Date: 20060621

Docket: T-573-04

Citation: 2006 FC 797

Montréal, Quebec, June 21, 2006

Present:  Richard Morneau, Prothonotary

BETWEEN:

ALSTOM CANADA INC.

and

AREVA T&D CANADA INC.

Plaintiffs

and

CANADIAN NATIONAL RAILWAY COMPANY

Defendant

REASONS FOR ORDER AND ORDER

[1]               UPON the plaintiffs’ motion to oblige the defendant to answer to undertakings made by its lawyer at the February 27, 2006 examination of counsel for the defendant and to obtain rulings on a series of objections made at that time by the defendant.

[2]               UPON the motion records of the parties and the submissions made by their lawyers at the hearing.

[3]               WHEREAS, as far as the undertakings are concerned, the vast majority of them seem to have been abided by, although belatedly, and some of them still remain unanswered.

[4]               WHEREAS the objections were grouped into four categories and should be dealt with as such.

Category I

[5]               WHEREAS questions 1, 3, 5, 6 and 11 in this category seek specific and limited information about two shipments by rail that had to be made by the defendant in order to, following the initial shipment during which the transformer was damaged (March 20, 2001 to March 30, 2001, Trip I), return the transformer to England (April 24, 2001 to May 3, 2001, Trip II) and then deliver the repaired transformer back to Manitoba (October 2002, Trip III).

[6]               WHEREAS, in spite of the fact that the damages claimed by the plaintiffs were apparently caused during Trip I, Trips II and III were also made by the defendant and necessarily involved the same transformer as in Trip I. In addition, the defendant used the same railway car for Trip II as for Trip I. 

[7]               WHEREAS, for these reasons, the specific and limited Category I questions are relevant because they could, within the meaning of Reading & Bates Construction Co. v. Baker Energy Resources Corp. (1988), 24 C.P.R. (3d) 66, at pages 70 to 72, entail answers demonstrating variables in the positioning of the railway car used for carriage during trips II and III which could, by comparison with Trip I, help or hinder either party’s case.

[8]               WHEREAS, in addition, the defendant did not prove by affidavit that seeking additional information would be excessive in relation to the value of such information.

[9]               CONSEQUENTLY, the questions in this category must be answered.

[10]           In allowing these Category I questions, the Court understands from the affirmations made by the plaintiffs that such questions concern very specific aspects of Trips II and III and that these questions are not and must not be a gateway in a broader attempt to deal with Trips II and III.

Category II

[11]           WHEREAS this category includes questions 2, 4 and 7, and the Court agrees with the defendants that questions 2 and 4 are drafted in such a way as to constitute a trap for the witness because they are premised on a finding of failure to comply with instructions, questions 2 and 4 will not have to be answered. However, question 7 is different and will have to be answered.

Categories III and IV

[12]           The Court notes that the defendant now undertakes to answer the questions in these categories.

[13]           As far as costs are concerned, they are allowed in favour of the plaintiffs according to the maximum amount of Column III of the Tariff, considering that the plaintiffs have largely won this motion, and considering that this motion most surely forced the defendant to act to ensure that the delay already incurred with regard to the undertakings did not get any longer.

ORDER

            The defendant will complete its answers to the remaining undertakings within the time limit to be mutually determined by the parties and specified in draft order sought by the direction of this Court dated June 16, 2006.

            Likewise, the defendant must answer the Category I questions, question 7 of Category II, and the Category III and IV questions.

            Costs are allowed in favour of the plaintiffs according to the maximum amount in column III of the Tariff.

            The plaintiffs’ motion is otherwise dismissed.

“Richard Morneau”

Certified true translation

Michael Palles

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          T-573-04

STYLE OF CAUSE:                          ALSTOM CANADA INC. and AREVA T&D CANADA INC.

                                                            and

                                                            CANADIAN NATIONAL RAILWAY COMPANY

PLACE OF HEARING:                    Montréal, Quebec

DATE OF HEARING:                      June 19, 2006

REASONS FOR ORDER BY:         PROTHONOTARY MORNEAU

DATED:                                             June 21, 2006

APPEARANCES:

SOLICITORS OF RECORD: