T-1186-73
The Queen (Plaintiff)
v.
Cecil Charles Butterfield (Defendant)
Trial Division, Collier J.—Vancouver, July 15
and 18, 1974.
Practice—Collision between vehicles—Compensation by
Crown to driver of Crown vehicle—Defendant owner of other
vehicle seeking examination for discovery of Crown driver—
Crown employee not a party to the action—Employee not
departmental or other officer of Crown—No discovery—
Government Employees Compensation Act, R.S.C. 1970, c.
G-8, s. 8—Federal Court Rules 2, 465.
Following a collision between a Crown vehicle driven by
C and the vehicle of the defendant, C elected to claim
compensation under section 8 of the Government Employees
Compensation Act. The Crown, having paid C compensation
for his medical expenses, loss of income and general
expenses, claimed the total amount in this action, together
with the cost of repairs to the Crown vehicle. The defendant
moved for examination for discovery of C.
Held, refusing discovery, the Crown was subrogated to
the rights of its employee, under section 8(3) of the Govern
ment Employees Compensation Act. The employee C could
not be regarded as a party liable to examination for discov
ery under Rule 465(1) as the action was not brought on
behalf of C and any damages which might be recovered
were for the plaintiff Crown alone. Nor was C a "depart-
mental or other officer" within Rule 465(1)(c).
Yarmolinsky v. The King [1944] Ex.C.R. 85; Irish Ship
ping Ltd. v. The Queen [1974] 1 F.C. 445, applied.
MOTION.
COUNSEL:
G. O. Eggertson for plaintiff.
R. A. Easton for defendant.
SOLICITORS:
Deputy Attorney General of Canada for
plaintiff.
Russell & Dumoulin, Vancouver, for
defendant.
The following are the reasons for judgment
delivered in English by
COLLIER J.: The defendant, by this motion,
seeks an order that one Albert Jules Chartrand
be named by this Court ... "as the party or, in
the alternative, as the person who can be exam
ined by the defendant for discovery" .... The
motion is brought pursuant to Rule 465(1).
The action arises out of a motor vehicle acci
dent which occurred on April 1, 1972. It
appears that a vehicle owned by the plaintiff
and driven by Chartrand (a postal employee)
was in collision with a vehicle driven by the
defendant. Chartrand was injured in the acci
dent, was apparently off work, and according to
the statement of claim lost income for a certain
period of time.
Chartrand elected to claim compensation pur
suant to the Government Employees Compensa
tion Act R.S.C. 1970 c. G-8. The relevant por
tions of that statute are as follows:
8. (1) Where an accident happens to an employee in the
course of his employment under such circumstances as
entitle him or his dependants to an action against some
person other than Her Majesty, the employee or his depend
ants, if entitled to compensation under this Act, may claim
compensation under this Act or may claim against such
other person.
(3) If the employee or his dependants elect to claim
compensation under this Act, Her Majesty shall be subro-
gated to the rights of the employee or his dependants and
may maintain an action in his or their names or in the name
of Her Majesty against the person against whom the action
lies and any sum recovered shall be paid into the Consolidat
ed Revenue Fund.
(4) Where an action is brought under subsection (3) and
the amount recovered and collected exceeds the amount of
compensation to which the employee or his dependants are
entitled under this Act, there may be paid out of the Con
solidated Revenue Fund to the employee or his dependants
such portion of the excess as the Minister with the approval
of the Treasury Board deems necessary, but if after such
payment has been made the employee becomes entitled to
an additional amount of compensation in respect of the
same accident, the sum paid under this subsection may be
deducted from such additional compensation.
In the statement of claim the plaintiff alleges
the election made and asserts she became sub-
rogated to the rights of Chartrand against the
defendant. The plaintiff then goes on to claim
for the medical expenses allegedly laid out in
respect of treatment for Chartrand, damages in
the sum of $3,415.92 representing the
employee's loss of income, and finally "general
damages in respect of the personal injuries sus
tained by the said Chartrand."
There is as well a claim by the plaintiff for the
cost of repairs to the Crown vehicle. That, of
course, is not a subrogated claim.
The defendant wishes to examine Chartrand
for discovery as to responsibility for the acci
dent (negligence or fault) as well as in respect of
the claim for damages, other than the vehicle
damage. The plaintiff has put forward some
official of the postal department, whose name I
do not know, as the departmental or other offi
cer of the Crown to be examined on her behalf.
The plaintiff has offered to permit the defend
ant to examine Chartrand for discovery con
cerning his personal injuries and the claim
advanced for general damages. The plaintiff will
not, however, agree that any answers obtained
on this latter discovery will be binding on her.
Counsel for the defendant contends that on a
proper construction of the Federal Court Rules,
there is a right to examine Chartrand as a
"party". Rule 2(1Xm) is as follows:
"plaintiff" includes any person by whom, or on whose
behalf, a proceeding in the Trial Division is instituted,
The defendant says this action is brought, in
part at least, on behalf of Chartrand—that is in
respect of the claim for general damages for
personal injuries. Chartrand therefore becomes
a party within the meaning of Rule 465. I set out
certain portions of that Rule:
Rule 465. (1) For the purpose of this Rule, a party may be
examined for discovery, as hereinafter in this rule provided,
(a) if the party is an individual, by questioning the party
himself,
(b) if the party is a corporation or any body or group of
persons empowered by law to sue or to be sued, either in
its own name or in the name of an officer or other person,
by questioning any member or officer of such corpora
tion, body or group,
(c) if the party is the Crown, by questioning any depart
mental or other officer of the Crown nominated by the
Attorney General of Canada or Deputy Attorney General
of Canada or by order of the Court, and
(d) in any case, by questioning a person who has been
agreed upon by the examining party and the party to be
examined with the consent of such person;
and, in this Rule, a party who is being, or is to be, so
examined for discovery is sometimes referred to as the
"party being examined" or the "party to be examined", as
the case may be, and the individual who is being, or is to be,
questioned is sometimes referred to as the "individual being
questioned" or the "individual to be questioned", as the
case may be.
In my opinion it is not correct to say this
action is brought, in respect of certain matters,
on behalf of Chartrand. The action is founded
on whatever rights Chartrand may have had to
sue Butterfield, but any damages which may be
recovered are not recovered on behalf of Char-
trand but by and for the plaintiff alone.
According to subsection 8(4) of the Govern
ment Employees Compensation Act some part
of any damages recovered may be paid to Char-
trand if the amount recovered "and collected"
from Butterfield exceeds the amount of com
pensation to which Chartrand was entitled. Any
such payment is purely discretionary. In my
view where such a wide discretion is given it
cannot be said this action, or any part of it, is
brought on behalf of Chartrand. It follows there
is no right to examine him for discovery, as a
" party " .
Alternatively it is contended that Chartrand is
a "departmental or other officer of the Crown"
and ought to be nominated as such for purposes
of examination for discovery by order of this
Court. (See Rule 465(1X c).)
There is no material before me, nor was it
contended, that Chartrand occupies any position
with the post office which, by reason of his
position alone, would qualify him as a "depart-
mental or other officer", giving that expression
its most liberal interpretation. Essentially the
argument put forward is that Chartrand, and
only Chartrand, can provide the detailed infor
mation required in respect of his alleged injuries
and his recovery, or otherwise, from them. It is
also contended that by requiring him to appear
on discovery an assessment can be made by the
defendant or his advisers as to Chartrand's
credibility, and his capabilities and qualities as a
witness. In regard to the claim for damages for
personal injuries the defendant has been offered
the opportunity to question Chartrand under
oath and to make the assessments referred to. It
is true any answers obtained will not be binding
on the Crown but one cannot disregard the
practical effect that any damaging admissions
elicited will probably militate against the
plaintiff.
Lawsuits of this kind, from the point of view
of the Crown, must, I suspect, be considered
small and of little moment. They can however
be of importance to a defendant. It is under
standably frustrating to a defendant to be
required to examine for discovery, a person
who cannot answer from personal knowledge,
questions as to time, distances, speeds, physical
and mental reactions, all of which are vital in
the preparation for the trial and determination
of the question of responsibility for a motor
vehicle collision.' It is undoubtedly more frus
trating and more elusive, to endeavour to obtain
binding, or even meaningful, admissions from
an injured person's departmental or other offi
cer as to the state of the pain in the neck or
back (at any relevant period of time) of the
injured employee. 2
These pre-trial procedures are, of course, equally vital
and necessary in determining whether any settlement of the
litigation can be reached, and if so, on what basis.
2 The injuries alleged here are as follows:
.. a laceration to the scalp, bruises to the arms and
legs, injuries to the back and to the neck which caused
him pain and suffering and as a further consequence of
the said collision, the said Chartrand experienced several
periods of unconsciousness."
There are, however, sound reasons for Rule
465(1)(c) and I need not go into them here. In
this case the Crown has seen fit to rely strictly
on the Rule. The principles as to who may be "a
departmental or other officer of the Crown",
when, and under what circumstances, have been
considered in Yarmolinsky v. The King [1944]
Ex.C.R. 85 and Irish Shipping Ltd. v. The Queen
[1974] 1 F.C. 445.
In my view, on the facts here, Chartrand does
not fall within the category "departmental- or
other officer".
The motion is dismissed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.