On 3 August 2003, Patricia MacKay (the plaintiff) was a passenger on a whale-watching boat at sea off Grand Manan. When leaving the washroom she stumbled and fell upon a cooler. She fractured a bone in her leg. The cooler was the type used for camping and not a permanent structure on the vessel. The accident occurred in the course of navigation. The plaintiff's solicitors gave written notice of her claim in June 2004, and correspondence began between the parties' solicitors in July 2004. The defendants were the owners and operators of the tour boat. The plaintiff commenced this action for damages on 20 July 2006 (almost three years after the accident).

The defendants asked that the action be dismissed on the basis that it was statute-barred by the two-year limitation period in the Athens Convention 1974 which is given effect to by the Marine Liability Act 2001, SC 2001, c 6. The plaintiff argued that her claim was like any other slip and fall case under provincial law and that the applicable limitation period was six years under the provincial Limitation of Actions Act, RSNB 1973, c L 8.

Alternatively, the plaintiff said that if her fall was governed by federal law, the Court has the authority to suspend or interrupt the limitation period to a maximum of three years by virtue of art 16.3 of the Athens Convention 1974.

The defendants said that any discretion to suspend or interrupt a limitation period under art 16 of the Athens Convention 1974 is not the same as a discretion to extend it.

Held: Judgment for the plaintiff.

The action is governed by federal law. In Whitbread v Walley (1990) CanLII 33 (SCC) (CMI961) the Court held that it was a practical necessity for Parliament to have jurisdiction over the tortious liability of pleasure craft for negligent navigation on Canadian waterways. As commercial ships and pleasure craft share the same navigational network across Canada, a uniform federal body of law resulting from the use of waterways is necessary. The plaintiff’s claim is in pith and substance in relation to navigation and shipping and is to be decided according to federal law.

The plaintiff disembarked from the defendants' boat on 3 August 2003. On 5 July 2004 the defendants' solicitors began corresponding with the plaintiff's lawyer regarding her claim. On 11 February 2005, the defendants' solicitors sent a fax to the plaintiff's lawyer advising that the defendants' solicitors 'will call you as soon as we have a chance to review these documents'. They did not do so until 5 May 2006 after being prompted, well after the two-year limitation period had expired. The plaintiff engaged another firm of solicitors and commenced this action on 20 July 2006, almost three years after the accident.

Article 16 of the Athens Convention 1974 should be interpreted in light of the enactment it replaced. By adopting art 16.3 of the Athens Convention 1974, Parliament was implying that Canadian maritime law permits reasonable suspension or interruption of limitation periods in special circumstances to, in effect, extend a limitation period to a maximum of three years in accordance with the three-part test developed in cases under s 572(3) of the Canada Shipping Act, RSC 1985, c S 9.

First, the plaintiff must appear to have a valid prima facie claim; second, the defendants must have at all times been aware of the claim and would suffer no real prejudice by reason of an extension, other than the loss of the time limitation defence; and third, having regard to all circumstances, it would appear to be in the best interests of justice that time be extended notwithstanding that the basic reason for the missed time bar might have been inadvertence.

Applying this test, the plaintiff appears to have a valid prima facie claim. The defendants knew of her potential claim at the date of the accident and their solicitors had written notice of it within one year. They would suffer no real prejudice by reason of the extension, other than the loss of the time limitation defence. Having regard to all the circumstances, it would appear to be in the best interest of justice that the running of the two-year time limitation period for filing this action be deemed to have been suspended or interrupted on 11 February 2005 until this action was filed on 20 July 2006.

[For the successful appeal to the New Brunswick Court of Appeal, see Russell v Mackay 2007 NBCA 55 (CMI693).]