Toney v. Canada

In Limitation Periods in Maritime Law on (Updated )

PrĂ©cis: The Alberta Court of Queen’s Bench struck a claim for personal injuries that was made out of time and questioned whether "grief" claims allowed under the provincial act could be made in an incident governed by maritime law.

Facts: This proceeding arose out of a boating accident on an Alberta lake in which a five year old child died. The accident occurred on 27 September 2008 and was witnessed by the plaintiffs, the parents and siblings of the deceased child. The plaintiffs alleged Canada (the Royal Canadian Mounted Police) and Alberta (the Alberta Fish & Wildlife Department) were negligent in mounting and carrying out search and rescue operations. The plaintiffs’ claim was originally filed in the Federal Court against both Canada and Alberta but was dismissed as against Alberta on 18 December 2013 on the grounds that the Federal Court was without jurisdiction (reported at 2013 FCA 217). The remaining claim in the Federal Court against Canada was stayed on 23 October 2013 at Canada’s request pursuant to s. 50.1 of the Federal Courts Act. This permitted the plaintiff to commence these proceedings in the Alberta Court of Queen’s Bench against Canada (otherwise such a claim had to be brought exclusively in the Federal Court) and also permitted Canada to file third party proceedings against Alberta. The plaintiff commenced these proceedings on 20 November 2013, more than five years after the accident. The defendants brought this application to strike the plaintiffs’ claim on the grounds that the claim was statute barred. The defendants argued that the applicable limitation period was two years from the date of death pursuant to s. 14(2) of the Marine Liability Act which governs claims by dependants. The plaintiffs, on the other hand, argued that their claims were not dependants’ relief claims but claims for their own personal suffering. The plaintiffs further argued that any limitation period should not commence before June 2011 when an inquiry was held and they learned the details of the accident and the defendants’ involvement. The Plaintiffs also claimed for “grief” under the Fatal Accidents Act of Alberta.

Decision: All claims are struck with the exception of the claims for personal injuries as against Canada.

Held: A reading of the pleadings discloses the plaintiffs’ claims include nervous shock, post-traumatic stress and depression. Such claims are compensable personal injuries under Canadian maritime law, are not derivative claims and are not restricted in any way by s. 6 of the Marine Liability Act. The limitation period applicable to such claims is either the two year period in the Athens Convention, if the plaintiffs were passengers, or the three year period set out in s. 140 of the Marine Liability Act. In respect of the personal injury claims against Canada, s. 50.1 of the Federal Courts Act deems the date of commencement of the claim to be the date the original claim was filed in the Federal Court. That date was 26 September 2011, a date within three years of the accident. Since it is not plain and obvious the plaintiffs were passengers subject to the two year limitation period in the Athens Convention, the plaintiffs’ claims for personal injuries as against Canada should not be struck. However, in respect of the personal injury claims against Alberta, the deeming provision in s. 50.1 of the Federal Courts Act is not applicable. The date of commencement of the action against Alberta was more than five years after the accident, well past the three year limitation period in s. 140 of the Marine Liability Act. The plaintiffs’ argument that they did not discover the details underlying the cause of the accident until the inquiry in June 2011 is not accepted and the discoverability principle has no application. The personal injury claims against Alberta are out of time.

With respect to the claim for “grief” under the Fatal Accidents Act of Alberta, it is questionable whether such a claim can be made on constitutional grounds but this need not be decided as the limitation period applicable would be the two year period in the provincial Limitations Act. That limitation period expired on 28 September 2010.

Comment: Although the court correctly identified that there was a constitutional issue with respect to the “grief” claim advanced under the Fatal Accidents Act of Alberta, the determination that the provincial Limitations Act would apply to the “grief” claim is questionable. It has been repeatedly held that provincial limitation statutes do not apply to maritime matters.