Rose v. Fishery Products International Ltd., (2016) 380 Nfld. & P.E.I.R. 344 (NLTD(G))

• Judge: Faour, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: March 23, 2016
• Jurisdiction: Newfoundland and Labrador
• Citations: (2016), 380 Nfld. & P.E.I.R. 344 (NLTD(G))

Rose v. Fishery Products Intl. (2016), 380 Nfld. & P.E.I.R. 344 (NLTD(G));

    1177 A.P.R. 344

MLB headnote and full text

Temp. Cite: [2016] Nfld. & P.E.I.R. TBEd. AP.001

Richard Thomas Rose (first plaintiff) and Lorne Rose (second plaintiff) v. Fishery Products International Ltd. (defendant)

(200801T1113; 2016 NLTD(G) 52)

Indexed As: Rose v. Fishery Products International Ltd.

Newfoundland and Labrador Supreme Court

Trial Division (General)

Faour, J.

March 23, 2016.

Summary:

In 1992, the plaintiffs purchased a large seine. The defendant, which owned a number of fish processing plants, agreed to store the seine for free (gratuitous bailment). The seine was stored at one facility until, upon notice to the plaintiffs, it was moved in 1998 to another facility. Sometime later, it was discovered that the seine was missing. The plaintiffs formally demanded a return of the seine in 2003. The plaintiffs commenced an action against the defendant in 2008. The defendant argued that the claim was barred by the six year limitation period under the Limitations Act, because the plaintiffs knew or ought to have known by 2001 that the seine was missing, as the defendant had informed them no later than 2001 that the seine could not be found. The defendant conceded that it would be liable if the claim was not statute-barred. The plaintiffs applied under rule 17A.03(1) for summary judgment.

The Newfoundland and Labrador Supreme Court, Trial Division (General), granted summary judgment, with damages to be assessed. On the evidence, which was sufficient to resolve the genuine issue for trial, it was more probable than not that the cause of action did not arise until 2003 when the plaintiffs demanded a return of the seine, which was less than six years prior to the claim being commenced. Damages were available in detinue where the defendant, upon demand, failed to deliver up that which it was required to do. The limitation period commenced running when the demand was made.

Limitation of Actions - Topic 3162

Actions in tort - Trespass or injury to property - When time begins to run - [See Limitation of Actions - Topic 3165.1 ].

Limitation of Actions - Topic 3165.1

Actions in tort - Trespass or injury to property - Claim in detinue - In 1992, the plaintiffs purchased a large seine - The defendant, which owned a number of fish processing plants, agreed to store the seine for free (gratuitous bailment) - The seine was stored at one facility until, upon notice to the plaintiffs, it was moved in 1998 to another facility - Sometime later, it was discovered that the seine was missing - The plaintiffs formally demanded a return of the seine in 2003 - The plaintiffs commenced an action against the defendant in 2008 - The defendant argued that the claim was barred by the six year limitation period under the Limitations Act, because the plaintiffs knew or ought to have known by 2001 that the seine was missing, as the defendant had informed them no later than 2001 that the seine could not be found - The defendant conceded that it would be liable if the claim was not statute-barred - The plaintiffs applied under rule 17A.03(1) for summary judgment - The Newfoundland and Labrador Supreme Court, Trial Division (General), granted summary judgment, with damages to be assessed - On the evidence, which was sufficient to resolve the genuine issue for trial, it was more probable than not that the cause of action did not arise until 2003 when the plaintiffs demanded a return of the seine, which was less than six years prior to the claim being commenced - Damages were available in detinue where the defendant, upon demand, failed to deliver up that which it was required to do - The limitation period only commenced running when the demand was made.

Counsel:

John Sinnott, Q.C., for the plaintiffs;

Sheri Wicks and Ken Anderson, for the defendant.

This application for summary judgment was heard on December 15-17, 2014, at St. John's, N.L., before Faour, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following judgment on March 23, 2016.