T-2379-90
Sydney Steel Corporation, a body corporate
(Respondent) (Plaintiff)
v.
The Ship "Omisalj", Jugolinija and the Owners,
Charterers and all others interested in the ship
"Omisalj" (Applicants) (Defendants)
INDEXED AS.' SYDNEY STEEL CORP. V. OMISAL/ (THE) (T.D.)
Trial Division, MacKay J.—Halifax, January 14;
Ottawa, January 28, 1992.
Practice — Discovery — Examination for discovery —
Examinations for discovery in writing in case arising from
maritime collision — Plaintiff's questions about previous acci
dents involving Master, subsequent action by owners, whether
helm would have responded — Whether proper questions —
Test for propriety on discovery whether information solicited
may be relevant to matters in issue — Doubt resolved in favour
of openness — Prior casualties involving Master not relevant
to issue whether accident caused by negligence — May be rele
vant to statutory limitation of liability — Evidence of subse
quent occurrences not of itself evidence of negligence — May
have probative value after other evidence of negligence
adduced — Questions at discovery asking for opinion permis
sible only if put to expert witness whose expertise in issue —
Master not expert witness as term understood and opinion as
such not in issue.
This was an application under Rule 466.1(3) to have certain
questions in a written examination for discovery struck out.
The principal action arose out of a collision involving the
defendant ship at the plaintiff's dock at Sydney, Nova Scotia.
Of the questions objected to, one asks about previous accidents
involving the Master of the defendant ship, two ask whether
the company has since changed its practices or instituted disci
plinary action, and two ask the Master whether helm action
would have been effective in the minutes preceding the colli
sion.
Held, application allowed in part—questions on prior and
subsequent occurrences to be answered, opinion questions to
be struck.
The standard for propriety of questions on discovery is
lower than that for admissibility of evidence at trial. It is
whether the information sought by the question may be rele
vant to any matters in issue in the state of the pleadings at dis
covery. Where there is doubt, it will be resolved in favour of
the goal of openness. The question about previous casualties
involving the Master of the defendant ship is not relevant to
the issue of negligence on the occasion in question; but knowl
edge by the owners of prior accidents involving their employee
would be relevant to their entitlement to limit their liability
under section 575 of the Canada Shipping Act. Although the
defendants may abandon before trial their claim to limit liabil
ity to the amount set out in the Act, which is higher than the
likely damages, it is currently part of their pleadings. While
evidence of subsequent occurrences is not of itself evidence of
negligence, it may have probative value after other evidence of
negligence has been adduced. The treatment accorded the
answers to these questions at trial is a matter for the trial judge.
The questions as to the likely effect of helm action immedi
ately before the collision are put forward as relevant to the
expertise and skill of the Master. The Federal Court "opinion
question rule" at discovery was stated by the Court of Appeal
in Rivtow Straits Ltd. v. B.C. Marine Shipbuilders Ltd.: ques
tions asking for the expression of an opinion are not permissi
ble unless the witness is an expert whose expertise is put in
question by the pleadings. Here, it is the competence of the
Master in the particular circumstances which is in question. He
is not an expert witness as that term is generally understood,
and his opinion as an expert is not put in issue by the plead-
ings.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Shipping Act, R.S.C., 1985, c. S-9, s. 575.
Federal Court Rules, C.R.C., c. 663, RR. 458(1)(a) (as
am. by SOR/90-846, s. 15), 466.1 (as am. idem, s. 16).
CASES JUDICIALLY CONSIDERED
APPLIED:
McKeen and Wilson Ltd. v. Gulf of Georgia Towing Co.
Ltd. et al., [1965] 2 Ex.C.R. 480; Algoma Central Rail-
way v. Herb Fraser and Associates Ltd. (1988), 66 O.R.
(2d) 330; 36 C.P.C. (2d) 8; 31 O.A.C. 287 (Div. Ct.);
Rivtow Straits Ltd. v. B.C. Marine Shipbuilders Ltd.,
[1977] 1 F.C. 735; (1976), 14 N.R. 314 (C.A.).
DISTINGUISHED:
Simonar et al. v. Braybrook et al. (1989), 76 Sask. R. 206;
33 C.P.C. (2d) 89 (Q.B.); Clif-Den Holdings Ltd. et al. v.
Automated Concrete Ltd. et al. (1986), 70 A.R. 327
(Q.B.).
CONSIDERED:
Philips Export B.V. v. Windmere Consumer Products Inc.
(1986), 7 C.I.P.R. 147; 8 C.P.R. (3d) 505; 1 F.T.R. 300
(F.C.T.D.); Everest & Jennings Canadian Ltd. v. Invacare
Corporation, [1984] 1 F.C. 856; (1984), 79 C.P.R. (2d)
138; 55 N.R. 73 (C.A.); D & L Sales Ltd., carrying on
business as Royal Specialty Sales v. Mayda Industries Co.
Ltd. (1986), 10 C.P.R. (3d) 131; 4 F.T.R. 77 (F.C.T.D.);
Savoie v. Bouchard and Board of Trustees of Hotel-Dieu
d'Edmundston (1983), 49 N.B.R. (2d) 424; 129 A.P.R.
424; 26 CCLT 173 (C.A.); Meilleur v. U.N.L-Crete
Canada Ltd. (1982), 30 C.P.C. 80 (Ont. H.C.).
REFERRED TO:
Can. Cement Lafarge Ltd. v. Caterpillar Tractor Co.
(No.1) (1982), 29 C.P.C. 205 (Ont. H.C.); Canadian
Pacific Railway Co. v. City of Calgary (1966), 59 D.L.R.
(2d) 642; (1966), 58 W.W.R. 124 (Alta. S.C. App. Div.);
Cominco Ltd. v. Phillips Cables Ltd., [1987] 3 W.W.R.
562; (1987), 54 Sask. R. 134; 18 C.P.C. (2d) 165 (C.A.);
James et al. v. River East School Division No. 9 et al.
(1975), 64 D.L.R. (3d) 338; [1976] 2 W.W.R. 577 (Man.
C.A.); Glidden v. Town of Woodstock (1895), 33 N.B.R.
388 (S.C.); R & B Fishing Ltd. et al. v. Canada (1986), 1
F.T.R. 305 (F.C.T.D.); Smith, Kline & French Laborato
ries Ltd. et al. v. Attorney-General of Canada (1982), 67
C.P.R. (2d) 103; 29 C.P.C. 117 (F.C.T.D.); Drake v.
Overland and Southam Press Ltd. (1979), 19 A.R. 472;
107 D.L.R. (3d) 323; [1980] 2 W.W.R. 193; 12 C.P.C.
303 (C.A.); Opron Construction Co. v. Alberta (1988), 85
A.R. 143; 59 Alta. L.R. (2d) 214 (Q.B.).
COUNSEL:
John D. Murphy, for respondent (plaintiff).
A. William Moreira, for applicants (defendants).
SOLICITORS:
Stewart McKelvey Stirling Scales, Halifax, for
respondent (plaintiff).
Daley, Black & Moreira, Halifax, for applicants
(defendants).
The following are the reasons for order rendered in
English by
MACKAY J.: In this application the defendants seek
an order that certain questions contained in a written
examination for discovery be struck pursuant to Rule
466.1(3) of the Federal Court Rules [C.R.C., c. 663]
as amended by SOR/90-846, section 16. Rule 466.1,
as amended in 1990, replaced the rule which for
merly provided for interrogatories by authorizing
written examination for discovery by means of "one
list of concise, separately numbered questions ... for
the adverse party to answer" (Rule 466.1(1)) and "[a]
person who objects to any question in a written
examination may apply to the Court to have it struck
out" (Rule 466.1(3)).
The action giving rise to this application arose out
of a collision at Sydney harbour, Nova Scotia, on
March 21, 1989 when, it is alleged, the defendant
vessel, while approaching her berth at Sydney Steel
Corporation, struck and damaged a mooring dolphin
owned by the plaintiff. The defendants have pleaded
in defence the absence of any negligence.
Because distance and other logistic difficulties
made oral discovery impractical, the plaintiff on
November 21, 1990 served a written examination for
discovery pursuant to Rule 466.1. Objection to cer
tain questions, not resolved by agreement between
counsel for the parties, leads to this application for
determination by the Court whether five questions, to
which the defendants object, must be answered.
The questions at issue are characterized by counsel
for the defendants as dealing with prior occurrences,
with subsequent occurrences, and with opinion evi
dence, a characterization used by counsel for pur
poses of considering this application. It is convenient
to deal with the specific questions asked in accord
with this characterization, after dealing with general
principles applicable.
Under Rule 458(1)(a) [as am. idem, s. 15]:
Rule 458. (1) A person who is being examined for discovery
shall answer, to the best of the person's knowledge, informa
tion and belief, any question that
(a) is relevant to any unadmitted allegation of fact in any
pleading filed in the action by the party being examined or
the examining party; ...
Counsel for the parties are essentially agreed that the
standard for propriety of a question asked in discov
ery is less strict than the test for admissibility of evi
dence at trial and the appropriate standard is whether
the information solicited by a question may be rele
vant to the matters which at the discovery stage are in
issue on the basis of pleadings filed by the parties. As
noted by the defendants the test is as set out by Norris
D.J.A. in McKeen and Wilson Ltd. v. Gulf of Georgia
Towing Co. Ltd. et al., [1965] 2 Ex.C.R. 480, at page
482:
... the questions objected to may raise matters which are rele
vant to issues raised on the pleadings. This is all that the
defendants are required to show. As to whether or not they are
relevant and admissible at the trial is a matter for the learned
trial Judge.
That standard underlies the decision of Giles A.S.P.,
in ordering questions to be answered which were
"potentially relevant" in Philips Export B.V. v.
Windmere Consumer Products Inc. (1986), 7 C.I.P.R.
147 (F.C.T.D.), at pages 153-155.
The same principle, in relation to documents to be
produced on discovery, underlies the decision of the
Court of Appeal in Everest & Jennings Canadian
Ltd. v. Invacare Corporation, [1984] 1 F.C. 856
(C.A.), allowing an appeal from refusal of the
motions judge to order production of the balance of a
file that contained a letter produced on discovery. Mr.
Justice Urie, speaking for the Court of Appeal, said
(at pages 857-858):
We are all of the opinion that the appeal must succeed. By
producing Exhibit 7, the respondent acknowledged its rele
vancy. The letter does not, in any way, on the plain meaning of
the words therein, indicate that it relates only to the invention
disclosed, if any, in the patent in suit and does not relate to
some other device or devices entirely. It would thus appear that
to appreciate the letter's relevancy the file from which it was
produced may be equally relevant. The correct test of rele
vancy for purposes of discovery was, in our opinion, pro
pounded by McEachern C.J. in the case of Boxer and Boxer
Holdings Ltd. v. Reesor, et al. (1983), 43 B.C.L.R. 352
(B.C.S.C.), when, at page 359, he said:
It seems to me that the clear right of the plaintiffs to have
access to documents which may fairly lead them to a train of
inquiry which may directly or indirectly advance their case
or damage the defendant's case particularly on the crucial
question of one party's version of the agreement being more
probably correct than the other, entitles the plaintiffs to suc
ceed on some parts of this application.
When produced the documents in the file may assist the
appellant in its defence. On the other hand, they may not and
may, as the respondent says, be totally irrelevant. In either
event, the matter in issue may be more readily resolved at trial
although their ultimate relevance and the weight to be attached
to them will be matters for the Trial Judge.
It is the plaintiff's submission that all of the ques
tions to which objection is taken meet the standard
for discovery questions, that is, they may be relevant
to matters in issue at this stage on the basis of the
pleadings. Further, the plaintiff in written submis
sions urged that the standard requires the party
objecting to questions to establish that those ques
tions cannot possibly be relevant to any fact in issue.
In my view, the latter submission goes too far.
Rather, when objection is taken that a question is not
proper because it is not relevant for reasons given,
the party asking the question must satisfy the court
that the information it seeks may be relevant to a fact
in issue. That standard is not likely to be difficult to
meet in light of the goal of openness which the rules
seek to foster in pre-trial proceedings, particularly
discovery, a goal which is the same whether discov
ery be oral or by written questions. Moreover, it is
settled that where there is doubt as to whether the
question need be answered the benefit of that doubt,
in light of the principal goal of openness, favours
requiring the answer to be given: (D & L Sales Ltd.,
carrying on business as Royal Specialty Sales v.
Mayda Industries Co. Ltd. (1986), 10 C.P.R. (3d) 131
(F.C.T.D.), per Madam Justice Reed at page 134).
Prior Occurrences
The defendants object to answering the following
question:
Q. 1(g) "[What are] details of any previous casualties
involving ships on which you [the master] were in com
mand or were the officer of the watch at the relevant
time?"
The defendants contend this question seeks infor
mation about previous incidents which, it is submit
ted, are irrelevant to issues in the action based, as it
is, on alleged negligence in the operation of the ves
sel in particular circumstances at a particular time
and place. The defendants rely upon the decision of
Wedge J. in Simonar et al. v. Braybrook et al. (1989),
76 Sask. R. 206 (Q.B.), at page 207, though in my
view the questions there at issue were more general
than the question of prior occurrences here and were
there readily determined to lack relevancy to the .
issues.
The plaintiff submits that this question meets the
standard for questions in discovery, that is it may be
relevant to facts in issue, essentially on two grounds.
First, one of the issues, raised by the defence as an
alternative to the defence of an absence of negli
gence, is a claim to limit liability pursuant to section
575 of the Canada Shipping Act, R.S.C., 1985, c. S-9.
The knowledge of the owners of the vessel of any
record of prior casualties involving vessels when the
Master was in charge would be relevant to any claim
they may have to limited liability. This is conceded
by counsel for the defendants in oral argument but it
is urged the question be considered in a broader con
text than that issue since the claim to limit liability
may be withdrawn if, as seems likely, any limitation
possible is likely to exceed the damages here
claimed.
In that broader context, the plaintiff submits the
question is relevant to the competence of the Master,
and authorities are cited where questions relating to
prior facts were allowed. In Royal Specialty Sales v.
Mayda Industries Co. Ltd., supra, a case involving
alleged infringement of a copyright design, my col
league Madam Justice Reed ordered to be answered
questions in discovery concerning prior suits for
industrial design infringement. In my view, that deci
sion turns on the fact that the defence pleaded inno
cent infringement, if any had occurred, a fact in rela
tion to which the questions were considered relevant
as tending to prove knowledge of the likelihood of
some intellectual property right in the design in issue
and thus tend to disprove the issue of innocent
infringement. In Savoie v. Bouchard and Board of
Trustees of Hotel-Dieu d'Edmundston (1983), 49
N.B.R. (2d) 424 (C.A.), a case concerning admissi
bility of questions at trial about prior occurrences
(and thus implicitly of questions that might be asked
in discovery), the questions asked were held admissi
ble where they were relevant to one party's testimony
of a consistent practice which tended to support a
conclusion of an absence of negligence on his part. In
Meilleur v. U.N.L-Crete Can. Ltd. (1982), 30 C.P.C.
80 (Ont. H.C.), a case in negligence based upon prod
uct liability and alleged failure to adequately label
containers, to pack properly, to warn and instruct
users, questions about other injuries known to the
defendant from use of their product, before or after
the accident giving rise to the action, were allowed so
far as they concerned prior accidents. In that case, it
seems to me, the relevance of the questions related to
knowledge of the defendant which would affect the
duty owed to prospective users in terms of the spe
cific claims of failure to provide proper notice or
warning of potential hazards. Finally, in Clif-Den
Holdings Ltd. et al. v. Automated Concrete Ltd. et al.
(1986), 70 A.R. 327 (Q.B.) the plaintiff's claim was
that one defendant had negligently overfilled propane
tanks of another defendant whose truck exploded and
destroyed the plaintiff's property. That decision by
Master Quinn was based, as he notes, on then Rule
200 of the Alberta Rules [Alberta Rules of Court,
Alta Reg. 390/68]. As he said, at page 329:
Strictly speaking, it is true that it is not relevant whether
Davis Heater overfilled propane tanks of vehicles owned by a
company or person other than Automated. It is even true that
overfilling of the Davis Heater vehicle's tanks on other occa
sions prior to the accident is not relevant from a strictly logical
point of view. Davis Heater may have on occasion overfilled
other vehicles and may even have on other occasions overfilled
the Automated truck, but that does not necessarily mean it
over-filled the Automated truck on the occasion that is central
to this litigation.
Rule 200 permits examination for discovery with reference
to the knowledge of the examinee "touching the question at
issue". This is obviously a much wider latitude than a test
based strictly on relevancy.
He then found that questions about any other vehicles
being overfilled with propane or about overfilling of
the truck in question on previous occasions "touch
the question in issue" and were to be answered. In my
view that decision turns on the scope accorded to the
Alberta rule concerning discovery, a scope said to be
wider than the test of relevancy, which is the basis set
by Rule 458(1)(a) of this Court.
The plaintiff's submission that the competence of
the Master is here in issue is acceptable in so far as
that competence is evident from his actions at the
time and place of the incident giving rise to this suit.
His general competence, as that may be judged from
previous incidents in which he may have been
involved, may also be relevant, as earlier indicated,
in relation to any claim by the owners to limit their
liability. But general competence in other situations
and circumstances is not relevant to the issue of pos
sible negligence in the incident at Sydney Harbour. If
this were an action involving loss arising from
alleged negligence in the operation of a motor vehi
cle, questions of the driver about previous accidents
in which he was involved would not be relevant to
the issue of negligence in the circumstances giving
rise to the claim for loss.
Thus, for the issue of possible negligence in the
operation of the vessel in approaching the berth at the
Steel Company's pier, the question of previous casu
alties involving ships under the Master's direction is
irrelevant. Nevertheless, the question may be relevant
to knowledge of the ship's owners and to their claim
to limit liability which is still at issue on the plead-
ings and thus I conclude this question is to be
answered.
Subsequent Occurrences
Two questions are objected to on the ground they
seek information about events subsequent to the cas
ualty giving rise to the action and in the defendants'
submission they are irrelevant to the issues. Those
questions are:
Q. 2(j) If the above answer was in the affirmative (i.e., were
there standing orders?) have such Standing Orders been
amended since March 21, 1989? If so, please supply a
copy of the amendments.
Q. 3(cc) Has this casualty been the subject of any hearing
and/or disciplinary action within the company?
Counsel are agreed there are two lines of authori
ties dealing with the propriety of questions on discov
ery that relate to events or occurrences subsequent to
those giving rise to the action. For the defendants it is
urged this Court should follow the line of cases
excluding such questions, illustrated by the opinion
of White J., dissenting, in Algoma Central Railway v.
Herb Fraser and Associates Ltd. (1988), 66 O.R.
(2d) 330 (Div. Ct.), at pages 336-342. The exclusion
of such questions in discovery and at trial, said to be
a traditional approach, is based upon lack of rele
vance of the answers to the issue of negligence
alleged in the incident, and also on policy grounds
that no one should be discouraged from taking steps
following an accident, out of an abundance of caution
or otherwise, to prevent possible similar occurrences
by concern that such action may be taken in evidence
to support a finding of negligence. The policy
grounds are discounted by the majority decision in
Algoma Central Railway, and while it is acknowl
edged by Chilcott J. in his decision (at pages 334-
336) for the majority that evidence of subsequent
events in the nature of remedial measures adopted
after the incident is not in itself relevant to the issue
of negligence, it may be relevant to other issues, e.g.
knowledge of the dangers and feasibility of precau
tionary measures, or to the owner's claim to limit lia
bility under the Canada Shipping Act, as in this case.
Moreover, as other cases have concluded, while evi
dence of subsequent occurrences may not of itself be
evidence of negligence it may have probative value
after other evidence of negligence has been adduced.
(See Can. Cement Lafarge Ltd. v. Caterpillar Tractor
Co. (No. 1) (1982), 29 C.P.C. 205 (Ont. H.C.)).
For the plaintiff it is urged that this Court should
follow the decision of the majority in Algoma Central
Railway which decision acknowledges that in light of
conflicting decisions it adopts as law for Ontario a
position different from that earlier stated by the prov
ince's Court of Appeal, in light of the more recent
trend to open discovery, leaving questions of admis
sibility and weight of evidence to be determined by
the trial judge. A variety of other authorities reaching
a similar decision are cited: for purposes of these rea
sons it is sufficient to note that the majority decision
in Algoma Central Railway reflects the position ear
lier adopted in Alberta (see, Canadian Pacific Rail
way Co. v. City of Calgary (1966), 59 D.L.R. (2d)
642 (S.C. App. Div.)), in Saskatchewan (see,
Cominco Ltd. v. Phillips Cables Ltd., [1987) 3
W.W.R. 562 (C.A.)), in Manitoba (see, James et al.
v. River East School Division No. 9 et al. (1975), 64
D.L.R. (3d) 338 (C.A.)), and possibly in New Bruns-
wick (see, Glidden v. Town of Woodstock (1895), 33
N.B.R. 388 (S.C.)).
In my view, the general purpose of the Federal
Court Rules, to provide all litigants with full and
complete discovery prior to trial and to remove as
much uncertainty as possible before trial about the
respective positions of the parties, supports the adop
tion of the majority view in Algoma Central Railway
in relation to questions concerning subsequent occur
rences that relate to review or remedial or discipli
nary measures undertaken following an incident giv
ing rise to the action. Such questions may relate to
issues other than negligence in the incident, a matter
not readily discernible before discovery, or answers
to them may be of probative value following the
introduction of other evidence of negligence. I accept
the answers are not in themselves evidence of negli
gence. Whether they are admissible at trial, for what
purposes and with what weight are matters for deter
mination of the trial judge.
Thus, I conclude that questions 2(j) and 3(cc), to
which objection is taken by the defendants, are to be
answered in discovery.
Opinion evidence
The final classification suggested for the questions
here in issue is those that seek opinions or qualitative
conclusions, here essentially of the Master of the ves
sel. In oral argument the defendant describes the
questions as inviting mere speculation, if not opin
ions. The plaintiff, while contending the questions
asked do not seek opinions, urges that if they are so
characterized the answers ought to be compelled as
exceptions to the general rule about opinion evidence
since, it is said, they relate to the expertise, the skill
and knowledge, the competence, of the Master.
The questions in issue are:
Q. 3(n) Would any helm action have been effective during
that 6' minute period when the engine was stopped?
Q. 3(r) During the 7 minutes from 1118 to 1125, would any
helm action have been effective?
As a result of discussions between counsel for the
parties ancillary questions have been asked, to which
the defendant does not object, namely:
Describe the manner in which the Vessel responded to her
helm during that 61 minute period; and
During the 7 minutes from 1118 to 1125 what helm move
ments were made and in what manner did the Vessel respond
to each?
Nevertheless, the plaintiff still seeks answers to the
questions originally asked.
The plaintiff urges that the questions do not seek
opinions, that they seek simply factual information,
"namely whether the helm of the ship would have
responded in certain situations", "not whether the
defendant thinks that it would or could have
responded". In my view that explanation of the ques
tions ignores the manner in which the questions are
worded and that the questions do not stipulate the
"certain situations" to which, in explanation, the
questions are said to relate. Rather the questions as
asked seem to me to require the defendants to specu
late upon possible actions and the judgment or opin
ion of the Master or the defendants as a matter of
anticipation as to how the vessel might have
responded to those actions. Moreover, I am not per
suaded that the questions should be treated as excep
tions to the "opinion question rule" referred to by
Pratte J. for the Court of Appeal in Rivtow Straits
Ltd. v. B.C. Marine Shipbuilders Ltd., [1977] 1 F.C.
735 who said, in part [at page 736]:
... this Court has decided that questions asking for the expres
sion of an opinion were not permissible during an examination
for discovery unless, perhaps, the witness is an expert whose
expertise is put in issue by the allegation of the pleadings...
Whatever be the practice in the courts of the various provinces,
I am of opinion that, during an examination for discovery held
under the Rules of the Federal Court, questions asking for a
mere expression of opinion, if permissible at all, are permissi
ble only if they are put to a witness whose expertise is put in
issue by the allegation of the pleadings... .
See also Dubé J. in R & B Fishing Ltd. et al. v.
Canada (1986), 1 F.T.R. 305 (F.C.T.D.); Addy J. in
Smith, Kline & French Laboratories Ltd. et al. v.
Attorney-General of Canada (1982), 67 C.P.R. (2d)
103 (F.C.T.D.), at pages 107 and 109.
The plaintiff urges that the exception for questions
of opinion which can arise where the expertise of a
witness is in issue should apply here, for the compe
tence or expertise of the witness, the Master, is in
issue on the pleadings, including negligence, alleged
in the statement of claim, of those in charge of the
vessel or responsible for her navigation, maintenance
and management, and also by the allegations in the
defence of the vessel's failure to respond to helm suf
ficiently quickly, its denial of negligence and its plea
of inevitable accident. The competence of the Master
in the particular circumstances immediately before
and at the time of the casualty is certainly in issue by
the allegation of negligence and its denial. However,
his general judgment based upon his expertise as a
Master in light of his experience, is what the ques-
dons asked appear to concern. In my view, that is not
in issue here. He is not an expert witness as that term
is generally understood. His opinion as such a wit
ness is not in issue. In my view the questions as
asked seek opinions and are not exceptions to the rule
precluding such questions under the Federal Court
Rules. The plaintiff referred to two Alberta cases in
which questions relating to competence and to opin
ions were ordered to be answered in discovery (see,
Drake v. Overland and Southam Press Ltd. (1979),
19 A.R. 472 (C.A.) and Opron Construction Co. v.
Alberta (1988), 85 A.R. 143 (Q.B.)). Those cases,
determined in relation to Alberta Rules, may indicate
wider scope for discovery in relation to opinions
sought than exists under the Federal Court Rules.
Thus, it is my conclusion that the defendants are
not required to answer questions 3(n) and 3(r) and
that the defendants' application to strike these two
questions should be allowed.
Summary—Conclusion
In accord with these reasons an order goes
directing the defendants to answer questions asked in
the plaintiff's written examination for discovery
dated November 21, 1991, which questions may be
relevant to matters in issue but the answers to those
questions may be admissible at trial as shall be deter
mined by the trial judge. Questions 3(n) and 3(r) of
that written examination for discovery are struck out
as questions which the defendants are not required to
answer.
Success is thus divided on the defendants' applica
tion. Costs shall be in the cause.
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.