Judgments

[2000] 3 F.C. 96

A-45-98

The Ship “Arctic Taglu”, The Owners and all Others Interested in the Ship “Arctic Taglu”, The Ship “Link 100”, The Owners and all Others Interested in the Ship “Link 100”, Sea-Link Marine Services Ltd., Malcolm Bruce Brophy, and Gary McKrae (Appellants)

v.

Birgit Kajat and Her Majesty the Queen in Right of Canada as represented by the Minister of Transport (Respondents)

A-54-98

Birgit Kajat (Plaintiff) (Respondent)

v.

The Ship “Arctic Taglu”, The Owners and all Others Interested in the Ship “Arctic Taglu”, The Ship “Link 100”, Sea-Link Marine Services Ltd., Malcolm Bruce Brophy, and Gary McKrae (Defendants) (Respondents)

and

Her Majesty the Queen in Right of Canada as represented by the Minister of Transport (Defendant) (Appellant)

Indexed as: Kajat v. Arctic Taglu (The) (C.A.)

Court of Appeal, Strayer, Sharlow and Malone JJ.A. —Vancouver, January 24, 25, 26; Ottawa, February 15, 2000.

Maritime law — Torts — Collision between fishing vessel and tug/barge combination at night — Possibly confusing lighting arrangement on tug/barge and use of searchlight — Similar fact evidence of two fishermen’s encounter with tug/barge at night in same vicinity played critical role in ultimate decision on liability — However, Trial Judge’s failure to make clear evaluation as to whether witnesses’ evidence logically probative constituting error in law and new trial ordered.

Evidence — Similar fact evidence — Collision possibly caused by confusing use of lights by tug/barge combination — Fishermen testifying as to own experiences encountering said combination at night — Where similar fact evidence adduced in civil case to prove fact in issue, reversible error for Trial Judge not to determine whether evidence sufficiently probative to be admissible.

The Arctic Taglu/Link 100, a tug pushing barge combination, struck the fishing vessel Bona Vista, owned by Ms. Kajat’s husband, killing him and five others. The Trial Judge found that the lighting arrangement used by the tug/barge, on the instructions of the responsible officials of the Crown, was incorrect and confusing for mariners who had never encountered that vessel at night before. Its owners and operators had adopted a practice of using a searchlight, mounted on the tug, to play forward along the length of the barge when vessels coming towards it seemed uncertain as to what they were encountering. The Trial Judge found that the collision was caused by the operator using the searchlight the way he did immediately before the accident. The Trial Judge’s findings were based in part on the critical evidence of two fishermen who had encountered the tug/barge at night in the area where the collision occurred and who testified as to the confusion caused by the use of the searchlight. The Trial Judge found that fault for the collision was to be apportioned 15% to Mr. Kajat and the remainder to the Sea-Link parties and the Crown. As between them, liability was severally apportioned 70%/30%. This was an appeal from that decision, the Sea-Link parties and the Crown appealing the apportionment of liability and the assessment of costs, Ms. Kajat cross-appealing the finding of liability and seeking an order of joint and several liability.

Held, the appeal should be allowed.

The fishermen’s evidence was similar fact evidence. However, “where similar fact evidence is adduced to prove a fact in issue, in order to be admissible, the trial judge should evaluate the degree of similarity of the alleged acts and decide whether the objective improbability of coincidence has been established. Only then will evidence have sufficient probative value to be admitted”: R. v. Arp , [1998] 3 S.C.R. 339. It is essential in both civil and criminal cases to determine whether the similar fact evidence in issue is logically probative. The Trial Judge’s failure to make a clear evaluation as to whether the evidence of each of these witnesses was logically probative constituted an error of law and a new trial had to be ordered.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canada Shipping Act, R.S.C., 1985, c. S-9, s. 526.11 (as enacted by R.S.C., 1985 (3rd Supp.), c. 6, s. 78; S.C. 1996, c. 31, s. 98.

Collision Regulations, C.R.C., c. 1416, Sch. I, RR. 23(a)(i),(ii),(iii),(iv), 24(b),(n) (as am. by SOR/83-202, s. 3).

CASES JUDICIALLY CONSIDERED

APPLIED:

Mood Music Publishing Co Ltd v De Wolfe Ltd, [1976] 1 All ER 763 (C.A.); R. v. Arp, [1998] 3 S.C.R. 339; (1998), 166 D.L.R. (4th) 296; [1999] 5 W.W.R. 545; 58 B.C.L.R. (3d) 18; 129 C.C.C. (3d) 321; 20 C.R. (5th) 1; 232 N.R. 317.

REFERRED TO:

Edwards v. Ottawa River Navigation Co. (1876), 39 U.C.Q.B. 264; Lampert v. Simpson-Sears Ltd. (1986), 75 N.B.R. (2d) 128 (C.A.); Brown v. Eastern and Midlands Railway Company (1889), 22 Q.B.D. 391 (C.A.); Hales v. Kerr, [1908] 2 K.B. 601.

APPEAL and cross-appeal from a Trial Division decision (Kajat v. Ship Arctic Taglu (1997), 135 F.T.R. 161; 145 F.T.R. 102) apportioning liability for a collision between a tug pushing barge combination and a fishing vessel. Appeal allowed and expedited new trial ordered.

APPEARANCES:

Robert J. McDonell for respondent/appellant Her Majesty the Queen.

W. Gary Wharton for appellant/respondent Sea-Link.

D. Ross Clark and Diana L. Dorey for respondent/cross-appellant Birgit Kajat.

SOLICITORS OF RECORD:

Farris, Vaughan, Wills & Murphy, Vancouver, for respondent/appellant Her Majesty the Queen.

Campney & Murphy, Vancouver, for appellant/respondent Sea-Link.

Davis & Company, Vancouver, for cross-appellant/respondent Birgit Kajat.

The following are the reasons for judgment rendered in English by

[1]        Malone J.A.: This is an appeal from a Trial Division judgment [(1997), 135 F.T.R. 161; 145 F.T.R. 102] apportioning liability for a maritime collision that occurred on July 21, 1993, at approximately 2:43 a.m., near the eastern entrance to Active Pass in the Strait of Georgia. The Arctic Taglu/Link 100, a tug pushing barge combination owned by the Sea-Link parties, struck the Bona Vista, a 13.5 meter fishing vessel owned by Ms. Kajat’s husband, Henryk Kajat. Mr. Kajat perished in the collision, as did five other people aboard the Bona Vista.

[2]        The learned Trial Judge found that fault for the collision was to be apportioned 15% to Mr. Kajat and the remainder to the Sea-Link parties and the Crown. As between them, liability was severally apportioned 70%/30%. Ms. Kajat was awarded costs, including increased costs against the Sea-Link parties for their conduct at trial. The Sea-Link parties and the Crown appeal the apportionment of liability and the assessment of costs. Ms. Kajat cross-appeals the finding of liability and seeks an order of joint and several liability. All parties now are agreed that the liability, if any, should be joint and several.

[3]        On the night of the collision, the Bona Vista was returning to Vancouver Harbour. Mr. Kajat had taken four visitors from Germany, together with his son, on a trip to the west coast of Vancouver Island. They left Vancouver on the evening of July 14, 1993. On the evening of July 19, 1993, Mr. Kajat telephoned his wife from Ucluelet to say that they had finished their trip, and providing the weather was good, she should expect them home the following evening. The Arctic Taglu/Link 100 was en route from Vancouver Harbour to Schwartz Bay on Vancouver Island, on its regularly scheduled voyage. It normally left Vancouver Harbour around 11 p.m., Monday to Friday nights, arriving in Schwartz Bay approximately four and a half to five hours later. It would then unload, reload and return to Vancouver Harbour.

[4]        On the night of the collision, the Arctic Taglu bore two white mast lights, one above the other, a red sidelight on its port side and a green sidelight on its starboard side. The Link 100 bore a red side light on its port side and a green side light on its starboard side. That lighting arrangement was adopted on the instructions of the responsible officials of the defendant, the Crown.

[5]        Those instructions were to follow the Towing and Pushing—International rule section of the Collision Regulations[1] based on the understanding that the Arctic Taglu and Link 100 were not rigidly connected. However, the Trial Judge found that the Arctic Taglu and the Link 100 were rigidly connected, and that the Canadian Modifications should have been applied instead of the International Rules. If that is true, the Arctic Taglu tug should have borne two masthead lights in a vertical line, sidelights and a sternlight. The Link 100 barge should have borne a white light fore and aft and sidelights at the foward end.[2] The Link 100 lacked white lights fore and aft.

[6]        Prior to the collision, the Arctic Taglu/Link 100 was travelling on a generally southward course toward the eastern entrance to Active Pass. Its normal course to Schwartz Bay would require a starboard turn into Active Pass. The Bona Vista had emerged from the eastern entrance to Active Pass, in a generally northeasterly direction. The Bona Vista’s normal course to Vancouver would have required it to turn northward (to port) once clear of Active Pass. For some minutes before the collision, the Bona Vista appeared on the starboard side of the Arctic Taglu/Link 100.

[7]        The collision occurred when, as the two vessels were approaching each other, the Bona Vista suddenly made an abrupt turn to port across the bow of the Link 100. The Bona Vista was struck amidship on its starboard side by the bow of the Link 100 and rolled underneath the barge.

[8]        The Trial Judge found that the lighting arrangement used by the Arctic Taglu/Link 100 was confusing for mariners who had never encountered that vessel at night before, and as a result its owners and operators had adopted a practice of using a searchlight, mounted on the tug, to play forward along the length of the barge when vessels coming towards it seemed uncertain as to what they were encountering.[3] The Trial Judge also found that if the tug/barge combination been lit as a composite unit, it would have been immediately recognizable by mariners, as a single vessel of large size.[4] Implicitly, this is a finding that the correct lighting on the Arctic Taglu/Link 100 would have avoided confusion by approaching mariners.

[9]        Mr. McKrae, the mate on the Arctic Taglu/Link 100, was the only witness to the accident still alive. He was the only person in the wheelhouse of the Arctic Taglu at the time of the accident. The Trial Judge found the evidence he gave at trial and on discovery was unreliable in some respects. Mr. McKrae said he did not discuss the accident with Mr. Brown, President of Sea-Link Marine Services Ltd., shortly after it occurred, but the Trial Judge did not believe him.

[10]      Mr. Brown’s evidence was that Mr. McKrae reported to him shortly after the incident that he had made two relatively small course alterations to starboard, totalling about 10 degrees, just before the accident. In response to these alterations the fish boat, the Bona Vista, just kept coming. Mr. Brown’s evidence on discovery was that:

It appeared to Mr. McKrae that the fish boat was going to safely pass down his port side. When the fish boat was in the—or just—prior to the fish boat getting immediately forward and to port of the “Link 100”. He shone the searchlight over the barge to show the barge and the cargo on it, which helps other vessels see what’s there and what’s coming, and that’s a practice that has been used ever since we went into operation, help illuminate it. He did that. And immediately after that the “Bona Vista”, who was now immediately off our port bow, swung across the bow of the “LINK 100”, and the collision occurred.

Q Did Mr. McKrae tell you how far apart they were going to be when they passed?

A He figured at somewhere probably in the order of 100 feet-plus, as I recall.[5]

…

Q And did you ask him about any changes in his speed?

A I’d asked him if he slowed down and he said, no, he hadn’t until the “BONA VISTA” made the manoeuvre that put him directly in front of the barge.

Q Did you ask him the time lapse between when he shone his searchlight down the barge and the “BONA VISTA” changing its course?

A Not specifically, but I gather it was in very close proximity to one another.

Q What did you gather that from?

A The fact that he told me that he had turned the searchlight on and shone it on the barge and it was very shortly after that the “BONA VISTA” made its course change and pulled up in front of the barge.[6]

[11]      Searchlights are often used to attract another vessel’s attention to impending danger. In her reasons for judgment the Trial Judge concluded that the tragedy was caused by the operator of the Arctic Taglu/Link 100 using the searchlight to pan forward, up and down the length of the port side of the Link 100 when the Bona Vista was close and approaching on a path that would pass the Arctic Taglu/Link 100 on its port side. She concluded that the searchlight would have been perceived by the Bona Vista as signalling an unseen danger on the port side of the Arctic Taglu/Link 100, ahead of the Bona Vista, causing the Bona Vista to turn abruptly to port to attempt to avoid the danger.[7] As already indicated, liability of 15% was attributed to Mr. Kajat.

[12]      In further apportioning liability between the Sea-Link parties and the Crown, the Trial Judge concluded that the failure of Coast Guard officials, specifically Captain Keeper, to adequately investigate whether or not the Arctic Taglu/Link 100 constituted a composite unit, in its pushing mode, was a significant contributing factor to the accident. Mr. Brown of Sea-Link’s less than candid representations to Captain Keeper also played a role. The misinterpretation by another Coast Guard employee, Mr. Wade, of the lighting requirements for barges being pushed by tugs and the alleged non-application of the Canadian Modifications likely also played some role in the collision, according to the Trial Judge.[8]

[13]      During the course of the trial, counsel for Ms. Kajat called two commercial fishermen, David Kaverek and Andrew Parkin, to relate their experiences in encountering the Arctic Taglu/Link 100 at night near Active Pass. Neither had been discovered nor had witness statements been provided in advance of their testimony. Counsel for the Sea-Link parties referred to them at trial as the “mystery witnesses” because he did not know what their evidence would be.

[14]      At trial, counsel for the Sea-Link defendants objected to their testimony being admitted by challenging its relevance and its nexus to the case at bar. Counsel for the Crown took no objection on the admissibility issue. Counsel for the plaintiff compared their testimony to evidence led in other negligence cases to show that premises were dangerous. It was urged that this was not similar fact evidence intended to demonstrate what happened on the night in question but rather circumstantial evidence of a dangerous practice because of the way the Arctic Taglu’s use of the search light was interpreted by oncoming vessels. In the case of Parkin the Court admitted the evidence subject to weight while for Kaverek the ruling was to hear the evidence and argue admissibility later.

[15]      David Kaverek testified about an occurrence in August of 1992 while Andrew Parkin gave evidence as to his experience on August 12, 1994. Each of them described an incident in which they were operating a small fishing boat, leaving the east entrance to Active Pass at night, when they encountered the Arctic Taglu/Link 100, engaging its search light on its port side. Both interpreted that use of the searchlight as a signal that there was a danger on the port side of that vessel; resulting in their both making an abrupt turn to port, full throttle ahead, across the bow of the Arctic Taglu/Link 100.

[16]      The Trial Judge accepted their testimony as evidence that demonstrated that experienced mariners could interpret the use of the searchlight by the Arctic Taglu/Link 100 as a signal that danger lay ahead on its port side and also to explain what would otherwise be seen as an irrational decision by the Bona Vista in turning to port at close quarters in front of the Arctic Taglu/Link 100.

[17]      This was critical evidence, as the ultimate finding of liability was that this tragedy was caused by the operator of the Arctic Taglu/Link 100 using its searchlight to pan forward, up and down the length of the port side of the Link 100 when the Bona Vista was close and approaching along that side.

[18]      On appeal all of the defendant parties took the position that the Trial Judge erred in admitting and relying on this testimony because of the lack of notice[9] and because the other two encounters were sufficiently dissimilar so as to have no probative value.[10]

[19]      Counsel for Ms. Kajat argued, as he had at trial, that the testimony of Mr. Kaverek and Mr. Parkin was circumstantial evidence, capable of proving that the searchlight practice adopted by the Arctic Taglu/Link 100 had a tendency to create a dangerous situation because oncoming vessels interpreted it as a signal of impending and unseen danger. Their testimony was compared to evidence of other incidents in slip and fall cases offered to show the condition of flooring and its tendency to cause accidents.[11] Counsel for Ms. Kajat changed his position on appeal arguing in the alternative that if it was similar fact evidence, it was admissible by analogy to the similar fact evidence relied on in other cases to prove that previous incidents have occurred as a result of the state of a physical object, including its effect on others.[12]

[20]      We do not accept that this evidence can be characterized as circumstantial evidence admitted to show the tendency of a physical object to produce a certain result. The cases in support of that proposition refer to instances where static physical dangers such as a slippery floor or a heap of earth beside an unlit public highway led to earlier incidents. In the case before us the evidence in issue concerns the movement of the Arctic Taglu/Link 100 searchlight and its effect on approaching mariners.

[21]      This is similar fact, sometimes referred to as similar act evidence. It is admissible in civil cases:

… if it is logically probative, that is if it is logically relevant in determining the matter which is in issue; provided that it is not oppressive or unfair to the other side; and also that the other side has fair notice of it and is able to deal with it.[13]

[22]      While we accept that no advance notice of this evidence was given, we are not persuaded that the lack of notice by itself establishes that its admission was unfair or oppressive. The object of notice is to ensure that the opposing party has a fair opportunity to investigate the incidents that are alleged to be similar, to prepare for cross-examination and, where warranted, to adduce contrary evidence. No objection was taken at trial to the absence of notice, and no attempt was made to delay or adjourn the trial to give the defendants additional preparation time. There is no reason to believe that the Trial Judge would have failed to give such additional time if it had been requested. It is now too late for the defendants to complain of lack of notice.

[23]      The question of whether the evidence was logically probative gives us more concern. The Supreme Court of Canada, in obiter, per Cory J., has recently decided that:

… where similar fact evidence is adduced to prove a fact in issue, in order to be admissible, the trial judge should evaluate the degree of similarity of the alleged acts and decide whether the objective improbability of coincidence has been established. Only then will the evidence have sufficient probative value to be admitted.[14] [Emphasis added.]

[24]      While that evaluation was referred to in a criminal case, in our view, it is equally essential in civil cases to determine whether the similar fact evidence in issue is logically probative (following the reasoning in Mood Music Publishing Co Ltd v De Wolfe Ltd).[15] This is especially so in cases where the evidence sought to be adduced involves the manipulation of equipment by human operators such as different crews aboard a vessel.[16]

[25]      As stated earlier, after the objection as to the admissibility of Mr. Parkin’s testimony was raised, the Trial Judge ruled that the evidence would be heard and given the weight it deserves.[17] After the objection to Mr. Kaverek”s testimony,[18] the Trial Judge ruled that the evidence would be heard and the issue of admissibility argued later.[19] The question we must decide is whether her reliance on the evidence, without more, is sufficient to establish that she determined that the evidence was logically probative, or as Cory J. said, that “the objective improbability of coincidence has been established”.[20]

[26]      Clearly in the case of Parkin there was no such evaluation as the objection and ruling took place before any substantive evidence was heard. In the case of Kaverek, while her reliance on the evidence in question may imply that she considered it to be sufficiently probative to be admissible, we are unable to conclude from the record that she made a specific determination to that effect. The failure to make a clear evaluation as to whether the evidence of each of these witnesses was logically probative constitutes an error in law.

[27]      It bears repeating that this evidence played a critical role in the ultimate decision on liability. Without it there would be no factual basis at all for the conclusion that the Arctic Taglu’s use of the search light was a cause of the collision. In these circumstances we must reluctantly allow the defendants’ appeals and order an expedited new trial.

[28]      All parties will bear their own costs throughout as the Crown did not object to the admissibility of this similar fact testimony at trial and the argument by the Sea-Link parties on this issue was not well developed in the court below.

Strayer J.A.: I agree.

Sharlow J.A.: I agree.

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