A-274-74
The Queen (Appellant) (Defendant)
v.
Irish Shipping Ltd. (Respondent) (Plaintiff)
and
Leslie Arthur Davis Jones and Arthur Joseph
Warren and Pacific Pilotage Authority (Respond-
ents) (Defendants)
Court of Appeal, Pratte and Urie JJ. and Smith
D.J.—Vancouver, November 25 and 26, 1975.
Practice—Maritime law—Trial Division directing witness to
answer questions put to him when examined for discovery—
Questions seeking expression of opinion by expert—Whether
questions come within exception to rule against asking experts
for opinion on discovery—Federal Court Rules 465 and 482.
This is an appeal from an order of the Trial Division
directing an expert witness to answer two questions put to him
on discovery. The Trial Judge held that the questions seek an
expression of opinion by the expert; respondent concedes that,
generally, one is not permitted to ask an expert's opinion on
discovery, except when the expert is asked his opinion when the
exercise of his expertise is put in issue by facts alleged in the
pleadings.
Held, allowing the appeal, even assuming that there is no
difference between this Court's Rules, and those of the British
Columbia Supreme Court on the subject, and that the British
Columbia Appeal Court decisions invoked by respondent
should be followed here, the two questions fall outside the
exception. Since the questions did not relate to the "traffic
separation scheme", the fact that the captain's expertise, as one
involved therein, was put in issue does not render permissible
the questions. And the allegation of negligence does not raise
such issue.
Westcoast Transmission Co. Ltd. v. Canadian Phoenix
Steel and Pipe Limited [1971] 1 W.W.R. 241 and Shick-
ele v. Rousseau (1966) 55 W.W.R. 568, discussed.
APPEAL.
COUNSEL:
G. O. Eggertson for appellant.
P. D. Lowry for respondent Irish Shipping
Ltd.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Macrae, Montgomery, Hill and Cunningham,
Vancouver, for respondent Irish Shipping Ltd.
Bull, Housser & Tupper, Vancouver, for
respondents Jones and Warren.
Owen, Bird, Vancouver, for respondent Paci
fic Pilotage Authority.
The following are the reasons for judgment
delivered orally in English by
PRATTE J.: This is an appeâl from a judgment
of the Trial Division' directing Captain Burrill to
answer two questions that were put to him when
he was examined for discovery as an officer of the
Crown.
In these proceedings, the respondent is claiming
damages from the Crown following the running
aground of a ship owned by the respondent near
Haddington Island, British Columbia, in an area
where a "voluntary traffic separation scheme" had
been recommended by the Department of Trans
port. The statement of claim alleges that one of
the causes of the accident was the improper design
of the "traffic separation scheme" by servants of
the Crown. The Crown's statement of defence
alleges that any damage suffered by the respond
ent was attributable to its own negligence.
It is not contested that Captain Burrill is an
experienced mariner; it is also common ground
that he played a part in the preparation of the
"traffic separation scheme".
The two questions that Captain Burrill was
ordered to answer read as follows:
73. Now, I want you to tell me, if you would, how you would
navigate that passage if you were 'proceeding from relatively
north to south. I want you to tell me.
77. I want to know what you say is the correct way to navigate
that passage from north to south. I want to know what elements
you would consider, what you think is proper to consider, and
I'm relating now to tide, weather, use of the separation scheme,
etc. Are you prepared to give me that information?
As was said by the learned Trial Judge, these
questions "clearly do not seek factual information
T-1107-73.
with respect to the chart, passage or navigational
aids, but ask for the expression of an opinion by a
duly qualified expert as to the correct way to
navigate the passage in question."
Counsel for the respondent conceded that, as a
general rule, one is not permitted to ask for an
expression of opinion from a person who is exam
ined for discovery. He contended, however, that
there is an exception to that rule; he said that the
decision under appeal "is supported by the govern
ing authorities which permit a witness with expert
qualifications to be asked his opinion if the exer
cise of his expertise is put in issue by the facts
alleged in the pleadings." Counsel referred mainly
to two decisions of the British Columbia Court of
Appeal. 2
Assuming, without deciding,
(1) that there is no material difference between
the Rules of this Court concerning examination
for discovery and the British Columbia Supreme
Court Rules on the same subject,
and
(2) that the decisions of the British Columbia
Court of Appeal invoked by the respondent
should be followed by this Court,
nevertheless, it is our opinion that the two ques
tions that Captain Burrill was ordered to answer
were not permissible because they did not come
within the exception established by those decisions.
In our view, contrary to what was said by coun
sel for the respondent, since the questions did not
relate to the "traffic separation scheme", they
were not rendered permissible by the fact that the
expertise of Captain Burrill as one who had taken
part in the preparation of the scheme, was put in
issue by the allegations of the statement of claim.
Moreover, in our view, the fact that those ques
tions might be related to the allegation of the
respondent's negligence contained in the statement
of defence does not alter the situation since that
allegation of negligence clearly did not raise the
issue of the expertise of Captain Burrill.
2 West coast Transmission Co. Ltd. v. Canadian Phoenix
Steel and Pipe Limited [1971] 1 W.W.R. 241; Shickele v.
Rousseau (1966) 55 W.W.R. 568.
For these reasons, the appeal will be allowed
with costs.
* *
URIE J. concurred.
* * *
SMITH D.J. concurred.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.