T-3772-80
Hassan Ismail, Ahamed Saeed, Abdul Gadir,
Ibrahim Manik, Mohamed Rasheed, Mohamed
Waheed, Ahamed Rasheed, Abdulla Ibrahim,
Abdulla Aboubakuru, Mohamed Manik, Hassan
Ahamed, Hassan Abdulla, Mohamed Ali and Ali
Moosa (Plaintiffs)
v.
The owners and all others interested in the ship
Golden Med, and the ship Golden Med (Defend-
ants)
Trial Division, Dubinsky D.J.—Halifax, August 8
and 9, 1980.
Practice — Plaintiffs move pursuant to Rule 477 that the
Court order the issue of a commission for the examination of
plaintiffs, ship's Master, radio officer and owners' representa
tive — Motion also requests production of all relevant docu
ments on board the ship — Return of plaintiffs to Halifax
would be excessively expensive and inconvenient — Whether or
not the Court has jurisdiction under Rule 477 to grant a
commission requested on behalf of plaintiffs whose purpose
was to take the testimony of plaintiffs themselves — Motion
allowed.
Lemay v. Minister of National Revenue [1939] Ex.C.R.
248, considered.
MOTION.
COUNSEL:
W. Wylie Spicer for plaintiffs.
J. A. Laurin for defendants.
SOLICITORS:
McInnes, Cooper & Robertson, Halifax, for
plaintiffs.
McMaster Meighen, Montreal, for defend
ants.
The following are the reasons for judgment
delivered orally in English by
DUBINSKY D.J.: Mr. J. A. Laurin, counsel for
the defendants herein, has kindly waived the
requirements of Rule 321 of the Federal Court
Rules relative to notice of the motion herein and
advised the Court that he was prepared to argue
the matter on the very short notice thereof that he
received. He did speak to the motion.
In presenting his submission relative to the
motion, Mr. W. Wylie Spicer, counsel for the
plaintiffs, pointed out that all the plaintiffs are
resident of and domiciled at Male, on the islands
of the Republic of the Maldives, a chain of islands
in the Indian Ocean. They speak a very uncommon
dialect which is called Divihi. Their work necessi
tates movement and travel to various parts of the
globe. Their counsel went on to state that the
airfare travel, one way, for each of these plaintiffs
from their homes to Halifax would be approxi
mately $1,500. In view of this great travelling
expense and in view of the nature of the work in
which the plaintiffs are all engaged, it would be
attendant, according to Mr. Spicer, with consider
able inconvenience and excessive financial
expenses to have the plaintiffs come back to Hali-
fax to give evidence herein at some future time.
Indeed he said, it was quite doubtful if they could
ever be brought here again. Now they are all here
together and cannot depart while the ship Golden
Med is still under arrest. It has been brought to
my attention that the ship had been arrested on
the commencement of the plaintiffs' action.
A further serious problem facing counsel for the
plaintiffs is the fact that because they speak that
very uncommon dialect, an interpreter must neces
sarily be obtained for all but two of them. Up to
late Friday night, August 8, 1980, such an inter
preter had not been located. Mr. Spicer advised
the Court that he was prepared to proceed at once
with at least the two who were able to converse in
English and he also wanted the Master of the ship,
the radio officer and the owners' representative, a
Mr. Cordoza—all three of whom speak English—
ordered to give evidence before the Commission.
As is set forth in the notice of motion, Mr. Spicer
is also asking for the production of all documents
on board the Golden Med which in any way relate
to the matters in issue in the present action.
Although Mr. Laurin stated that he is prepared
to produce certain documents for the perusal and
inspection of plaintiffs' counsel, the defendants'
counsel, however, objects strongly to the granting
of the order setting up the Commission to take the
evidence of the plaintiffs as requested. Mr. Laurin
disputes that anything is owed to the plaintiffs by
the owners of the ship Golden Med and maintains
that his clients had paid whatever was owed to the
plaintiffs by way of wages. Defence counsel also
intimated that there would be a counter-claim
lodged against the plaintiffs alleging that the
plaintiffs had failed to carry out their duties prop
erly and thus causing damage to the ship's owners.
Mr. Laurin cited a number of authorities which
are to the effect that the Court has no jurisdiction
under Rule 477 to grant a commission requested
on behalf of the plaintiffs and whose purpose was
to take the testimony of the plaintiffs themselves.
In the short time available to me, since the hearing
last night and the writing of my decision this
afternoon, I have not been able to read a sufficient
number of pertinent cases—apart from those sub
mitted by Mr. Laurin—as guidance for me in
determining the issue before me.
I must acknowledge that I was very impressed
with the cited case of Lemay v. M.N.R. [1939]
Ex.C.R. 248, a decision by Mr. Justice Angers. In
that case, his Lordship was dealing with section 64
of the Exchequer Court Act (R.S.C. 1927, c.
34)—a section which is almost identical with Rule
477 under which the present application has been
made. Section 64 aforesaid reads as follows:
64. If any party to any proceeding had or to be had in the
Exchequer Court is desirous of having therein the evidence of
any person, whether a party or not, or whether resident within
or out of Canada, and, if in the opinion of the Court or a judge
thereof, it is, owing to the absence, age or infirmity, or the
distance of the residence of such person from the place of trial,
or the expense of taking his evidence otherwise, or for any other
reason, convenient so to do, the Court or a judge may, upon the
application of such party, order the examination of any such
person upon oath, by interrogatories or otherwise, before the
Registrar of the Court, or any commissioner for taking affida
vits in the Court, or any other person or persons to be named in
such order, or may order the issue of a commission under the
seal of the Court for such examination.
In turning down the application—which, inci
dentally, was supported by an affidavit of Mr.
Louis S. Saint-Laurent, K.C., the plaintiffs coun
sel who later became Prime Minister of Canada—
Mr. Justice Angers had the following to say at
pages 251-252:
The text of section 64 of the Exchequer Court Act, if perhaps
not so clear on that point as article 380 of the Code of Civil
Procedure, seems to me to provide merely for the examination
of the adverse party by commission or letters of request, as the
case may be, and not of the party giving evidence in his own
behalf. Leaving aside the words that are not pertinent in the
present case, the material part of section 64 is worded as
follows: "If any party to any proceeding ... in the Exchequer
Court is desirous of having therein the evidence of any person,
whether a party or not, ... and, if in the opinion of the Court or
a judge thereof, it is ... convenient so to do, the Court or a
judge may, upon the application of such party, order the
examination of any such person upon oath, by interrogatories
or otherwise ..." I fail to see how the words "of any person,
whether a party or not" can be said to apply to the party
making the application. It seems to me that if the legislators
had wished to include among the persons liable to be examined
on a commission or letters of request the party seeking the issue
of the commission or letters of request, they would have said it
in plain words. The manner in which the phrase dealing with
the subject is drafted induces me to believe that the legislators
did not contemplate the examination of a party testifying on his
own behalf by means of commission or setters of request.
I readily acknowledge that the Lemay case has
given me considerable cause for concern as to
whether or not I had the jurisdiction to act on this
motion. After much study and the reading of some
other decisions which I felt might be pertinent to
the issue, I have come to the conclusion that
notwithstanding my high regard for the learned
Judge who decided that case, I am not bound by
the Lemay decision. I am asked basically to exer
cise my discretion. I realize only too well that the
discretion must be exercised judicially and in
accordance with what I must accept as being the
law. However, fully cognizant of this fact, I have
come to the further firm conclusion that I am
going to grant the motion herein.
Pursuant to the above, I order that a commis
sion be forthwith issued herein to Mr. R. C.
Howell, District Administrator of the Federal
Court of Canada at Halifax, Nova Scotia and I
further order that all the plaintiffs do appear
before the said R. C. Howell as Commissioner
herein to be examined under oath at Halifax. I
further order that the Master of the ship Golden
Med, its radio officer and the representative of the
owners of said ship, a Mr. Cordoza, do also appear
before the said Commissioner to be examined
under oath.
Keeping in mind the difficulties as to the inter
pretation of the plaintiffs' evidence, I feel that the
time allotted for the taking of the evidence before
the Commissioner should be from Monday,
August 11, 1980 to and including Friday, August
15, 1980, but not to exceed beyond the latter date.
The hours of the hearing before the Commissioner
shall be fixed by him in consultation with respec
tive counsel.
With regard to the request for the production of
documents, it is my view that the courts have
taken a far more liberal attitude in the past few
years to enable the parties to obtain a full disclo
sure of the case to be met and to present an
opportunity to both parties to have matters fully
aired. It has been repeatedly said by judges that
"the Rules of Court are the servants and not the
masters of the Court, whose faculty it is to inter
pret those Rules in the manner most likely to do
justice between the parties."
My disposition is to give a liberal or wide con
struction to a Rule such as 455(2) of the General
Rules and Orders of the Federal Court of Canada
unless there is a possibility that the Rules be used
in a way which is burdensome. By that I mean that
the Court should not permit the Rules in question
to be made the vehicles for an unjust or burden
some obligation placed on another party.
With this thought before me, I have closely and
anxiously read subparagraphs i), ii), iii) and iv) of
paragraph (c) of the notice of motion and I am
satisfied that the clauses contain no unreasonable
or burdensome demand. I direct therefore that all
documents on board the Golden Med relating to
the matters in issue in the present action be pro
duced to counsel for the plaintiffs. Specifically to
be produced are:
i) all records of account of wages and benefits kept with
respect to the plaintiffs;
ii) copies of all employment contracts of the plaintiffs and in
particular, but without restriction, copies of any and all
employment contracts signed by the plaintiffs at Male, Mal-
dive Islands, in or about January or February, 1980;
iii) any and all allotment notes relating to the plaintiffs or
their dependants;
iv) any and all records relating to any sums of money due,
payable or paid pursuant to any allotment note or otherwise,
on behalf of the plaintiffs to their dependants, their resi
dences or, upon their direction, to banks, crewing agents or
otherwise for the benefit of the plaintiffs or that of their
dependants.
I am satisfied that the use of an interpreter able
to understand and interpret the plaintiffs' dialect
Divihi is essential herein and therefore, should the
plaintiffs succeed herein, the expenses involved in
procuring such an interpreter shall be subsequently
taxed as costs in the cause. On the other hand, and
mindful of Mr. Laurin's concern for the damages
which the owners will be forced to suffer should
the vessel be unable to depart because of my order
herein, notwithstanding that a sufficient bail bond
be put up to release it from the arrest, I make the
following order. In the event that the defendants
succeed herein, I direct that any legitimate dam
ages which the ship's owners are forced to undergo
by reason of a later departure date owing to my
order herein shall also be subsequently taxed as
costs in the cause. It goes without saying that the
costs of the motion herein shall be costs in the
cause.
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.