SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 08-6736
DATE: 2012-04-26

RE: Sridevi Chalapati, Vvgns Hariprasad Chalapati, Srihari Burugapalli and Subha Cherukuri, Plaintiffs (Moving Party)

AND:

VIA Rail Canada Inc., Henry Dawdat, Her Majesty The Queen in the Right of Canada as represented by Transport Canada, Corporation of the township of Guelph-Erasomsa, Canadian National Railway Company, Railamerica Inc. and Goderich-Exeter Railway Limited, Defendants (Responding Party)

BEFORE: James W. Sloan

COUNSEL:
Lawrence W. Hatfield - Counsel for the Plaintiffs (Moving Party)

Kenneth R. Peel - Counsel for the Defendant, Goderich-Exeter Railway Limited (Responding Party)

HEARD: April 25, 2012

ENDORSEMENT

[ 1 ] Mr. Hatfield brings this motion pursuant to Rule 31.03 (2) (b) on behalf of the plaintiffs seeking to examine for discovery a second person from Goderich-Exeter Railway Limited (GEXR).

[ 2 ] Pursuant to Rule 31.03 (4), before making such an order the court shall satisfy itself that, in this case “(a) satisfactory answers respecting all of the issues raised cannot be obtained from only one person without undue expense and inconvenience:”

[ 3 ] This action arises out of the car train collision which resulted in serious injuries to the plaintiffs.

[ 4 ] GEXR produced one Peter Dwyer to be discovered on its behalf. Mr. Dwyer was the signal inspector who was in charge of inspecting the subject railway crossing and had been doing so for approximately the last three years.

[ 5 ] After cross-examining Mr. Dwyer at some length about the functioning of the safety equipment at the subject railway crossing on the night in question Mr. Hatfield changed the focus of his questioning and asked Mr. Dwyer who in GEXR had the responsibility to make recommendations to upgrade the signal equipment or the design of the crossing site.

[ 6 ] Mr. Dwyer confirmed that he did not have responsibility to make recommendations of that nature and thought that the general manager might have those responsibilities.

[ 7 ] The crossing in question is not equipped with gates. The design and required construction was established by “regulators order” in 1971 which was amended in 1978 after which the crossing was installed and certified.

[ 8 ] This all took place before GEXR was formed and operating on the subject railway line which it leases from CN.

[ 9 ] In Mr. Hatfield’s Notice of Examination he requested "a knowledgeable representative of Goderich-Exeter Railway Company Limited" be produced for examination.

[ 10 ] The person with the most knowledge of the inspections and maintenance of the subject crossing on the day in question was undoubtedly Mr. Dwyer.

[ 11 ] Mr. Hatfield knew Mr. Dwyer's position with GEXR was that signal inspector when he started his questioning and the examination continued for 85 pages.

[ 12 ] It does not appear that Mr. Dwyer was asked to make inquiries of GEXR in the form of undertakings with respect to those issues that Mr. Hatfield now complains Mr. Dwyer could not answer.

[ 13 ] To accede to Mr. Hatfield’s argument would allow him to argue the same case in the reverse if the General Manager of GEXR had been produced and he now wanted to examine the person responsible for the crossing maintenance.

[ 14 ] For the above reasons this motion is dismissed with costs.

[ 15 ] If the parties are unable to agree on costs of this motion they may make brief submissions in writing no longer than two pages in length to be emailed to me at Kitchener.Superior.Court@ontario.ca. The responding party’s are due within 10 days of the release of the decision, the moving party five days thereafter and any reply three days following.

James W. Sloan

Date: April 26, 2012