Westfjord Fishing Ltd. v. Chemainus Towing Co. Ltd.
T-1162-94
Teitelbaum J.
22/8/94
11 pp.
Application for extension of time for suit against defendants Chemainus Towing Co. Ltd., The Ship C.T. Titan pursuant to Canada Shipping Act, s. 572(3) -- Rivtow 902, under tow of C.T. Titan, and Viking Sky colliding on February 24, 1992 -- Subrogated hull and machinery underwriters of Viking Sky writing to Chemainus Towing in March 1992 advising holding C.T. Titan at fault -- In October 1992 counsel for plaintiffs writing to Chemainus to set out vessel damage, loss of income -- On February 1, 1993 defendants' lawyers replying believed Viking Sky author of own misfortune -- Counsel for plaintiffs and defendants corresponding until September 1993 to arrive at wording of letter of undertaking to be given as security by various underwriters -- Tug's master killed in industrial accident March 29, 1994, about five weeks after second anniversary of collision -- Through inadvertence counsel for plaintiffs not commencing action until May 19, 1994, three months after second anniversary of collision -- Canada Shipping Act, s. 572(1) providing no action sustainable unless proceedings commenced within two years from date when damage, loss or injury caused -- S. 572(3) permitting Court to extend prescription period on such conditions as it thinks fit -- No mention of "sufficient reason" to grant such extensions -- Application allowed -- Kelloway v. Engineering Consultants Ltd., [1972] F.C. 932 (T.D.) applied -- Walsh J. holding not bound by English case law requiring special circumstances to obtain extension of time -- Holding no need to find "sufficient reason", as use of "on such conditions as it thinks fit" leaving Court's discretion unfettered -- Court must determine (1) whether plaintiffs having valid prima facie claim; (2) defendants at all times aware of claim, and suffering no real prejudice by reason of extension; (3) having regard to all circumstances, in best interests of justice time be extended -- Plaintiffs having valid prima facie claim for extension within reasonable time -- Defendant owners of C.T. Titan aware of accident at very early stage -- Although possibly prejudiced by death of tug's master, key witness, defendant not suffering any more prejudice by death of witness 4 1/2 weeks after time for suit had run, than if witness had died immediately or soon before time had run -- If plaintiffs not succeeding on this application, will suffer serious prejudice -- Canada Shipping Act, R.S.C., 1985, c. S-9, s. 572.