A-336-78
Newfoundland Steamships Limited, Clarke Trans
portation Canada Ltd. and those persons interest
ed in the cargo laden on board the ship Fort St.
Louis (Plaintiffs)
v.
Canada Steamship Lines, Limited and W. F.
Walsh Limited (Defendants)
Court of Appeal, Pratte and Heald JJ. and Kerr
D.J.—Ottawa, November 15 and 26, 1979.
Practice — General discovery — Whether or not appeal
should be granted to set aside order for general discovery on
the ground that it was made prematurely before pleadings
closed.
Practice — Parties — Order made for addition of other
persons formerly described as "Those persons interested in the
cargo ..." as plaintiffs after the prescription period had run
out — Whether or not appeal should be granted from that
order — Quebec Civil Code, art. 2261, 2267 — Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 38 — Federal Court
Rules 403(2), 431, 447(1).
Canada Steamship Lines, Limited appeals from two judg
ments of the Trial Division. Appellant argues that the judgment
granting an application made by the plaintiffs (the respondents
in this Court) for general discovery of documents was prema
turely made before the pleadings closed contrary to Rule
447(1). Appellant also attacks the judgment granting leave to
amend the statement of claim by the adding of nearly two
hundred persons as plaintiffs on the ground that the Court was
not particularizing plaintiffs described as "Those persons inter
ested in the cargo ..." in the original statement of claim but
rather was adding new plaintiffs after the prescription period
had run out.
Held, the first appeal regarding discovery is dismissed and
the second appeal regarding the addition of parties is allowed.
Firstly, the Court would not be justified in setting aside the
order because of its being premature for, while the pleadings
were not closed when the order was made, they were closed less
than fifteen days later by virtue of Rules 431 and 403(2).
Secondly, with respect to the appeal from the judgment grant
ing leave to amend the statement of claim, the Judge could not
authorize the addition of new plaintiffs to the action unless he
came to the conclusion that the commencement of the action in
1975 had interrupted the prescription of the claims of those
new plaintiffs as well as of those who were named as plaintiffs
in the original action. The action was commenced in the names
of persons enumerated in Appendix A, and the effect of the
judgment under attack is not merely to particularize the plain
tiffs in the style of cause "THOSE PERSONS INTERESTED IN
THE CARGO ..." but to authorize that new plaintiffs be added
to the action. The Leesona case, a decision of the Supreme
Court of Canada, has no application because plaintiffs are not
seeking to correct a misnomer or to overcome a mere technical
ity. The action commenced in 1975 did not interrupt the
prescription of persons who were not parties to that action.
Leesona Corp. v. Consolidated Textile Mills Ltd. [1978] 2
S.C.R. 2, distinguished.
APPEAL.
COUNSEL:
David Angus for plaintiffs.
G. P. Barry for defendant Canada Steamship
Lines, Limited.
R. G. Chauvin, Q.C. for defendant W. F.
Walsh Limited.
SOLICITORS:
Stikeman, Elliott, Tamaki, Mercier & Robb,
Montreal, for plaintiffs.
McMaster, Meighen, Montreal, for defendant
Canada Steamship Lines, Limited.
Chauvin, Marler & Baudry, Montreal, for
defendant W. F. Walsh Limited.
The following are the reasons for judgment
rendered in English by
PRATTE J.: Canada Steamship Lines, Limited
appeals from two judgments of the Trial Division:
one granting an application made by the plaintiffs
(the respondents in this Court) for general discov
ery of documents and the other [[1979] 1 F.C.
393] giving leave to the plaintiffs to amend their
statement of claim and add close to two hundred
persons as plaintiffs.'
The only attack made against the order for
general discovery is that it was made prematurely
before the pleadings were closed, contrary to Rule
I The practice of filing a notice of appeal in respect of more
than one judgment is, in my view, contrary to the Federal
Court Rules and to section 27 of the Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10.
447(1). 2 It is true that the pleadings were not
closed when the order was made on June 19, 1978;
however they were closed less than fifteen days
later by virtue of Rules 431 and 403(2). In those
circumstances, I do not think that the Court would
be justified in setting aside the order on account of
its prematurity. I would, therefore, dismiss that
first appeal.
The second appeal, from the judgment granting
leave to amend the statement of claim, cannot be
disposed of as quickly.
On October 15, 1974, there was a fire aboard
the M.V. Fort St. Louis at Montreal. At that time,
the Fort St. Louis, a ship owned by the appellant
Canada Steamship Lines, Limited, was being
loaded with cargo destined for various locations in
Newfoundland. As a result of that fire, the ship as
well as the cargo were severely damaged.
Less than a year later, on October 14, 1975, an
action for damages was commenced against
Canada Steamship Lines, Limited, the owner of
the Fort St. Louis, and W. F. Walsh Limited, a
ship-repairing contractor retained by Canada
Steamship Lines, Limited, to do welding work on
the ship. By that action, three plaintiffs claimed
compensation for the damages they had suffered
as a consequence of the fire. We are not concerned
here with the first two plaintiffs. The third one was
described as follows in the style of cause:
THOSE PERSONS INTERESTED IN THE CARGO LADEN ON
BOARD THE SHIP "FORT ST. LOUIS" when she caught fire at the
Port of Montreal, while lying alongside Shed 68 on October 15,
1974 (a detailed list of said interested parties is annexed
hereto),
z That Rule reads as follows:
Rule 447. (1) After the close of pleadings, there shall,
subject to and in accordance with the provisions of these
Rules, be discovery (including the giving of an opportunity to
inspect and make copies) of documents by the parties to an
action (including the Crown when it is such a party); but
nothing in these Rules shall be taken as preventing parties to
an action from agreeing to dispense with or limit the discov
ery of documents that they would otherwise be required to
make to each other.
That description was particularized as follows by
paragraph 3 of the statement of claim:
3. The Plaintiffs Those Persons Interested in the Cargo Laden
on Board the ship "FORT ST. LOUIS" (hereinafter called "the
Cargo Interests) were at all material times the owners, shippers
and/or consignees of and, in any event, the persons legally
interested in and entitled to claim for cargo lost, damaged or
destroyed, as the result of a fire which broke out on board the
ship "FORT ST. LOUIS" on the 15th day of October, 1974, and
said Plaintiffs together with the waybill numbers under which
their lost, damaged or destroyed cargo was shipped are all fully
listed on the Appendix to this Statement of Claim;
There was attached as Appendix A to the state
ment of claim a document listing some one hun
dred and thirty-five names under the heading
"LIST OF THOSE PERSONS INTERESTED IN THE
CARGO LADEN ON BOARD THE SHIP "FORT ST.
LOUIS" WHEN SHE CAUGHT FIRE AT THE PORT OF
MONTREAL ON OCTOBER 15, 1974."
In June 1978, more than two years after the
commencement of that action, the plaintiffs pre
sented an application for an order granting leave
to amend their statement of claim by substituting
a new list of names for Appendix A. That new list
added nearly two hundred names to those already
mentioned in Appendix A. In support of that
application, there was filed an affidavit where one
of the plaintiffs' counsel explained why the
application was made:
2. THAT when I prepared Plaintiffs' Statement of Claim in
October 1975 my intention was to include in Appendix A which
was referred to in Paragraph 3 of the Statement of Claim and
also in the style of cause, a complete list of all owners, shippers
and/or consignees of and in any event all of the persons legally
interested in and possibly entitled to claim with respect to the
cargo which was lost, damaged or destroyed as a result of the
fire which broke out on board the ship "FORT ST. LOUIS" on
October 15, 1974;
3. THAT since the drafting and filing of the said Statement of
Claim, further documents, details and information have come
into my possession from which it appears I omitted certain
names from Appendix A, said names being those of persons
possibly interested in some of the cargo lost or damaged in the
aforesaid fire;
The defendants opposed that application. They
argued that the plaintiffs were seeking to add new
plaintiffs after the expiry of the period of prescrip
tion and that they had not the right to revive in
that way debts that were absolutely extinguished.
The Judge below nevertheless rendered the judg
ment against which this appeal is directed and
granted the application for reasons that he sum-
marized as follows [at page 399]:
On the whole therefore, I am of the opinion that this is not a
case where the claims of any new parties appearing in the
Appendix now sought to be substituted for the former Appen
dix are really new claimants whose claims are prescribed but
rather that they are included in the designation of persons
interested in the cargo on the ship. It is merely the substitution
of new particulars which have since come to light for former
particulars, and moreover in the great majority of the cases
merely adds the name of the shipper as well as the consignee, or
conversely, and provides defendants with greater details from
which to check the claims. It is not necessary to decide at this
stage of the proceedings whether the claimant should be the
shipper or the consignee but justice requires that whoever
suffered the loss should be compensated for it, provided that
the total amount of the claim does not exceed $509,443.28
(which includes surveyors' and adjusters' fees) sought for the
"Plaintiff cargo interest for distribution as their interests may
appear" as stated in conclusion of the original statement of
claim.
This judgment, in my respectful opinion, must
be set aside.
It is common ground that the prescription of the
plaintiffs' claim was governed by the law of
Quebec where the cause of action arose (see sec
tion 38 of the Federal Court Act). The plaintiffs'
claim was based either entirely on delict, as found
by the Judge below, or, as argued by the plaintiffs'
counsel, both on delict and contract. In either case,
the statement of claim asserted a delictual claim
which was subject to a prescription of two years
(article 2261 of the Quebec Civil Code) after the
expiry of which the debt (in so far as it was
founded on delict) was absolutely extinguished
(article 2267 C.C.). In these circumstances, the
Judge could not authorize the addition of new
plaintiffs to the action unless he came to the
conclusion that the commencement of the action in
1975 had interrupted the prescription of the claims
of those new plaintiffs as well as of those who were
named as plaintiffs in the original action (see:
Leeson Corporation v. Consolidated Textile
Mills Limited [1978] 2 S.C.R. 2 at the bottom of
page 11).
It is argued however that the plaintiffs were not
really seeking to add new parties to the action;
they merely wanted, it is said, to particularize the
description of the plaintiffs in the style of cause
("THOSE PERSONS IN RESTED IN THE CARGO
."). I do not agree. Had the plaintiffs been
merely described as "Those interested in the cargo
.", it is certainly arguable that the action would
have been irregularly instituted' and would not,
for that reason, have interrupted the prescription.
But this point need not be decided since, in this
case, the plaintiffs were not described in that
vague and general way: the style of cause as well
as paragraph 3 of the statement of claim contained
an express reference to Appendix A as containing
the names of all those having an interest in the
cargo. The action, in my opinion, was commenced
in the names of the persons enumerated in Appen
dix A and the effect of the judgment under attack
is clearly, in my view, to authorize that new plain
tiffs be added to the action.
The decision of the Supreme Court of Canada in
the Leeson case does not, in my opinion, support
the decision of the Trial Division. Here the plain
tiffs were not seeking to correct a misnomer or to
overcome a mere technicality; they wanted to
amend the statement of claim so as to add new
parties whose identities had been unknown to all
persons concerned at the time of the commence
ment of the action. That, in my view, could not be
done because I do not see how the action com
menced in 1975 could have interrupted the pre
scription of claims of persons who were not parties
to that action.
In the exercise of its discretion under Rule 424,
the Court cannot, even in order to achieve a fuller
measure of justice, disregard the effect of prescrip
tion. This is, in my view, what the Trial Division
has done here.
For these reasons, I would allow the appeal with
costs, set aside the judgment of the Trial Judge
and dismiss with costs the plaintiffs' application to
amend their statement of claim by substituting a
new list for Appendix A to the statement of claim.
* * *
HEALD J.: I concur.
* * *
KERR D.J.: I concur.
3 The Rules, in my view, do not contemplate that an action
be commenced on behalf of persons to be ascertained.
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.