[2000] 3 F.C. 225
T-748-94
Susan Anne Nicholson, for herself and as the widow of Michael Douglas Nicholson deceased, and as Executrix of the Estate of the said deceased, Caely Frances Nicholson and Andrew Michael Nicholson, a Minor, by his Litigation Guardian, Susan Anne Nicholson (Plaintiffs)
v.
Her Majesty the Queen in right of Canada (Defendant)
Indexed as: Nicholson v. Canada (T.D.)
Trial Division, Lemieux J.—Toronto, June 30, 1999; Ottawa, February 17, 2000.
Maritime law — Torts — Self-propelled barge struck rock in river, capsized, sank — Allegation Coast Guard breached statutory duties in failing to set standards, approving of construction sketch — Limitation of actions — Action commenced three days short of two years after death of Master who was plaintiffs’ husband/father — Canada Shipping Act, s. 649 one-year limitation period applicable to bar all claims save estate’s claim by means of survival action — Two-year period under Ontario Trustees Act would apply to survival action through incorporation by reference under Federal Court Act, s. 39 and Crown Liability and Proceedings Act, s. 32.
Practice — Limitation of actions — Fatality resulting from sinking of self-propelled barge after striking rock in river — Widow suing Crown in personal capacity, as executrix, litigation guardian under maritime law, statute for failure to set standards, breach of statutory duty in approving of vessel’s construction sketch — Whether action time-barred by Canada Shipping Act, s. 649 — Whether limitation periods in provincial legislation applicable herein — Whether Federal Court having inherent jurisdiction to extend statutory limitation period in exceptional circumstances — Whether certain claims tolled as to limitation period under non-statutory maritime law principles.
Federal Court jurisdiction — Trial Division — No inherent jurisdiction in Federal Court to extend limitation period in Canada Shipping Act, s. 649 with respect to fatal maritime accidents.
Crown — Torts — Fatal maritime accident involving self-propelled barge — Action against Crown for failure to set proper standards for such vessels, approval by Coast Guard of contruction sketch in breach of statutory duties — All claims statute-barred, except estate’s claim by means of survival action.
Michael Douglas Nicholson, the husband and father of the plaintiffs, died in a maritime accident in Ontario on April 2, 1992 when the self-propelled barge he was operating as Master glanced off a rock, rolled over and sank. The action was commenced on March 30, 1994 by Susan Nicholson, in her personal capacity and as executrix of her late husband’s estate, Caely Nicholson and Andrew Nicholson, then a minor, through his mother, as litigation guardian. The plaintiffs alleged that, in the absence of proper standards, the vessel had been constructed without a centerline bulkhead, bilge alarm and fitted pumping system and that, in approving the construction sketch, the Coast Guard was in breach of statutory duties under the Act and Regulations.
The action was commenced within the two-year limitation period prescribed by the Ontario Family Law Act (OFLA), but outside the one-year limitation period provided by section 649 of the Canada Shipping Act (the Act). The action was brought pursuant to the provisions of Part XIV of the Act, the OFLA and the English Fatal Accidents Act, 1846 as received into Canadian maritime law and pursuant to Canadian maritime law. Also claimed by Susan Nicholson, in her capacity as executrix, were damages for her late husband’s pain and suffering prior to death, pursuant to Canadian maritime law and section 38 of the Ontario Trustee Act (OTA). In seeking relief, Andrew Nicholson pleaded section 39 of the Federal Court Act (FCA) and section 47 of the Ontario Limitations Act (OLA).
This was a motion for summary judgment dismissing the action, essentially on the grounds that the cause of action pleaded was barred by section 649 of the Act.
Held, the motion should be allowed in part: the section 649 one-year limitation period applied to bar all claims save the estate’s claim by means of a survival action.
In light of the Supreme Court of Canada decision in Ordon Estate v. Grail, it was clear that the applicable limitation period for the bringing of the action was the one-year period calculated from Mr. Nicholson’s death provided for in section 649 of the Canada Shipping Act unless the other legal principles argued by the plaintiffs could be invoked to qualify or delay the operation of that one-year period.
The discoverability principle did apply herein, so that the time did not begin to run until November 18, 1992. The plaintiffs’ cause of action was based on statutory negligence related to the regulatory duties and approval by the Canadian Coast Guard, of which the plaintiffs learned at the inquest on November 18, 1992. This did not, however, help the plaintiffs because the statement of claim was not filed until March 30, 1994, more than one year later.
This Court did not have inherent jurisdiction to extend the limitation period for reasons of fairness and justice as did the Ontario Court of Appeal in Ordon Estate v. Grail. Case law made it clear that a limitation period cannot be waived or extended in the absence of a clear statutory authority. Far from providing for such authority, Parliament has indicated that the Federal Court should not have the power to extend the limitation period under section 649 of the Act.
The plaintiffs were not entitled to a claim for maritime wrongful death under non-statutory principles of Canadian maritime law. Such a claim does not exist. A dependant’s fatal accident claim is a creature of statute, whose very purpose was to cure the defect in the common law. When Parliament legislates, as it has, it occupies the field.
Section 39 of the FCA provides for the incorporation of provincial limitation laws “except as expressly provided by any other Act”. Parliament’s statutory prescription in section 649, in the context of Part XIV dealing with dependants’ fatal accident claims in relation to boating accidents, precludes the application of section 47 of the OLA. The nature of the claim, a dependant’s claim, which requires the inclusion of minors in that claim, can only lead to the conclusion that incorporation of the tolling provisions of section 47 of the OLA in the case of minors is inconsistent with the statutory scheme set out in Part XIV. The rationale behind section 47 preventing a minor under legal disability from having a remedy is contrary to the purpose of a dependant’s fatal accident claim.
In Ordon Estate v. Grail, Canadian maritime law was reformed by removing the common law bar to the survival of an action thus permitting the estate of the deceased to maintain an action. This common law action, known as a survival action, is by its very nature different than a dependant’s fatal accident claim to which Part XIV of the Act applies. Because of this distinction, section 649 of the Act, which relates to a dependant’s fatal accident claim, cannot apply to bar this newly created cause of action which is not a dependant’s claim. The two-year period under the OTA would apply through the incorporation by reference under section 39 of the FCA and section 32 of the Crown Liability and Proceedings Act.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canada Shipping Act, R.S.C., 1985, c. S-9, ss. 572, 645, 646, 647, 648, 649 (as am. by S.C. 1998, c. 16, s. 17), 650, 651, 652, 653.
Canada Shipping Act, 1934, S.C. 1934, c. 44.
Convention for the Unification of certain Rules of Law with respect to Collisions between Vessels, September 23, 1910, [1913] B.T.S. No. 4.
Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50 (as am. by S.C. 1990, c. 8, s. 21), s. 32 (as am. idem, s. 31).
Family Law Act, R.S.O. 1990, c. F.3.
Fatal Accidents Act, 1846 (U.K.), 9 & 10 Vict., c. 93.
Federal Court Act, R.S.C., 1985, c. F-7, s. 39 (as am. by S.C. 1990, c. 8, s. 10).
Federal Court Rules, 1998, SOR/98-106, rr. 213(2), 216.
Highway Traffic Act, R.S.O. 1980, c. 198.
Indian Act, R.S.C., 1985, c. I-5.
Limitation Act, R.S.B.C. 1979, c. 236.
Limitations Act, R.S.O. 1990, c. L.15.
Trustee Act, R.S.O. 1990, c. T.23.
CASES JUDICIALLY CONSIDERED
APPLIED:
Ordon Estate v. Grail, [1998] 3 S.C.R. 437; (1998), 40 O.R. (3d) 639; 166 D.L.R. (4th) 193; 232 N.R. 201; 115 O.A.C. 1; affg Ordon Estate v. Grail (1996), 30 O.R. (3d) 643; 140 D.L.R. (4th) 52; 94 O.A.C. 241 (C.A.); affg Ordon Estate v. Grail, [1993] O.J. No. 1357 (Gen. Div.) (QL); Peixeiro v. Haberman, [1997] 3 S.C.R. 549; (1997), 151 D.L.R. (4th) 429; 46 C.C.L.I. (2d) 147; 12 C.P.C. (4th) 255; 30 M.V.R. (3d) 41; 217 N.R. 371; 103 O.A.C. 161; Dawe v. Minister of National Revenue (Customs and Excise) (1994), 174 N.R. 1 (F.C.A.); ITO—International Terminal Operators Ltd. v. Miida Electronics Inc. et al., [1986] 1 S.C.R. 752; (1986), 28 D.L.R. (4th) 641; 34 B.L.R. 251; 68 N.R. 241; Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626; (1998), 157 D.L.R. (4th) 385; 6 Admin. L.R. (3d) 1; 22 C.P.C. (4th) 1; 224 N.R. 241; Baxter Student Housing Ltd., et al. v. College Housing Co-operative Ltd. et al., [1976] 2 S.C.R. 475; (1975), 57 D.L.R. (3d) 1; [1976] 1 W.W.R. 1; 20 C.B.R. (N.S.) 240; 5 N.R. 515; Monaghan v. Horn (1882), 7 S.C.R. 409; Murphy v. Welsh; Stoddard v. Watson, [1993] 2 S.C.R. 1069; (1993), 106 D.L.R. (4th) 404; 18 C.C.L.T. (2d) 101; 18 C.P.C. (3d) 137; 47 M.V.R. (2d) 1; Wewayakum Indian Band v. Canada and Wewayakai Indian Band (1995), 99 F.T.R. 1 (F.C.T.D.).
DISTINGUISHED:
Basarsky v. Quinlan, [1972] S.C.R. 380; (1971), 24 D.L.R. (3d) 720; [1972] 1 W.W.R. 303.
CONSIDERED:
Fehr v. Jacob, [1993] 5 W.W.R. 1; (1993), 85 Man. R. (2d) 63; 14 C.C.L.T. (2d) 200; 14 C.P.C. (3d) 364 (C.A.).
REFERRED TO:
Novak v. Bond, [1999] 1 S.C.R. 808; (1999), 172 D.L.R. (4th) 385; [1999] 8 W.W.R. 499; 122 B.C.A.C. 161; 63 B.C.L.R. (3d) 41; 45 C.C.L.T. (2d) 1; 32 C.P.C. (4th) 197; 239 N.R. 134; Shulman (Guardian Ad Litem of) v. McCallum (1993), 105 D.L.R. (4th) 325; [1993] 7 W.W.R. 567; 28 B.C.A.C. 292; 79 B.C.L.R. (2d) 393 (C.A.); Meherally v. M.N.R., [1987] 3 F.C. 525 (1987), 37 D.L.R. (4th) 609; 74 N.R. 260 (C.A.).
MOTION for summary judgment in action for maritime wrongful death. Motion allowed in part.
APPEARANCES:
Nigel H. Frawley for plaintiffs.
David Sgayias, Q.C. for defendant.
SOLICITORS OF RECORD:
Borden & Elliot, Toronto, for plaintiffs.
Deputy Attorney General of Canada for defendant.
The following are the reasons for order rendered in English by
Lemieux J.:
INTRODUCTION
[1] On April 2, 1992, Michael Douglas Nicholson was operating on the Severn River in Ontario, as Master, the self-propelled barge (the Sandman), fully loaded with stone and mud, debris from a construction site. That night, the Sandman glanced off a rock on the port bow and immediately took a heavy list to starboard; 30 seconds after, the barge rolled over and sank with Mr. Nicholson who drowned.
[2] Mr. Nicholson is survived by his wife Susan and two children. Caely Francis Nicholson was 17 years old at the time of her father’s death and reached the age of majority on September 22, 1992. Andrew Michael Nicholson was 14 years old at the time and reached the age of majority on January 28, 1996.
[3] On March 30, 1994, Susan Nicholson, in her personal capacity and as executrix of her late husband’s estate, Caely Nicholson and Andrew Nicholson, a minor, through his mother, as Litigation Guardian, commenced this action in the Federal Court, Trial Division.
[4] The action was commenced within the two-year limitation period prescribed by the Ontario Family Law Act [R.S.O. 1990, c. F.3] (OFLA) but more than one year after Mr. Nicholson’s death as provided by section 649 of the Canada Shipping Act [R.S.C., 1985, c. S-9] (the Act). The action was brought pursuant to the provisions of Part XIV [sections 645-653] of the Act, the OFLA and the English Fatal Accidents Act, 1846 [9 & 10 Vict., c. 93] as received into Canadian maritime law and pursuant to Canadian maritime law.
[5] Also invoked by Susan Nicholson in her capacity as executrix were damages for his pain and suffering prior to death, pursuant to Canadian maritime law and section 38 of the Ontario Trustee Act [R.S.O. 1990, c. T.23] (OTA). Andrew Nicholson pleaded relief relying upon section 39 of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 10)] (FCA) and section 47 of the Ontario Limitations Act [R.S.O. 1990, c. L.15] (OLA).
[6] The plaintiffs, in their action, allege that in failing to have proper standards for self-propelled barges, the Sandman was constructed without a centerline bulkhead, bilge alarm and fitted pumping system. The Sandman’s construction sketch was approved by the Canadian Coast Guard. Plaintiffs say the Canadian Coast Guard, in doing so, was in breach of statutory duties under the Act and regulations made under that Act.
[7] The defendant, in her statement of defence, said the OFLA, the OTA and the OLA do not apply to the action and asserted the action was time-barred by section 649 of the Act.
[8] In reply to the defence, the plaintiffs said this Court may apply and enforce some or all of the provisions of the OFLA and the OTA as they are “incidentally necessary” to resolve the issues which arise from a cause of action founded in Canadian maritime law and, in the case of the OLA, incorporated by reference through section 39 of the FCA.
[9] Discoveries were held but the parties agreed to hold further proceedings in abeyance because of Court of Appeal rulings in British Columbia and Ontario, holding certain provisions of the provincial statutes pleaded did not apply to maritime fatal accidents.
[10] On June 22, 1998, the Supreme Court of Canada issued its reasons for judgment in Ordon Estate v. Grail, [1998] 3 S.C.R. 437 on appeal from the Court of Appeal of Ontario [(1996), 30 O.R. (3d) 643] which judgment resolved, in a manner unfavourable to the plaintiffs, many of the issues in their action.
THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
[11] The defendant, pursuant to subsection 213(2) and rule 216 of the Federal Court Rules, 1998 [SOR/98-106] (the Rules), moved the Court for summary judgment dismissing the plaintiffs’ action on the following grounds:
(a) the cause of action pleaded is barred by section 649 of the Act;
(b) there is no genuine issue for trial; and
(c) if there is an issue for trial, this Court is able on the whole of the evidence to find the facts necessary to decide the questions of law.
[12] The plaintiffs oppose the defendant’s motion for summary judgment. They agree that the central issue is whether the plaintiffs’ action is time-barred by section 649 of the Act but say there are additional issues which are these:
(a) Is there a non-statutory cause of action for maritime wrongful death under Canadian Maritime Law applicable to the Plaintiffs in addition to any statutory rights granted by Part XIV of the Canada Shipping Act? If so, is the within claim time-barred thereunder?
(b) Do any of the limitation periods prescribed by s. 649 of the Canada Shipping Act or s. 38 (3) Trustee Act or s. 45 of the Limitations Act (Ontario) as incorporated into Canadian law by s. 39 of the Federal Court Act, apply to the Plaintiffs?
(c) Does this Honourable Court have the inherent jurisdiction to extend a statutory limitation period under exceptional circumstances?
(d) Do the tolling provisions of s. 47 of the Limitations Act of Ontario apply to the claims of Caely Francis Nicholson and Andrew Michael Nicholson directly or as incorporated into Canadian Maritime Law by s. 39 of the Federal Court Act?
(e) Should the claims of Caely Francis Nicholson and Andrew Michael Nicholson be tolled for the purposes of the application of any limitation period under non-statutory principles of Canadian Maritime Law?
THE LEGISLATION
[13] Part XIV of the Canada Shipping Act, as it stood at the time the action was launched, read:
645. In this Part,
“child” includes a son, daughter, grandson, grand-daughter, stepson, stepdaughter, adopted child and a person to whom a deceased person stood in loco parentis;
“dependants” means the wife, husband, parents and children of a deceased person;
“parent” includes a father, mother, grandfather, grandmother, stepfather, stepmother, a person who adopted a child, and a person who stood in loco parentis to a deceased person.
646. Where the death of a person has been caused by a wrongful act, neglect or default that, if death had not ensued, would have entitled the person injured to maintain an action in the Admiralty Court and recover damages in respect thereof, the dependants of the deceased may, notwithstanding his death, and although the death was caused under circumstances amounting in law to culpable homicide, maintain an action for damages in the Admiralty Court against the same defendants against whom the deceased would have been entitled to maintain an action in the Admiralty Court in respect of the wrongful act, neglect or default if death had not ensued.
647. (1) Every action under this Part shall be for the benefit of the dependants of a deceased person, and except as provided in this Part shall be brought by and in the name of the executor or administrator of the deceased.
(2) In every action described in subsection (1), damages may be awarded as are proportioned to the injury resulting from the death to the dependants respectively for whom and for whose benefit the action is brought, and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided among the dependants in such shares as may be determined at the trial.
(3) In assessing the damages in any action there shall not be taken into account any sum paid or payable on the death of the deceased or any future premiums payable under any contract of assurance or insurance.
648. A defendant may pay into Court one sum of money as compensation for the wrongful act, neglect or default, to all persons entitled to compensation without specifying the shares into which it is to be divided.
649. Not more than one action lies for and in respect of the same subject-matter of complaint, and every action must be commenced not later than twelve months after the death of a deceased.
650. (1) A plaintiff in an action shall, in his statement of claim, set forth the persons for whom and on whose behalf the action is brought.
(2) There shall be filed with the statement of claim an affidavit by the plaintiff in which he shall state that to the best of his knowledge, information and belief the persons on whose behalf the action is brought as set forth in the statement of claim are the only persons entitled or who claim to be entitled to the benefit thereof.
(3) The Admiralty Court or a judge thereof, if of opinion that there is a sufficient reason for doing so, may dispense with the filing of the affidavit.
651. (1) When there is no executor or administrator of a deceased person, or there being an executor or administrator, no action referred to in section 650 is, within six months after the death of the deceased, brought by the executor or administrator, the action may be brought by all or any of the persons for whose benefit the action would have been if it had been brought by the executor or administrator.
(2) Every action brought shall be for the benefit of the same persons, and shall be subject to the same regulations and procedure, as nearly as may be, as if it were brought by an executor or administrator.
652. (1) Where compensation has not been otherwise apportioned, the Court may apportion it among the persons entitled.
(2) The Court may in its discretion postpone the distribution of money to which infants are entitled and may direct the payment from the undivided fund. [Emphasis mine.]
[14] Section 572 of that same Act dealing with boating collisions had the following limitation clause which is different than the one contained in section 649 under Part XIV dealing with boating accidents:
572. (1) No action is maintainable to enforce any claim or lien against a vessel or its owners in respect of any damage or loss to another vessel, its cargo or freight, or any property on board that vessel, or for damages for loss of life or personal injuries suffered by any person on board that vessel, caused by the fault of the former vessel, whether that vessel is wholly or partly at fault, unless proceedings therein are commenced within two years from the date when the damage or loss or injury was caused.
(2) An action is not maintainable under this Part to enforce any contribution in respect of an overpaid proportion of any damages for loss of life or personal injuries unless proceedings therein are commenced within one year from the date of payment.
(3) Any court having jurisdiction to deal with an action to which this section relates may, in accordance with the rules of court, extend any period described in subsection (1) or (2) to such extent and on such conditions as it thinks fit, and shall, if satisfied that there has not during such period been any reasonable opportunity of arresting the defendant vessel within the jurisdiction of the court, or within the territorial waters of the country to which the plaintiff’s ship belongs or in which the plaintiff resides or has his principal place of business, extend any period to an extent sufficient to give that reasonable opportunity. [Emphasis mine.]
[15] Section 649 was amended by S.C. 1998, c. 16, section 17 to read:
649. Not more than one action lies for and in respect of the same subject-matter of complaint, and every action shall be commenced not later than two years after the death of a deceased. [Emphasis mine.]
[16] The parties agree, for the purposes of this motion, the 1998 amendment is not retroactive to the time when the plaintiffs commenced their action.
[17] Section 39 of the FCA incorporating provincial limitation laws in some circumstances reads:
39. (1) Except as expressly provided by any other Act, the laws relating to prescription and the limitation of actions in force in any province between subject and subject apply to any proceedings in the Court in respect of any cause of action arising in that province.
(2) A proceeding in the Court in respect of a cause of action arising otherwise than in a province shall be taken within six years after the cause of action arose. [Emphasis mine.]
[18] Section 32 [as am. by S.C. 1990, c. 8, s. 31] of the Crown Liability and Proceedings Act [R.S.C., 1985, c. C-50 (as am. by S.C. 1990, c. 8, s. 21)] (CLPA) to the same effect reads:
32. Except as otherwise provided in this Act or in any other Act of Parliament, the laws relating to prescription and the limitation of actions in force in a province between subject and subject apply to any proceedings by or against the Crown in respect of any cause of action arising in that province, and proceedings by or against the Crown in respect of a cause of action arising otherwise than in a province shall be taken within six years after the cause of action arose. [Emphasis mine.]
OVERVIEW OF ORDON ESTATE v. GRAIL
[19] The Supreme Court of Canada’s reasons for judgment cover a number of appeals in two actions commenced in the Ontario Court (General Division) [[1993] O.J. No. 1357 (QL)] arising out of two boating incidents on navigable waters in Ontario. One action concerned a maritime fatal accident claim by the wife and children of Bernard Ordon who drowned when a pleasure boat he was in and owned and operated by Larry Grail sank in Lake Erie (the Lake Erie action). The other actions arose out of a collision of two pleasure boats on Lake Joseph which caused two fatalities and several serious personal injuries (the Lake Joseph actions).
[20] As in this case, the statements of claim in those appeals covered personal claims and separate executor claims for damages under the OTA; an OFLA claim covering lost income and support, lost services, out-of-pocket expenses, personal trauma and nervous shock caused by the death of the spouse as well as a claim for compensation for loss of guidance, care and companionship (the GCC claims). The children also made GCC claims under the OFLA. The Lake Erie action was filed less than one year after the accident.
[21] The Lake Joseph actions had a number of added features: First, all actions were commenced after the one-year period prescribed under section 649 of the Act but within the two-year period under section 572 of the Act and the two-year period under the OFLA. Second, in one of the Lake Joseph actions, the plaintiffs included as dependants the siblings of the deceased which is wider than the listed dependants in the definition of dependants in Part XIV of the Act. Third, the Act was pleaded as an alternative. Also, they were commenced exclusively in the Ontario Court (General Division).
[22] The judgment of the Court and its reasons written by Justices Iacobucci and Major illustrate certain features of Canadian maritime law which deals with all claims in respect of maritime and admiralty matters and is of federal legislative competence. First, its scope is not frozen at the time of the adoption of English admiralty law into Canadian law in 1934 [Canada Shipping Act, 1934, S.C. 1934, c. 44]; Canadian maritime law is to be interpreted in the modern context of commerce and shipping. Second, Canadian maritime law has a number of varied sources which are statutory and non-statutory, national and international common law and civilian. Third, the substantive content of this law is not limited to English law (largely common law) in 1934 or statute law enacted by Parliament but includes laws as developed by judicial precedent. If Parliament has not passed legislation, the inherited non-statutory law remains applicable. Fourth, Canadian maritime law is not static or frozen but is subject to judicial reform allowing its development where appropriate criteria are met.
[23] The Supreme Court of Canada in Ordon Estate v. Grail, supra, held the OFLA and the OTA, laws of general application, were not relevant in the determination of the appeals before it since the main features of those laws could be recognized and accommodated under a reformed federal Canadian maritime law dealing with a maritime fatal accident claim springing from its non-statutory sources, where judicial reform could operate.
[24] In particular, the Supreme Court of Canada:
(a) recognized a dependant’s fatal accident claim could include a claim for loss of guidance, care and companionship because Parliament had not defined, in section 646 of the Act, the scope of recognized heads of damages and a change was necessary “to keep non-statutory maritime law in step with modern understandings of fairness and justice, as well as with the dynamic and evolving fabric of our society” (at page 509);
(b) refused to expand the list of dependants in maritime fatal accident claims under the Act to include siblings because Parliament had provided a definition of dependants which excluded siblings. The Court reasoned as follows at page 511:
Through the Canada Shipping Act, Parliament has spoken as to the class of eligible plaintiffs in the case of a fatal accident. For this Court to reform the law to expand the class would be to effect a legislative and not a judicial change in the law.
(c) expanded Canadian maritime law to a negligence action by an executor of a deceased’s estate for negligence to the person of the deceased in the same manner and with the same rights as the deceased would have been entitled to do so had he or she lived. The Court completed this reform noting there was no counterpart to section 38 of the OTA in Canadian maritime law and reform should be accomplished by removing the common law bar against the survival of actions in the maritime context (at page 515); and
(d) held the Act contained two different limitation periods, each of which could apply to a dependant’s fatal accident claim arising out of a boating collision: section 649 contained in Part XIV of the Act providing a one-year limitation period and section 572 in Part IX of the Act providing a two-year limitation period. The Court resolved the issue in favour of the two-year limitation period reasoning Part XIV of the Act was not a complete code, the policy and logic behind the two-year limitation period was anchored on the international Convention for the Unification of certain Rules of Law with respect to Collisions between Vessels [September 23, 1910, [1913] B.T.S. No. 4], the clear wording of section 572 and the rule of the strict construction of limitation periods. As a result, none of the actions were time-barred in the Lake Joseph actions in terms of federal statute law, namely section 572 of the Act.
[25] Having so found, the Court did not deal with certain issues decided by the Ontario Court of Appeal. Iacobucci and Major JJ. said this at paragraph 139 [page 527]:
Having found that the limitation period applicable to the Lake Joseph actions is the two-year period established by statute, it is not necessary to address the issue raised in the court of Appeal judgment of whether the decision of this Court in Basarsky v. Quinlan, supra, may be applied to justify extending a statutory limitation period at the discretion of the court. It is also unnecessary to address the argument raised by the plaintiffs that the “discoverability principle” would apply on the facts of this case, to the effect that, given recent changes in the law regarding the applicability of provincial law in a maritime claim, the plaintiffs should be permitted to rely upon the one-year limitation period even though their claims were brought more than one year after the accident.
[26] On the issue of the court’s ability or its inherent jurisdiction to extend a limitation period, the Ontario Court of Appeal had expressed itself in the following manner in Ordon Estate v. Grail (1996), 30 O.R. (3d) 643, at page 676:
Although we feel logically compelled to conclude that only the limitation period in Part XIV can apply to the fatal injury cases before us, we believe strongly that to deny the plaintiffs their remedies under the circumstances would be extremely unfair. The plaintiffs’ alternative argument is that the court should rely on its inherent jurisdiction to extend the limitation period where required: see Basarsky v. Quinlan, [1972] S.C.R. 380, 24 D.L.R. (3d) 720. In our view, the special circumstances which would warrant such an extension exist here. Until the British Columbia Court of Appeal’s judgment in Shulman, which we note was after the commencement of the three Lake Joseph actions, it was thought that wrongful death claims in the maritime context could be pursued under provincial legislation (in Ontario, Part V of the Family Law Act): see Palleschi v. Romita, a judgment of the Ontario District Court, released March 4, 1988, [1988] O.J. 822; Le Vae Estate v. The “Giovanni Amendola” (1955), 1 D.L.R. (2d) 117 (Ex. Ct.). Further, the defendants were aware of the claims in all of the actions. There is no suggestion that extending the limitation period, where required, to give effect to the plaintiffs’ claims would result in prejudice to the defendants.
It would, in our view, result in a gross injustice if the plaintiffs in the Lake Joseph actions were denied a right to proceed on account of the one-year limitation period contained in s. 649 of the Canada Shipping Act. We would, therefore, extend that period for the time necessary, in accordance with the rationale in Basarsky. [Emphasis mine.]
ANALYSIS
(a) Preliminary observation
[27] In Ordon Estate v. Grail, supra, the Supreme Court of Canada emphasized the importance to be clear regarding the specific claims which it is alleged are statute-barred (paragraph 122 [pages 518-519]). The nature of the claims in this action are dependants’ fatal accidents claims which the Court held could fall within two different limitation periods in the same Act. In this case, however, section 572 is of no avail to the plaintiffs because their claims do not arise out of a boating collision. The Supreme Court of Canada said this about the matter of the two limitation periods at paragraph 135 [page 525]:
Both apply to fatal accident claims by dependants. The only substantive distinction between the two limitation periods is that s. 572(1) applies only in the context of boating collisions, whereas s. 649 applies to any fatal accident claim brought by a dependant. [Emphasis mine.]
[28] The Supreme Court of Canada also said this at paragraph 125 [page 521]:
Parliament, in enacting what is now Part XIV without removing other references to loss of life claims elsewhere in the statute, must be assumed to have intended that the various provisions should co-exist and be interpreted in light of one another. [Emphasis mine.]
[29] The parties have agreed the 1998 section 649 Act amendment now providing for a two-year limitation period is not retroactive to reach back to the time the plaintiffs brought their action. The result is the applicable limitation period for the bringing of the action is the one-year period calculated from Mr. Nicholson’s death provided for in section 649 of the Act unless the other legal principles argued by the plaintiffs can be invoked to qualify or delay the operation of that one-year limitation period.
(b) The discoverability principle
[30] The purpose of this principle is to soften the harshness of limitation periods, particularly ones with short time frames; its effect is to postpone the time a limitation period begins to run until the plaintiff could reasonably have discovered that he or she had a cause of action.
[31] The discoverability principle is grounded on the common law principle of fairness to a plaintiff when balanced against the traditional rationales of certainty, evidentiary value and diligence upon which limitation statutes rest, although now some provincial limitation statutes have been modernized to codify those common law principles (see Novak v. Bond, [1999] 1 S.C.R. 808).
[32] This principle has been recently applied by the Supreme Court of Canada in Murphy v. Welsh; Stoddard v. Watson, [1993] 2 S.C.R. 1069 and in Peixeiro v. Haberman, [1997] 3 S.C.R. 549 where Major J., on behalf of the Court, said at paragraph 36 [page 563]:
… discoverability is a general rule applied to avoid the injustice of precluding an action before the person is able to raise it.
[33] It is important to note the discoverability principle relates to the plaintiff’s knowledge of the material facts giving rise to a cause of action and not ignorance or a mistake in applicable legal principles (Peixeiro v. Haberman, supra, at paragraph 18 [page 557]).
[34] Moreover, in that same case [at page 564], Major J. adopted Twaddle J.A.’s statement in Fehr v. Jacob, [1993] 5 W.W.R. 1 (Man. C.A.), at page 7 that “the discoverability rule is an interpretative tool for the construing of limitations statutes” and specifically:
But, when the time runs from an event which clearly occurs without regard to the injured party’s knowledge, the judge-made discoverability rule may not extend the period the legislature has prescribed.
[35] Counsel, on behalf of Her Majesty, argued section 649 of the Act, when properly construed, triggered the plaintiff’s obligation to initiate proceedings one year from the “death of the deceased” an event unconnected with the state of their knowledge as to whether they had a cause of action. This submission, in my view, is unrealistic and must be rejected because it fails to reflect the specific cause of action here based on statutory negligence related to regulatory duties and approvals by the Canadian Coast Guard of which the plaintiffs could have no knowledge. The plaintiffs had no knowledge of the material facts to their cause of action until the inquest at which time such facts related to construction defects and approvals were disclosed. That occurred on November 18, 1992. I agree with plaintiffs’ submissions that time did not begin to run until November 18, 1992.
[36] However, accepting the plaintiffs’ submissions on this point does not assist them. They knew they had a cause of action against Her Majesty on November 18, 1992, yet their statement of claim was only filed on March 30, 1994, beyond the one-year prescribed running period of November 18, 1993. To overcome this difficulty, the plaintiffs argue change in the law from what it was generally understood before the British Columbia’s Court of Appeal judgment in Shulman (Guardian Ad Litem of) v. McCallum (1993), 105 D.L.R. (4th) 327 and the fact that under the OFLA the limitation period ran from the time that “the cause of action arose”.
[37] The plaintiffs’ submissions cannot be accepted. They run counter to what the Supreme Court of Canada said in Ordon Estate v. Grail, supra, as to the integrity and uniformity of Canadian maritime law, a matter of federal legislative jurisdiction and would extend the rationale of the discovery principle beyond its known limits confined to knowledge of material facts contrasted to the state of the law. The plaintiffs’ submissions may be relevant, however, to the next issue as to the ability of this Court, in special circumstances, in the exercise of inherent jurisdiction, to waive the prescribed legislative statutory limits.
(c) The override jurisdiction
[38] Counsel for the plaintiffs, based on Basarsky v. Quinlan, [1972] S.C.R. 380, urged upon me that this Court had inherent jurisdiction to extend the limitation period for reasons of fairness and justice as did the Ontario Court of Appeal in Ordon Estate v. Grail, supra. Unfortunately, I cannot accept this submission; this Court simply does not have the inherent power to do what the plaintiffs request of it and this for several reasons.
[39] First, as submitted by counsel for Her Majesty, it is clear from Dawe v. Minister of National Revenue (Customs and Excise) (1994), 174 N.R. 1 (F.C.A.), a limitation period cannot be waived or extended in the absence of a clear statutory authority (paragraph 18, [page 4]). Far from providing for such statutory authority, Parliament has indicated this Court should not have the ability to extend the limitation period under section 649 of the Act. In this regard, section 572 of the Act is to be contrasted with section 649. By subsection 572(3), Parliament expressly conferred upon the Court the power to extend the limitation period contained there; in section 649, Parliament denied the Court this power. Moreover, Parliament confirmed its will when it amended section 649 in 1998 to provide for a two-year limitation period; Parliament did not confer upon the Court any extension power.
[40] Second, the need for an express grant of statutory authority to waive or extend a limitation period flows from the ample jurisprudence of the Supreme Court of Canada dealing with the general jurisdiction of the Federal Court and expressed in a series of decisions starting with ITO—International Terminal Operators Ltd. v. Miida Electronics Inc. et al., [1986] 1 S.C.R. 752 and culminating in Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626. This case law makes it clear a statutory grant of jurisdiction by Parliament is one of the three requirements for the exercise of the Court’s competence and, as between the Court and the provincial superior courts, it is the provincial superior courts who enjoy inherent jurisdiction. On this point, Bastarache J. said this at paragraph 35 [page 658] of the Canadian Liberty Net, supra, case:
In my view, the doctrine of inherent jurisdiction operates to ensure that, having once analysed the various statutory grants of jurisdiction, there will always be a court which has the power to vindicate a legal right independent of any statutory grant. The court which benefits from the inherent jurisdiction is the court of general jurisdiction, namely, the provincial superior court. The doctrine does not operate to narrowly confine a statutory grant of jurisdiction; indeed, it says nothing about the proper interpretation of such a grant. As noted by McLachlin J. in Brotherhood, supra, at para. 7, it is a “residual jurisdiction”. In a federal system, the doctrine of inherent jurisdiction does not provide a rationale for narrowly reading federal legislation which confers jurisdiction on the Federal Court.
[41] In conclusion on this point, nowhere has Parliament in the Act conferred directly or by implication power on this Court to waive or extend the section 649 limitation period, it having been specifically denied in 1998, and this Court has no inherent jurisdiction to extend the limitation period, a notion which, if given recognition to, I find clashes with the general principle that a Court’s inherent jurisdiction cannot be exercised so as to conflict with a statute (see Baxter Student Housing Ltd., et al. v. College Housing Co-operative Ltd. et al., [1976] 2 S.C.R. 475, at page 480).
(d) A non statutory cause of action
[42] Counsel for the plaintiffs argues that they are entitled to a claim for maritime wrongful death under the non-statutory principles of Canadian maritime law, which either was not time-barred at the commencement of the action or which is not subject to any statutory prescriptions or limitations.
[43] No explanation was given to the Court as to what was encompassed by a claim at common law for “maritime wrongful death” and what differences there were between such common law claims and the dependants’ fatal accident claims statutorily recognized.
[44] The authorities submitted by the plaintiffs confirmed that the English common law response to the problem posed by a wrongful death was to ignore it, that is, not recognize it. Ritchie C.J. in Monaghan v. Horn (1882), 7 S.C.R. 409, at page 420 said this:
No civil action can be maintained at common law for any injury which results in death …. is not at common law the ground of an action for damages ….
[45] This view is confirmed in Ordon Estate v. Grail, supra, where Iacobucci and Major JJ. canvassed the history of fatal accidents claims under Canadian maritime law and said the following at paragraph 52 [page 477]:
Prior to the enactment of the Fatal Accidents Act, 1846 (U.K.), 9& 10 Vict., c. 93 (“Lord Campbell’s Act”), all claims which might have been brought by a person killed by the wrongful act or omission of another (whether in the maritime context or otherwise) died with the victim, in accordance with the common law maxim actio personalis moritur cum persona. Lord Campbell’s Act remedied this gap in the law by creating a statutory right in dependants of the deceased to bring an action against the person whose wrongful act or omission had caused the death.
[46] I agree with the submissions of counsel for Her Majesty on this point that a dependant’s fatal accident claim is a creature of statute, whose very purpose was to cure the defect in the common law and when Parliament legislates, as it has, it occupies the field.
[47] The creature of statute proposition is clearly justified at paragraph 105 [page 510] of Ordon Estate v. Grail, supra:
Dependants’ fatal accident claims are a creature of statute, beginning with Lord Campbell’s Act and continuing in the maritime law context with the Canada Shipping Act. In the absence of a statutory enactment permitting the claims, the old common law bar to actions founded upon the death of a third party would apply: Baker v. Bolton, supra. As such, the class of eligible plaintiffs is to be found in the relevant statute and nowhere else.
[48] The legislation occupying the field proposition is stated at point 6, paragraph 71 [page 490] of the reported case:
6. In those instances where Parliament has not passed legislation dealing with a maritime matter, the inherited non-statutory principles embodied in Canadian maritime law as developed by Canadian courts remain applicable, and resort should be had to these principles before considering whether to apply provincial law to resolve an issue in a maritime action: ITO, supra, at pp. 781-82; Bow Valley Husky, supra, at p. 1260. [Emphasis mine.]
[49] Based on these factors, I fail to see a non-statutory source for the maintenance of the plaintiffs’ claims.
(e) Tolling of the limitation periods
[50] The plaintiffs submit there is no authority as to whether section 39 of the FCA operates to incorporate the tolling of provincial limitation statutes as well as the limitation periods themselves.
[51] The plaintiffs argue that in the absence of explicit legislative provisions to the contrary, a gross injustice could occur if a maritime wrongful death litigant under a legal disability could rely on the tolling provisions in actions before the provincial superior courts but not in actions before this Court. This argument is misplaced because, if a dependant’s fatal accident claim was initiated before a provincial superior court, it would apply federal law including any provincial limitation laws incorporated into federal law. The question remains whether section 39 of the FCA or section 32 of the CLPA affect the incorporation of the tolling provision of section 47 of the OLA.
[52] As noted, their daughter Caely was born on September 22, 1974, was 17 on her father’s death, and reached the age of majority under Ontario law or as argued in the alternative under Canadian maritime law, on September 22, 1992, when she turned 18; the commencement of this action being March 30, 1994. Their son Michael born on January 28, 1978, was only 14 years old when his father died and reached 18 on January 28, 1996 after the commencement of the action.
[53] Section 47 of the OLA reads:
47. Where a person entitled to bring an action mentioned in section 45 or 46 is at the time the cause of action accrues a minor …. , the period within which the action may be brought shall be reckoned from the date when such person became of full age or ….
[54] I note that sections 45 and 46 of the OLA are contained in Part III of that Act headed “Personal actions” and deal with particular actions. Subsection 45(2) of the OLA provides that nothing in the section “extends to any action where the time for bringing the action is by any statute specially limited”. The OFLA, in Part V [section 61], provides for a dependant’s claim for damages and provides for a two-year limitation period.
[55] In the Welsh/Stoddard case, supra, Major J., on behalf of the Court, analyzed the interrelationship between subsection 180(1) of the Ontario Highway Traffic Act [R.S.O. 1980, c. 198] (OHTA) providing for a two-year period and section 47 of the OLA. Major J. said the purpose of section 47 is to “postpone the running of a limitation period while the plaintiff is under a legal disability”. The central issue was whether section 47 of the OLA postpones the subsection 180(1) OHTA limitation period.
[56] The Court concluded the running of the limitation period was effectively postponed. Major J. reasoned as follows at page 1079:
In determining the legislator’s intention there is a presumption of coherence between related statutes. Provisions are only deemed inconsistent where they cannot stand together. Sections 180(1) and 47 are not prima facie inconsistent. Section 180(1) sets the length of the limitation period. Section 47 states when the limitation period begins to run. Their co-existence does not lead to absurd results. Merely because s. 180(1) sets a short limitation period does not bar postponement for disability. Sections 45(1)(h) and (i) of the Limitations Act set two-year limitation periods, and s. 45(1)(m) sets a one-year limitation period, all of which are subject to s. 47. The co-existence of a short limitation period and a rule for its postponement is not an absurd result.
[57] At pages 1080 and 1081, Major J. added:
The s. 180(1) limitation period favours the defendant by serving both the certainty and evidentiary rationales. The diligence rationale cannot be used to support s. 180(1). Implicitly, diligence requires awareness of one’s rights. Those under legal disability are presumed not to know their rights and remedies and it would be unfair to expect them to proceed diligently in such matters. Whatever interest a defendant may have in the universal application of the two-year motor vehicle limitation period must be balanced against the concerns of fairness to the plaintiff under legal disability. If s. 180(1) excludes s. 47, an individual under legal disability would be deprived of any remedy unless the disability ends within two years of the accident. Only infants over the age of 16 and individuals suffering from short term mental incompetence would be able to pursue their remedies. The prejudice to plaintiffs under legal disability outweighs the benefits of providing a procedural defence to liability.
[58] The result was that the infants Lorna Stoddard and Jamie Murphy could pursue their personal injury actions. However, Jamie Murphy’s derivative claim under the Family Law Act failed because his mother’s claim was statute-barred.
[59] In Wewayakum Indian Band v. Canada and Wewayakai Indian Band (1995), 99 F.T.R. 1 (F.C.T.D.), my colleague Teitelbaum J. dealt exhaustively at pages 57-79 with the interrelationship between section 39 of the FCA and the British Columbia Limitation Act [R.S.B.C. 1979, c. 236]. In that case, it is noted the Indian Act [R.S.C., 1985, c. I-5] contained no provisions dealing with limitation periods. I adopt his analysis for the purpose of the issue before me. Teitelbaum J. said at paragraph 164 [page 63] the “specific purpose of s. 39 of the Federal Court Act is to expand the application of provincial limitation laws by incorporating such laws by reference and directing this court to apply such limitation not as provincial law, but as valid federal law”. Teitelbaum J. referred to many decisions of the courts on the concept of incorporation by reference including the comments by Urie J.A. in Meherally v. M.N.R., [1987] 3 F.C. 525 (C.A.).
[60] Section 39 of the FCA conditions the incorporation of provincial limitation laws “Except as expressly provided by any other Act”, in the French text “Sauf disposition contraire d’une autre loi”(emphasis mine). The purpose for the exception is clear: if Parliament has spoken about limitations in any Act of Parliament, that Act covers the matter so as to avoid any inconsistency in the application of federal laws through the incorporation of provincial laws; coherence of laws is the object.
[61] The question for resolution in this case is whether section 649 of the Act providing that “every action must be commenced not later than twelve months” limits the incorporation of the provisions of the OLA and specifically section 47 postponing the running of a limitation period in the case of minors. Can section 649 of the Act be read in harmony with section 47 of the OLA on the reasoning expressed by Major J. in Welsh/Stoddard, supra, particularly in the light that fairness is against depriving a person from pursuing an action if under legal disability.
[62] I have come to the conclusion that Parliament’s statutory prescription in section 649, in the context of Part XIV dealing with dependants’ fatal accidents claims in relation to boating accidents, precludes the application of section 47 of the OLA. As the Supreme Court of Canada said in Ordon Estate v. Grail, supra, the nature of the specific claim said to be statute-barred must be analyzed. What is covered by Part XIV of the Act, I repeat, are dependants’ fatal accidents claims. Part XIV of the Act (1) defines dependants to include children regardless of age; (2) provides for an action for damages in the case of the death of a person by a wrongful act; (3) stipulates that every action under the Part is for the benefit of the dependants and except as provided shall be brought by and in the name of the executor or administrator of the deceased; (4) says no more than one action lies for and in respect of the same subject-matter of the complaint; (5) requires an affidavit to the effect that the persons on whose behalf the action is brought are the only persons entitled to benefit.
[63] The nature of the claim, a dependant’s claim, which requires the inclusion of minors in that claim, can only lead to the conclusion the incorporation of tolling provisions of section 47 of the OLA in the case of minors is inconsistent with the statutory scheme set out in Part XIV. In my view, the rationale behind section 47 preventing a minor under legal disability from having a remedy is contrary to the purpose of a dependant’s fatal accident claim.
[64] A minor in a dependant’s fatal accident claim has a remedy covered by the Act which should not be postponed until he or she reaches the age of majority to obtain the benefits Parliament intended.
(f) The estate claim
[65] As noted, in Ordon Estate v. Grail, supra, the Supreme Court of Canada reformed Canadian maritime law by removing the common law bar to the survival of an action thus permitting the estate of the deceased to maintain an action (which does not include damages to be claimed for the death or the loss of expectation of life (page 517)). This common law action, known as a survival action, is by its very nature different than a dependant’s fatal accident claim to which Part XIV of the Act applies. Because of this distinction, section 649 of the Act, which relates to a dependant’s fatal accident claim, cannot apply to bar this newly created cause of action which is not a dependant’s claim. Counsel for Her Majesty conceded as much indicating there was a genuine issue for trial. The two-year period under the OTA would apply through the incorporation by reference under section 39 of the FCA and section 32 of the CLPA.
DISPOSITION
[66] All claims, with one exception, in this action are statute-barred under section 649 of the Act; the survival action commenced by the estate of Michael Nicholson can proceed as it is not affected by the prescribed limitation period.
[67] The motion for summary judgment is allowed in part. Success being substantially in favour of Her Majesty, costs are awarded to the defendant.