Malcolm v. Shubenacadie Tidal Bore Rafting Park Ltd., (2014) 347 N.S.R.(2d) 337 (SC)

• Judge: Wood, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 27, 2014
• Jurisdiction: Nova Scotia
• Citations: (2014), 347 N.S.R.(2d) 337 (SC);2014 NSSC 217

Malcolm v. Shubenacadie Tidal Bore (2014), 347 N.S.R.(2d) 337 (SC);

    1098 A.P.R. 337

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. JL.027

Connor Joseph Malcolm by his Litigation Guardian Angela Malcolm (plaintiff) v. Shubenacadie Tidal Bore Rafting Park Limited (defendant)

(Hfx. No. 415787; 2014 NSSC 217)

Indexed As: Malcolm v. Shubenacadie Tidal Bore Rafting Park Ltd.

Nova Scotia Supreme Court

Wood, J.

July 9, 2014.

Summary:

In August 2008, 12 year old Connor and his mother went on an excursion on the Shubenacadie River which was operated by the defendant, Shubenacadie Tidal Bore Rafting Park Ltd. Connor fell out of the defendant's Zodiac and suffered injuries. On May 23, 2013, Connor's mother, as his litigation guardian, commenced legal proceedings against the defendant alleging that Connor's injuries were caused by their negligence. The defendant moved for summary judgment on evidence pursuant to rule 13.04 on the basis that the applicable limitation period had expired.

The Nova Scotia Supreme Court granted the motion for summary judgment.

Admiralty - Topic 8402

Practice - Actions in personam - Application of provincial legislation - [See Limitation of Actions - Topic 9305 ].

Admiralty - Topic 8410

Practice - Actions in personam - Limitation periods - [See Limitation of Actions - Topic 9305 ].

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - [See Limitation of Actions - Topic 9305 ].

Limitation of Actions - Topic 9305

Postponement of suspension of statute - General - Discoverability rule - In August 2008, 12 year old Connor and his mother went on an excursion on the Shubenacadie River which was operated by the defendant, Shubenacadie Tidal Bore Rafting Park Ltd. - Connor fell out of the defendant's Zodiac and suffered injuries - On May 23, 2013, Connor's mother, as his litigation guardian, commenced legal proceedings against the defendant alleging that Connor's injuries were caused by its negligence - The defendant moved for summary judgment on evidence pursuant to rule 13.04 on the basis that the applicable limitation period had expired and the claim was out of time - The Nova Scotia Supreme Court granted the motion - The limitation provisions applicable to the plaintiff's claim were those found in art. 16 of the Athens Convention, which were incorporated in the federal Marine Liability Act - The period began to run on the date of the passenger's disembarkation - The time period could only be suspended or extended in accordance with the terms of that article - Nova Scotia legislation had no application, nor did the discoverability principle - The defendant demonstrated that there was no material issue requiring trial with respect to the limitation question - The plaintiff did not demonstrate that his claim had a real chance of success.

Statutes - Topic 6707

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactment - Limitation of actions statutes or provisions - The Nova Scotia Supreme Court stated that limitation periods were considered to be substantive and not procedural in nature and such legislation should not be applied retrospectively - See paragraph 14.

Cases Noticed:

Coady v. Burton Canada Co. et al. (2013), 333 N.S.R.(2d) 348; 1055 A.P.R. 348; 2013 NSCA 95, refd to. [para. 5].

Ordon et al. v. Grail, [1998] 3 S.C.R. 437; 232 N.R. 201; 115 O.A.C. 1, refd to. [para. 9].

MacKay v. Russell et al. (2007), 318 N.B.R.(2d) 345; 821 A.P.R. 345; 2007 NBCA 55, refd to. [para. 10].

Frugoli v. Services aeriens des Cantons de l'Est inc., 2009 QCCA 1246, refd to. [para. 11].

Ryan Estate et al. v. Universal Marine Ltd. et al. (2013), 447 N.R. 1; 339 Nfld. & P.E.I.R. 312; 1054 A.P.R. 312; 2013 SCC 44, refd to. [para. 12].

Quebec (Attorney General) v. Healy, [1987] 1 S.C.R. 158; 73 N.R. 288; 6 Q.A.C. 56, refd to. [para. 13].

Lemieux v. Halifax International Airport Authority et al. (2011), 309 N.S.R.(2d) 22; 979 A.P.R. 22; 2011 NSSC 396, refd to. [para. 25].

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. 34].

Statutes Noticed:

Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea, 1974 - see Marine Liability Act.

Marine Liability Act, S.C. 2001, c. 6, Schedule 2, Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea, 1974, art. 16 [para. 8].

Authors and Works Noticed:

Maxwell on the Interpretation of Statutes (12th Ed. 1969), p. 216 [para. 13].

Counsel:

Barry J. Mason, for the plaintiff;

Eric Machum and Kyle Ereaux (articled clerk), for the defendant.

This motion was heard on March 27, 2014, at Halifax, N.S., before Wood, J., of the Nova Scotia Supreme Court, who delivered the following decision on July 9, 2014.