21. Carnival Corporation v Vancouver Fraser Port Authority 1

Evidence—use of discovery transcript at trial—necessity and reliability

Précis: The Court permitted the use of a discovery transcript at trial where the witness died before trial as it was necessary for a just result on the merits.

Facts: A cruise ship struck a floating concrete fender as it was docking at the Canada Place Terminal in Vancouver, British Columbia on 25 July 2007. The vessel suffered propeller damage and the terminal suffered damage to its concrete fender. The parties were engaged in litigation that the terminal failed to provide safe berth or that the ship was poorly navigated. The ship’s captain, who was at the helm at the time that the collision occurred, was examined for discovery in 2015. He died in 2019. The plaintiff, Carnival Corporation, which was the employer of the Master, sought to use the transcript from his examination for discovery in evidence at the trial scheduled for April 2021. The defendant Port Authority opposed.

Decision: The evidence was admissible at trial as it was necessary in order to obtain a just result on the merits and justice would be better served by its admission rather than its exclusion.

Held: In the light of the British Columbia Supreme Court Rules of Procedure with respect to the admission of discovery evidence at trial and, based on binding authority, a party is permitted to tender the transcript from its own examination for discovery in cases where the deponent was deceased. Since the evidence on discovery would be hearsay, the Court should consider the necessity and the reliability of the evidence. The evidence was necessary, since the Captain who was at the helm at the time of the collision was deceased. The evidence would be sufficiently reliable in that the Captain was examined under oath by three lawyers, the questioning was probing as to his recollection, the transcript did not indicate that he was acting as a partisan witness and there was other evidence, ie testimony of the other bridge crew and videos of the docking, which was independent and available to test his evidence. The discovery evidence was sufficiently reliable to justify admission even though the Captain could not be cross-examined at trial. While the plaintiff could have proceeded with more diligence once it became aware that the Captain was ill, the evidence is admitted as necessary for a just result and justice would be better served by its admission compared to its exclusion.