Secunda Marine Services Ltd. v. Caterpillar Inc. et al., (2012) 313 N.S.R.(2d) 123 (SC)

• Judge: Rosinski, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: February 03, 2012
• Jurisdiction: Nova Scotia
• Citations: (2012), 313 N.S.R.(2d) 123 (SC);2012 NSSC 53

Secunda Marine v. Caterpillar Inc. (2012), 313 N.S.R.(2d) 123 (SC);

    990 A.P.R. 123

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. FE.002

Secunda Marine Services Limited (plaintiff) v. Caterpillar Inc., and Puckett Machinery Company (defendants) and Halter Marine Inc. (third party)

(Hfx. No. 178147; 2012 NSSC 53)

Indexed As: Secunda Marine Services Ltd. v. Caterpillar Inc. et al.

Nova Scotia Supreme Court

Rosinski, J.

February 3, 2012.

Summary:

On February 3, 2001, a fire broke out on ship, the origin of which was allegedly traced to the marine engine. On March 26, 2002, Secunda Marine Services Limited (SMS), as owner of the ship, sued the engine's manufacturer and the company which had installed the engine. In February 2008, SMS's counsel concluded that the ship's owner at the material time was Secunda Marine Atlantic Limited (SMA) and that SMA, not SMS, was the proper plaintiff. This was communicated to the defendants' counsel. Counsel were unable to resolve the matter. On September 15, 2011, SMS moved for leave to amend its originating notice of action and statement of claim to correct the error in the plaintiff's name. The manufacturer asserted that a six year limitation period precluded the requested amendment and moved for summary judgment dismissing the action on the ground that SMS, by its own admission, was not the ship's owner and had no claim.

The Nova Scotia Supreme Court concluded that SMS's proposed amendment was precluded by the 2009 Civil Procedure Rules, assuming that there was an arguable limitation defence. However, to preclude the amendment would cause an "unfair advantage" to accrue to the defendants and this was an appropriate case under rule 92.08(2) of the 2009 Rules for the court to exercise its discretion under rule 15 of the 1972 Rules and allow the amendment. The court dismissed the manufacturer's motion for summary judgment.

Practice - Topic 6

General principles and definitions - Application of practice rules - On February 3, 2001, a fire broke out on ship, the origin of which was allegedly traced to the marine engine - On March 26, 2002, Secunda Marine Services Limited (SMS), as the ship's owner, sued the engine's manufacturer and the installer - In February 2008, SMS's counsel concluded that the ship's owner had been Secunda Marine Atlantic Limited (SMA) and that SMA, not SMS, was the proper plaintiff - Counsel for the parties were unable to resolve the matter - On September 15, 2011, SMS moved for leave to amend its originating notice of action and statement of claim to correct the error - The manufacturer asserted that a six year limitation period precluded the requested amendment - The Nova Scotia Supreme Court stated that rule 35.06(3) of the 2009 Civil Procedure Rules, which dealt with "a party having been wrongly named" (the right person but the wrong name), did not apply - Similarly, rule 83.11 did not apply because the proposed amendment did not involve a cause of action where "the amendment merely identified, or better describes, the cause" - The operation of rules 35.06(1) (wrong person having been joined) and 35.06(2) (removing or adding a party to prevent the defeat of a proceeding) did not allow for the removal of SMS or the addition of SMA as a plaintiff if there was an enforceable limitation period defence - Assuming that such a defence could be established, to preclude the amendment would cause an "unfair advantage" to accrue to the defendants within the meaning of transitional provisions of rule 92.08(2) of the 1990 Rules, and it was appropriate for the court to exercise its discretion under rule 15 of the 1972 Rules and allow the amendment - See paragraphs 37 to 75.

Practice - Topic 380

Parties - Joinder of parties - Joinder of plaintiffs - When permitted - [See Practice - Topic 6 ].

Practice - Topic 533

Parties - Change of name of a party - Application to correct the name - [See Practice - Topic 6 ].

Practice - Topic 622

Parties - Adding or substituting parties - Original plaintiff without a cause of action - Adding a plaintiff - [See Practice - Topic 6 ].

Practice - Topic 651

Parties - Adding or substituting parties - Adding or substituting plaintiffs - Circumstances when allowed - [See Practice - Topic 6 ].

Practice - Topic 653

Parties - Adding or substituting parties - Adding or substituting plaintiffs - Application of limitation periods - [See Practice - Topic 6 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - The Nova Scotia Supreme Court concluded that "in summary judgment motions on evidence involving a limitation period defence, under [2009 Civil Procedure Rules], the principles are the same as in any other case. If, on the undisputed facts, a limitation period has expired, there is no room for the court (assuming it even has the authority to do so in a specific case), to exercise an equitable jurisdiction to provide relief and not grant a motion for summary judgment. Having said that, I keep in mind, as Justice Farrar reiterated in [Globex Foreign Exchange Corp. v. Launt et al. (N.S.C.A.)], that there will be a genuine issue for trial if either matters of fact, or of mixed law and fact, exist which require trial." - See paragraph 30.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - On February 3, 2001, a fire broke out on ship, the origin of which was allegedly traced to the marine engine - On March 26, 2002, Secunda Marine Services Limited (SMS), as the ship's owner, sued the engine's manufacturer and the installer - In February 2008, SMS's counsel concluded that the ship's owner had been Secunda Marine Atlantic Limited (SMA) and that SMA, not SMS, was the proper plaintiff - Counsel for the parties were unable to resolve the matter - On September 15, 2011, SMS moved for leave to amend its originating notice of action and statement of claim to correct the error - The manufacturer asserted that a six year limitation period precluded the amendment and moved for summary judgment dismissing the action on the ground that SMS, by its own admission, was not the ship's owner and had no claim - The Nova Scotia Supreme Court dismissed the manufacturer's motion - It was at least arguable that SMA might have a claim against the defendants - That was a genuine issue for trial - Moreover, in deciding to allow SMS's application, the court concluded that the limitation period defence basis of the defendants' objection to an amendment was necessarily undermined - The facts and the law were inextricably linked - This was not an appropriate case to be decided summarily - Similarly, the uncertainty of the factual foundation combined with the uncertain state of the law, compelled the court to conclude that summary judgment should not be granted on the basis of the alleged limitation period defence - See paragraphs 31 to 36.

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - [See both Practice - Topic 5702 ].

Statutes - Topic 6310

Operation and effect - Effect on earlier statutes - Substitutions - Transitional provisions - Effect of - [See Practice - Topic 6 ].

Statutes - Topic 6905.1

Operation and effect - Commencement, duration and repeal - Repeal - Substitution for repealed statute - Transitional provisions - [See Practice - Topic 6 ].

Cases Noticed:

Ordon et al. v. Grail, [1998] 3 S.C.R. 437; 232 N.R. 201; 115 O.A.C. 1, refd to. [para. 24].

Globex Foreign Exchange Corp. v. Launt et al. (2011), 306 N.S.R.(2d) 96; 968 A.P.R. 96; 2011 NSCA 67, refd to. [para. 27].

R.L.B. v. Nova Scotia (Attorney General) et al. (2010), 288 N.S.R.(2d) 387; 914 A.P.R. 387; 2010 NSCA 15, refd to. [para. 29].

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. 29].

Welsh v. Wawanesa Mutual Insurance Co. of Canada (2002), 203 N.S.R.(2d) 305; 635 A.P.R. 305; 2002 CarswellNS 139; 2002 NSSC 90, refd to. [para. 29].

Thornton v. Economical Insurance Group (2010), 295 N.S.R.(2d) 55; 935 A.P.R. 55; 2010 NSSC 355, refd to. [para. 29].

Fitzgerald v. Royal & Sun Alliance Insurance Co. of Canada (2011), 301 N.S.R.(2d) 314; 953 A.P.R. 314; 2011 NSSC 132, refd to. [para. 29].

Lamey v. Wentworth Valley Developments Ltd. et al. (1999), 175 N.S.R.(2d) 356; 534 A.P.R. 356 (C.A.), refd to. [para. 32].

Global Petroleum Corp. v. Point Tupper Terminals Co. (1998), 170 N.S.R.(2d) 367; 515 A.P.R. 367 (C.A.), refd to. [para. 32].

Gillis Construction (Cape Breton) Ltd. v. Nova Scotia Pulp Ltd. and IEC Consultants Inc. (1988), 86 N.S.R.(2d) 376; 218 A.P.R. 376 (C.A.), refd to. [para. 33].

Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 152 O.A.C. 201 (C.A.), refd to. [para. 38].

Basarsky v. Quinlan, [1972] S.C.R. 380, refd to. [para. 42].

Ladouceur v. Howarth, [1974] S.C.R. 1111, refd to. [para. 43].

M5 Marketing Communications Inc. v. Ross et al. (2011), 299 N.S.R.(2d) 300; 947 A.P.R. 300; 2011 NSSC 32, refd to. [para. 51].

Cape Breton (Regional Municipality) v. Nova Scotia (Attorney General) (2009), 277 N.S.R.(2d) 350; 882 A.P.R. 350; 2009 NSCA 44, refd to. [para. 51].

Garth v. Halifax (Regional Municipality) (2006), 245 N.S.R.(2d) 108; 777 A.P.R. 108; 2006 NSCA 89, refd to. [para. 66].

Milburn v. Growthworks Canadian Fund Ltd. et al., [2010] N.S.R.(2d) Uned. 148; 2010 NSSC 210, refd to. [para. 76].

Gallant v. Oickle, Corbin and Moffatt Brothers Ltd. (1977), 21 N.S.R.(2d) 260; 28 A.P.R. 260 (T.D.), refd to. [para. 79].

Canada Life Assurance Co. v. Saywood et al. (2010), 288 N.S.R.(2d) 273; 914 A.P.R. 273; 2010 NSSC 87, refd to. [para. 80].

Statutes Noticed:

Civil Procedure Rules (N.S.), 1972, rule 15 [para. 64].

Civil Procedure Rules (N.S.), 2009, rule 35.06, rule 35.08, rule 83.11 [para. 47].

Rules of Civil Procedure (N.S.) - see Civil Procedure Rules (N.S.).

Rules of Court (N.S.) - see Civil Procedure Rules (N.S.)

Authors and Works Noticed:

Thompson, Rollie, Nova Scotia Civil Procedure Rules (2nd Ed.) (November 2011 Looseleaf), generally [para. 52].

Counsel:

Wylie Spicer, Q.C., Jane O'Neill, for the plaintiff;

Thomas MacDonald, Gordon McKee, for the defendants;

Douglas Walter, Andrews Kurth, LLP, for the Trustee in Bankruptcy of the third party (not participating).

These motions were heard at Halifax, Nova Scotia, on December 13 and 14, 2011, by Rosinski, J., of the Nova Scotia Supreme Court, who delivered the following judgment on February 3, 2012.