission-(1) Application bona fide-Oversight of counsel not detracting from bona fides-(2) Whether negligence on part of assist tugs central issue which Court ought to determine-(3) Only Captain Pollock can give material, necessary evidence as to actions of J.R. Hodder-(4) Witness cannot reasonably be examined within jurisdiction-Apart from stress of disrupted wedding, honeymoon plans, more cost effective, convenient to take evidence at this time, particularly as examination, cross-examination transcribed, preserved on videotape-Must also consider whether evidence de bene esse necessary for purposes of justice, and in interest of all parties-No prejudice to plaintiff-Quite usual to examine masters, crew members on short notice, plaintiff already having substantial examination for discovery-Could obtain gist of expert's evidence as to what Captain Pollock did or did not do correctly-Second expert's report on river currents outside area of Captain Pollock's evidence-Federal Court Rules, C.R.C., c. 663, R. 477.