MacKay v. Russell,

• Jurisdiction: New Brunswick
• Judge: Drapeau, C.J.N.B., Turnbull and Robertson, JJ.A.
• Neutral Citation: 2007 NBCA 55
• Citation: 2007 NBCA 55,(2007), 318 N.B.R.(2d) 345 (CA),318 NBR (2d) 345,284 DLR (4th) 528,48 CCLT (3d) 245,[2007] NBJ No 236 (QL),284 D.L.R. (4th) 528,(2007), 318 NBR(2d) 345 (CA),[2007] N.B.J. No 236 (QL),318 NBR(2d) 345,318 N.B.R.(2d) 345
• Date: 19 April 2007
• Court: Court of Appeal (New Brunswick)

MacKay v. Russell (2007), 318 N.B.R.(2d) 345 (CA);

    318 R.N.-B.(2e) 345; 821 A.P.R. 345

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2007] N.B.R.(2d) TBEd. JL.002

Renvoi temp.: [2007] N.B.R.(2d) TBEd. JL.002

Dana Russell, Island Coast Boat Tours Inc., and Patricia Lynn Russell (appellants) v. Patricia MacKay (respondent)

(127/06/CA; 2007 NBCA 55)

Indexed As: MacKay v. Russell et al.

Répertorié: MacKay v. Russell et al.

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Turnbull and Robertson, JJ.A.

June 28, 2007.

Summary:

Résumé:

On August 3, 2003, MacKay was injured when she stumbled and fell on a cooler while on a tour boat. The accident occurred during the course of navigation. MacKay sued the owners and operators of the boat for damages. The owners moved to have the action dismissed on the basis that it was not brought within the two year limitation period prescribed by article 16(1) of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, which had the force of law in Canada by virtue of the Marine Liability Act. MacKay asserted that the applicable limitation period for the slip and fall was six years (New Brunswick Limitation of Actions Act, s. 9).

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 312 N.B.R.(2d) 39; 806 A.P.R. 39, held that the claim in pith and substance was in relation to navigation and shipping and was to be decided according to federal law. However, the court deemed the article 16(1) limitation period to have been suspended or interrupted from February 11, 2005 (the date that owners' lawyers advised MacKay's lawyer that they would call as soon as they had a chance to review documentation) until July 20, 2006 (the date that the action was filed). The defendants appealed.

The New Brunswick Court of Appeal affirmed that federal law applied, but allowed the appeal and granted the defendants summary judgment where the Trial Division lacked jurisdiction to extend the two year limitation period under the Convention and erred in deeming the running of that period suspended or interrupted prior to its expiry.

Admiralty - Topic 8402

Practice - Actions in personam - Application of provincial legislation - MacKay was injured when she stumbled and fell on a cooler while leaving the washroom of a tour boat - The accident occurred during the course of navigation - MacKay sued the boat's owners and operators - The defendants moved to have the action dismissed on the basis that it was not brought within the two year limitation period prescribed by article 16(1) of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, which had the force of law in Canada by virtue of the Marine Liability Act - MacKay asserted that the limitation period for a slip and fall was six years (New Brunswick Limitation of Actions Act, s. 9) - McKay pointed out that the cooler was the kind used for camping, was not a boat fixture and served only to cool beverages, a purpose unrelated to the navigation or operation of the boat - The motions judge rejected MacKay's assertion - The claim in pith and substance related to navigation and shipping and was to be decided according to federal law - The New Brunswick Court of Appeal affirmed the determination - Having regard to the broad meaning ascribed to "navigation" by the Supreme Court of Canada, the factual context as a whole and the need for uniformity, certainty and predictability in this area of the law, the court concluded that the neglect attributed to the defendants was so integrally connected to the boat's navigational activities that federal law applied - See paragraphs 29 to 44.

Admiralty - Topic 8404

Practice - Actions in personam - Personal injuries - [See Admiralty - Topic 8402 ].

Admiralty - Topic 8404

Practice - Actions in personam - Personal injuries - Article 16(1) of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea prescribed a two year limitation period for personal injury actions - Article 16(3) provided that "The law of the court seized of the case shall govern the grounds of suspension and interruption of limitation periods, but in no case shall an action under this Convention be brought after the expiration of a period of three years from the date of disembarkation of the passenger or from the date when disembarkation should have taken place, whichever is later" - A motions judge concluded that the "law of the court" under article 16(3) conferred a discretion in effect to extend the limitation to a maximum of three years in accordance with the three-part test developed in the cases under s. 572(3) of the Canada Shipping Act which was repealed by s. 119 of the Marine Liability Act - The New Brunswick Court of Appeal allowed an appeal - The motions judge erred in concluding that article 16 was the legislative successor of s. 572 - Unlike s. 572, article 16 did not provide for a judicial discretion to extend the limitation period - The court did not have jurisdiction, inherent or otherwise, to extend the limitation period prescribed by article 16 - No federal legislation was identified that would provide grounds for "suspension and interruption" - Assuming that under federal law the grounds included those commonly recognized under provincial legislation, the evidential record did not support a finding that would avoid the action's extinction - See paragraphs 45 to 56.

Admiralty - Topic 8410

Practice - Actions in personam - Limitation periods - [See Admiralty - Topic 8402 and second Admiralty - Topic 8404 ].

Constitutional Law - Topic 5958

Federal jurisdiction (s. 91) - Navigation and shipping - Negligence or contributory negligence - [See Admiralty - Topic 8402 ].

Amirauté - Cote 8402

Règles de procédure - Actions in personam - Application de la loi provinciale - [Voir Admiralty - Topic 8402 ].

Amirauté - Cote 8404

Règles de procédure - Actions in personam - Préjudice corporel - [Voir Admiralty - Topic 8404 ].

Amirauté - Cote 8410

Règles de procédure - Actions in personam - Délais de prescription - [Voir Admiralty - Topic 8410 ].

Droit constitutionnel - Cote 5958

Compétence fédérale (art. 91) - Navigation et bâtiments ou navires - Négligence ou négligence contributive - [Voir Constitutional Law - Topic 5958 ].

Cases Noticed:

Peters v. A.B.C. Boat Charters Ltd. (1992), 73 B.C.L.R.(2d) 389 (S.C.), refd to. [para. 16].

Isen v. Simms, [2006] 2 S.C.R. 349; 353 N.R. 147; 2006 SCC 41, refd to. [para. 17].

R. v. Loxdale (1758), 97 E.R. 394, refd to. [para. 21].

Ordon et al. v. Grail, [1998] 3 S.C.R. 437; 232 N.R. 201; 115 O.A.C. 1, refd to. [para. 22].

Dreifelds et al. v. Burton et al. (1998), 108 O.A.C. 262; 38 O.R.(3d) 393 (C.A.), refd to. [para. 23].

Basarsky v. Quinlan, [1972] S.C.R. 380, refd to. [para. 23].

Miida Electronics Inc. v. Mitsui O.S.K. Lines Ltd. and ITO-International Terminal Operators Ltd., [1986] 1 S.C.R. 752; 68 N.R. 241, refd to. [para. 37].

Bow Valley Husky (Bermuda) Ltd. et al. v. Saint John Shipbuilding Ltd. et al., [1997] 3 S.C.R. 1210; 221 N.R. 1; 158 Nfld. & P.E.I.R. 269; 490 A.P.R. 269, refd to. [para. 37].

Whitbread v. Walley et al., [1990] 3 S.C.R. 1273; 120 N.R. 109, refd to. [para. 38].

Montréal (City) v. Montréal Harbour Commissioners, [1926] A.C. 299; [1926] D.L.R. 840 (P.C.), refd to. [para. 43].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 47].

K.C. v. New Brunswick (Minister of Health and Community Services) (1998), 203 N.B.R.(2d) 88; 518 A.P.R. 88 (C.A.), refd to. [para. 50].

Duguay v. Commission de la santé, de la sécurité et de l'indemnisation des accidents au travail (N.-B.), [2002] N.B.R.(2d) (Supp.) No. 62 (C.A.), refd to. [para. 50].

Anderson v. Betts et al. (2001), 235 N.B.R.(2d) 295; 607 A.P.R. 295 (Q.B.), refd to. [para. 50].

Murphy v. Welsh, [1993] 2 S.C.R. 1069; 156 N.R. 263; 65 O.A.C. 103, refd to. [para. 50].

Higham v. Stena Sealink Ltd., [1996] 2 Lloyd's L.R. 26 (C.A.), refd to. [para. 54].

Ryan v. Moore et al., [2005] 2 S.C.R. 53; 334 N.R. 355; 247 Nfld. & P.E.I.R. 286; 735 A.P.R. 286; 2005 SCC 38, refd to. [para. 56].

Statutes Noticed:

Athens Convention - see Marine Liability Act (Can.).

Marine Liability Act, S.C. 2001, c. 6, Schedule 2, Part 1 (Athens Convention), art. 16(1) [para. 20 et seq.]; art. 16(3) [para. 21 et seq.].

Authors and Works Noticed:

Mew, Graeme, The Law of Limitations (2nd Ed. 2004), c. 6, p. 101 [paras. 48, 50].

Williams, Jeremy S., Limitation of Actions in Canada (2nd Ed. 1980), pp. 198 [paras. 50, 56]; 199 to 222 [para. 56].

Counsel:

Avocats:

James E. Gould, Q.C., and Lisa M. Wight, for the appellants;

Howard A. Spalding, Q.C., and Crystal D. Critch, for the respondent.

This appeal was heard on April 19, 2007, by Drapeau, C.J.N.B., Turnbull and Robertson, JJ.A., of the New Brunswick Court of Appeal. Drapeau, C.J.N.B., delivered the following judgment for the court in both official languages on June 28, 2007.