2017 QCCQ 4679, 2017 QCCQ 4679

J.B. Laverdure inc. c. Mediterranean Shipping Company 2017 QCCQ 4679 COURT OF QUEBEC (Civil Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-22-227605-162 DATE: April 26, 2017 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI J.C.Q. ______________________________________________________________________ J.B. LAVERDURE INC. Plaintiff v. MEDITERRANEAN SHIPPING COMPANY S.A. Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] J.B.

Laverdure Inc. (Laverdure) claims $24,860.84 from Mediterranean Shipping Company (MSC). It argues that MSC breached its obligations under a contract of carriage for the shipment of limes from Brazil to Montreal, since the cargo of limes was found to be damage upon arrival to Montreal. [ 2 ] MSC contests the claim. On July 20, 2016, and as contemplated in the case protocol, MSC notified to Laverdure a written examination pursuant to

article 223 of the Code of Civil Procedure (C.C.P.) [MSC’s Written Examination]. [ 3 ] By way of a Notice of Case Management, Laverdure asks the Court to declare that MSC’s Written Examination is abusive (art 51 C.C.P. ) because it argues it is excessive or unreasonable. Subsidiarily, it asks the Court to take any measure to ensure that MSC’s Written Examination complies with the principle of proportionality. Questions in Issue 1. Is MSC’s Written Examination abusive? 2.

If this Court finds that MSC’s Written Examination is not abusive, do some or all of the questions contained in the Written Examination comply with the principle of the proportionality or, the rules governing written examinations? Context [ 4 ] In January 2016, Laverdure filed its application originating a proceeding against MSC in which it claims $24,860.84.

Its alleges that it contracted with MSC for the transportation of a container of fresh limes from Brazil to Laverdure’s premises located in Montreal pursuant to a through bill of lading. [ 5 ] It alleges that the cargo of fresh limes was damaged upon arrival at its destination because MSC failed to properly maintain the requisite temperature in the shipping container throughout the period of carriage. [ 6 ] In March 2016, the parties filed a case protocol which contemplates a written examination by MSC. [ 7 ] In May 2016, MSC filed a Notice for particulars and communication of documents.

MSC’s request for particulars was granted in part pursuant to a judgement of the Special Clerk dated June 15, 2016. [ 8 ] On July 20, 2016, MSC filed its Written Examination. Indeed, since the amount claimed by Laverdure in its law suit is less than $30,000, MSC cannot conduct a pre-trial oral examination. [ 9 ] MSC’s Written Examination is contained in a 15 page document and includes roughly 239 questions. [ 10 ] On August 1, 2016, Laverdure filed a Notice for Case Management in which it asks the Court to : 1.

Statuer sur le caractère déraisonnable, excessif et abusive de l’interrogatoire écrit, pièce R-1, qui est de 15 pages et comporte 239 questions, considérant le montant en litige de 24,860.84$ et le fait que les procureurs de la défenderesse ont déjà préalablement fait une Demande pour précisions et communication de document, dont une copie est communiquée au soutien du présent avis sous la pièce R-2 , laquelle Demande était déjà volumineuse de 13 pages et comportait 150 questions;

2. Condamner la défenderesse à payer à la demanderesse la somme de 5,000$ à

titre de dommages-intérêts et dommages-intérêts punitifs, le tout conformément à l’

article 54 C.p.c.; 3. Ordonner toute autre mesure ou condition que le Cour jugera approprié à l’endroit de l’interrogatoire écrit, pièce R-1, afin de faire respecter le principe de proportionnalité et de s’assurer que l’interrogatoire écrite ( sic ), pièce R-1, est, eu égard aux coûts et au temps exigé, proportionné à la nature et à la complexité de l’affaire et au montant en litige. [ 11 ] Laverdure argues that the quantity and the scope of the questions contained in MSC’s Written Examination is such that it is excessive or unreasonable and therefore abusive for the purposes of

article 51 C.C.P. [ 12 ] At the hearing of the Notice of Case Management, Laverdure’s lawyer withdrew the request to condemn MSC to pay $5,000 in damages should the Court conclude that MSC’s Written Examination is abusive. Analysis 1. Is MSC’s Written Examination abusive? [ 13 ] Articles 51 , 53 and 54 of the C.C.P. set out the powers of a Court to impose sanctions for abuse of procedure. The Court has the discretion to declare that a judicial application or a pleading is abusive. [ 14 ] Article 51 (2) C.C.P. sets out what is meant by an abuse of procedure.

Abuse of procedure may consist in a judicial application or pleading that is clearly unfounded, frivolous or intended to delay. Abuse can also arise in the use of a procedure that is excessive or unreasonable or that causes prejudice to another person or attempts to defeat the ends of justice. [ 15 ] Laverdure argues in its Notice of Case Management that MSC’s Written Examination is abusive because it is excessive and unreasonable.

Specifically, it argues that both the formulation of the questions and the number of questions submitted are such that the procedure is abusive. [ 16 ] According to the case law, the courts must apply an objective test to determine whether a procedure is excessive or unreasonable and therefore abusive.

In the context of a request to declare a written examination abusive, one must examine all of the circumstances of a case, including the nature and number of pleadings filed by the party accused of wrong doing, the amount in issue, and the facts in issue, in other words, the facts which the plaintiff must prove in order to succeed along with the facts that the defendant must prove in order to establish a defense. [ 17 ] Moreover, Laverdure’s application must be analysed keeping in mind that the right to disclosure of evidence at the pre-trial stage is generally interpreted broadly. [1] [ 18 ] In Charland v.

Lessard , the Court of Appeal described as follows what may constitute unreasonable and excessive pleadings: [197] En pareille situation, il y aura abus si une personne prudente et diligente, au regard du déroulement de l’instance et du procès, conclurait à une utilisation excessive ou déraisonnable de la procédure et donc, à la faute ou à la négligence de son auteur, en considérant les coûts et le temps exigés, la finalité de la demande, l’importance des principes qu’elle soulève ou de l’intérêt en jeu [2] . [ 19 ] The Court of Appeal also stated in Charland v.

Lessard that a pleading is not necessarily abusive if it runs afoul of the principle of proportionality. [3] [ 20 ] The Court has reviewed MSC’s Written Examination and concludes that it is not abusive.

Considering the nature of the claim brought forth by Laverdure, the complexities associated with a claim that is likely governed by Canadian Maritime Law , and the complexity of the facts in issue, the Court believes that the questions formulated in MSC’s Written Examination are not excessive or unreasonable such that they amount to an abusive proceeding. [ 21 ] That said, whether the formulation of the questions comply with the rules governing written examinations is an altogether different issue that the Court will address below. 2.

Do some or all of the questions contained in MSC’s Written Examination comply with the principle of the proportionality or, the rules governing written examinations? [ 22 ] Prior to addressing this question, the Court will address a preliminary issue, namely whether written examinations are permitted where the amount claimed or the value of the property claimed in the judicial application is less than $30,000. Preliminary issue: Does the Prohibition of

Article 229 C.C.P. Apply to Written Examinations? [ 23 ]

Article 229 CCP states that no pre-trial examination is permitted where the amount claimed or the value of the property claimed is less than $30,000. Considering that the amount claimed in the present lawsuit is less than $30,000, does this prohibition apply to MSC’s Written Examination? [ 24 ] The Court does not believe that the prohibition of

article 229 CCP applies to written examinations when the amount claims in the application is less than $30,000. [ 25 ] The prohibition in

article 229 CCP is contained in

Section III,

Chapter I, Title III of Book II of the C.C.P., which governs oral pre-trial examinations. Written examinations are specifically governed by articles 223 to 225 C.C.P., which are contained in

Section II,

Chapter I, Title III of Book II of the C.C.P. [ 26 ]

Section I,

Chapter I of Title III which is untitled ‘’General Provisions’’, sets out the general rules that apply to all pre-trial examinations, whether written or oral. If the legislator had intended that the prohibition of

article 229 apply to both oral and written pre-

trial examinations, it would have placed this prohibition in the “General Provisions”

Section of

Chapter I, Title III of Book II of the C.C.P . [ 27 ] Since the legislator has specifically limited the prohibition of

article 229 to oral pre-trial examinations, the prohibition only applies to oral examinations and not written examinations. [ 28 ] This

interpretation is consistent with the rulings of this Court under the old Code of Civil Procedure (Old Code). [4] Written examinations, or interrogatories upon articulate facts as they were called under the Old Code, were governed by articles 405 to 413 of the Old Code. Commenting on the new

article 223 C.C.P. , Donald Béchard writes: Il est utile de rappeler que selon la jurisprudence ayant interprété les articles 405 et suivants a.C.p.c., l’interrogatoire en vertu de ces articles n’était pas régi par la prohibition de l’article 396.1 C.p.c., qui ne permettait pas l’interrogatoire au préalable dans des dossiers où le seuil était en deça de 25 000 $. [5] Written Examinations Under the C.C.P. [ 29 ] Under the C.C.P. , the written examination is governed by the general provisions found in articles 221 to 222 C.C.P., as well as the specific rules set forth in articles 223 to 225 , 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.

[ 30 ] Under the C.C.P , the written examination and answers only from part of the Court file if one of the parties elects to file them in the court record [6] whereas under the Old Code, the questions and answers automatically formed part of the court record. [7] [ 31 ] Similarly, under the C.C.P. , the written examination may be conducted only if it is provided for in the case protocol, and in compliance with the terms set forth in the protocol, which implies that it may be conducted prior to or after the filing of the defense, whereas under the Old Code, the interrogatory upon articulated facts was only permissible after the filing of the defense. [8] [ 32 ] Finally, under the C.C.P. , so long as the parties have provided for the written examination in the case protocol, the party wishing to conduct such a written examination does not need an order of the clerk [9] , whereas under the Old Code, a party wishing to conduct an interrogatory upon articulated facts was required to obtain an order of the clerk. [10] [ 33 ] Other than these minor changes, the regime of the written examination under the C.C.P. obeys to the same rules as those which applied under the Old Code. [ 34 ] Similarly, the form of the answers given to a written examination under the C.C.P. is identical to the requirement that prevailed under the Old Code: the answers must be direct, categorical and specific (‘’ directes, catégoriques et précises ’’). [11] [ 35 ] In light of the great similarities between the old regime and the rules governing written examinations under the C.C.P. , the case law which interpreted the rules under the Old Code is still relevant. [ 36 ] Written examinations must be carried out only within the strict confines and framework laid down under the C.C.P.

Otherwise, there is a risk that the end result will create new sources of dispute between the parties. [12] [ 37 ] Questions that require the witness to interpret a statute in order to answer the question are not permissible. [13] [ 38 ] A person being examined through a written examination is not required to make inquiries from a third party in order to answer a question.

The witness is only required to answer what he has personal knowledge of. [14] [ 39 ] The courts had also decided that the written examination is not the appropriate procedure to obtain documents from the opposing party. [15] It is difficult to reconcile utilizing a written examination to obtain documentary disclosure and the rule set forth in

article 224 C.C.P . [ 40 ] The most consistently applied rule that emerges under the old case law is that written questions must be formulated such that they are clear and specific ( claires et précises ). This rule which existed under

article 410 of the Old Code has been maintained in

article 223 C.C.P. [16] [ 41 ] The questions must lead to direct, categorical and specific answers.

This has been interpreted to mean that the questions must be framed such that the witness can only answer “Yes” or “No”. [17] In other words, the requirement that the question be clear and specific means that the questions must be closed-ended as opposed to open-ended. [ 42 ] For example, the Superior Court held that the following question was improperly framed because it was not drawn up in such a manner that the absence of an answer can be taken as an admission, by the party or person being examined, of the facts to which the question pertains : ‘’If you dont ( sic ) recognize to owe the said amount, state how much you recognize to owe?’’ [18] [ 43 ] That being said, the witness is not limited to answering “Yes” or “No”.

The witness is allowed to explain his/her answer, insofar as the explanation is direct, categorical and specific. [19] For example, the following answer was held to comply with

article 224 C.C.P. (article 412 Old Code): ‘’4. Est-il exact que Kamtech Hydro ne devait pas faire de déclarations mensongères à la Ville pour obtenir ce contrat ? Oui, mais la Ville de Sherbrooke avait l'obligation de vérifier la véracité des déclarations faites par Kamtech Hydro. 5. Est-il exact que dans votre requête ré-amendée dans le dossier portant le numéro 450-17-003613-108, vous prétendez au paragraphe 37 que les profits que vous auriez dû faire en obtenant ce contrat sont perdus à cause des déclarations frauduleuses de Kamtech Hydro ?

Oui, mais la perte des profits est également due à la faute de la Ville de Sherbrooke de respecter ses critères d'admissibilité et des exigences stipulées à l'appel d'offres.’’ [20] [ 44 ] Even if the questions are framed so has to elicit a “Yes” or “No” answer, a written question won’t comply with

article 223 C.C.P. where the question is so lengthy or complex that it requires the witness to interpret the question and/or to analyze elements of the question. Indeed, such complex and lengthy questions often require similarly lengthy answers which run afoul of the requirement that answers be direct, categorical and specific. [21] [ 45 ] For example, in Conseil québécois sur le tabac et la santé v.

JTI-Macdonald , the following questions were held to be improperly framed: 167) (Is it not true that) ITL knows that the scientific literature reports that cigarette smoking is a contributing factor to the etiology or onset of Leukemia? 191) (N'est-il pas vrai que) ITL sait que la littérature scientifique rapporte que l'obstruction bronchique est causée par une réponse inflammatoire anormale des petites voies aériennes envers des particules ou gaz nocifs, qui résulte en du remodelage bronchique (bronchiolite obstructive chronique), une hypersécrétion de mucus et/ou de la destruction alvéolaire avec élargissement des espaces

aériens et perte d'élasticité pulmonaire (emphysème pulmonaire) dont la contribution relative varie d'un individu à un autre? 192) (N'est-il pas vrai que) ITL n'a jamais informé qui que ce soit que l'obstruction bronchique est causée par une réponse inflammatoire anormale des petites voies aériennes envers des particules ou gaz nocifs, qui résulte en du remodelage bronchique (bronchiolite obstructive chronique), une hypersécrétion de mucus et/ou de la destruction alvéolaire avec élargissement des espaces aériens et perte d'élasticité pulmonaire (emphysème pulmonaire) dont la contribution relative varie d'un individu à un autre? [22] Application of These Principles to MSC’s Written Examination [ 46 ] Here are some question from MSC’s Written Examination: 20.

What is the shelf life of these Limes? 21. When were the Limes transferred to a storage facility? 22. How far is the storage facility from the point of harvest? 22.1. Provide the exact geographic location of such storage facility. 23. How and under what conditions were the Limes transferred to the said storage facility from the place of harvest? 23.1. If transferred to the storage facility by truck, advise whether the latter was a refrigerated unit; 23.2. If so, provide the reefer data printout. 24.

What are the ideal or recommended storage conditions for the Limes such as temperature, humidity level and fresh air ventilation standards? 25. Once in the storage facility, how were the Limes first stored prior to being placed into boxes? 27. How many days the Limes were stored in this fashion from the moment they arrived at the storage facility? … 32. At what date and time the Container left the storage facility? 33. How far is the storage facility to the port of loading? 34. How long did the trucker take to arrive at the port of loading and what route was chosen? … 36.

When were the cases of Limes stowed in the Container? 37. How was the container stowed? Explain the stowing method: 37.1. Provide documents in support of stowing method; 37.2. Provide a copy of any photographs relating to the stowage of the cargo. … 44. How was the Container stowed / loading patterns? … 50. At what location (e.g. where) was the Container opened? … 52. What is the standard procedure on delivery of a Container? 52.1. Who was present at the time the doors to the Container were opened; 52.2. Were photographs taken? 52.3. If so, by whom? 52.4.

Provide clear copy of ail pictures taken of the Cargo; 52.5. Were any notes taken or preliminary reports drafted? If so, provide a copy of same. 53. Was the temperature of the Limes taken on delivery? 53.1. If so, by whom and when?

53.2. How many readings were taken and from which boxes? 53.3. What was the reading? Provide document(

s) evidencing same; 53.4. With what specific type of device, including model and brand? … 59. What were the pallets’ positions in the Container? 60. What were the sampled cases’ positions on every pallet? … 62. What type of cardboard cases was used to store the Limes in the Container? 62.1. Provide sample of cardboard boxes found in the Container; 63. How many holes were found in said cardboard cases? ... 70. What are the steps that were taken prior to taking the pulp temperature with subject device? … 80. What is the brand and model of the temperature recording device? 80.1.

Provide a copy of the printout of alleged temperature recorder. 81. Where exactly was the temperature recording devise placed in the subject Container? 82. Why was the said devise placed in that spot / location? 83. Who placed the temperature recording device at the said location, in the Container? 83.1. Provide contact information of the person who installed the temperature recording device. 84. How was the “Start” and "End" dates established? 85. When was this recording devise turned “on” and by whom? Provide contact details; 86. What was the last date of calibration of said temperature recording device? 86.1.

Provide a documented proof of calibration; 86.2. Provide contact information of the person who calibrated the temperature recording device. 87. What is the methodology and standards of said calibration; [ 47 ] The written examination is not meant to be a vehicle to allow a party to do indirectly what the C.C.P. otherwise prohibits. In other words, where a party is not allowed to conduct a pre-trial oral examination because the prohibition in

article 230 C.C.P. applies, it cannot frame the questions in its written examination so as to ask the same questions it would have asked had it conducted an oral examination. [ 48 ] Upon reviewing the questions contained in MSC’s Written Examination, the Court believes that MSC’s lawyer simply transcribed the questions he normally would put to the opposing party in an oral examination and incorporated these in MSC’s Written Examination. [ 49 ] As formulated, the majority of the questions in MSC’s Written Examination, do not comply with the rules set forth in

article 223 paragraph 2 C.C.P. They are not closed- ended questions that elicit “Yes” or “No” answers. Rather, they are open-ended questions that are exactly the same type of questions that one would ask during a pre-trial oral examination. It is impossible for a witness to answer “Yes” or “No” to many of MSC’s questions, even if the witness were to explain and elaborate his answer. [ 50 ] The purpose of written examination is to introduce a method of examination that is quicker and more economical than the pre- trial oral examination.

This goal would not be achieved considering the manner in which the questions are framed in MSC’s Written Examination. [ 51 ] The written examination is not the proper vehicle for lengthy and nuanced explanations. [23] Questions that require a lengthy and nuanced answer are contrary to the spirit and purpose underlined the written examination.

According to the Commentaires de la ministre de la Justice: ‘’Cette forme d’interrogatoire obéit à des règles particulières notamment quant à la formulation des questions, lesquelles doivent être claires et précises, et des réponses qui doivent être directes, catégoriques et précises. Elle est donc relativement plus rapide et plus économique que l’interrogatoire oral. ’’ [24] (underlining added) [ 52 ] MSC’s Written Examination is contained in a 15 page document. There are over 239 questions.

Considering that the vast majority of the questions are framed in open-ended matter as illustrated above, it would require the witness to spend many hours, if not more than

one full day, to draft answers to these questions. [ 53 ] Given the complexity of many of the questions, it would not be surprising that a debate would ensue between the parties as to whether or not the answers are direct, categorical and specific. [ 54 ] Not only are the majority of the questions in MSC’s Written Examination improperly framed and defeat the purpose of this type of examination, allowing MSC to put its questions to Laverdure would run afoul of the principle of proportionality since the time required to search for the answers and draft them in a direct, categorical and specific manner would be time consuming. [ 55 ] Accordingly, the Court will only authorize those questions in MSC’s Written Examination that are consistent with the rule contained in

article 223 C.C.P. as summarized in this judgement. These include questions 2, 2.1 to 2.6, 7.6, 12, 12.2, 16, 17.1, 29, 31, 35, 47, 49.3, 51, 52.2, 53, 64, 71 (but not 71.1), 72 (but not 72.1), 73, 76, 88, 89, 96, 97, 98, and 104. [ 56 ] Moreover, some of the questions in MSC’s Written Examination are two-part questions. For example: 7.3. Is UNIVEG the producer of the subject Limes (“Cargo”)? Provide documents evidencing same. If not, provide complete coordinates of the producer(

s) and the main contact(

s) there; 7.7. Has JBL had a claim in the past 2 years for identical and / or similar damages to Limes from UNIVEG? If so, provide copies of documents detailing same; [ 57 ] The first part of questions 7.3 (Is UNIVEG the producer of the subject Limes (“Cargo”)?) and 7.7 (Has JBL had a claim in the past 2 years for identical and / or similar damages to Limes from UNIVEG) comply with

article 223 C.C.P. , but the second parts do not. Hence, the court will only authorise the first part of the following questions: 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. [ 58 ] MSC may wish to reformulate one or more of the questions of its Written Examination which the Court will not authorise in the present judgement.

Accordingly, the Court will grant it the opportunity and a delay in which it may submit revised questions that are consistent with the principles summarized in the present judgement. [ 59 ] The Court will remain seized of this file insofar as a difficulty may arise between the parties with respect to the conduct of MSC’s Written Examination of July 20, 2016 as authorized in the present judgement, and should MSC elect to notify reformulated questions, and invites the parties to communicate with the Court should the need arise.

Case Management [ 60 ] Laverdure’s Notice of Case Management first came before the Court on September 1, 2016. During this hearing, the Court scheduled the hearing of the Notice of Case Management for December 21, 2016 and suspended all delays in the file until that date. [ 61 ] The Court heard oral arguments on Laverdure’s Notice of Case Management on December 21 and took the matter under advisement, but did not renew the suspension of the delays.

Accordingly, the Court will extend the time limit to ready the case for trial by 4 months, which corresponds to the period during which the case was under advisement. [ 62 ] Moreover, given that the case protocol signed by the parties March 7, 2016 is no longer up to date considering the presentation of Laverdure’s Notice of Case Management, the Court will order the parties to file a revised case protocol at the latest on May 8, 2017. FOR THESE REASONS, THE COURT: [ 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; [ 68 ] ORDERS the parties to file a revised case protocol at the latest on May 8, 2017; [ 69 ] EXTENDS the time limit to ready the case for trial until September 25, 2017; [ 70 ] WITH COSTS to follow suit .

__________________________________ ENRICO FORLINI J.C.Q. Huu Phu Nguyen Pinsky, Zelman, Segal, Santillo Lawyer for J.B. Laverdure Inc. Giovanni De Sua Astell Lachance Du Sablon De Sua Lawyer for Mediterranean Shipping Company S.A. Date of hearing: December 21, 2016