[1996] 2 F.C. 751
A-201-94
Porto Seguro Companhia de Seguros Gerais (Appellant) (Plaintiff)
v.
Belcan S.A. and Fednav Limited and Ubem S.A. and the Owners and All Others Interested in the Ship Federal Danube and the Ship Federal Danube (Respondents) (Defendants)
A-202-94
Porto Seguro Companhia de Seguros Gerais (Appellant) (Plaintiff)
v.
Belcan S.A. and Fednav Limited and Ubem S.A. and the Owners and All Others Interested in the Ship Federal Danube and the Ship Federal Danube (Respondents) (Defendants)
A-461-94
Porto Seguro Companhia de Seguros Gerais (Plaintiff) (Appellant)
v.
Belcan S.A. and Fednav Limited and Ubem S.A. and the Owners of and All Others Interested in the Ship Federal Danube (Defendants) (Respondents)
Indexed as: Porto Seguro Companhia de Seguros Gerais v. Belcan S.A. (C.A.)
Court of Appeal, Pratte and MacGuigan JJ.A. and Chevalier D.J.—Montréal, February 1 and 2; Ottawa, March 29, 1996.
Maritime law — Practice — Rule in England, Admiralty Court Judges when sitting with assessors chosen from experienced seamen, members of Trinity House, shall not hear expert witnesses unless testifying on subjects outside assessors’ area of expertise i.e. navigation and seamanship — Federal Court Act, s. 2 defining —Canadian maritime law— as law administered by Exchequer Court on admiralty side — Admiralty Act providing Court to exercise maritime jurisdiction “in like manner” as English courts — To do so Exchequer Court applying same rules of evidence — Rules governing admissibility of expert evidence established in English maritime decisions part of Canadian maritime law — Egmont Towing & Sorting Ltd. v. Ship “Telendos”, holding English rule applies in Canada — Applying traditional rule endorsed by Parliament when maintained Canadian maritime law as existed in 1971 in effect (Federal Court Act, s. 42) — Trial Judge giving rule excessive scope in refusing to admit appellant’s expert witnesses’ reports as technical knowledge not required to understand arguments, but refusal not prejudicing appellant — Audi alteram partem principle of natural justice not breached — No reasonable apprehension of bias in that years ago assessors consultants to law firm representing party.
Maritime law — Torts — Appeal from trial judgment holding collision between Beograd, Federal Danube solely fault of Beograd — Beograd exiting lock in northeast direction — Federal Danube anchored to south of Beograd where strong northward current — Beograd turning east with engines on full power expecting to pass south of Federal Danube — Bow of Federal Danube striking rear port side of Beograd — Trial Judge holding pilot failing to consider effect of current, cause of Beograd’s movement toward Federal Danube; latter’s position not changing appreciably — Appeal dismissed — Evidence supporting Trial Judge’s estimation of Beograd’s speed, establishing pilot erred in believing channel obstructed by anchored ships — Federal Danube not at fault for commencing to raise anchor as no reason to think Beograd would not follow channel — No error in rejecting argument Federal Danube not keeping adequate watch nor in finding Federal Danube at anchor.
Judges and Courts — Stare decisis — Whether F.C.A. decision in Egmont Towing & Sorting Ltd. v. Ship “Telendos” can, should be overruled — Holding English judge-made rule relating to practice in admiralty matters applying in Canada — Merely applying traditional rule receiving legislative endorsement when Parliament continuing in effect law as existed in 1971.
Evidence — Trial Judge assisted by assessors refusing to admit appellant’s expert witnesses’ reports — Relying on F.C.A. decision incorporating English judge-made rule of practice into Canadian law — Appellant submitting Federal Court R. 482, Canada Evidence Act, s. 7 giving litigants right to call expert witnesses — Rules governing practice, procedure, not admissibility — Act only applies when expert evidence admissible.
These three appeals arose from an action by the insurer of the M.V. Beograd to recover amounts paid to its insured for damages to cargo which had occurred as a result of a collision with the Federal Danube, and for part of the costs incurred in the salvage of the damaged cargo.
As it left a St. Lawrence Seaway lock, in order to follow the channel, the Beograd headed northeast. The Federal Danube was anchored to the south of the channel at a point crossed by a fairly strong northward current. The pilot of the Beograd thought that the channel was partly obstructed by ships anchored further north so, without checking the accuracy of that impression, he decided, rather than following the channel, to turn to the east with engines on full power, intending to regain the channel after crossing the anchorage area where the Federal Danube was anchored. When the Beograd was 900 to 1,200 feet from the Federal Danube the pilot ordered an increased turn to the east, expecting to pass to the south of the Federal Danube. The Federal Danube had just commenced raising anchor when the pilot noticed that the Beograd was increasing its turn toward the east. The order was given to stop raising the anchor. When the Beograd continued to come dangerously close, the Captain ordered that the engines be changed to half speed astern. The accident occurred almost immediately afterwards. The bow of the Federal Danube struck the rear port side of the Beograd. The Trial Judge held that the Beograd in moving to the east had moved sideways toward the Federal Danube under the effect of the current, which the pilot had failed to consider. The position of the Federal Danube had not changed in any major way. A-461-94 was an appeal from the Trial Judge’s finding that the Beograd was solely responsible for the accident.
Two assessors, a ship’s captain and a naval architect, had been appointed to assist the Trial Judge before the trial began. A-201-94 was an appeal from the Trial Judge’s interim order refusing to recuse an assessor for a reasonable apprehension of bias. The appellant attacked the impartiality of the assessors because they had in the preceding 10 years acted as consultants or expert witnesses for the law firm representing the respondents and because one of the assessors, a naval architect, had worked more than fifteen years earlier for one of the respondent corporations.
A-202-94 was an appeal from the Trial Judge’s ruling precluding the appellant from introducing reports of two expert witnesses, a seaman and an engineer, unless that evidence was outside the scope of the assessors’ competence. There is a long line of authority in England that judges of the Admiralty Court, when sitting with one or more assessors chosen from among the experienced seamen who are members of Trinity House* shall refuse to hear expert witnesses unless they testify on subjects that do not fall within the assessors’ area of expertise, i.e. navigation and seamanship. The appellant submitted that Egmont Towing& Sorting Ltd. v. Ship “Telendos”, which held that the rule would continue to apply in Canada, should not be followed and that the rule it affirmed was unlawful and should be repudiated. It submitted that Rule 482 and Canada Evidence Act, section 7 implicitly give every litigant the right to call expert witnesses.
* (chartered in 1514, made up of retired officers of the mercantile marine, prominent politicians, and members of the royal family and having responsibilities relating to pilotage, lighthouses, beacon and sea marks)
The issues were whether the judgment should be set aside on the ground of the assessors’ bias, or because of the Judge’s refusal to hear the appellant’s experts in the assessors’ area of expertise as witnesses; and, whether the accident was attributable in part to the fault of the Federal Danube.
Held (MacGuigan J.A. dissenting), the appeals should be dismissed.
Per Pratte J.A.: Although the appeals in A-201-94 and A-202-94 were dismissed because the decisions were never issued in writing and could not be appealed, the grounds relied upon in support of those two appeals were also raised in support of the appeal against dismissal of the action. The Trial Judge did not err in not recusing the assessors as the facts presented did not justify a reasonable apprehension of bias.
Any right the appellant may have had to call expert witnesses could not be derived from either the Rules of the Court, which concern not the admissibility of evidence, but “practice and procedure”, or Canada Evidence Act , section 7.
The rule recognized in Telendos is a judge-made rule that forms part of Canadian maritime law. Federal Court Act section 2 defines “Canadian maritime law” as the “law that was administered by the Exchequer Court of Canada on its Admiralty side by virtue of the Admiralty Act”, or English maritime law, since the Admiralty Act provided that, subject to contrary provisions of the Act or of general rules and orders made to regulate practice and procedure, the Court was to exercise its jurisdiction in maritime cases “in like manner” as the High Court of Justice of England. Since neither the Act nor the rules contained any provision concerning the admissibility of evidence, the Exchequer Court had, in order to decide cases in like manner as the High Court of Justice of England, to apply the same rules of evidence as its English counterpart. The rules governing the admissibility of expert evidence established in English maritime decisions are accordingly part of Canadian maritime law which the Court has to apply in exercising its maritime jurisdiction. The Court, in Telendos, merely applied a traditional rule which received legislative endorsement when Parliament maintained Canadian maritime law as it existed in 1971 in effect. The rule enshrined in Telendos did not violate the audi alteram partem rule. It merely prohibited the introduction of evidence that would serve no useful purpose.
Natural justice requires a trial judge sitting with assessors neither to discuss with the parties the questions to be asked of the assessors nor to disclose to the parties the answers. The institution of assessors is of very long standing and has never worked in this way; in authorizing the Court to make use of assessors, Parliament implicitly authorized it to use the institution as it had always been used.
The Trial Judge gave the rule excessive scope. The traditional rule prohibits a judge who is assisted by assessors from hearing expert witnesses on questions within their experience, i.e. questions of navigation or seamanship. The assessor’s function is to inform the judge how a competent seaman would behave in the circumstances. The presence of seamen acting as assessors does not prevent the judge from hearing experts testify on subjects that do not relate to nautical skill, seamanship and the management of the ship. Where a judge sits with assessors who are not seamen, their presence does not prevent the judge from hearing expert witnesses, even in areas within the assessors’ expertise. It did not require any particular technical knowledge to understand the arguments and propositions in the expert’s affidavit. The Judge could have appreciated their merit, even without the assistance of the assessors. The refusal to hear the expert did not, however, cause any prejudice to the appellant and the impugned judgment would not have been different had the witness been heard.
As to fault, the Trial Judge did not err in estimating the speed of the Beograd. The Trial Judge was, on the evidence, justified in criticizing the pilot of the Beograd for leaving the channel. The Captain of the Federal Danube was not at fault in raising anchor, as the crew of the Federal Danube could not have guessed at that time that Beograd would not follow the channel. The Trial Judge did not err in rejecting the argument that the Federal Danube did not keep an adequate watch. Nor did she err in finding that the Federal Danube was at anchor, based on the evidence that at the time of the collision this ship was moored with 180 feet of chain in the water.
Per MacGuigan J.A. (dissenting): The principle of natural justice at stake was that the parties be given adequate opportunity to be heard (audi alteram partem). It is an elementary aspect of the right to a fair hearing that a party must be allowed to call witnesses. There is no warrant for excluding expert witnesses, if their evidence would be admissible on the basis of the normal criteria. Experts assist the triers of fact, but also enable parties to present their cases as effectively as possible. Parties have the right to present their case with witnesses that seem best to them, subject to the limitations of the Federal Court Act, the Rules and the laws of evidence. Act, subparagraph 46(1)(a)(ix) provides that the rules committee of the court may make general rules and orders governing the use of assessors. Rule 492 allows the Court to call in the aid of assessors. The English practice proscribing expert witnesses on matters pertaining to navigation and seamanship was simply a rule that grew up in the English courts. It was adjectival rather than substantive law. Federal Court Act, section 42 provides for legal continuity; it does not purport to transform English judge-made law into Canadian statutory law, but to incorporate it as if it were Canadian judge-made law. The English practice was therefore subject to judicial overruling.
Canada Evidence Act, section 7 does not limit the use of expert witnesses, except as to number. Rule 482 prescribes when expert evidence is admissible. By the combined effect of the rules power in paragraph 46(1)(a), which is said to be “for regulating the practice and procedure” in the Court, and the definition of “practice and procedure” in section 2, which includes evidence relating to matters of practice and procedure, the intention of the rule appears to be that expert evidence is impliedly admissible. Evidence relating to matters of procedure includes its admissibility.
Evidence from all three experts was precluded by the Trial Judge even though it is not clear that the evidence of the last two experts fell within the assessors’ field of expertise. Expert evidence is admissible whether outside or inside the assessors’ knowledge. The limitation on expert witnesses in admiralty law, where assessors are used stems from an English tradition based on the position of trust held by the Elder Brethren of Trinity House from whose ranks trial assessors are drawn. As there is no corresponding social institution in Canada, there is no reason for a corresponding rule of law excluding expert witnesses whose views might challenge those of those esteemed gentlemen. The common law must reflect the social fabric of the country and not perpetuate an institution whose social foundation never existed in Canada. An appellate court can overturn its own previous decisions where there are compelling reasons for doing so and where the change can be classed as incremental. The holding in Telendos was contrary to the Rules of the Court, the general principles of the law, and in particular to the natural justice rule that guarantees an opportunity to be heard. Telendos must be overruled.
Counsel for the parties should be allowed to make submissions as to the formulation of questions to the assessors, except with respect to purely informational matters, i.e. where a judge makes constant use of an assessor merely to understand the evidence. The answers too must be set out before the end of the hearing, so that the parties can make further representations if it seems to them fit to do so. That courts are authorized to call in the aid of assessors does not entitle them to do so in such a way that the parties’ rights to a hearing are circumscribed.
The final issue of natural justice had to do with the possibility of a reasonable apprehension of bias on the part of one of the assessors. The affiant’s consultations with various law firms did not imperil his disinterested status, if only because he has acted in the past for both the respondent’s and the appellant’s lawyers. The onus is on the appellant to establish by evidence a reasonable apprehension of bias. The evidence established only that a naval engineer had been a consultant some years earlier to a party to the lawsuit. There was no evidence as to the nature of the association. On such ambiguous evidence the appellant had not established its case and the Trial Judge’s holding on this point should not be disturbed.
Per Chevalier D.J.: English decisions concerning the admissibility of expert evidence continued to constitute authority in Canada, given Federal Court Act, sections 2 and 42, and in the circumstances there was no reason to re-examine the findings made in Telendos. Furthermore, it was necessary to make a clear distinction between expert evidence relating to seamanship and any other evidence that might benefit the case in an area that goes beyond navigation. Since the assessors were presumed, by the very fact of their appointment, to have qualifications, authority and independence equivalent to those of the members of the British Trinity House Brethren, it is logical to rely on their knowledge to provide the judge hearing a case with the appropriate tests to determine whether the conduct of sailors at the time of a loss met the tests required of an informed and careful navigator. If a judge decides not to admit such evidence he is merely exercising his discretion and his decision may not be attacked on appeal. Therefore the expert’s report dealing with seamanship was not relevant. As to the other report, after eliminating evidence which was not new, the summary of the testimony, judgment on seamanship, and duplication of evidence, nothing remained that might be of any use. The Trial Judge was justified in concluding as she did.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Admiralty Act, R.S.C. 1970, c. A-1, s. 18.
Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 7, 40.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2 “Canadian maritime law”, “practice and procedure”, 42, 46(1)(a )(ix), 52(b)(i), 53(2).
Federal Court Rules, C.R.C., c. 663, RR. 482 (as am. by SOR/90-846, s. 18), 492.
CASES JUDICIALLY CONSIDERED
APPLIED:
Egmont Towing & Sorting Ltd. v. Ship “Telendos” (1982), 43 N.R. 147 (F.C.A.).
DISTINGUISHED:
Antares Shipping Corp. v. The Capricorn, [1977] 2 F.C. 274 (1977), 17 N.R. 1 (C.A.); Oy Nokia Ab v. The Martha Russ, [1973] F.C. 394; (1973), 37 D.L.R. (3d) 597 (T.D.); Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643; (1985), 24 D.L.R. (4th) 44; [1986] 1 W.W.R. 577; 69 B.C.L.R. 255; 16 Admin. L.R. 233; 23 C.C.C. (3d) 118; 49 C.R. (3d) 35; 63 N.R. 353.
CONSIDERED:
Young v. Bristol Aeroplane Company, Limited, [1944] 1 K.B. 718 (C.A.); R. v. Salituro, [1991] 3 S.C.R. 654; (1991), 68 C.C.C. (3d) 289; 9 C.R. (4th) 324; 8 C.R.R. (2d) 173; 131 N.R. 161; 50 O.A.C. 125; R. v. B. (K.G.), [1993] 1 S.C.R. 740; (1993), 79 C.C.C. (3d) 257; 19 C.R. (4th) 1; 148 N.R. 241; 61 O.A.C. 1; R. v. Khan, [1990] 2 S.C.R. 531; (1990), 59 C.C.C. (3d) 92; 79 C.R. (3d) 1; 113 N.R. 53; 41 O.A.C. 353; Minister of Employment and Immigration v. Widmont, [1984] 2 F.C. 274 (1984), 56 N.R. 198 (C.A.); Algonquin Mercantile Corp. v. Dart Industries Canada Ltd., [1988] 2 F.C. 305 (1987), 17 C.I.P.R. 68; 16 C.P.R. (3d) 193; 79 N.R. 305 (C.A.); Owners of the Ship “Sun Diamond” v. The Ship “Erawan” et al. (1975), 55 D.L.R. (3d) 138 (F.C.T.D.); IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282; (1990), 68 D.L.R. (4th) 524; 42 Admin. L.R. 1; 90 CLLC 14,007; 38 O.A.C. 321; The Bremen (1931), 40 Ll. L. Rep. 177 (C.A.).
REFERRED TO:
Baxter Travenol Laboratories of Canada Ltd. et al. v. Cutter (Canada), Ltd., [1983] 2 S.C.R. 388; (1983), 2 D.L.R. (4th) 621; 1 C.I.P.R. 46; 36 C.P.C. 305; 75 C.P.R. (2d) 1; 50 N.R. 1; Saint John Shipbuilding & Dry Dock Co. Ltd. v. Kingsland Maritime Corp., [1979] 1 F.C. 523 (1978), 93 D.L.R. (3d) 91; 8 C.P.C. 251; 24 N.R. 377 (C.A.); Crabbe v. Minister of Transport, [1973] F.C. 1091 (C.A.); Farmer Construction Ltd. v. The Queen (1983), 83 DTC 5272; 48 N.R. 315 (F.C.A.); R. v. Mohan, [1994] 2 S.C.R. 9; (1994), 114 D.L.R. (4th) 419; 89 C.C.C. (3d) 402; 29 C.R. (4th) 243; 166 N.R. 245; 71 O.A.C. 241; R. v. Abbey, [1982] 2 S.C.R. 24; (1982), 138 D.L.R. (3d) 202; [1983] 1 W.W.R. 251; 39 B.C.L.R. 201; 68 C.C.C. (2d) 394; 29 C.R. (3d) 193; 43 N.R. 30; Fraser River Pile & Dredge Ltd. v. Empire Tug Boats Ltd. et al. (1995), 92 F.T.R. 26 (F.C.T.D.); Nord-Deutsche Versicherungs-Gesellschaft et al. v. The Queen et al., [1969] 1 Ex. C.R. 117; Misener Transportation Limited v. George N. Carleton (The), [1980] F.C.J. No. 404 (T.D.) (QL); MacMillan Bloedel Ltd. v. Pan Ocean Bulk Carrier Ltd., [1981] 2 F.C. 773 (1981), 121 D.L.R. (3d) 244 (T.D.); Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952; (1992), 90 D.L.R. (4th) 609; 3 Admin. L.R. (2d) 173; 136 N.R. 5; 147 Q.A.C. 169; Pfizer Co. Ltd. v. Deputy Minister of National Revenue, [1977] 1 S.C.R. 456; (1975), 68 D.L.R. (3d) 9; 24 C.P.R. (2d) 195; 6 N.R. 440; Stein et al. v. “Kathy K” et al. (The Ship), [1976] 2 S.C.R. 802; (1975), 62 D.L.R. (3d) 1; 6 N.R. 359; The Jay Gould, 19 F. 765 (E.D. Mich., 1884).
AUTHORS CITED
De Smith’s Judicial Review of Administrative Action, 4th ed. by J. M. Evans, London: Stevens & Sons Ltd., 1980.
Jackson’s Machinery of Justice, ed. by J. R. Spencer, Cambridge University Press, 1989.
MacGuigan, Mark R. “Precedent and Policy in the Supreme Court” (1967), 45 Can. Bar Rev. 627.
Parsons, Theophilus. A Treatise on the Law of Shipping and the Law and Practice of Admiralty, vol. II, Boston: Little, Brown and Company, 1869.
Practice Statement (Judicial Precedent), [1966] 1 W.L.R. 1234 (H.L.).
Wiswall, F. L. The Development of Admiralty Jurisdiction and Practice since 1800, Cambridge University Press, 1970.
APPEALS from trial judgment dismissing an action by the insurer of the M.V. Beograd for amounts paid to its insured for damages to cargo and for part of the costs incurred in the salvage of the cargo which was damaged as a result of a collision with the Federal Danube (Porto Seguro Companhia de Seguros Gerais v. Belcan S.A. et al. (1994), 82 F.T.R. 127 (F.C.T.D.)). Appeals dismissed.
COUNSEL:
Andrew J. Ness for appellant (plaintiff).
Richard Gaudreau for respondents (defendants).
SOLICITORS:
Sproule, Castonguay, Pollack, Montréal, for appellant (plaintiff).
Langlois Robert, Québec, for respondents (defendants).
The following is the English version of the reasons for judgment rendered by
Pratte J.A.: The appellant is a Brazilian insurance company which had insured the cargo of beans carried by the ship M.V. Beograd when she collided with another ship, the Federal Danube, on December 11, 1984. As a result of this accident, the appellant had to pay its insured and, on its insured’s behalf, those who had floated the Beograd and helped to save a part of its cargo sums totalling $4,400,861.84. Subrogated to the rights of its insured, it subsequently claimed this amount from the respondents, arguing that the Federal Danube was responsible for the accident. The Trial Division [(1994), 82 F.T.R. 127] dismissed this action on the ground that the accident was solely attributable to the fault of the Beograd. Appeal No. A-461-94 was brought against this judgment.
Appeals No. A-201-94 and A-202-94 were brought against two oral decisions rendered by the Trial Judge during the trial. By one of these decisions the Judge refused to recuse for bias the two assessors who had previously been appointed to assist her; by the other she refused to acknowledge the appellant’s right to call experts in the assessors’ areas of expertise as witnesses. These two decisions, which were never issued in writing, could clearly not be appealed[1] and, for this reason, both these appeals should be dismissed. It remains, however, that the grounds the appellant wished to rely on in support of these two appeals may be raised in support of the appeal it brought against the judgment dismissing its action. Before the responsibility of the two ships involved in this accident is considered, it must accordingly be determined whether, in any event, the impugned judgment should not be set aside on account of the assessors’ bias and also because of the Judge’s refusal to hear the appellant’s experts.
The first question is easily answered. The appellant attacked the impartiality of the assessors on two grounds: first, that they had in the preceding ten years acted as consultants or expert witnesses for the law firm representing the respondents; second, that one of the assessors, a naval architect, had done work more than fifteen years earlier for one of the respondent corporations. In my judgment, neither of these facts could justify a reasonable apprehension of bias on the part of either of the assessors. The Trial Judge accordingly did not err in not recusing them.
The second question concerning the refusal to hear the expert witnesses requires consideration at greater length.
Well before the trial, two assessors were appointed[2] at the respondents’ request to assist the Judge: one was a ship’s captain of long standing and the other a naval architect. Somewhat later, in order to comply with paragraph 482(1)(b) of the Federal Court Rules [C.R.C., c. 663],[3] counsel for the appellant filed affidavits signed by two experts whom they planned to call as witnesses: a seaman, Captain Mueller, and an engineer, Dr. Doust. It seems[4] that at the commencement of the trial one of appellant’s counsel indicated his intent to call these two experts. This apparently led the Judge to indicate that she would not hear any expert witnesses unless they were experts in areas that did not form part of the assessors’ expertise. The appellant was therefore prevented from calling Captain Mueller and Dr. Doust since the former was, like one of the assessors, an experienced seaman who planned to testify on questions relating to seamanship, while the latter intended to testify on matters that fell within the second assessor’s area of expertise.
The appellant acknowledges that there is a long line of authority in England to the effect that judges of the Admiralty Court, when sitting with one or more assessors chosen among experienced seamen who are members of Trinity House, refuse to hear expert witnesses unless they testify on subjects that do not fall within the area of expertise of these assessors, that is on subjects other than navigation and seamanship. The appellant also agrees that for a long time the same rule has been applied in maritime cases in Canada and that in 1982 this Court held in Telendos[5] that the rule should continue to apply. The appellant maintained, however, that this recent decision should not be followed and that the rule it affirmed was unlawful and should be repudiated. According to the appellant, Rule 482[6] and section 7 of the Canada Evidence Act[7] implicitly give every litigant the right to call expert witnesses and no statutory or regulatory provision authorizes the judge to apply a different rule in maritime cases when he or she is assisted by assessors. The appellant accordingly submitted that the Trial Judge acted unlawfully and violated the audi alteram partem rule in refusing to hear the appellant’s experts and that we should accordingly set aside her decision and order a new trial.
It must be noted first that any right the appellant may have had to call expert witnesses could not be derived from either the Rules of the Court, which do not concern the admissibility of evidence,[8] or section 7 of the Canada Evidence Act, which applies only to cases where expert evidence is admissible. Generally, the admissibility of evidence in the Federal Court is governed by section 40 of the Canada Evidence Act and subsection 53(2) of the Federal Court Act:
Canada Evidence Act
40. In all proceedings over which Parliament has legislative authority, the laws of evidence in force in the province in which those proceedings are taken … subject to this Act and other Acts of Parliament, apply to those proceedings.
Federal Court Act
53. …
(2) Evidence that would not otherwise be admissible shall be admissible, in the discretion of the Court and subject to any rule that may relate to the matter, if it would be admissible in a similar matter in a superior court of a province in accordance with the law in force in any province, notwithstanding that it is not admissible by virtue of section 40 of the Canada Evidence Act.
In light of these two provisions, one might be tempted to conclude that the appellant’s argument is correct since the law of Quebec (where this action was brought and where the trial was held) does not know any institution comparable to assessors and, for that reason, does not contain any rule comparable to that which we are considering. However, one should not stop there.
In my opinion, the rule recognized by the decision in Telendos is a judge-made rule that forms part of Canadian maritime law, which section 42 of the Federal Court Act[9] has maintained in effect and which section 2 of the Act defines as being the “law that was administered by the Exchequer Court of Canada on its Admiralty side by virtue of the Admiralty Act” (in French: “[d]roit … dont l’application relevait de la Cour de l’Échiquier du Canada, en sa qualité de juridiction de l’Amirauté”). It is well known that the law “administered by the Exchequer Court of Canada on its Admiralty side” was English maritime law, since the Admiralty Act [R.S.C. 1970, c. A-1] provided that, subject to contrary provisions of the Act or of general rules and orders made to regulate practice and procedure, the Court was to exercise its jurisdiction in maritime cases “in like manner” as the High Court of Justice of England. Since neither the Act nor the rules contained any provision concerning the admissibility of evidence, the Exchequer Court had, in order to decide cases in like manner as the High Court of Justice of England, to apply the same rules of evidence as its English counterpart. The rules governing the admissibility of expert evidence established in English maritime decisions are accordingly part of Canadian maritime law which the Court has to apply in exercising its maritime jurisdiction.[10]
Therefore, the decision in Telendos merely applied a traditional rule which received legislative endorsement when Parliament maintained Canadian maritime law as it existed in 1971 in effect. As a result, it matters little, in my judgment, that some people may doubt the wisdom of this rule or even see in it a violation of the audi alteram partem rule. On this latter point, after expressing my surprise that a rule that is so harshly criticized could be appreciated by informed observers,[11] I wish to make only two observations:
1. In my opinion, it is possible to prohibit the parties in a case from adducing evidence that is considered to serve no purpose, without violating the principles of natural justice. The rule enshrined in the decision in Telendos does nothing else. If this must be viewed as a breach of the audi alteram partem rule, the same would have to be said of the common law rule which excludes the possibility of expert evidence when such evidence is not necessary.[12]
2. I do not understand how it can be said that natural justice requires a trial judge sitting with assessors to discuss with the parties the questions he or she intends to ask the assessors and subsequently to disclose to the parties the answers he or she was given by the assessors. The institution of assessors is of very long standing and has never worked in this way; in authorizing the Court to make use of them, Parliament implicitly authorized it to use the institution as it had always been used. Moreover, if natural justice imposed such requirements, it would also be necessary to impose an obligation on all specialized administrative tribunals to disclose to the parties the opinions given to these tribunals by the specialists responsible for assisting them in the performance of their duties. That is an argument that the courts have never accepted.
The appellant further maintained that even if the decision in Telendos were correct, the Trial Judge erred in giving the rule with which we are concerned an excessive scope. On this point, the appellant is correct. The authors and case law referred to by Thurlow C.J. in Telendos confirm that the traditional rule simply prohibits a judge who is assisted by seamen acting as assessors from hearing expert witnesses on questions within their experience, that is questions of navigation or seamanship. In other words, in order to decide a maritime dispute, a judge must know how, in the circumstances revealed by the evidence, a competent seaman would have behaved; on this subject it is the assessor alone who has to inform the judge. This means that the presence of seamen acting as assessors does not prevent the judge from hearing experts testify on subjects that do not relate to nautical skill, seamanship and the management of the ship. This also means that in a case where a judge sits with assessors who are not seamen, their presence does not prevent the judge from hearing expert witnesses, even in areas within the assessors’ expertise. It is true that for the last twenty years or so, the judges of the Trial Division have appeared to extend the scope of the traditional rule, and this no doubt explains the attitude of the Trial Judge in this case. I believe, however, that this extension, logical though it may appear, is not justified.
Does it follow that the impugned judgment must, for this reason alone, be quashed? I do not believe so. The decision of the Supreme Court in Cardinal et al. v. Director of Kent Institution[13] does not apply in a case such as this, where we know the essence of the evidence that was unlawfully excluded by the Judge and where we have before us not an application for judicial review but an appeal that we are authorized by law[14] to decide, in the event that the Trial Judge has erred, by rendering the judgment that the Trial Judge should have rendered. In the instant case, it is sufficient to read the affidavit signed by Dr. Doust, the expert the Judge should have heard, to confirm that in order to be understood, the arguments it contains and the propositions it makes do not require any particular technical knowledge. These propositions and arguments could be stated and developed by counsel for the appellant in argument and I am sure that the Judge could appreciate their merit, even without the assistance of her assessors. In my opinion, the refusal to hear Dr. Doust did not cause any prejudice to the appellant and I cannot imagine that the impugned judgment would have been different if this witness had been heard.
I come now to the appellant’s other grounds of appeal to the effect that, according to the evidence adduced at trial, the Judge should have found that the accident was attributable in part to the fault of the Federal Danube. In order to understand the various arguments raised in support of this claim, we must briefly recall the circumstances of the accident.
The collision occurred shortly after 9:00 p.m. on December 11, 1984 on Lake Saint-Louis upstream from Montréal, near the spot where St. Lawrence Seaway Lock No. 3 (which is on a north-south axis) joins the south shore of Lake Saint-Louis. It was dark but visibility was good and there was no wind to speak of.
The Beograd, a cargo ship almost 600 feet in length, was commanded on that day by Captain Janicic and had a pilot, Mr. Daneau, on board. Coming from the Great Lakes, she was approaching the exit of Lock No. 3. She was accordingly heading north. As she left the lock, in order to follow the channel she had to edge to the northeast, to starboard. At this point the channel is fairly wide and on each side, north and south, there is an anchorage. That evening several ships had cast anchor there, waiting to enter the lock that the Beograd had just left. Among them was the Federal Danube, a cargo ship over 700 feet in length and under the command of Captain Derenne; she also had a pilot on board. She had arrived there in the late afternoon and had cast anchor (with three shackles, that is 270 feet of chain) to the south of the channel at a point crossed by a fairly strong northward current from the waters of the Beauharnois River, which flows into Lake Saint-Louis immediately to the east of Lock No. 3.
At 9:40 p.m., the Beograd had just left the lock. Her pilot had been warned that the Federal Danube was there and would soon be heading for the lock. The pilot noticed the ships at anchor and recognized the Federal Danube, with which he was familiar and which, at that point, was showing the regulatory lights indicating that she was at anchor. It seemed to him then that the channel was partly obstructed by the ships anchored further to the north. Without doing anything to check the accuracy of this impression, he decided, rather than following the channel, to turn to starboard, to the east, in order to regain the channel after crossing the anchorage area where the Federal Danube was anchored. This was an unusual manœvre that the pilot, despite his long experience, had never attempted. He accordingly ordered that the ship turn to starboard and that the engines be on full power. Five minutes later, at 9:45 p.m., when the Beograd was three or four cables’ length (900 to 1,200 feet) from the Federal Danube, the pilot ordered an increased turn to starboard. He expected to pass some six hundred feet to the south of the Federal Danube. A few minutes later, he noticed that the Federal Danube seemed to be approaching the Beograd by pivoting on itself and could not prevent the bow of the Federal Danube from striking the stern of his ship on the port side.
When the Beograd was leaving the lock at 9:40 p.m., the Captain of the Federal Danube had just received authorization to leave his anchorage and gave the order to raise the anchor. It was the anchor on the port side that was in the water and its chain was at an angle of 90o to the axis of the ship. At 9:45 p.m., it was noticed that the Beograd was increasing its turn toward the east and it accordingly seemed that, instead of taking the channel behind the Federal Danube, she would pass in front, crossing the anchorage. The Captain gave the order to stop raising the anchor. At that point one shackle of chain had been drawn in so that 2 shackles (180 feet) remained in the water. Seeing that the Beograd was continuing to come dangerously close, the Captain ordered that the engines be changed to half speed astern. The accident occurred almost immediately afterwards.
It is not necessary to be an expert to find that, if the bow of the Federal Danube, which was facing south, came into contact with the rear port side of the Beograd when it was heading northeast, crossing the anchorage in front of the Federal Danube, this necessarily resulted from the fact that the two ships had been closing on each other from the moment when the front part of the Beograd was able to pass without hindrance in front of the Federal Danube to the time of the collision. There could have been three causes of this closing of the two ships on each other: in moving to the east, the Beograd had moved sideways toward the Federal Danube under the effect of the Beauharnois River current, or the Federal Danube had moved toward the south, or this ship, because of the movement it had made in raising its port anchor, had pivoted on itself so that its bow had come closer to the Beograd just as the short hand of a watch approaches the figure twelve when it is turned back from two o’clock to noon.
Of these various hypotheses the Trial Judge opted for the first. The evidence clearly showed that while the Federal Danube was, like any ship at anchor, able to move around its own anchorage, her position did not change in any major way. On the other hand, the evidence showed no less clearly that, in making his unusual manœuvre, the pilot of the Beograd had not taken into account the current from the Beauharnois River, which had certainly pushed his ship against the Federal Danube.
The Trial Judge accordingly found that the Beograd was completely responsible. The appellant now appeals on six grounds, maintaining that, if the pilot of the Beograd was at fault, the Federal Danube must also assume a share of the responsibility.
The appellant stated first that the Judge erred in estimating the speed of the Beograd at the time of the accident at 10 knots. It said that the evidence did not permit an assertion that this speed was in excess of 8 knots. There is no basis for this argument. In his testimony, the pilot of the Beograd estimated his ship’s speed at 11 knots.
The appellant said later that the Judge should not have criticized the pilot of the Beograd for leaving the channel since the evidence did not establish that this pilot was wrong to believe that the channel was obstructed by the ships anchored close by. There is no more basis for this argument than for the first. The pilot of the Beograd believed that the channel was obstructed; he did not do anything to check whether this was true. On the other hand, at least one witness stated that the ships that were, according to the pilot, supposedly obstructing the passage were anchored to the north of the channel. Combined with the fact that no one else had noticed the unusual and dangerous situation to which the pilot referred, this certainly justified the Judge in making the finding challenged by the appellant.
The appellant also argued that the Judge should have found that the captain of the Federal Danube had committed a fault in ordering the anchor raised when he knew that the Beograd had just left the lock and would pass close by. The answer to this argument is that the evidence does not show that the crew of the Federal Danube could have guessed at that time that the Beograd would not follow the channel. The Captain of the Federal Danube could accordingly assume when he gave the order to raise the anchor that the Beograd would pass at a point where this manœuvre was not likely to harm her.
The appellant argued as its fourth ground that the Federal Danube erred in not keeping an adequate watch that would have allowed her to take the necessary action in a timely manner to avoid the accident. This argument was raised by the appellant at trial. In rejecting it, the Judge did not, in my opinion, err in a way that would justify our intervention.
The appellant also argued that the Judge erred in finding that the Federal Danube was at anchor at the time of the accident. It is hard to see how the Judge could have concluded otherwise since the evidence showed, on the one hand, that there were sixty feet of water at the point where the ship had been moored since the early afternoon and, on the other hand, that its anchor had always remained in the water with at least 180 feet of chain.
Finally, the appellant complained that the Trial Judge had not taken into account the fact that counsel for the Federal Danube had not called the pilot of this ship to testify, although he was present in the court room. This was an indication, according to the appellant, that if this pilot had testified, he would not have corroborated the testimony of Captain Derenne, who was commanding the Federal Danube and whose testimony was accepted without reservation by the Judge. By merely stating this argument, one sees its futility.
I would dismiss the appeal with costs.
* * *
The following are the reasons for judgment rendered in English by
MacGuigan J.A. (dissenting): These three appeals, which were heard together and argued in both official languages, arise out of a claim for damages to cargo from a collision between the vessel Beograd, which was carrying a shipment of pinto beans, and the vessel Federal Danube. The appellant, who is the insurer of the cargo, seeks to recover from the respondents, who are owners or parties otherwise interested in the Federal Danube, part of the indemnity it paid to the cargo owners as well as part of the costs incurred in the salvage of the damaged cargo.
The Trial Judge, in a judgment delivered on 19 August 1994 found that the collision was brought about solely by the negligence of the Beograd and so dismissed the action with costs. In A-461-94 the appellant seeks to vary the judgment of the Trial Division so as to apportion liability for the collision in proportion to the degree in which each vessel was at fault. In oral argument the appellant suggested the Federal Danube was 25%-30% responsible.
In both A-201-94 and A-202-94 the appellant seeks to be allowed to put forward expert evidence. A-201-94 appeals from an interim order of the Trial Judge refusing to recuse one assessor for a reasonable apprehension of bias on his part, and A-202-94 appeals from another ruling precluding the appellant from introducing reports of its two expert witnesses and from having these witnesses testifying viva voce at trial. A-461-94 is a general appeal against the judgment.
A-201-94 and A-202-94 raise fundamental questions of natural justice. Even though the Trial Judge’s interlocutory rulings in these matters can no longer be appealed as such and the appeals must accordingly be dismissed, the final judgment is subject to reversal if the proceedings violated the appellant’s right to natural justice.
The Trial Judge ruled on the bench (without written decision or reasons) that expert evidence would not be admissible unless that evidence was outside the scope of the assessors’ competence. Although the Trial Judge did not give reasons, the distinction made between evidence inside and outside the assessors’ competence is a clear indication that she was doing no more than following the practice and the law as approved by this Court in Egmont Towing & Sorting Ltd v. Ship “Telendos” (1982), 43 N.R. 147. However, our duty, as a court of review, is not to take comfort in the status quo but to explore and express the exigencies of natural justice.
In Telendos Chief Justice Thurlow said for the Court (at pages 164-165):
The practice of hearing cases in Admiralty with nautical assessors is an ancient one. It has varied and changed in the course of its history. In modern times the practice of the judge summing up the case in court and taking the opinion of the assessors has been discontinued (See Roscoe’s Admiralty Practice (5th Ed.), p. 4) in favour of having the assessors advise the court in private. Sometimes a trial judge will state in his reasons for judgment the advice he has received on a particular point or points. But that will not necessarily include all the advice he has received. At the appellate level the practice of setting out in the reasons for judgment the questions asked and the answers received has become prevalent.
The Trial Judge in Telendos had ruled that “when the court is assisted by nautical assessors, whose duty it is to advise on matter of nautical skills and knowledge, the evidence of witnesses tendered for expert testimony on those very matters is not to be received” (at page 155). Accordingly, the Trial Court refused to admit the expert evidence of a witness whose expertise was “not outside the knowledge of the tug assessors which have been appointed” (at page 153).
On that Thurlow C.J. had this to say (at pages 156 and 165-166):
A long line of jurisprudence both in England and in Canada has established that in Admiralty when the judge has the assistance of nautical assessors, expert evidence on matters of navigation and seamanship is not admissible.
…
The system of trying Admiralty cases with the assistance of nautical assessors is not followed in the United States. It was held to be improper in 1855 by the Supreme Court. Wiswall, The Development of Admiralty Jurisdiction and Practice since 1800, p. 18.[15] In Canada, however, its continuance is authorized by statute and the tendency seems to have been to extend rather than to restrict or abolish it. As was pointed out by Noel, J., in the Nord-Deutsche case [[1969] 1 Ex. C.R. 117], the system has advantages and disadvantages. Its great advantage is that the court can obtain such assistance as it needs on nautical matters without the necessity of hearing long and conflicting and often unpersuasive opinion evidence on such matters. Moreover, the court can obtain such assistance from assessors right up to the time when judgment is pronounced. But the system has manifest disadvantages from the point of view of parties. They do not know before judgment, if they know even then, what advice has been given to the court and they have had no opportunity to cross-examine on it or to contradict it. From the point of view of the court, as well, the system has the disadvantage that arises from the lack of testing of the advice by cross-examination.
These features of the system may indicate that the system itself is anomalous and capable of being unfair. If so, that may be a matter for the legislature or perhaps for consideration and review at the highest judicial level if and when an appropriate case for such a review arises. But, as it seems to me, whatever its faults, the system will not be improved by departing from the rule that expert evidence is not admissible on matters within the expertise of the assessors. The admission of such evidence will not eliminate the disadvantages to which I have referred but, on the contrary, will add the further disadvantage that the court will have advice (which may be conflicting) some of which has been given in open court and tested by cross-examination and which has thus become part of the record and the rest of which has been given privately and has not been subjected to cross-examination and which may or may not appear in the record.[16] A system of having both, as it seems to me, has all the disadvantages of both and, save in the comparatively rare situation wherein experts and assessors all agree, will, as Dr. Lushington pointed out in the Gazette supra [2 Notes of Cases 41], “lead to confusion and uncertainty rather than to any satisfactory determination”.
I do not think therefore that the appellant’s submission should succeed. If the system of having assessors is not appropriate for the trial of a case or if a trial on expert evidence is to be preferred to a trial with assessors, it seems to me that the system to be used should be resolved once and for all, in favour of the one system or the other, but not both, when the application for the appointment of assessors is made. In times past the appointment of assessors in collision cases has been, as I understand it, pretty much a matter of course. Where both sides agree there is obviously no problem to resolve. But where they do not agree, where a party objects to trial with assessors and can show reason for his position, the judge hearing the application has discretion under the rule to refuse the application.
On this holding that, where a court is assisted by nautical assessors for the purpose of gaining advice on matters of nautical skills and knowledge, expert evidence on those matters is inadmissible, and as well as on its apparent acceptance of the status quo in admiralty practice, in my opinion four issues arise: (I) Is it open to this Court to reverse a previous decision? (II) Is it acceptable in the light of natural justice that expert witnesses cannot be heard when a court is making use of assessors? (III) What does natural justice require must be revealed to the parties of the assessors’ input into a case? (IV) Were the exigencies of natural justice fulfilled when the Trial Judge found that the particular assessors in the case at bar were not tainted by the appearance of bias?
The strictest application of the principle of stare decisis for a court of appeal is found in the decision of the English Court of Appeal in Young v. Bristol Aeroplane Company, Limited, [1944] 1 K.B. 718, at pages 729-730. Lord Greene M.R. there said for the Court:
On a careful examination of the whole matter we have come to the clear conclusion that this court is bound to follow previous decisions of its own as well as those of courts of co-ordinate jurisdiction. The only exceptions to this rule (two of them apparent only) are those already mentioned which for convenience we here summarize: (1.) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow. (2.) The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords. (3.) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam.
Earlier the Court described a per incuriam decision as one “given in ignorance of the terms of a statute or a rule having the force of a statute” (emphasis added).
Even on this narrow basis I believe that Telendos could be reversed if that result were dictated by natural justice, since there is in the whole decision no reference to natural justice, the rules of which can be regarded as so fundamental as to have the force of a statute. Clearly, natural justice was not argued or considered in Telendos. Moreover, the decision also fails to take account of Rule 482, as I shall later develop.
But in fact, the principle of stare decisis no longer possesses the inflexibility of Young in 1944. In its famous Practice Statement (Judicial Precedent) by Lord Gardiner as Lord Chancellor in 1966, the House of Lords declared itself free “to depart from a previous decision when it appears right to do so.”[17]
The same position has been taken by the Supreme Court of Canada. This was clearly stated by Iacobucci J. in R. v. Salituro, [1991] 3 S.C.R. 654, at pages 665-666, for the Court:
At one time, it was accepted that it was the rule of judges to discover the common law, not to change it. In Book One of his Commentaries on the Laws of England (4th ed. 1770), Sir William Blackstone propounded a view of the common law as fixed and unchanging ….
…
However, Blackstone’s static model of the common law has gradually been supplanted by a more dynamic view. This Court is now willing, where there are compelling reasons for doing so, to overturn its own previous decisions…. I note that similar developments have occurred in England.
…
The High Court of Australia has adopted a similarly flexible approach to the common law in the wake of the abolition of appeals to the Privy Council in 1975….
It must not be supposed that the Supreme Court is speaking for itself alone. Iacobucci J. further stated that “while complex changes to the law with uncertain ramifications should be left to the legislature, the courts can and should make incremental changes to the common law to bring legal rules into step with a changing society” (at page 666). Again, he reiterated (at page 670):
Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared.
The reference to “courts” in the plural makes it clear that the Supreme Court is not limiting the judicial power to make incremental changes in the common law to reflect changing social circumstances to itself alone, as does the reference to “judges”. Other courts and judges share the same powers and obligations.
Chief Justice Lamer echoed the same theme in R. v. B. (K.G.), [1993] 1 S.C.R. 740, and emphasized that a purely judge-made rule lends itself to judicial reform.[18] He also pointed out that the incrementality of a change must be measured not in the context of the rule on its own but in relation to the larger context of the rule. Hence the Court revoked the orthodox rule as to prior inconsistent statements by a witness other than an accused and replaced it with a new rule. The Court had acted on a similar understanding of its powers in R. v. Khan, [1990] 2 S.C.R. 531, where it also reinterpreted judicial policy as to the admissibility of hearsay evidence.
The contemporary rule must therefore be considered to be that an appellate court can overturn its own previous decisions where there are compelling reasons for doing so and where the change can be classed as incremental. The reasons for the majority of this Court in Minister of Employment and Immigration v. Widmont, [1984] 2 F.C. 274(C.A.), must thus be considered as superseded to the extent necessary by the later adumbration of the law by the Supreme Court. The final result was anticipated by this Court in Algonquin Mercantile Corp. v. Dart Industries Canada Ltd., [1988] 2 F.C. 305 at page 318, where we said per curiam that “we see no reason why this Court must await a similar legislative initiative at the federal level to put an end to a judge-made limitation on the awarding of interest which is clearly no longer seen to be good public policy”.
II
The next question is whether natural justice requires that expert witnesses called by the parties be heard where nautical assessors are also used.
Our law recognizes two principles of natural justice: (1) that the parties be given adequate notice and opportunity to be heard (audi alteram partem) and (2) that an adjudicator be disinterested and unbiased (nemo judex in causa sua). It is the first principle which is at stake in the case at bar. De Smith’s Judicial Review of Administrative Action (4th ed. by J. M. Evans, 1980) writes of this principle (at page 212):
One who is entitled to be heard orally … must be allowed an adequate opportunity of putting his own case…. His right to be heard must not be stultified by constant interruptions. If his interests are materially in jeopardy, he must be allowed to call witnesses, and it may be a breach of the rules of natural justice for a tribunal to refuse to allow a party to call his witnesses in the order that he thinks best, if there is a real possibility of prejudice to the effective presentation of the case. [Emphasis added].
It is an elementary aspect of the right to a hearing that a party must be allowed to call witnesses. There is no warrant for excluding expert witnesses, if the evidence to be given by them would be admissible on the basis of the normal criteria.[19] Experts are not of value to the trial process only because they assist the triers of fact, but also because they enable parties to present their cases as effectively as possible. Parties have the right to present their case with witnesses that seem best to them, subject to the limitations of the Federal Court Act, R.S.C., 1985, c. F-7 (Act) and Rules and the law of evidence.
The Act provides in subparagraph 46(1)(a)(ix) that the rules committee of the Court may make general rules and orders “governing the appointment of assessors and the trying or hearing of a cause or other matter wholly or partly with the assistance of assessors”. Rule 492 accordingly allows the Court, if it thinks it expedient to do so, or on the application of a party, to call in the aid of one of more assessors.
It is true that the Admiralty Act, R.S.C. 1970, c. A-1, section 18, provided that the jurisdiction of the then Exchequer Court shall “be over the like places, persons, matters and things as the Admiralty jurisdiction now possessed by the High Court of Justice in England, whether existing by virtue of any statute or otherwise, and be exercised by the Court in like manner and to as full an extent as by such High Court”. In turn, section 42 of the present Federal Court Act provides:
42. Canadian maritime law as it was immediately before June 1, 1971 continues subject to such changes therein as may be made by this Act or any other Act of Parliament.
The definition section (section 2) stipulates that:
2. …
“Canadian maritime law” means the law that was administered by the Exchequer Court of Canada on its Admiralty side by virtue of the Admiralty Act, chapter A-1 of the Revised Statutes of Canada, 1970….
This provision was interpreted by Collier J. in Oy Nokia Ab v. The Martha Russ, [1973] F.C. 394 (T.D.), at pages 401-402:
In my opinion, the law administered by the Exchequer Court on its Admiralty side means the substantive law found in the Admiralty Act and other statutes, including English statutes, whereby jurisdiction over various types of claims was set out. The Admiralty Rules were not, in my view, substantive law administered by the Exchequer Court, but adjective law, a code of procedure to regulate the mode in which successive steps in Admiralty litigation were taken, and therefore do not fall within the meaning of Canadian maritime law.
This rule was approved by this Court in Antares Shipping Corp. v. The Capricorn, [1977] 2 F.C. 274(C.A.), at pages 277-278, where Le Dain J.A. wrote for the Court:
Neither the Federal Court Act nor the Federal Court Rules contain a provision making the English Rules of practice applicable to matters not otherwise provided for…. “Canadian maritime law”, as defined by the Act, would not appear to contemplate matters of practice and procedure provided for by Rules and orders.
Of course, as I understand it, the English practice proscribing expert witnesses on matters pertaining to navigation and seamanship where assessors are used, is not provided for by an English rule or order, but is simply a rule of jurisprudence that has grown up in the English courts. Nevertheless, it is adjectival rather than substantive law. Moreover, as judge-made law the English rule can have no greater status than the rule in Telendos itself. Section 42 of the Act provides merely for legal continuity. It does not purport to transform English judge-made law into Canadian statutory law, but to incorporate it as if it were Canadian judge-made law. It is therefore subject to subsequent judicial overruling.
There is no provision in section 7 of the Canada Evidence Act, R.S.C., 1985, c. C-5, limiting the use of expert witnesses except as to number:
7. Where, in any trial or other proceeding, criminal or civil, it is intended by the prosecution or the defence, or by any party, to examine as witnesses professional or other experts entitled according to the law or practice to give opinion evidence, not more than five of such witnesses may be called on either side without the leave of the court or judge or person presiding.
Rule 482 [as am. by SOR/90-846, s. 18] of the Federal Court Rules as to the evidence in chief of an expert witness reads in part as follows:[20]
Rule 482. (1) No evidence in chief of an expert witness shall be received at the trial (unless the Court otherwise orders in a particular case) in respect of any issue unless
(a) that issue has been defined by the pleadings or by agreement of the parties filed under Rule 485;
…
(b) an affidavit setting out the proposed evidence has been filed and a copy of it served on all other parties at least 30 days before the commencement of the trial; and
(c) the expert witness is available at the trial for cross-examination.
(2) Subject to compliance with paragraph (1), evidence in chief of an expert witness may be tendered at the trial by
(a) the reading of the whole of the affidavit referred to in paragraph (1), or such part thereof as the party decides to use at the trial, into evidence by the witness (unless the Court, with the consent of all parties, permits it to be taken as read); and
(b) if the party so elects, verbal testimony by the witness
(i) explaining or demonstrating what is in the affidavit or the part thereof that has been so put into evidence, as the case may be, and
(ii) otherwise, by special leave of the Court subject to such terms if any as seem just.
The clear implication of this Rule is that, if the proper procedure is followed (and the proper criteria met), expert evidence may be presented during a trial, including verbal testimony by the expert if the party so elects, i.e., it is impliedly admissible. This appears, by the combined effect of the rules power in paragraph 46(1)(a) of the Act, which is said to be “for regulating the practice and procedure” in the Court, and the definition of “practice and procedure” in section 2 to include evidence relating to matters of practice and procedure, to be the intention of the rule. Evidence relating to matters of procedure for me includes its admissibility.
Three expert reports had been filed by the appellant: a report prepared by Capt. Klaus A. Mueller, dealing generally with issues of navigation of the respective ships and seamanship (Appeal Book I, at pages 101-119); a report by Dr. David J. Doust of Central Design & Drafting Ltd., dealing generally with issues of hydrodynamics including the effects of the currents and other forces exerted on the ships at the relevant times, marine engineering (bow thruster) and speed of the respective vessels—it was conceded that the parts of that report dealing generally with issues of seamanship should not be part of the evidence before the Court (Appeal Book I, at pages 120-156); a report prepared by Mario J. Rossi of the Salvage Association, dealing specifically with issues of angle of blow or impact and speed of the respective vessels at the relevant time (Appeal Book V, pages 889-901). Evidence from all three experts was precluded by the Trial Judge, even though it is not clear that the evidence of the last two experts fell within the assessors’ field of expertise. But on the view I take of the case expert evidence is admissible whether outside or inside the assessors’ knowledge.
The limitation on expert witnesses, in admiralty law alone, where assessors are used stems purely from an English tradition based on the apparently peculiar position of trust held by the Elder Brethren of Trinity House from whose ranks trial assessors are drawn. There being no corresponding social institution as the Elder Brethren in Canada, there is no reason for a corresponding rule of law excluding expert witnesses whose views might challenge those of those esteemed gentlemen. The common law must reflect the social fabric of the country and not perpetuate an institution “whose social foundation has long since disappeared,” indeed never existed in Canada.
Moreover, Chief Justice Thurlow followed the English exception to the general law even though a number of respected trial judges whose views he cited had held to the contrary: Nord-Deutsche Versicherungs-Gesellschaft et al. v. The Queen et al., [1969] 1 Ex. C.R. 117 (Noël J., as he then was); Owners of The Ship “Sun Diamond” v. The Ship “Erawan” et al. (1975), 55 D.L.R. (3d) 138 (F.C.T.D.) (Collier J.); Misener Transportation Limited v. George N. Carleton (The), [1980] F.C.J. No. 404 (T.D.) (QL) (Marceau J., as he then was); MacMillan Bloedel Ltd. v. Pan Ocean Bulk Carrier Ltd., [1981] 2 F.C. 773(T.D.) (Collier J.). Nord-Deutsche was not an admiralty case though it did deal with marine matters.
Collier J. in Sun Diamond was particularly vocal in his opinion that expert evidence might be required even in a case with assessors (at pages 144-145):
So far in this appendix, I have proceeded on the basis that the traditional practice of refusing to allow expert evidence in a case heard with assessors is correct and ought to be continued. Again I express a purely personal view. I do not think the traditional English rule should be followed. Viscount Dunedin said in The “Australia” ([1927] A.C. 145, at p. 150):
I cannot forget that when assessors were introduced, ships were sailing ships, and the navigation of a sailing ship is an art which the landsman cannot be expected to understand without much explanation. In these modern times it seems to me that it is much oftener a question of common sense in the application of the rules to avoid collision than a question of seamanship in the true sense of the word. So that, speaking for myself, except for the purposes of explanation, I shall always ask an assessor as little as possible. Certainly to find, as we have found not only in this case but in several cases which have lately occupied your Lordships’ attention, that the different assessors are at variance is much more of a hindrance than an assistance.
In these still more modern times, with considerable technological and scientific advances in the design and equipment of vessels, a qualified assessor, no matter how knowledgeable, cannot have had expert experience in all matters that today may be canvassed and scrutinized in maritime collision litigation. As one small example, some modern vessels are equipped with course recorders. I have had experience with nautical assessors, very able ones, who, understandably, have had no personal experience with the operation of such devices or of the interpretation of what they purport to record. Should expert evidence on a technical matter such as that be barred from the Court, merely because assessors (who may know nothing of that field) are present?
In Courts other than those hearing Admiralty causes, expert evidence is admitted even if the Judge has the assistance of an assessor. I refer to the Nord-Deutsche case (previously cited) and to a very lengthy trial in British Columbia (Northern Construction Company and J. W. Stewart Ltd. et al. v. B.C. Hydro and Power Authority (#2572/67) [unreported] (396 days) where an assessor (a qualified engineer) sat with the trial Judge, and where a huge volume of expert testimony was heard on a number of issues.
I entirely agree with Collier J. In my opinion the holding of this Court in Telendos was contrary to the Rules of this Court, to the general principles of the law, and in particular to the natural justice rule that guarantees an opportunity to be heard.
No better example could be found than in the case at bar of the dire consequences of Telendos holding. The Trial Judge, in commenting on the evidence, stated as follows (at page 137):
Captain Derenne was also asked about any evasive manœuvres taken to avoid the impact. He testified that the engines on the “Federal Danube” were engaged half-speed astern, explaining that it was not effective to set the engine to full speed from a standing position as the turbulence created around the propeller would sap some of the torque needed to move the vessel. This was not contradicted by any evidence presented by the plaintiffs . [Emphasis added].
The reason, of course, that the appellant did not present any contradictory evidence was that he was prevented from doing so by the application of the Telendos rule. In my view, that decision must be overruled.
Given a violation of natural justice, the unanimous decision of the Supreme Court in Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643, at page 661, comes into play. Le Dain J. stated for a unanimous Court:
… I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.
What is true for administrative hearings must a fortiori be valid for judicial proceedings.
Strictly speaking, that is enough to decide the main appeal, but I deem it necessary for the sake of completeness to go on to deal with two other interrelated matters, one of which was the subject of the appeal in A-201-94.
III
The next issue is as to the exigencies of natural justice with respect to the manner in which the opinion of the assessors is given.
The practice adopted by Collier J. in the Sun Diamond represents a major advance in the approach to this question. Collier J. described his approach as follows (at pages 139-140):
At some stage before the evidence had been completed, I met with counsel and discussed with them the use to be made of the assessors at this trial. I suggested there be changes made from what seems to have been the customary practice in the Trial Division of this Court, and in the Admiralty Side of its predecessor, the Exchequer Court of Canada. I proposed that counsel, at the conclusion of the evidence and before argument, should draft what I termed “formal” questions which they felt ought to be submitted for answer or opinion by the assessors. I would also prepare questions, if I thought them necessary or desirable, to be put to the assessors. Submissions would then be heard as to the propriety and desirability, or otherwise, of the various proposed questions, as well as to their content. The trial Judge (myself) would, of course, be the ultimate arbiter as to what questions, if any, would be put, and as to their form and content.
All this was to be done before argument so that counsel (if they saw fit) could, in the course of argument, make representations as to the answers or opinions that ought to be given. The formal questions and the answers would then be set out in the reasons for judgment. It was implicit in the arrangement made that the time-honoured rule would apply: the Court is not bound in any way to accept or act upon the answers or opinions given; it must make up its own mind, including decisions on matters of navigation, seamanship, and nautical skill.
When the evidence in this trial had been completed, there was a further discussion in respect of the above arrangement. I indicated, for myself, I had no proposed questions to put to the assessors, but I invited counsel to submit for discussion any questions they might have. Both counsel advised they did not intend to suggest any questions.
I therefore, did not, at any time, seek opinions or formal advice from the two captains.
I believe Collier J. was right in formalizing the process of posing questions to the assessors so that counsel for the parties could make submissions as to their formulation. The only exception to this rule should, I believe, be with respect to purely informational matters, as for instance where a judge sitting on an intellectual property case involving abstruse chemical or engineering issues makes constant use of an assessor or assessors merely to understand the evidence. In such a case disclosure would be unnecessary, but the judge would be on guard not to ask the assessors’ opinions in the guise of informational ones. In IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, the majority of the Supreme Court drew a distinction in the application of the audi alteram partem rule between factual matters and legal or policy arguments not raising questions of fact: on the former it is to be strictly applied, on the latter more leniently. See also Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952. In the case at bar the matters to which the assessors’ opinions were relevant were, of course, questions of fact.
Regarding the assessors’ answers, Collier J. had this to say (at page 142):
There is, in my view, no binding authority requiring the Judges of the Trial Division of this Court to formulate in writing the terms in which advice is sought from the nautical assessors. In my personal view the advice or opinions requested should be so set out, and of course, the answers. They then become available to the parties to the litigation. The convenient way is to incorporate them in the reasons for judgment, if reasons are given. The parties are not then left in the dark as to what, if anything, transpired between Judge and assessors and as to what opinions, if any, the Judge accepted or rejected.
It is only in this respect that I depart from the learned Judge. In my opinion, the answers too have to be set out before the end of the hearing, so that the parties can make further representations if it seems to them fit to do so.
In this conclusion I find support in Pfizer Co. Ltd. v. Deputy Minister of National Revenue, [1977] 1 S.C.R. 456, a case in which the Tariff Board referred in its decision to two texts which were not put in evidence nor referred to in the hearing nor subject to judicial notice. Pigeon J. said for the Court (at page 463):
While the Board is authorized by statute to obtain information otherwise than under the sanction of an oath or affirmation … this does not authorize it to depart from the rules of natural justice. It is clearly contrary to those rules to rely on information obtained after the hearing was completed without disclosing it to the parties and giving them an opportunity to meet it.
The fact that courts are authorized “to call in the aid of one or more assessors” does not entitle them to do so in such a way that the parties’ rights to a hearing are circumscribed.
This is therefore another reason for allowing the appeal.
IV
The final issue of natural justice has to do with the possibility of a reasonable apprehension of bias on the part of Pierre Boisseau, one of the two assessors.
At the appellant’s request an affidavit of non-conflict of interest was received from Boisseau at trial, as follows (Appeal Book VI, at page 1022):
[translation] I hereby declare that over the past ten years I have not had any direct or indirect dealings with any of the parties involved.
I declare that I have no conflict of interest and am qualified to act as an assessor, as stated during my swearing-in for this case.
I declare that over the past ten years I have acted as a consultant or expert in naval architecture and marine engineering for the following law firms:
- MARTINEAU, WALKER
- McMASTER, MEIGHEN
- STIKEMAN, ELLIOT
- OGILVY, RENAULT
- LANGLOIS, ROBERT, GAUDREAU
I declare that prior to 1984 I acted as a naval engineering consultant in the following instances:
- 1975 to 1979: Federal Commerce & Navigation Ltd. design of ship M.V. ARTIC….
The affiant’s consultancies with various law firms can hardly be considered to imperil his disinterested status, if only because the affidavit reveals that he acted in the past not only for the respondents’ lawyers but also for the appellant’s trial counsel.
The fact of his having a contract or contracts between 1975 and 1979 for Federal Commerce & Navigation Ltd., the earlier name of Fednav Limited, one of the respondents, has to be taken more seriously, especially in the light of the decision of the English Court of Appeal in The Bremen (1931), 40 Ll. L. Rep. 177.
In The Bremen it was discovered after the close of the appeal that one of the nautical assessors had been in the service of one of the parties nine years earlier. The Court took a serious view of this disclosure. Scrutton L.J. commented (at page 181):
Of course, such a relation should have been disclosed before the hearing of the appeal commenced…. The Court gave the parties the opportunity of a re-hearing with other assessors, but the parties agreed, with the sanction of the Court, that the Court should treat the appeal as heard without assessors, discarding from their consideration any advice they had received from their assessors and only considering as evidence the advice given by the assessors below.
I conclude from this decision that an unrevealed employment by one of the parties could amount to a serious challenge to a decision on the basis of a reasonable apprehension of bias.
However, the onus is on the plaintiff/appellant to establish such a reasonable apprehension on the evidence. In the case at bar it was established merely that a naval engineer had been a consultant some years earlier with a party to the lawsuit. There is no evidence at all of the kind of association that occurred, but it seems to be much less close than that in The Bremen, where an assessor was shown to be in the service of one of the parties.
On such ambiguous evidence the appellant cannot establish its case, and the holding of the Trial Judge cannot be disturbed. This is a long way short of a palpable and overriding error: Stein et al. v. “Kathy K” et al. (The Ship), [1976] 2 S.C.R. 802. Moreover, the matter is one that should have been raised at the time of appointment of the assessors rather than at trial.
The appeal must therefore be dismissed on this ground.
V
On the basis of the foregoing considerations, which in my view decide the matter, there is no need to turn to the substance of the case.
In the result, the appeals in A-201-94 and A-202-94 must be dismissed. The main appeal in A-461-94 should be allowed, the decision of the Trial Judge set aside, and the matter returned to the Trial Division for rehearing. Since the appellant has succeeded in having the main appeal allowed, it should have its total costs both here and below.
* * *
The following is the English version of the reasons for judgment rendered by
Chevalier D.J. (concurring): I have had the benefit of reading the reasons given by my two colleagues. As they state, the case before us involves three issues, namely:
1. The Trial Judge’s decision to dismiss the application made by the appellant at trial to recuse the assessors;
2. The finding she made as to the lack of contributory liability on the part of the navigators of the Federal Danube with respect to the cause of the collision;
3. Her refusal to admit expert evidence that the appellant intended to submit in support of its arguments.
On the first issue my two colleagues stated that they agreed that the trial judgment was correct. I share their opinion.
On the second issue, given his conclusions with respect to the question of the admissibility of expert evidence, MacGuigan J.A. clearly did not consider it appropriate to express an opinion on the respective liability of the parties. After considering the reasons stated by Pratte J.A., I wish to state that I am satisfied therewith and have nothing to add.
Concerning the third issue, with respect for the contrary opinion, I believe that I must agree with Pratte J.A. and the reasons on which he relies.
Like him, I consider:
1. That, whatever the intrinsic value of the long-established rules that have always been observed in English decisions concerning the admissibility of expert evidence, these decisions continue to constitute authority in Canada, given the wording of sections 42 and 2 of the Federal Court Act and that, in the circumstances, there is no reason to re-examine the findings made in Telendos,[21] to which both my colleagues referred;
2. That, furthermore, it is necessary to make a clear distinction between expert evidence relating to seamanship, for which my colleague uses the two expressions “nautical skill” and “management of the ship”, and any other evidence that might benefit the case in an area that goes beyond navigation as such. In the first case, since the assessors were presumed, by the very fact of their appointment, to have qualifications, authority and independence equivalent to those of the members of the British Trinity House Brethren, it is logical to rely on their knowledge to provide the judge hearing a case with the appropriate tests to determine whether the conduct of sailors at the time of a loss met the tests required of an informed and careful navigator. Without going so far as to say that in similar circumstances a judge would be prohibited from allowing such evidence to be introduced, I am of the opinion that, if he decides not to admit it, he is merely exercising his discretion and his decision may not be attacked on appeal.
On this point, I believe it is useful to say something about the specific goal sought by the appellant in its request to include in the record the expert reports prepared by Captain Mueller and Engineer Doust.
In its memorandum of argument (at page 13, No. 42), the appellant stated the following:
Three expert reports had been filed by the Appellant, to wit:
— Report prepared by Capt. Klaus A. Mueller, dealing generally with issues of navigation of the respective ships and seamanship (A.B. Vol. I at pp. 101-109);
— Report prepared by Dr. David J Doust of Central Design & Drafting Ltd., dealing generally with issues of hydrodynamics including the effects of the currents and other forces exerted on the ships at the relevant times, marine engineering (bow thruster) and speed of the respective vessels. It was conceded that the parts of that report dealing generally with issues of seamanship should not be part of the evidence before the Court (A.B. Vol. I at pp. 120-156);
— Report prepared by Mario J. Rossi … (which is not at issue here). [Emphasis added.]
I find that, in the preceding passage, the appellant admits without restriction that part of one of the reports relating to seamanship (“nautical skill” and “management of the ship”) is not relevant to the case before us. However, this is precisely what Captain Mueller’s report deals with, and the appellant admitted this fact.
Concerning Dr. Doust’s report, my reading thereof persuades me that its author and the appellant did not intend to file it and use it to inform the Trial Judge about technical aspects of the mechanics of navigation but rather to convince her that a single conclusion could be drawn from it, namely that the sailors on the Federal Danube were contributorily at fault.
As evidence of this I shall look first at the headings of each of the nine chapters of the report (Common Appeal Book, at page 122):
2. M.V. FEDERAL DANUBE—Main Particulars.
3. M.V. BEOGRAD—Main Particulars.
4. Technical Analysis of Statements made by Key Witnesses.
5. Damages to each ship.
6. Wind, Weather, and Current Conditions at the time of the incident.
7. Analysis of relative ship positions prior to and during the collision.
8. Collision Avoidance—Rules & Regulations.
9. Summary of Findings.
10. Conclusions.
Chapters 2 and 3 do not constitute new evidence. They merely repeat what was said in the exhibits filed as D-92 and D-93.
Chapters 4 and 5 contain a summary of the testimony of Captains Janicic (Beograd) and Derenne (Federal Danube) and a statement of the damage caused to each ship. At page 15 of the report, the expert Doust concludes:
It is therefore evident from the nature and extent of the damages to both ships that BEOGRAD would have passed the FEDERAL DANUBE quite safely, if FEDERAL DANUBE had not weighed its anchor and moved in a direction towards the oncoming BEOGRAD.
I consider that this is a reference to seamanship, the speciality of one of the assessors, and that it accordingly has no place in the record.
In the last paragraph of chapter 7, which must be read in conjunction with chapter 6, we find the following passage (page 21 of the report):
… we see that the BEOGRAD would have cleared the FEDERAL DANUBE by a distance of some 260 feet, if the FEDERAL DANUBE had not veered its anchor and stayed in Position # 3.
This again is a case of passing judgment on the seamanship of the captain of the Federal Danube, which was lacking, in the view of the expert; the preceding comment applies.
Chapter 8 states some of the rules of the sea issued in order to prevent collisions. Following each quotation, the expert Doust indicates which faults were committed by each of the navigators.
Finally, I believe that I must quote in extenso from Chapter 9:
Table 1 has been prepared to show the relative errors of navigation and ship defects which led up to the collision which occurred between the BEOGRAD and FEDERAL DANUBE on December 11th, 1984.
It can be seen that Fault No. 1 is common to both vessels. Similarly, Fault No. 2 for the BEOGRAD, is the same FAULT No. 7 for the FEDERAL DANUBE.
Faults Nos. 3 and 4 for the BEOGRAD refer to the lack of use of VHF between the vessel and Traffic Control, Beauharnois and the FEDERAL DANUBE, whilst the same omissions are to be seen as Faults Nos. 8 and 10 for the FEDERAL DANUBE.
We are therefore left with a preponderance of faults for the FEDERAL DANUBE as stated in Faults Nos. 2, 3, 4, 5, 6, 9 and 11 (seven faults in all).
In a similar manner, Table 2 has been prepared to show the relative merits of each vessel’s behaviour prior to the collision. On balance, it is clear that the FEDERAL DANUBE was responsible for the incident by pulling itself towards its anchor and into the part of the oncoming BEOGRAD. The BEOGRAD’s change of course 5o to Starboard was sufficient to pass the FEDERAL DANUBE, if she had remained at anchor (without weigh), and as indicated by her anchor lights. [Emphasis added.]
This passage is sufficient to convince the reader that most of the technical data contained in the report are, in short, merely a series of references to the evidence filed earlier by other witnesses or documents and that, if we exclude this duplication of material as being unnecessary, all that remains is findings concerning the respective fault that it is sought to attribute to each navigator and especially to the navigator of the Federal Danube.
It will be noted that in its memorandum, from which I reproduced an extract earlier, the appellant stated that the expert opinions on this subject must not be taken into consideration. Since nothing remains in the report in question that might be of any use, I consider that the Trial Judge was perfectly justified in concluding as she did and that the appeal should be dismissed.
[1] Baxter Travenol Laboratories of Canada Ltd. et al. v. Cutter (Canada), Ltd., [1983] 2 S.C.R. 388, at pp. 395-396; Saint John Shipbuilding & Dry Dock Co. Ltd. v. Kingsland Maritime Corp., [1979] 1 F.C. 523(C.A.); Crabbe v. Minister of Transport, [1973] F.C. 1091 (C.A.); Farmer Construction Ltd. v. The Queen (1983), 83 DTC 5272 (F.C.A.).
[2] S. 46(1)(a)(ix) of the Federal Court Act [R.S.C., 1985, c. F-7] authorizes the making of rules governing the “appointment of assessors and the trying or hearing of a cause or other matter wholly or partly with the assistance of assessors”.
S. 492(1) of the Federal Court Rules provides as follows:
Rule 492. (1) The Court may, if it thinks it expedient so to do, call in the aid of one or more assessors, specially qualified, and hear and determine a matter, wholly or partly, with the assistance of such assessor or assessors.
[3] This Rule, which should be quoted in its English version for better understanding, reads as follows:
Rule 482. (1) No evidence in chief of an expert witness shall be received at the trial (unless the Court otherwise orders in a particular case) in respect of any issue unless
(b) an affidavit setting out the proposed evidence has been filed and a copy of it served on all other parties at least 30 days before the commencement of the trial; and ….
[4] Since the appellant did not provide us with a complete transcript of the notes made at trial, we do not know exactly what happened before the Trial Judge.
[5] Egmont Towing & Sorting Ltd. v. Ship “Telendos” (1982), 43 N.R. 147 (F.C.A.).
[6] See note 3.
[7] R.S.C., 1985, c. C-5, s. 7:
7. Where, in any trial or other proceeding, criminal or civil, it is intended by the prosecution or the defence, or by any party, to examine as witnesses professional or other experts entitled according to the law or practice to give opinion evidence, not more than five of such witnesses may be called on either side without the leave of the court of judge or person presiding.
[8] According to s. 46 of the Federal Court Act, the Rules of the Court govern the “practice and procedure” at trial and on appeal. According to the definition in s. 2 of the Act, the expression “practice and procedure” does not include the rules governing the admissibility of evidence but only the rules of evidence “relating to matters of practice and procedure”.
[9] 42. Canadian maritime law as it was immediately before June 1, 1971 continues subject to such changes therein as may be made by this Act or any other Act of Parliament.
[10] It has been correctly held that Federal Court procedure in maritime cases, as in all other cases, is governed by the Rules of the Court and not by the English rules (Antares Shipping Corp. v. The Capricorn, [1977] 2 F.C. 274(C.A.); Oy Nokia Ab v. The Martha Russ, [1973] F.C. 394 (T.D.)). As I stated, however, the rules concerning the admissibility of evidence are not governed by the Rules of the Court.
[11] Thus the work Jackson’s Machinery of Justice (Cambridge University Press, 1989), which has become a classic, says the following when speaking of the Admiralty Court, at p. 46:
In one sense the court is international, since it is frequently trying cases where foreign ships are concerned, and a high standard of judicial ability is needed. This is reinforced by the system of nautical assessors. When the judge requires assistance in matters of nautical skill, he is assisted by two Brethren of Trinity House, who sit on the Bench with the judge. A jury is never used. The system of a judge with technically qualified and disinterested assessors is alien to the common law, but it appears to work very well in Admiralty; it certainly appears to be far better than the common law technique of listening to expert witnesses called by the parties at great expense to assert contradictory views.
[12] R. v. Mohan, [1994] 2 S.C.R. 9.
[13] [1985] 2 S.C.R. 643.
[14] See s. 52(b)(i) of the Federal Court Act.
[15] It appears not to be correct that the assessor system was held improper by the U.S. Supreme Court in 1855, although Thurlow C.J. was right in citing Wiswall [The Development of Admiralty Jurisdiction since 1800, Cambridge University Press, 1970] to that effect. However, Wiswall notes in a footnote that assessors did sit in The Jay Gould, 19 F. 765 (E.D. Mich., 1884). His authority for the Supreme Court reference is Theophilus Parsons, A Treatise on the Law of Shipping and the Law and Practice of Admiralty, Boston, 1869, vol. 2, at pp. 438-439. However, Parsons actually stated:
In England, it has long been the custom for the judge in cases of collision at the hearing of the cause to be assisted by two or more masters of the Trinity House, who give their opinion which vessel is in fault.4 This opinion, though not binding on the court, is usually followed. In this country we have no such practice, generally;5 but it was at one time customary in the Massachusetts district to submit the evidence to nautical men, and to take their opinion upon the facts in the case1 This practice was considered, however, as open to some objection, and in 1855 it was declared to be improper, and the more correct mode pointed out of taking the opinions of the experts upon a hypothetical case.2
4 In the Swanland, 2 Spinks, 107, Dr. Lushington, addressing the Trinity Masters, said: “When a common-law judge has summed up the case to the jury, his duty is discharged; the jury give their verdict. But unfortunately for me, I have not only to state the evidence to you, but whatever decision or opinion you may give to me, to that opinion I must be an assenting party, in order to found a judicial decision thereon.”
5 It would seem that a practice similar to the English, obtains in Pennsylvania, for Judge Kane, in the case of The Red Bank Co. v. The John W. Gandy, 7 Am. Law Reg. 606, remarks: “The nautical gentlemen who did me the kindness to hear the evidence with me, are of opinion,” etc. See also The Hypodame, 6 Wallace, 224. And in The Brig Rival, 1 Sprague, 128, experts were admitted by consent, and questions put to, and answers returned by, them.
1 In Peele v. Merchants’ Ins. Co. 3 Mason, 27, 36, Mr. Justice Story said: “As to the question of the sufficiency of the repairs, that is so dependent upon practical skill in nautical affairs, that if the cause were to turn upon it, I should, according to the known course of the admiralty, refer it to experts to report upon the whole evidence, what in their judgment is the true posture of the case in this respect.” See also Lowry v. Steamboat Portland, 1 Law Rep. 313.
2 The Clement, 2 Curtis, C. C. 363. See also Allen v. Mackay, 1 Sprague, 219, 223. The case of The Clement was taken by appeal to the Supreme Court, and new depositions were taken, containing the opinions of the experts in the manner pointed out. But as the court were equally divided in opinion on the facts of the case, the case has never been reported, and we are unable to state whether the mode indicated received the sanction of the Supreme Court. [Emphasis added].
[16] It will be apparent later that in my view everything considered by the Court must be in the record.
[17] The Practice Statement (Judicial Precedent) is at [1966] 1 W.L.R. 1234 (H.L.). It is also set out in my article “Precedent and Policy in the Supreme Court” (1967), 45 Can. Bar Rev. 627, ftn. 200, at p. 657.
[18] Although Cory and L’Heureux-Dubé JJ. dissented in this case, it was not on the appropriateness of the Court’s changing the old rule, a process which they endorsed, but on the context of the new rule.
[19] These criteria are set down in R. v. Abbey, [1982] 2 S.C.R. 24, by Dickson J. (as he then was) and by Sopinka J. in R. v. Mohan, [1994] 2 S.C.R. 9, and do not affect the present issue. For a recent decision by the Trial Division on expert evidence see Fraser River Pile& Dredge Ltd. v. Empire Tug Boats Ltd. et al. (1995), 92 F.T.R. 26, per Reed J.
[20] This Rule was substantially identical at the time of the decision Telendos.
[21] Egmont Towing & Sorting Ltd. v. Ship “Telendos” (1982), 43 N.R. 147 (F.C.A.).