Federal Court Decisions

     T-1327-90

B E T W E E N:

     CHALMERS BALDWIN, Master and

     Owner of 40 foot fishing vessel,

     having License 1C1403

     Plaintiff,

AND:

The Fishing Vessel "Jennifer Martha"

and her owner Gary Ellis, her Charter

and all others interested in her

     Defendants

     REASONS FOR ORDER

NADON J.:

     The Defendants seek to obtain an order of this Court dismissing the Plaintiff"s statement of claim for want of prosecution. This motion is presented pursuant to Rule 440 of the Federal Court Rules.

     The Plaintiff"s action was commenced on May 11, 1990, and arises from a collision which occurred on May 15, 1989, between the Plaintiff"s ship the "Baldwin vessel" and the Defendants" ship the "Jennifer Martha". The Defendants filed their statement of defence on June 18, 1990 and since that time, the Court file has remained inactive. The Defendants referred me to the decision of Dubé J. of this Court in Nichols v. Canada (1990), 36 F.T.R. 77, where, relying on the English decision in Allen v. McAlpine & Sons Ltd. et al., [1968] 1 All E.R. 543 at 561 (C.A.), Mr. Justice Dubé stated at page 78:

The classic test to be applied in these matters is three fold: first, whether there has been an inordinate delay, secondly, is the delay inexcusable and thirdly, whether the defendants are likely to be seriously prejudiced by the delay.

     That test was approved by the Federal Court of Appeal in Aqua-Gem Investments Ltd. v. M.N.R., [1993] 1 C.T.C. 186 at 205.

     It is not disputed, nor could it be, that in the present circumstances there has been an inordinate delay and that the delay is inexcusable. Whether the Defendants" motion can succeed depends on whether they can satisfy me that they are likely to be prejudiced by the long delay which has occurred.

     The only evidence led by the Defendants with respect to prejudice is the affidavit of Robert Kapanen, a solicitor employed in the firm of solicitors retained by the Defendants. The relevant statements made by Mr. Kapanen are those which appear under paragraphs 5 through 9. They read as follows:

5.      THAT I am informed by the insurance agent, and do verily believe, that they have destroyed their files relating to this action (see Exhibit "A" attached).

6.      THAT I do verily believe, based upon experience with other marine insurance agent files, that the insurance agent"s file may have contained adjustment reports, marine surveys, statements of witnesses and photographs.

7.      THAT I do verily believe, based upon experience with other marine insurance agent files, that there may be serious prejudice to the Defendants in defending the action without the benefit of the insurance agent"s file.

8.      THAT I am informed by a letter from B.D. Thorne, Director of Investigation Branch of Transport Canada, dated June 29, 1990, and do verily believe that Transport Canada did not investigate and will not investigate the collision to which this action pertains because of the passage of time and the application of statutory time limitations (See Exhibit "B" attached).

9.      THAT I do verily believe, based upon experience with other marine related claims that there may be serious prejudice to the Defendants in defending the action without the benefit of Transport Canada"s investigative report.

     With respect to paragraphs 8 and 9 of Mr. Kapanen"s affidavit, I do not understand the purpose of this statement. The fact that Transport Canada did not investigate the collision between the Plaintiff"s and the Defendants" ships, is of no relevance.

     With respect to paragraphs 5, 6 and 7, they relate to the destruction of "the insurance agent"s" files relating to this action. The statement made by Mr. Kapanen is simply one whereby I am informed that "the insurance agent", presumably the Defendants" insurance agent, has destroyed his files. Whether the documents contained in those files were relevant to the subject litigation and whether copies of those documents could not be found elsewhere and particularly in the Defendants" solicitor"s files, is not discussed. Consequently, I cannot, on the basis of paragraphs 6 through 9 of Mr. Kapanen"s affidavit, conclude that it is likely that the Defendants will be prejudiced if the action continues.

     In their submissions to the Court in support of their application, the solicitors for the Defendants state at pages 6 and 7 of their letter of February 10, 1997:

The significant delay in prosecuting this action will give rise to a substantial risk that (i) it is not possible to have a fair trial of the issues in the action; or (ii) it is likely to cause or to have caused serious prejudice to the Defendants.

As stated above, both liability and quantum of damages are at issue. The evidence of witnesses, including the operators of each vessel, will be crucial to determining the following:

(i)      the movements of the two vessels;

(ii)      the actions of parties on both vessels prior to impact;

(iii)      potential distractions which may have affected either party;

(iv)      visibility of the other vessel;

(v)      speed and direction of the vessel;

(vi)      timing and sequence of events before impact;

(vii)      exact weather conditions;

(viii)      the preventative actions taken, if any, by either party to avoid collision;

(ix)      description of the impact;

(x)      damages to each vessel; and

(xi)      valuation of each vessel.

As established in Knight Maintenance, the Court"s finding of facts with respect to the above issues will depend heavily upon the testimony of witnesses who, if available at all at this stage, will likely have very hazy memories of the collision.

There is a very substantial risk that it will not be possible to have a fair trial, and there is a very substantial risk of serious prejudice to the Defendants, given that memories will have faded and it will be impossible to collect relevant physical or documentary evidence.

     I agree entirely with counsel for the Defendants that if the witnesses, by reason of the passage of time, cannot recall the events that have taken place, there is a likelihood of prejudice. However, counsel cannot simply make that assertion without offering evidence. It appears to me that counsel should have attempted to trace those persons who have personal knowledge of the events leading up to and including the collision. Having found those witnesses, counsel ought, in my respectful view, to have attempted to determine whether these witnesses could, at this late stage, give reliable evidence. If not, counsel could have simply stated, in an affidavit, the factual situation concerning these witnesses. However, there is no such evidence before me. In Patex Snowmobiles Ltd. v. Bombardier Limited et al. (1992), 48 F.T.R. 221, Mr. Justice Strayer (as he then was) concluded that the action before him had to be dismissed for want of prosecution. In dealing with the third part of the test, the element of prejudice, Mr. Justice Strayer stated, at 224:

I am also satisfied that the defendants will be seriously prejudiced by this delay. The defendants have demonstrated to my satisfaction that for them to have a reasonable opportunity to make out their defence they will have to prove events taking place prior to September, 1961. They have provided evidence on this motion which satisfies me that there is only limited documentary evidence covering the period in question and that they will have to rely to a large extent on viva voce evidence of fact-witnesses. Recent efforts by the defendants have indicated that among some fifty witnesses their counsel had interviewed up to 1979 in preparation of their case, four are now dead and some nineteen cannot be located and yet another will be unable to testify for health reasons. The main contention of the plaintiff in respect of this problem is that the defendants are making their case unnecessarily complicated and that they should rely on alternative devices such as an agreement narrowing the issues to the four questions identified by the plaintiff, proof primarily by documents, and the use of expert witnesses. The defendants do not accept this as a reasonable means of proceeding and in my view the plaintiff cannot force the defendants to conduct their case in a way convenient to the plaintiff: the defendants are entitled to attempt to make every reasonable defence and the court cannot require them to do otherwise.

     Thus, in Patex, the Defendants satisfied Strayer J. that four of the potential witnesses were dead, nineteen could not be located and one witness could not testify by reason of bad health.

     In Tremblay v. Canada et al. (1995), 82 F.T.R. 146, I had to decide on the facts before me, whether I should dismiss the Plaintiff"s action for want of prosecution. At 154 I summarized and dealt with the Defendants" argument that prejudice was likely to result because of the long delay. I stated:

The defendants further submit that it is likely that ordinary and expert witnesses will have great difficulty remembering the relevant facts. At the same time, apart from Dr. Gariépy the defendants gave no indication or information on such ordinary and expert witnesses. For example, counsel for the defendants did not indicate who such possible witnesses were and whether they had contacted or tried to contact them in order to determine whether the witnesses would in fact be able to recall the relevant facts pertaining to the quantum of damages. In other words, the defendants assumed that in view of the time which had elapsed it was inevitable that they would suffer prejudice if their motion to dismiss was not allowed.

     In conclusion, on the evidence before me, I cannot conclude that the Defendants will likely suffer prejudice because of the Plaintiff"s failure to prosecute his action in a diligent manner.

     For these reasons, the Defendants" application to dismiss the Plaintiff"s statement of claim is denied.

     Costs shall be in the cause.

     "MARC NADON"

     JUDGE

Ottawa, Ontario

March 19, 1997

     T-1327-90

Ottawa, Ontario, Wednesday, the 19th day of March, 1997

Present: The Honourable Mr. Justice Nadon

Between:

     CHALMERS BALDWIN, Master and

     Owner of 40 foot fishing vessel,

     having License 1C1403

     Plaintiff,

AND:

     The Fishing Vessel "Jennifer Martha"

     and her owner Gary Ellis, her Charter

     and all others interested in her

     Defendants

     ORDER

     The Defendants" application for an order dismissing the Plaintiff"s statement of claim is denied.

     "MARC NADON"

     Judge