Canada - Time Bars
Introduction - Canadian Federal System
Canada is a federal state, in which law-making powers of the central (federal) Parliament and of each of the ten provinces are exclusive and respectively sovereign, and are assigned to one or other of the levels of government essentially according to subject-matter. Most particularly, the power to make laws in relation to "navigation and shipping" is assigned exclusively to the federal Parliament, and scope of this power is interpreted to include matters of contract, tort and agency "integrally connected with maritime matters ... in the modern context of commerce and shipping". For most practical purposes, a claim arising in Canada in respect of the operation of a ship, and therefore of concern to the Club or its member, will be governed by Canadian federal substantive law, and therefore, be subject to time bars prescribed in federal legislation.
However any Canadian court might, depending on the facts, determine that a given claim does not engage a "maritime matter", and so the applicable time bars will be those of the province the laws of which apply to the claim (itself a potential controversy engaging "inter-provincial" conflicts of laws). For this reason this paper will note time bars applicable to tort and contract claims in the provinces of New Brunswick, Newfoundland and Labrador and Nova Scotia, all Atlantic coastal provinces to which ships entered in the Club trade and in which the Club and its members may well encounter local legal difficulty and associated time bars.
Under federal and provincial law, the time bar generally requires the commencement of legal action by appropriate filing in a Court prior to expiry of the time bar.
Summary of Canadian Federal Time Bars Applicable in Maritime Matters.
In its domestic maritime law Canada has enacted many, but by no means all, of the widely-accepted international maritime conventions and their respective time bars apply in Canada. Additionally, as will be seen, Canada has enacted domestic time-bars governing other kinds of maritime claims. The result is a diversity of time bars, the application of which varies depending on the nature of the claim and sometimes on the nature of the claimant. These diverse federal time bars may be summarised in tabular form:
Nature of ClaimTime BarReference
|Collision between Ships||2 years||Marine Liability Act s. 23(1). See Note 1|
|Salvage||2 years||Salvage Convention 1989 (Canada Shipping Act 2001 Schedule 3) Art 23(1)|
|Claim by dependents of injured or deceased person||2 years||Marine Liability Act s. 14|
|Most Passenger Injuries or Death||2 years||Athens Convention 1976/1990 (Marine Liability Act Schedule 2) Art. 16. See Note 2|
|Other Personal Injuries or Death||3 years||Marine Liability Act s. 140. See note 3|
|Pollution in Arctic Waters||2 years||Arctic Waters Pollution Prevention Act s. 6(5). See Note 4|
|All Other Pollution Damage||3 years from damage or if no damage 6 years from incident||CLC 1992/2000 (Marine Liability Act Schedule 5) Art. VIII; Bunkers Convention 2001 (Marine Liability Act Schedule 8) Art. 8; Marine Liability Act s. 77(6)|
|Cargo Damage||1 year||Hague-Visby Rules (Marine Liability Act Schedule 3) Art. III(6)|
|All Other Claims under Canadian maritime law||3 years||Marine Liability Act s. 140|
Notes - Canadian Federal Time Bars
- In cases of collisions between ships the Court has discretion to extend time for commencement of action: Marine Liability Act s. 23(2).
- Canada enacts as substantive law the Athens Convention 1974 as amended by both its 1976 and 1990 Protocols. Canada applies this law to domestic and international carriage, including carriage on inland waters. Certain kinds of persons are excluded from the definition of "passengers" and this law does not apply in respect of those kinds of persons. See Note 3.
- Canada excludes from the application of its version of the Athens Convention crew and "any other person employed or engaged in any capacity on board a ship or on the business of a ship", persons carried on board a ship not operated for a commercial or public purpose, rescued persons and stowaways (Marine Liability Act s. 37(2)(b)). Canada also excludes application of this law to "adventure tourism" activities as defined in Marine Liability Act s. 37.1. The time bar applicable to claims by such excluded persons, if injured, is the general three-years time bar provided for in Maritime Liability Act s. 140.
- By s. 2.1 of the Arctic Waters Pollution Prevention Act, provisions of the Marine Liability Act prevail in any case of inconsistency. To the extent that statutory pollution liability is prescribed by both statutes (and some, for example cargo owners' liability, exist only under the Arctic Waters Pollution Prevention Act), it is probable that the effective time bar would be the three years/six years discussed above under "All Other Pollution Damage"
Summary of Provincial Time Bars
Although as noted above it is conceivable that claims governed by provincial law could be asserted against members or their ships, the more probable concern will be some loss or damage suffered by a member, or one of its people, in port in a Canadian province and the time bar will apply to limit the time within which legal action, if appropriate, must be commenced in order to enforce any resulting claim.
Newfoundland and Labrador
Under the Newfoundland & Labrador Limitations of Actions Act, claims barred under a 2 year limitation period include all those for damages in respect of injury to a person or property, including economic loss arising from that injury, whether based on contract, tort or statutory duty, as well as claims under the Fatal Accidents Act and Privacy Act. Where the claim is based on personal injury or direct property damage, including economic loss, the limitation period starts to run when "damage first occurs."
Claims precluded after 6 years include actions for damages for conversion or detention of goods, to enforce an obligation arising from a statute; to enforce a foreign judgment, and to recover a debt. There is also a catch-all limitation period of 6 years for any cause of action not mentioned specifically by the Act.
It is not clear from the wording of the Act which contractual claims are limited after 2 years (those for damages in respect of injury to a person or property) and which are limited after 6 years under the catch-all provision. In Butler v. Maritime Life Assurance Co, 2003 NLSCTD 64, the Court held that the 2 year period only applies to claims arising in contract for "physical, emotional, or mental injury" or "direct damage to property." All other contractual claims fall under the 6 year limitation period.
In actions for personal injury and property damage, the limitation period does not begin to run against plaintiffs until they know or ought to know that they have a cause of action. However, the Act imposes a 10 year limitation period after the act or omission (or the last in a series of acts or omissions) upon which the right of action is based.
In respect of the situation where the wrongful act results in damage long after the act itself occurred, and where the plaintiff is time barred from claiming, the Court of Appeal held, in Quigley v City of St. John's, 2001 NFCA 30, the 10 year limitation does not apply to limit causes of action which have not yet arisen because the relevant damage has not yet occurred. Further, the limitation period does not run for as long a plaintiff a remains under a disability.
No action to which the Act applies may be brought after the expiration of 30 years from the date on which the event which gave rise to the cause of action last occurred.
Under New Brunswick law, specifically the Limitation of Actions Act, SNB 2009, c L-8.5 ("LAA"), and subject to specific exceptions, all claims are time-barred two (2) years from the date the claim arose or is discovered, or ultimately, fifteen (15) years from the date on which the act or omission on which the claim is based occurred. Discoverability is defined as when the claimant first knew or ought reasonably to have known that the injury, loss or damage occurred and that this injury, loss or damage was caused by or contributed to by an act or omission, which was that of the defendant. If an act or omission is continuous, it is considered a separate act or omission on each day it occurs, thereby resetting the limitation period on each day it is continued. More specific limitation periods related to debt collection, for example, are set out in further provisions.
Whenever a conflict arises between the LAA and any other act that prescribes a limitation period, the other act prevails. New Brunswick law also provides that if a claim would be time barred in another jurisdiction under conflicts of law rules, the claim shall not be brought in New Brunswick.
Under Nova Scotia law and subject to fairly narrow exceptions not considered material to shipping clients the time bar for all claims is the shorter of two years from the date on which the claim is "discovered" or 15 years from the date of the act or omission giving rise to the claim - which in the case of continuing or repeated acts or omissions is the date of the last occurrence. "Discovery", for purposes of these provisions, means the date on which the claimant knew or ought to have known that the damage occurred, that the damage was caused by the act or omission, that the act or omission was that of the defendant, and that the damage "is sufficiently serious to warrant a proceeding". In cases only of claims for personal injuries, the court has discretion to disallow a defence based on expiry of the two-years time bar which discretion may be exercised within a further two-year period following expiry, and is governed generally by relative "hardships" to the parties including specifically reasons for delay, prejudice arising from delay and the strength of the claimant's case. Under Nova Scotia law a time bar may be extended, but not shortened, by contract.
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