T-3972-78
Pacific Western Airlines Ltd. and Canadian
Acceptance Corporation Limited (Plaintiffs)
v.
The Queen in right of Canada (Defendant)
Trial Division, Walsh J.—Toronto, May 26;
Ottawa, June 3, 1980.
Practice — Examination for discovery — Motions by
defendant seeking reattendance for further examination of
officer and employee of Pacific Western Airlines — Further
examination related to information contained in accident
report and derived from investigations held by P.W.A. —
Motion by plaintiffs for a further and better affidavit of
documents from defendant — Plaintiffs argue that the details
of its extensive investigations are privileged, having been made
in the course of the Company's inquiry in preparation for
litigation — Federal Court Rules 319(2),(4), 320, 451, 461,
465(/5),(17),(18),(19) — Air Regulations, SOR/6/-10, as
amended, s. 829(1) — Aeronautics Act, R.S.C. 1970, c. A-3.
Defendant seeks in its first motion the reattendance for
further examination of Captain Fransbergen, an officer of
plaintiff Pacific Western Airlines Ltd. (P.W.A.), to answer
questions as to (a) facts in respect of certain paragraphs
contained in the aircraft accident report made following an
aircrash in Cranbrook (B.C.); (b) the names of the people
interviewed and when and where these interviews took place;
(c) whether any P.W.A. employee or any other authorized
person other than counsel has seen or had access to certain
Exhibits; and (d) facts which P.W.A. officials obtained subse
quent to the accident while they acted as members of the
accident investigation team. Defendant also seeks the further
attendance of Captain Husband, a pilot and employee of
P.W.A., regarding conversations he had with the Captain of the
accident flight or had overheard. Plaintiffs, who seek from
defendant a further affidavit of documents, contend that the
details of its extensive investigations are privileged, having been
made in the course of the Company's inquiry in preparation for
litigation.
Held, the motions are allowed. (a) The principle of public
interest of aviation safety necessitates the disclosure of facts
within the knowledge of P.W.A. employees. It overrides any
tactical advantage to be derived from concealing any informa
tion obtained in the course of their investigation, and disclosing
this only to the Company solicitor. (b) The information
obtained during the interviews is only admissible to the extent
that it deals with facts referred to in the pleadings, lists of
documents, or disclosed during the Commission inquiry. To go
beyond this would be a mere "fishing expedition" and not
permissible. (c) The question should be answered. It appears
that, one way or another, some of the facts in the Exhibits will
eventually appear in evidence in any event. (d) The primary
purpose of any investigation made by P.W.A. officials should
have been to establish the cause of the accident; it cannot be
concluded that its sole, or even primary, purpose was to gather
information in contemplation of and preparation for litigation.
The second motion is allowed, this being "an exceptional case"
within the meaning of Rule 465(19). While it may be that the
necessary information may be obtained from Captain Fransber-
gen, under the special circumstances of this case, Husband is
the proper person to be questioned as any information which
the former can give, having informed himself, would be hearsay
on a very important issue. As to plaintiffs' motion, since it is
not desirable that the Court record should be encumbered by
listing documents which will never be used by either party,
defendant's counsel has agreed to file a further and better
affidavit.
Waugh v. British Railways Board [1979] 2 All E.R. 1169,
followed. Imperial Marine Industries Ltd. v. Fireman's
Fund Insurance Co. [1977] 1 F.C. 747, followed. Church-
ill Falls (Labrador) Corp. Ltd. v. The Queen, not reported,
T-1414-71, applied. Champion Packaging Corp. v. Tri
umph Packaging Corp. [1977] 1 F.C. 191, referred to.
Ross (Executrix of Ross Estate) v. Scarlett [1946] 3
W.W.R. 533, referred to.
MOTIONS.
COUNSEL:
E. M. Lane and R. J. Allen for plaintiffs.
W. J. A. Hobson, Q.C. for defendant.
SOLICITORS:
Lane, Breck, Toronto, for plaintiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
WALSH J.: Two notices of motion on behalf of
defendant came on for hearing at Toronto on May
26, 1980. The first produced on May 8, 1980,
applied for an order pursuant to Rule 465(18) that
Captain Kaees Fransbergen, an officer of plaintiff
Pacific Western Airlines Ltd. [hereinafter some
times referred to as "P.W.A."] reattend before the
examiner on his examination for discovery at a
date to be fixed and be required to answer the
following questions, and all further questions aris
ing from the answers given which are relevant to
the issues raised:
(a) What facts were within the knowledge of the
employees, officers and servants of Pacific West
ern Airlines Ltd. in respect of certain paragraphs
on pages 25 and 32 of Department of Transport
Aviation Safety Investigation Division Accident
Report No. H80001, which document was listed as
document 53 in Part I of Schedule I of plaintiffs'
supplementary list of documents filed pursuant to
Rule 447? The paragraphs on pages 25 and 32 are
as follows:
On page 25:
Persons interviewed included eyewitnesses, survivors, operat
ing and supervisory personnel of the various agencies, flight
crews, and individual pilots.
In addition to the above, crews of other aircraft operating in
the area during the period of the accident flight were inter
viewed. Pilots on two different aircraft reported hearing the
Captain of the accident flight conversing with another flight on
company frequency. The time of this conversation was estab
lished as being about 1948Z, the time the information
respecting the runway condition was transmitted by Cranbrook
Aeradio.
On page 32:
The failure to report on final approach and the unnecessary
talk on company frequency represent an unacceptable standard
of cockpit practice and discipline.
(b) What are the names of the people interviewed
and when and where such interviews took place,
during the period Pacific Western Airlines Ltd.
officials were acting as members of the accident
investigation team referred to in the affidavit of
John Robert Haig herein?
(c) Has any Pacific Western Airlines Ltd.
employee or any other person authorized by the
Company, other than counsel, ever seen, or had
access to Exhibits C and D herein or had become
aware of the contents of these Exhibits?
(d) What are the details of all further involvement
of Pacific Western Airlines Ltd. officials who
might have been members of the said accident
investigation team and the facts, if any, which they
obtained subsequent to the accident while they
acted as members of the said team?
The second motion produced on May 14, 1980,
seeks an order that Captain Bud Husband, a pilot
and employee of Pacific Western Airlines Ltd.
attend as a member of the said plaintiff for further
examination for discovery at a date to be fixed and
be compelled to answer any and all questions in
respect of conversations that he had with or over
heard of Captain Christopher Miles on the com
pany radio frequency on February 11, 1978 and
that he be required to answer all further questions
which arise from the answers given and which are
relevant to the issues raised by the pleadings. Both
motions, which were argued together, were sup
ported by an affidavit of John Robert Haig dated
May 8, 1980, and in the case of the second motion
it is also allegedly supported by pages 21 to 62 of
the transcript of the examination for discovery of
Captain Kaees Fransbergen dated May 7 and 8,
1980.
Immediately following the argument on these
two motions a motion of plaintiffs produced on
May 20, 1980, was heard for an order compelling
defendant to deliver à further and better affidavit
of documents pursuant to Rule 461, and for an
order pursuant to Rule 451 that defendant deliver
an affidavit stating whether or not the documents
referred to in Exhibit B of the affidavit of Donald
Bruce Garrow, filed in support of said application
are, or have been, in the possession or control of
defendant and if not when the defendant parted
with those documents and what has become of
them. This motion was supported by the affidavit
of Donald Bruce Garrow.
In opposition to defendant's two motions an
affidavit of Robert Allen employed by the firm of
solicitors representing plaintiffs dated May 23,
1980, was sought to be introduced at the opening
of the hearing on May 26th. In it the deponent
states that he is advised by Captain Fransbergen
that Eric M. Lane, the solicitor for plaintiffs, met
with Fransbergen and other employees of Pacific
Western Airlines Ltd. at Cranbrook, British
Columbia on February 12, 1978, the date follow
ing the accident which is the subject-matter of this
litigation and that during the course of the afore
said meeting the employees of plaintiff, Pacific
Western Airlines Ltd., were instructed to cooper
ate with officials of the Aircraft Investigation
Branch of the Department of Transport but at the
same time the plaintiff's employees were directed
to act as agents for the purpose of gathering
information in contemplation of and in preparation
for anticipated litigation. The affiant goes on to
say that he is further advised by Captain Frans-
bergen that Captain Victor Bentley, a pilot
employed by Pacific Western Airlines Ltd., was
permitted to observe some portions of the official
investigation of the accident as a representative of
the Canadian Air Line Pilots Association. This
affidavit was evidently submitted in support of
plaintiffs' claim for privilege in connection with
the further information sought by defendant from
Captain Fransbergen and Captain Bud Husband.
Defendant's counsel sought to prevent the intro
duction of this affidavit as having been made
belatedly, or in the event that it be accepted that
he be permitted to contradict the allegations made
in it by referring to extracts from the transcript of
the Inquiry Into Aviation Safety or such portions
of it as related to the investigation into the Cran -
brook disaster. Plaintiffs opposed this on the
grounds that they were not represented and did not
appear at the said inquiry, and furthermore sought
a postponement of the hearing of the motions until
the transcript of the complete examination for
discovery of Captain Kaees Fransbergen which
took place on four days commencing May 5th
became available. Defendant resisted any post
ponement and I believe justifiably so. Rule 319
states that a motion shall be supported by affidavit
as to all the facts on which the motion is based
that do not appear from the record. Paragraph (2)
provides that an adverse party may file an affida
vit in reply. Rule 320 provides however that a
notice of motion, other than an ex parte applica
tion, shall be filed together with supporting affida
vits, at least 2 days before the time fixed for
presentation unless the Court otherwise directs.
Defendant's motions had been set down for hear
ing a considerable time in advance and a special
judge had been designated for the hearing of them
in Toronto and it would be manifestly unreason
able to permit plaintiffs to delay the hearing by
the very belated filing of what is in its essence a
very simple affidavit merely substantiating a claim
for privilege. While plaintiffs offered to submit
Mr. Allen who was present for immediate cross-
examination on his affidavit, this too is a matter
within the discretion of the Court and pursuant to
Rule 319(4) there would have to be special reason
for permitting this on a motion; no stenographer
was present and such an examination would
merely have had the effect of delaying the hearing
of the motions. On the other hand defendant
should not be prejudiced by the introduction of a
very belated affidavit without the opportunity of
refuting statements in it either by cross-examina
tion or by other evidence. On this basis the Court
put it to counsel for plaintiffs that it would permit
the introduction of this affidavit only on the basis
that defendant be given the opportunity to read
into the record, for this purpose only, the extracts
from the said Inquiry Into Aviation Safety which
allegedly tend to refute the allegations in it. The
extracts read and referred to for purposes of argu
ment were then to be forthwith transcribed and
produced with a covering affidavit of defendant's
counsel to form part of the record for the purposes
of decision on these motions only and no other
purpose. While plaintiffs' solicitor did not formally
consent to this procedure, it was on this basis only
that the Court permitted the production of Mr.
Allen's affidavit.
The order made in this connection was as
follows:
In lieu of cross-examination upon the affidavit of Robert
Allen which is belated and may or may not be pertinent
Defendant may introduce portions of the transcript of the
Inquiry Into Aviation Safety, such portions to be limited to
questions and answers and not to include any argument nor
comments by the Commissioner or Commission counsel. Such
questions and answers shall be limited to the issues raised by
Defendant's Notices of Motion. The material to be introduced
verbally in Court today shall be verified subsequently by an
affidavit of Defendant's counsel referring to the said portions of
the transcript which will be considered as accurate without
further verification, and this is being done notwithstanding the
fact that Plaintiffs were not a party to nor represented at the
Inquiry, but solely to avoid the necessity of an adjournment of
the said motions to permit cross-examination on the Allen
affidavit, or alternatively the refusal to permit the introduction
of same as not having been produced at a proper interval prior
to the date set for the hearing of the motions.
The hearing on defendant's motions then pro
ceeded. It is necessary for an understanding of the
situation to go to some extent into the background
of the litigation and it will also be necessary to
deal in a general way with the objections of plain
tiffs' counsel to providing the information request
ed and the arguments of defendant's counsel in
seeking it, before applying the conclusions reached
to the specific information sought in the motions.
The litigation arises from the fatal aircraft crash
in Cranbrook, British Columbia, on February 11,
1978 when 43 people were killed. The flight was
Pacific Western Airlines Ltd., Flight 314, and it
was alleged in very lengthy pleadings that the pilot
was forced to initiate an emergency overshoot on
the landing field when he became aware that snow
removal equipment was obstructing the runway,
and that the plane thereupon became uncontrol
lable and crashed. The pilot and co-pilot were
among those killed. A considerable number of
preliminary motions have been made and decided.
In the statement of defence it is alleged that the
accident took place due to the fault of the pilot,
Van Oort and co-pilot Miles and of plaintiff,
Pacific Western Airlines Ltd., in failing to proper
ly instruct and train flight crew to comply with all
regulations; in particular the present issue arises
because it has come to light that Miles was
allegedly immediately prior to the landing which
had to be aborted communicating on the Company
radio frequency with Captain Bud Husband,
another pilot of the Company flying Flight 305 in
respect to matters not relating to the flight. This
conversation was allegedly overheard by two other
pilots whose names are not known to defendant
but are allegedly known to plaintiffs.
The scope of examination for discovery permit
ted in this Court appears in Rule 465(15):
Rule 465. .. .
(15) Upon examination for discovery otherwise than under
paragraph (5), the individual being questioned shall answer any
question as to any fact within the knowledge or means of
knowledge of the party being examined for discovery that may
prove or tend to prove or disprove or tend to disprove any
unadmitted allegation of fact in any pleading filed by the party
being examined for discovery or the examining party. '
It is therefore proper to ask questions not only
relating to plaintiffs' statement of claim but also to
defendant's defence. With respect to Captain
Fransbergen he was the principal witness desig
nated for examination for discovery on behalf of
plaintiffs and to the extent that a substantial part
of the facts leading to the accident would not be
within his personal knowledge he would be
required to inform himself and answer such ques
tions, if permissible, at an adjourned examination.
Paragraph (17) of Rule 465 reads as follows:
Rule 465. .. .
(17) In order to comply with paragraph (15), the individual
being questioned may be required to inform himself and for
that purpose the examination may be adjourned if necessary.
This very serious crash led not only to an exten
sive examination of the crash itself but to the
subsequent Inquiry Into Aviation Safety in gener
al, at which, as might be expected, a number of
representatives of plaintiffs assisted as well as
various representatives of the Department of
Transport. Also as might be expected plaintiff
Pacific Western Airlines Ltd. conducted extensive
internal investigations and undoubtedly anticipat
ed that there would eventually be litigation arising
out of the accident. It is alleged that certain
documents which might well be pertinent were
improperly destroyed or shredded by one Doctor
Dubé, a representative of the Department of
Transport, whether of his own volition or under
direction, and while any action arising out of this
is not an issue in the present litigation the result is
that defendant by the act of one or more of her
own representatives is not now in a position to
submit certain proof. It is contended however that
copies, or originals as the case may be, of the
documents destroyed are in possession of plaintiffs,
the contents of which are within plaintiffs' knowl
edge. The case presents the extraordinary and
possibly unprecedented situation therefore of
defendant being forced to seek to obtain from
plaintiffs proof which defendant herself should be
making through her own witnesses and documents.
It is conceded that the Commission inquiry was
not an inquiry by an aircraft accident investigator
appointed pursuant to section 829(l) of the
Department of Transport Air Regulations [SOR/
61-10, as amended] but that witnesses testified
before it voluntarily. Among those forming part of
the investigation were a number of representatives
of plaintiff Pacific Western Airlines Ltd. including
Captain Kaees Fransbergen, Russ Revel, Chief
Pilot of the Western Region, A. Hunger, (P.W.A.
Maintenance) and others including Captain Victor
Bentley, who according to plaintiffs took part in
the investigation but in his capacity as a repre
sentative of the Canadian Air Line Pilots Associa
tion. The question of whether any of the evidence
made before the Commission can be produced at
trial is not an issue before the Court on the present
motions but reference to extracts from it are used,
as previously indicated, as an indication that infor
mation sought is within the means of knowledge of
Captain Fransbergen or Captain Husband unless
plaintiffs succeed in the contention that it is privi
leged having been made in the course of the Com-
pany's inquiry for use in connection with the pro
posed litigation.
Defendant also relies on a letter written by Russ
Revel, Chief Pilot of the Western Region of
P.W.A. to W. M. Howes, Acting Chief of Aviation
Safety Bureau of Investigation on March 3, 1978
in which he agrees to interviews with Husband,
Leschiutta, Bisaillon and Rodgers, Company
employees. Reference was also made to a docu
ment entitled "History of Flight" attached to Mr.
Haig's affidavit, which plaintiffs' counsel vigorous
ly objected to as being hearsay and unreliable and
a document which was not used in the eventual
report, which refers to a conversation between Bud
Husband taking off from Calgary on Flight 305
and Christopher Miles discussing some stock
market tips, a lengthy conversation which was
allegedly taking place at the same time as Van
Oort was receiving instructions from the air radio
station operator about weather conditions and
about a snowblower on the runway which he had
allegedly acknowledged. It is not clear whether
Miles or Van Oort was at the controls but this
report (entirely unofficial) suggests that it was
Miles, and that possibly Van Oort had never
advised Miles about the snowblower. While it
must be stressed that this document may not be
admitted in evidence at the trial it gives some
indication that some improper conversation may
have taken place between an officer of the crew of
Flight 314 and Captain Bud Husband immediately
prior to the accident.
Furthermore reference is made to the Depart
ment of Transport Aviation Safety Investigation
Division Accident Report listed in plaintiffs' sup
plementary list of documents and specifically to
certain paragraphs on pages 25 and 32 thereof
which read as follows:
Persons interviewed included eyewitnesses, survivors, operat
ing and supervisory personnel of the various agencies, flight
crews, and individual pilots.
In addition to the above, crews of other aircraft operating in
the area during the period of the accident flight were inter
viewed. Pilots on two different aircraft reported hearing the
Captain of the accident flight conversing with another flight on
company frequency. The time of this conversation was estab
lished as being about 1948Z, the time the information
respecting the runway condition was transmitted by Cranbrook
Aeradio. (Emphasis mine.) [Page 25.]
The failure to report on final approach and the unnecessary
talk on company frequency represent an unacceptable standard
of cockpit practice and discipline. [Page 32.1
It is evident that this is very pertinent information
and that defendant is justified in seeking informa
tion as to the names of the pilots of two different
aircraft who allegedly overheard the said conversa
tion. In due course the R.C.M.P. were called in to
investigate where certain documents might be and
which if any had been shredded. Search warrants
were obtained. Defendant contends the plaintiffs'
counsel has been permitted to examine all docu
ments so obtained.
Portions of the transcript of witness Champion
before the Commission discloses the names of
persons interviewed during the course of the Com-
pany's investigation but Husband is not men
tioned. Portions of the transcript of the evidence
before the Commission of Inquiry of W. M.
Howes, the investigator in charge, indicates that
he had learned a tape had been made of an
interview with Husband as well as a transcript of it
from R. Poole, Operations' Chairman of the
Department of Transport who caused it to be
prepared in order to confront the Chief Pilot of the
Airline with it. A further answer indicates that he
was aware that the real cause of the accident was
buried in the report (as defendant now contends)
but he denies that this was intentional. He admit
ted that pressure had been brought on him in the
investigation process in connection with the report
by the Company. He confirmed that there was
information that someone had heard two pilots
talking on the Company frequency on matters not
relating to the flight, one being Captain Husband.
Mr. Poole testified before the Commission that
there had been two interviews with Captain Hus
band the first one having been taped but that
subsequently word came through from the Com
pany that Husband really had not said what he
allegedly had, so a second interview was arranged
but this was not productive. The transcript of the
evidence of one Johnson, an agent of the Depart
ment of Transport before the Commission indi
cates that the Captains of 305 (Husband) and 314
had conversed on Company frequency about
Miles' knowledge of the stock market.
Mr. Poole had also testified that a meeting
between Doctor Dubé and Captain Revel had
taken place in Vancouver, and on a subsequent trip
with one Mackie, another employee of plaintiffs.
Since Dubé admits shredding evidence defendant's
counsel states that this justifies a conclusion that
this evidence had been made available to P.W.A.
No one in the Government ranks can give the
names of the other pilots who had allegedly heard
the conversation and there is also some indication
that attempts may have been made subsequently
by Husband to deny or change the evidence given
at his interview, which interview the Company had
agreed to. Certainly P.W.A. had been confronted
with his testimony.
As previously stated this transcript may well be
inadmissible at trial but in attempting to decide
whether defendant's motions should be granted it
is significant to note that much of the information
sought by defendant and not available to her
(although apparently due in part at least to
improper acts of some of her own servants in
destroying evidence) is within the knowledge of
plaintiff Pacific Western Airlines Ltd. and can be
provided by Captain Fransbergen unless plaintiffs'
claim for privilege is valid.
I turn now to the jurisprudence on this question.
I believe that the House of Lords case of Waugh
v. British Railways Board' is especially pertinent.
The headnote reads:
The court was faced with two competing principles, namely
that all relevant evidence should be made available for the
court and that communications between lawyer and client
should be allowed to remain confidential and privileged. In
reconciling those two principles the public interest was, on
balance, best served by rigidly confining within narrow limits
the privilege of lawfully withholding material or evidence rele
vant to litigation. Accordingly, a document was only to be
accorded privilege from production on the ground of legal
professional privilege if the dominant purpose for which it was
prepared was that of submitting it to a legal advisor for advice
and use in litigation. Since the purpose of preparing the inter
nal enquiry report for advice and use in anticipated litigation
was merely one of the purposes and not the dominant purpose
for which it was prepared, the board's claim of privilege failed
and the report would have to be disclosed.
' [19791 2 All E.R. 1169.
At page 1172 Lord Wilberforce stated:
... the affidavit makes it clear that the report was prepared for
a dual purpose: for what may be called railway operation and
safety purposes and for the purpose of obtaining legal advice in
anticipation of litigation, the first being more immediate than
the second, but both being described as of equal rank or weight.
So the question arises whether this is enough to support a claim
of privilege, or whether, in order to do so, the second purpose
must be the sole purpose, or the dominant or main purpose. If
either of the latter is correct, the claim of privilege in this case
must fail.
and again at page 1173:
It is clear that the due administration of justice strongly
requires disclosure and production of this report: it was contem
porary; it contained statements by witnesses on the spot; it
would be not merely relevant evidence but almost certainly the
best evidence as to the cause of the accident. If one accepts that
this important public interest can be overriden in order that the
defendant may properly prepare his case, how close must the
connection be between the preparation of the document and the
anticipation of litigation? On principle I would think that the
purpose of preparing for litigation ought to be either the sole
purpose or at least the dominant purpose of it; to carry the
protection further into cases where that purpose was secondary
or equal with another purpose would seem to be excessive, and
unnecessary in the interest of encouraging truthful revelation.
At the lowest such desirability of protection as might exist in
such cases is not strong enough to outweigh the need for all
relevant documents to be made available.
In the present case P.W.A. employees wore two
hats. They had a duty under the Aeronautics Act,
R.S.C. 1970, c. A-3 and Regulations to investigate
the accident and testify with respect to the result
of their investigation. While possibly the investiga
tors were not specifically designated to perform
these statutory duties their investigations were per
formed voluntarily. As Mr. Allen's affidavit points
out employees were instructed to cooperate with
officials of the Aircraft Investigation Branch of
the Department of Transport. In paragraph 3 he
goes on to say "At the same time the Plaintiff's
employees were directed to act as agents for the
purpose of gathering information in contemplation
of and in preparation for anticipated litigation".
Clearly they were working in two capacities, but
public interest of aviation safety must override any
tactical advantage to be derived from concealing
any information obtained in the course of their
investigation which might prove embarrassing for
P.W.A., their employers, and disclosing this only
to the Company solicitor. In the unreported case of
Churchill Falls (Labrador) Corporation Limited
v. The Queen Court No. T-1414-71, a judgment of
Gibson J., the issue was not solicitor and client
privilege but rather privilege claimed under section
41 of the Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10. It too involved the investigation of
an aircraft accident. The judgment concludes:
Having carefully considered this matter, in respect to the
Crown's claim of privilege pursuant to section 41 of the Federal
Court Act, I am of opinion that in the circumstances of this
case the public interest in the proper administration of justice
outweighs in importance the public interest specified in the
affidavit; and further that it is not a case for imposing any
restrictions on production and discovery.
In respect to this claim for privilege on the ground of
confidence, submitted to be enjoyed by every litigant, I am of
opinion that such a claim is not valid in this case.
I believe that the same principle should be applied
here.
Plaintiffs' counsel makes a distinction between
claiming privilege on facts surrounding the acci
dent and privilege on investigation made to deter
mine those facts. While conceding that plaintiffs'
knowledge of any facts pertinent to the accident
must be disclosed he contends that the details of
the extensive investigations made by plaintiffs in
preparation for litigation are privileged. He stated
that on the fourth day of the examination for
discovery of Captain Fransbergen all questions as
to facts which witnesses or other persons within
Fransbergen's knowledge knew relating to the
accident were answered and it is not proper to
question him as to assertions made in an accident
report. He conceded that if there are documents in
plaintiffs' possession which defendant seeks they
should be listed in its list of documents and privi
lege claimed with respect thereto, but said there
are no such documents. He contended that in the
Churchill Falls case (supra) the question was
whether statements taken from members of the
public and others were privileged or not. He does
not contend that there is any privilege on anything
learned by Captain Bentley as he was attending
the Commission in his capacity as an official of the
Canadian Air Line Pilots Association although he
is also a P.W.A. employee, but that the others who
attended were attending as employees and not
members of the investigating team as defendant
contends. He referred to the case of Champion
Packaging Corp. v. Triumph Packaging
Corporation 2 in the Federal Court of Appeal deal
ing with a motion to strike in which Heald J.
stated at pages 192-193:
... the propriety of any question on discovery must be deter
mined on the basis of its relevance to the facts pleaded in the
statement of claim as constituting the cause of action rather
than on its relevance to facts which the plaintiff proposes to
prove to establish the facts constituting its cause of action.
He also referred to a recent text Discovery in
Canada by C. E. Choate at page 91, paragraph
A328 to the effect that names of witnesses cannot
be inquired into nor how it is proposed to establish
a fact. Reference was also made to the case of
Ross (Executrix of Ross Estate) v. Scarlett 3 , an
Alberta case in which the headnote reads:
Notwithstanding the wide range of the questions permissible
under an examination for discovery, which is in the nature of
a cross-examination and appears to have as its only limita
tion, subject to certain exceptions, the questions in issue, the
evidence of a party, including the names of witnesses, unless
the names are necessary as part of the evidence relevant to
the issue, cannot be inquired into. The examining party is not
entitled to ascertain how the case against him is going to be
proved, he is merely entitled to know what the case is.
The unusual problem with which we are confront
ed here however is that defendant is not seeking
information to ascertain how the case against her
is going to be proved, but rather information in
plaintiffs' possession which she believes will help
prove her case against plaintiffs. Having read the
transcript of the portions of the evidence of Cap
tain Fransbergen for the purposes of these motions
which sets out in considerable detail the basis of
plaintiffs' objections to his answering further ques
t [1977] 1 F.C. 191.
3 [1946] 3 W.W.R. 533.
tions, and taking into consideration the further
arguments of the parties and jurisprudence sub
mitted I can now deal specifically with what is
sought in the motions. With respect to the motion
for further attendance by Captain Fransbergen to
answer further questions, I conclude as follows:
With respect to plaintiffs' paragraph (a) he may
be questioned as to the facts within the knowledge
of the employees, officers and servants of P.W.A.
in respect of the paragraphs on pages 25 and 32 of
the Department of Transport Aviation Safety
Investigation Division Accident Report as set out
in the motion since I consider the overriding prin
ciple of public interest necessitates such disclosure
in line with the finding of the Waugh case (supra).
Paragraph (b) seeks the names of the people
interviewed and when and where these interviews
took place during the period P.W.A. officials were
investigating the cause of the accident (whether or
not they can be considered as members of the
accident investigation team as the affidavit of Mr.
Haig indicates but plaintiffs' counsel disputes stat
ing they were investigating as employees and not
as members of the investigation team). What
information was obtained during such interviews is
only admissible to the extent that it deals with
facts referred to in the pleadings, lists of docu
ments, or, as I have extended it, disclosed during
the Commission inquiry. To go beyond this would
be a mere "fishing expedition" and not permissi
ble. Subject to this ruling the names of people
interviewed and where the interviews took place
should be disclosed.
With respect to paragraph (c) the question
whether any Pacific Western Airlines Ltd.
employee or any other person authorized by it
other than counsel has seen or had access to
Exhibits C and D of Mr. Haig's affidavit is a
simple one and should be answered. If the answer
is affirmative this may eventually lead to the
production of these Exhibits. The probative value
of them and especially of Exhibit D, the entirely
unofficial document "History of Flight" is of
course another matter, but it appears that, one
way or another, some of the facts therein will
eventually appear in evidence in any event.
With respect to paragraph (d) again we have
here the reference, to which plaintiffs' counsel
takes objection, to the statement that Pacific
Western Airlines Ltd. officials were members of
the "accident investigation team". Leaving aside
the question of semantics it is apparent that the
primary purpose of any investigation made by
them should have been to establish the cause of the
accident and that in no way can it be concluded
that the sole purpose of the investigation or even
the primary purpose was to gather information in
contemplation of and preparation for litigation.
The questions should be precise as to the nature of
the facts if any that have actually been obtained
relating to the accident, as otherwise this para
graph would merely constitute a "fishing expedi
tion" which is not permissible, as indicated in my
ruling on paragraph (b) (supra).
While the result of these findings may result in
the disclosure to defendant of certain names of
witnesses or information relating to facts which
plaintiffs may not wish to use, which is normally
an improper practice, it is in my view justifiable in
order to ensure that the Trial Judge will have
before him all pertinent information enabling him
to determine legal responsibility for the accident.
Turning now to the motion for reattendance of
Captain Bud Husband, substantially the same
argument is applicable but here there is an addi
tional argument that he was a second witness
being examined for discovery. Reference was made
to the case of Imperial Marine Industries Ltd. v.
Fireman's Fund Insurance Company [[1977] 1
F.C. 747] in which Mahoney J. ruling on an
application pursuant to Rule 465(19), after quot
ing the Rule 465(19) (which reads as follows):
Rule 465...
(19) The Court may, for special reason in an exceptional
case, in its discretion, order a further examination for discovery
after a party or assignor has been examined for discovery under
this Rule.
stated at pages 748-749:
That is strong language. The party seeking further examination
for discovery must establish that it does so for "special reason
in an exceptional case" before the Court is called upon to
exercise its discretion. It seems to me that one of the elements
of a "special reason" must be that the information sought is
clearly material to the issue before the Court. One "exceptional
case" is, I take it, the situation where the Court is satisfied that
the usual procedure of the individual being questioned inform
ing himself of matters not within his personal knowledge, would
not likely satisfy the ends of justice. I am not satisfied that this
is such an exceptional case nor, if it were, that the indicated
element of a "special reason" is present.
Plaintiffs' counsel suggests that Fransbergen can
be properly questioned as to whether he is aware
of the alleged conversation between Husband and
Miles on the Company radio frequency, and asked
to inform himself with respect to it; if he is not
aware of it then counsel concedes that Husband
could be called for this purpose. While it may be
that the necessary admission can be obtained from
Captain Fransbergen it appears to me that under
the special circumstances of this case Husband is
the proper person to be questioned with respect to
it as any information which Fransbergen can give,
having informed himself, would be hearsay on a
very important issue. I believe therefore that this is
"an exceptional case" within the meaning of Rule
465(19) and it is desirable that Captain Husband
be called for further examination to answer any
and all questions with respect to the conversation
that he had or overheard with Captain Miles on
the Company radio frequency on February 11,
1978, or any further questions arising therefrom
relevant to the issues raised in the pleadings.
Turning now to plaintiffs' motion for a further
affidavit of documents from defendant it is
conceded that (as a result of the searches conduct
ed by the R.C.M.P.) a number of documents have
come to light since the original affidavit of docu
ments was filed. As previously stated plaintiffs'
counsel has had access to these and it is my
understanding that a large number of them would
not be pertinent and it is certainly not desirable
that the Court record should be encumbered by
listing documents which will never be used by
either party. Defendant's counsel has agreed to
deliver a further and better affidavit of documents
pursuant to Rule 461 and an affidavit stating
whether or not the documents referred to in Exhib
it B of the affidavit of Donald Bruce Garrow are
or have been in the possession of the defendant,
and if not when defendant parted with them, and
what has become of them, in so far as it is possible
to do this. It was agreed that this list would be put
in by July 11, 1980, under reserve of defendant's
right to add to it later if required. Defendant's
counsel contends that the preparation of this list
will be assisted by the answers to some of the
questions. An order will therefore go to this effect.
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.