2018 QCCQ 8573, 2018 QCCQ 8573

J.B. Laverdure inc. c. Mediterranean Shipping Company 2018 QCCQ 8573 JF 1182 2018 QCCQ 8573 COURT OF QUEBEC (Civil Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-22-227605-162 DATE: November 21, 2018 (corrected on November 27, 2018) ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ J.B. LAVERDURE INC. Plaintiff v. MEDITERRANEAN SHIPPING COMPANY S.A.

Defendant ______________________________________________________________________ CORRECTED JUDGMENT ______________________________________________________________________ [ 1 ] The parties submit to the Court [1] a number of difficulties that have arisen with respect to the formulation of questions submitted by Mediterranean Shipping Company S.A. (“ MSC ”) to the representative of J.B. Laverdure Inc. (“ Laverdure ”) in the context of a written examination under

article 223 of the Code of Civil Procedure (“ C.C.P. ”) and pursuant to a judgment which this Court has already rendered in this file in the context of the written examination (“ April Judgement ”). [2] Question in issue Are the questions formulated by MSC in its May 15, 2017 Written Examination consistent with the rules of the Code of Civil Procedure and the April Judgment?

Context [ 2 ] Laverdure claims $24,860.84 from MSC on the grounds that the latter breached its obligations under a contract of carriage for the shipment of limes from Brazil to Montréal since the cargo was found to be damaged upon arrival to Montréal. [ 3 ] In July 2016, MSC notified to Laverdure a written examination pursuant to

article 223 C.C.P. (“ July 2016 Written Examination ”). [ 4 ] By way of a Notice of Case Management, Laverdure asked the Court to declare that MSC’s July 2016 Written Examination was abusive or subsidiarily, to take any measures to ensure that this examination complied with the rules of the Code of Civil Procedure . [ 5 ] In April 2017, the Court issued its April Judgment in which it ruled as follows with respect to the Notice of Case Management and the July 2016 Written Examination : [63] GRANTS in part J.B.

Laverdure Inc.’s Notice of Case Management; [64] AUTHORIZES the following questions of Mediterranean Shipping Company S.A.’s Written Examination of July 20, 2016: 2, 2.1 to 2.6, 7.6, 12, 12.2, 16, 17.1, 29, 31, 35, 47, 49.3, 51, 52.2, 52.5, 53, 64, 71, 72, 73, 76, 88, 89, 96, 97, 98, and 104 and ORDERS J.B. Laverdure Inc. to answer these questions within 25 days of the date of the present judgement; [65] AUTHORIZES the first part of the following questions of Mediterranean Shipping Company S.A.’s Written Examination of July

20, 2016: 5.2, 7.3, 7.7, 8.1 to 8.6, 9.1, 9.2, 9.3, 30, 39, 40, 45, 52.5, 65, 99.4 and 103 and ORDERS J.B. Laverdure to answer these questions within 25 days of the date of the present judgement; [66] AUTHORIZES Mediterranean Shipping Company S.A. to notify to J.B. Laverdure Inc. within 10 days of the present judgement, a revised written examination, if it so elects, in which it will reformulate those questions of its Written Examination which have not been authorized in the present judgement, in a manner consistent with

article 223 C.C.P. and the principles stated in this judgement, and ORDERS J.B.

Laverdure Inc. to answer the reformulated written questions within 25 days from the notification of the revised written examination; [67] REMAINS seized of the matter insofar as a difficulty may arise between the parties with respect to the conduct of Mediterranean Shipping Company S.A.’s Written Examination of July 20, 2016 as authorized in the present judgement; [ 6 ] On May 8, 2017, MSC submitted to Laverdure a revised written examination as authorized by paragraph 66 of the April Judgment. [3] [ 7 ] On May 15, 2017, MSC submitted to Laverdure an Amended revised written examination (“ May 15, 2017 Written Examination ”). [4] [ 8 ] On May 24, 2017, Laverdure communicated to MSC its answers to the July 2016 Written Examination (“ May 24 Answers ”). [5] [ 9 ] On May 30, 2017, MSC agreed to withdraw a series of question from its May 15, 2017 Written Examination. [6] These questions include: 6 (but not 6.1), 8, 12, 12.1, 12.2, 12.3, 23, 23.1, 23.2, 23.3, 31, 32, 33, 33.1 to 33.9, 35, 36, 36.1, 50 and 53. [ 10 ] Laverdure and MSC disagree with respect to the formulation of MSC’s questions in the May 15, 2017 Written Examination, notably as to whether they comply with the rules of the C.C.P. and this Court’s April Judgement and whether the May 24 Answers already respond to the questions. [ 11 ] Accordingly, a case management hearing was held and the parties presented their arguments with respect to the formulation of MSC’s questions.

This judgment addresses this issue. Analysis and Decision [ 12 ] Written examinations are governed by the general provisions found in articles 221 and 222 C.C.P. , as well as the specific rules set forth in articles 223 to 225 C.C.P. , which read as follows:

223. Une

partie peut notifier à l’autre

partie un interrogatoire écrit portant sur les faits se rapportant au litige et la sommer d’y répondre dans le délai qu’elle indique, lequel ne peut être de moins de 15 jours ni plus d’un mois. Elle peut également, après en avoir informé l’autre partie, notifier un tel interrogatoire à une autre personne qui peut être interrogée. Les questions doivent être claires et précises , de manière que l’absence de réponse puisse être interprétée comme une reconnaissance par la

partie ou la personne interrogée des faits sur lesquels elles portent. L’interrogatoire et la réponse sont versés au dossier du tribunal par l’une ou l’autre des parties. 224. Les réponses à l’interrogatoire sont données par écrit, sous serment, et signées par la

partie ou la personne interrogée; elles doivent être directes, catégoriques et précises, sans quoi elles peuvent être rejetées et les faits sur lesquels elles portent tenus pour avérés. Si la

partie est une personne morale, une société en nom collectif ou en commandite, ou encore une association ou un autre groupement sans personnalité juridique, les réponses sont données par un administrateur, un dirigeant ou un employé autorisé, à moins qu’elles ne soient arrêtées par une délibération spéciale de la personne morale, de la société, de l’association ou du groupement sans personnalité juridique. 225. Faute par la

partie ou la personne interrogée de répondre aux questions qui lui sont posées, les faits sur lesquels porte l’interrogatoire sont alors tenus, en ce qui la concerne, pour avérés. Néanmoins, le tribunal peut, pour raison valable, relever la

partie ou la personne interrogée de son défaut et lui permettre de répondre, aux conditions qu’il juge à propos. Il peut aussi poser toutes autres questions jugées nécessaires et pertinentes, auxquelles la

partie ou la personne interrogée doit répondre, sans quoi les faits sur lesquels elles portent sont aussi tenus pour avérés. 223. A party may notify to the other party a written examination on facts relevant to the dispute, and require that other party to answer within a specified time, which cannot be shorter than 15 days or longer than one month. A party may also, after informing the other party, notify such an examination to any other person that may be examined.

The questions must be clear and specific , so that the absence of an answer can be taken as an admission, by the party or person examined, of the facts to which the questions pertain. The examination and the answers are filed in the court record by either of the parties. 224. The answers to a written examination are given in writing, under oath, and signed by the party or person examined. They must be direct, categorical and specific, failing which they may be rejected and the facts to which the questions pertain, held to be proved.

If the party is a legal person, a general or limited partnership, or an association or another group not endowed with juridical personality, the answers are given by an authorized director, officer or employee, unless they are determined by a special resolution of the legal person, partnership or association or group not endowed with juridical personality. 225. If the party or person examined fails to answer the questions asked, the facts on which the examination bears are held to be proved as far as that party or person is concerned.

Nevertheless, the court, for valid cause, may relieve the party or person examined from the default and allow them to answer, subject to the conditions it sees fit.

The court may also ask any other questions considered necessary and relevant, which the party or person examined must answer, failing which the facts to which the questions pertain are also held to be proved. (Underlining added) [ 13 ] In its April Judgment, the Court summarized as follows the general framework applicable to written examinations under the Code of Civil Procedure : • Written examinations must be carried out only in the strict confines and framework set out in the Code of Civil Procedure ; • A person being examined by way of a written examination is not required to make inquiries from a third party in order to answer a question; • The written examination is not, as a general rule, the appropriate procedure to obtain documents from the opposing party; • The questions must be clear and specific; • The questions must be formulated so that they can be answered in a direct, categorical and specific manner.

As a general rule, this means that the questions should be framed such that the witness can only answer “Yes” or “No”. In other words, the questions must be closed-ended as opposed to open-ended; • The witness is not limited to answering “Yes” or “No” since he/she is allowed to explain his/her answer insofar as the explanation is direct, categorical and specific

• A question that is lengthy and complex and which obliges the witness to interpret the question and/or to analyse its components is not properly formulated; • Written questions cannot be framed in such a way that they replicate the questions that would be raised during an oral examination; • The purpose of a written examination is to introduce a method of examination that is quicker and more economical than the pre- trial oral examination and therefore the questions should be formulated so as to achieve this goal; • Overall, the questions must respect the principal of proportionality. [ 14 ] With these general guidelines in mind, the Court will address each of the 60 questions that remain outstanding in the May 15, 2017 Written Examination. [7] Questions Decision 1, 2, 4.3, 4.4, 4.5, 5.1, 5.2, 5.3, 9, 10, 11, 18, 20, 21.1, 21.2, 21.3, 22, 22.1, 24, 25, 26, 27, 28, 29.1, 29.2, 29.3, 30, 37, 38, 39, 40, 41, 42, 46, 48, 51, 52, 54, 55, 55.1, 55.2, 56, 57.1, 58 The questions are allowed as their formulation is consistent with

article 223 C.C.P. and the principles stated in the April Judgment. Moreover, the May 24 Answers do not address these questions. 4.1 The question is not allowed as its formulation is not “clear and specific” since the term “regular” can have many different meanings and is subject to

interpretation. 4.2 The question is not allowed as its formulation is not “clear and specific” since the term “similar” can have many different meanings and is subject to

interpretation. 6.1 The question is not allowed as its formulation is not “clear and specific”. The terms employed in the question, namely “program” and “long-term contract” are unclear. Moreover, the May 24 Answers provided in relation to questions 7.6 and 8.1 to 8.6 of the July 20, 2016 Written Examination already address this question. 7 The question is not allowed as its formulation is not “clear” in that the witness must compare the two expert declarations and opine as to whether they are “identical”.

MSC is indirectly attempting to obtain an answer to question 12.1 of its July 20, 2016 Written Examination which the Court disallowed in its April Judgment. 13, 14, 15, 16 The questions are not allowed as their formulation is not “clear”.

It is unclear what is meant by “during that time” as this expression can refer to the period immediately following harvesting or the period during which the limes were allegedly kept at a storage facility. 17 The question is not allowed as it replicates question 4.5 of the May 15 Written Examination. 19 The question is not allowed since the witness already answered this question in the May 24 Answers provided in relation to questions 40 and 45 of the July 20, 2016 Written Examination. 32.1 The question is not allowed considering the witness’ answer provided in the May 24 Answers in relation to question 47 of July 20, 2016 Written Examination. 34 The question is not allowed as it is not “clear and specific”: the term “same” employed in the question is open to

interpretation, calls for opinion evidence and a detailed and complex answer. 43, 44, 45 The questions are not allowed considering the witness’ answer provided in the May 24 Answers to question 65 of the July 20, 2016 Written Examination. 47 The question is not allowed as it is not “clear and specific”. 49 The question is not allowed as it is not “clear and specific”: the term “methodology (ies)” is vague and subject to

interpretation. FOR THESE REASONS, THE COURT: [ 15 ] GRANTS in part J.B. Laverdure’s Notice of Case Management; [ 16 ] AUTHORIZES the following questions from Mediterranean Shipping Company S.A.’s May 15, 2017 Written Examination: 1, 2, 4.3, 4.4, 4.5, 5.1, 5.2, 5.3, 9, 10, 11, 18, 20, 21.1, 21.2, 21.3, 22, 22.1, 24, 25, 26, 27, 28, 29.1, 29.2, 29.3, 30, 37, 38, 39, 40, 41, 42, 46, 48, 51, 52, 54, 55, 55.1, 55.2, 56, 57.1 and 58 and ORDERS J.B.

Laverdure Inc. to answer these questions by no later than December 12, 2018; [ 17 ] DISALLOWS the following questions from Mediterranean Shipping Company S.A.’s May 15, 2017 Written Examination: 4.1, 4.2, 6.1, 7, 13, 14 , 15, 16, 17, 19, 32.1, 34, 43, 44, 45, 47 and 49;

[ 18 ] TAKES ACT of Mediterranean Shipping Company S.A.’s withdrawal of the following questions from its May 15, 2017 Written Examination: 6, 8, 12, 12.1, 12.2, 12.3, 23, 23.1, 23.2, 23.3, 31, 32, 33, 33.1 to 33.9, 35, 36, 36.1, 50 and 53; [ 19 ] WITH COSTS TO FOLLOW SUIT. __________________________________ ENRICO FORLINI, J.C.Q. Me Patrice Hockenhull Pinsky, Zelman, Segal, Santillo Plaintiff’s lawyer Me Giovanni De Sua Astell Lachance Du Sablon De Sua Defendant’s lawyer Date of hearing: September 29, 2017