Thyssenkrupp Materials Na Inc. v. Stewart Island (Ship)
Court headnote
Thyssenkrupp Materials Na Inc. v. Stewart Island (Ship) Court (s) Database Federal Court Decisions Date 2005-01-12 Neutral citation 2005 FC 23 File numbers T-15-05 Decision Content Date: 20050112 Docket: T-15-05 Citation: 2005 FC 23 ACTION IN REM AGAINST THE SHIP "STEWART ISLAND" AND IN PERSONAM BETWEEN: THYSSENKRUPP MATERIALS NA, INC. Plaintiff and THE OWNERS AND ALL OTHERS INTERESTED IN THE SHIP "STEWART ISLAND", AND THE SHIP "STEWART ISLAND" Defendants REASONS FOR ORDER PINARD J. [1] This is an appeal by the Plaintiff of a discretionary decision made by Prothonotary Hargrave, on January 7, 2005, denying its request for the examination, pursuant to Rule 238, of the Chief Engineer who was on board the relevant vessel at the time of its engine failure. [2] In his decision, the Prothonotary stated: Examination of the Chief Engineer, pursuant to Rule 238, is denied. While the Chief Engineer, in all likelihood, has relevant information and while his examination would be unlikely to cause undue delay, inconvenience or expense, I am not convinced either that the information, which the Chief Engineer could provide, cannot be obtained from another source, such as production of documents or timely examination for discovery, or that there is inherent or actual unfairness in denying examination of the Chief Engineer at this point. [3] Upon hearing counsel for the parties and upon reading the material filed, I am not prepared to conduct a de novo review of the merits of the Prothonotary…
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Thyssenkrupp Materials Na Inc. v. Stewart Island (Ship) Court (s) Database Federal Court Decisions Date 2005-01-12 Neutral citation 2005 FC 23 File numbers T-15-05 Decision Content Date: 20050112 Docket: T-15-05 Citation: 2005 FC 23 ACTION IN REM AGAINST THE SHIP "STEWART ISLAND" AND IN PERSONAM BETWEEN: THYSSENKRUPP MATERIALS NA, INC. Plaintiff and THE OWNERS AND ALL OTHERS INTERESTED IN THE SHIP "STEWART ISLAND", AND THE SHIP "STEWART ISLAND" Defendants REASONS FOR ORDER PINARD J. [1] This is an appeal by the Plaintiff of a discretionary decision made by Prothonotary Hargrave, on January 7, 2005, denying its request for the examination, pursuant to Rule 238, of the Chief Engineer who was on board the relevant vessel at the time of its engine failure. [2] In his decision, the Prothonotary stated: Examination of the Chief Engineer, pursuant to Rule 238, is denied. While the Chief Engineer, in all likelihood, has relevant information and while his examination would be unlikely to cause undue delay, inconvenience or expense, I am not convinced either that the information, which the Chief Engineer could provide, cannot be obtained from another source, such as production of documents or timely examination for discovery, or that there is inherent or actual unfairness in denying examination of the Chief Engineer at this point. [3] Upon hearing counsel for the parties and upon reading the material filed, I am not prepared to conduct a de novo review of the merits of the Prothonotary's decision and to consider exercising my own discretion differently because the Plaintiff has failed to demonstrate that the impugned decision is "clearly wrong", in that it was made upon an incorrect principle of law or misapprehension of the facts, or that the question raised is vital to the "final issue" in the case (see Canada v. Aqua-Gem Investments Ltd. [1993] 2 F.C. 425 (F.C.A.)). I am rather satisfied that the Prothonotary applied Rule 238 correctly, exercised his discretion in a rightful manner and based his decision on the evidence before him. [4] Consequently, the appeal is dismissed, with costs against the Plaintiff payable forthwith, upon taxation, in any event of the cause. (Sgd.) "Yvon Pinard" Judge FEDERAL COURT NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: T-15-05 STYLE OF CAUSE: Thyssenkrupp Materials NA, Inc. v The Owners and all others interested in the Ship "Stewart Island", the Ship "Stewart Island" PLACE OF HEARING: Vancouver BC DATE OF HEARING: January 11th, 2005 REASONS FOR ORDER: Pinard J. DATED: January 12, 2005 APPEARANCES: Shelley Chapelski FOR PLAINTIFF Michael Bird FOR DEFENDANT Peter Bernard FOR SK SHIPPING CO. LTD. SOLICITORS OF RECORD: Bromley Chapelski FOR PLAINTIFF Vancouver BC Bull, Housser & Tupper FOR DEFENDANTS Vancouver BC Bernard & Partners FOR SK SHIPPING CO. LTD. Vancouver BC
Source: decisions.fct-cf.gc.ca