Parties - Case Summaries
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Substitution vs Addition of Party After Limitation Period Expiry - Applicable Limitation Period to claim by Passenger Against Repairer - s. 140 MLA - When s. 140 MLA Commences to Run
Sperling v. The Queen of Nanaimo, 2014 BCSC 326
Précis: The British Columbia Supreme Court held that a defendant could be added as a party to an existing action notwithstanding the expiry of the limitation period under s. 140 of the Marine Liability Act and where the court further held that the limitation period in s. 140 of the Marine Liability Act does not commence to run until the underlying material facts and the extent of the injury are known.
Facts: The plaintiff was injured when the ferry “Queen of Nanaimo” hit the dock at Village Bay Terminal on 3 August 2010. A malfunction in the propulsion equipment of the ferry was implicated in the cause of the accident. The plaintiff originally commenced proceedings on 2 August 2012 against the owner/operator of the ferry as well as “John Doe 1, ABC Company and John Doe 2”. The plaintiff now sought to add a number of additional companies alleging they were involved in the installation or repair of the malfunctioning equipment. The plaintiff argued the proposed parties could be substituted for “ABC Company” on the basis of correction of a misnomer in the pleading or, in the alternative, that the rules permitted the addition of the proposed parties in the circumstances. The proposed defendants challenged the motion on the basis, inter alia, that the limitation period had expired. The issues were:
1. Can the proposed parties be substituted for “ABC Company” on the basis of a misnomer in the pleading?
2. If this is not a case of misnomer, can the additional parties be added if a limitation period has intervened?
3. What is the applicable limitation period? Is it two years under the Athens Convention or three years under s. 140 of the Marine Liability Act?
4. If the Limitation period is under s. 140 of the Marine Liability Act, from what date does the limitation period commence to run and has it expired?
Decision: Motion allowed, in part.
(1) There is an important distinction between amendment applications to correct a misnomer in a pleading and applications to add a party. The correction of a misnomer is permitted notwithstanding the expiration of a limitation period after the action was originally commenced. On the other hand, where the application is to add a party, the expiration of a limitation period will be one of the factors taken into account in the court’s determination of whether it is “just and convenient” to add the new party.
The test for correcting a misnomer is whether the party is sufficiently described in the pleading as an identifiable and identified person by role, responsibility or involvement. In this case the plaintiff lumps defendants together and makes blanket allegations without meaningful distinctions. The activities described are so broad they could apply to many people. There is insufficient particularity in the pleading to point the finger at any distinct person. Therefore, this is not a case of misnomer.
(2) A new party may be added at any stage of a proceeding where it is just and convenient to do so. The existence of a limitation defence is a relevant but not a determinative factor. In this case the parties disagree as to whether a limitation defence has accrued. The proposed defendants argue that the court has no discretion to add them as parties, if the limitation period under the Marine Liability Act has accrued. The court does not agree. Even if a limitation period has accrued under the Marine Liability Act, the court still has a discretion to add parties.
(3) The limitation period of two years in art. 16 of the Athens Convention, enacted by the Marine Liability Act, applies only to “carriers” and has no application to the proposed defendants. The application of the three year limitation period in s. 140 of the Marine Liability Act is challenged by the plaintiff on the grounds that the negligent acts alleged against the proposed defendants have nothing to do with navigation and shipping. The proposed defendants, on the other hand, say that the subject matter of the claim is squarely in the domain of federal maritime negligence law and s. 140 of the Marine Liability Act therefore applies. This is a difficult issue but it need not be decided since, in any event, the discoverability issue is to be resolved in the plaintiff’s favour.
(4) The Marine Liability Act does not provide for the postponement or extension of the three year limitation period. However, the s. 140 limitation period commences on the day the cause of action arose which, pursuant to the discoverability principle, means it does not commence until the underlying material facts and the extent of injury are known. The plaintiff did not receive the investigation report identifying the malfunctioning equipment until 20 May 2011. This is the earliest date from which the limitation period could commence. Therefore, even if the three year period applies, it has not expired.
Federal Court Jurisdiction- Crown Immunity - Federal Court Has No Jurisdiction Over Province
Alberta (Canada) v. Toney, 2012 FC 1412 2013 FCA 217
Précis: The Federal Court of Appeal held that the Federal Court had no in personam jurisdiction over the Province of Alberta.
This was an in rem and in personam action against both the federal and provincial crowns and a vessel owned by the Alberta government. The action concerned a fatal accident that occurred on an Alberta lake. The plaintiffs alleged that the defendants were negligent in their performance of search and rescue duties. The Province of Alberta objected to the jurisdiction of the Federal Court over it and initially brought a motion to strike the statement of claim. That application was dismissed (see: Canada v Toney, 2011 FC 1440 and 2012 FCA 167). The parties then agreed that the issue of the in personam jurisdiction of the Federal Court over the Province of Alberta should be determined as a question of law and Alberta brought this application for such a determination. Alberta argued that the doctrine of Crown immunity applied and that it could not be bound by a federal statute. The motions Judge disagreed and held (at 2012 FC 1412) that the Federal Court did have in personam jurisdiction. In reaching this decision the motions Judge noted that the Federal Court had subject matter jurisdiction and further noted that s. 3 of the Marine Liability Act and s. 43(7) of the Federal Courts Act both permitted actions against a province. The Province of Alberta appealed.
Decision: Appeal allowed.
Held: The four basic principles are: first, the Crown (both federal and provincial) is prima facie immune from legislation; second, where Parliament (the federal Crown) has the authority to legislate in an area, a provincial Crown will be bound where Parliament so chooses; third, in order for a provincial Crown to be sued in the Federal Court, there must be some legislative provision permitting it; and fourth, the Federal Court must have jurisdiction over both the subject matter and the parties. The question is whether there is a legislative provision indicating a clear intent by Parliament to bind the province. The possibilities are ss. 22 and 19 of the Federal Courts Act and the Alberta Proceedings Against the Crown Act. Section 22 of the Federal Courts Act (granting jurisdiction “between subject and subject as well as otherwise”) does not contain a clear expression of intention to bind a Province. Section 19 of the Federal Courts Act (intergovernmental disputes) does not apply to claims by a private citizen and is therefore of no assistance. Finally, even though the Alberta Proceedings Against the Crown Act does not expressly reserve jurisdiction to the courts of Alberta, it also does not expressly grant jurisdiction to the Federal Court. In result, the appeal is allowed and the Federal Court has no in personam jurisdiction over the Province of Alberta.
Practice – Service – Addition of Parties - Limitation Periods
Shell Canada Energy v. General MPP Carriers, 2011 FC 217
This was an application by the owner of one of the defendant ships to set aside service and a corollary application to amend the Statement of Claim. The plaintiff had filed a Statement of Claim for damage to cargo on the last day of the one year limitation period. The Statement of Claim included the ship as a defendant but not the owner in personam. The Statement of Claim was sent by courier and fax to the owner but as service had to be effected in accordance with the Hague Convention the plaintiff obtained an ex parte order extending the time for service “on the owners” and ultimately effected service on the owner in Germany. The Court predictably held that service of the Statement of Claim on the owner was not service on the ship. The Court further held that the ex parte order extending the time for service did not indirectly create a right of action “in personam”. With respect to the plaintiff‟s motion to amend the Statement of Claim by adding the owner as an in personam defendant, the Court refused the application on the basis that it was not the correction of a misnomer and the limitation period had passed.
Practice – In Rem Proceeding – Intervention by Mortgagee – Collateral Attack
F.C. Yachts Ltd. v. P.R. Yacht Builders Ltd., 2010 FC 1066
This was an application by the mortgagee of a vessel under construction for intervenor status. The vessel was being built under a contract between the purchaser, NWEY, and the builder, PRYB. This contract contained an arbitration clause. PRYB had, however, sub-contracted the labour part of the build to a related company, FCY. The subcontract contained no arbitration clause. The funds for the build came from the mortgagee who was eventually to be the ultimate user of the vessel. Disputes arose during the course of the construction. Arbitration was initiated between NWEY and PRYB. FCY commenced this proceeding in Federal Court and had the vessel arrested. Later, pursuant to an agreement between NWEY, PRYB and FCY, the vessel was released from arrest upon the posting of security and this proceeding was stayed in favour of arbitration. FCY was ultimately successful in the arbitration and in the B.C. Supreme Court where aspects of the arbitration had been challenged. After the decision of the arbitrator and the B.C. Supreme Court, this application was brought for intervenor status. The purpose of the intervenor status was so that the applicant could then apply to set aside the arrest even though the vessel had already been released and was no longer in the jurisdiction. The Court noted that the granting of intervenor status is highly discretionary and listed some of the relevant factors. The Court further noted that the intervenor must take the case as the parties have framed it and cannot “hijack the parties’ dispute”. The Court said that the central theme of the proposed intervenor’s case was that the transaction between FCY and PRYB was a sham and this went well beyond the matters the parties had put in issue. The Court further said that the proposed intervention had all the hallmarks of an end-run on the arbitration and B.C. Supreme Court proceedings and noted the absence of any evidence of fraud. Accordingly, the application was dismissed.
Parties – Addition – Amendment of Pleadings – After Limitation Period
Budget Steel Ltd. v. FMW Towing Ltd., 2004 FC 1140
This matter concerned the capsizing of a barge and the consequential loss of her cargo. The Plaintiff, the owner of the cargo, originally commenced these proceedings against the owners of the barge and the tugs towing her. More than two years after the capsize the Plaintiff brought this application to add the owners of a passing ship and to amend the Statement of Claim to allege that the wake of the passing ship caused the capsize. The proposed Defendants contested the application arguing that the limitation period had expired and that they had been prejudiced by the lapse of time in that they did not have the opportunity to properly investigate the incident. With respect to the limitation period issue the Prothonotary held that the running of the limitation period did not prevent the addition of the Defendants as they would be entitled to plead and argue the limitation defence. The Prothonotary had more difficulty with the prejudice issue since the Plaintiff had written to the proposed Defendants advising them that they considered the cause of the capsize to be the unseaworthiness of the barge. However, the proposed Defendants had been aware of the incident from the time of the capsize and had been added as Third Party Defendants. The Prothonotary ultimately held that although there had been some prejudice this prejudice was self inflicted in that it was due to an oversight or lack of initial assessment and investigation on the part of the proposed Defendants. In result, the proposed Defendants were added as parties.
Joinder of Parties – Owners of Salved Property
Early Recovered Resources Ltd. v. Gulf Log Salvage Co-operative Association et al., 2003 FCT 549
This was a motion to add two associations of forestry companies who were owners of logs as either interveners or defendants in the Plaintiff’s action for salvage in respect of 17 unidentified logs from the BC coast. In the original action, the Province had been named as a Defendant but had a limited interest to stumpage fees which had likely already been paid prior to salvage. After noting that the style of cause should have been in rem to name the 17 unidentified logs, the Prothonotary held that the owners of the salved property, who would be liable for the salvage claim, should be defendants as they should have notice and be afforded the chance to protect their position. The two associations had an interest in rem in the logs (although ownership was unidentified) and an interest in protecting the existing log recovery system. The motion was granted adding the associations as defendants.
State of Alaska v. John Doe et.al, 1997 CanLII 5772
This is the second volley in the litigation surrounding the blockade of the Alaskan ferry "Malaspina" by B.C. fishermen in July of 1997. The motion was brought by various fishermen for an order that the action was not properly commenced as against them. The Statement of Claim initially named 17 vessels, John Doe, Jane Doe, and other persons and ships unknown. In a subsequent amendment pursuant to Rule 421 and without a Court order, the Plaintiff purported to add 94 ships and their owners. The added Defendants argued that this was the addition of parties and could only be done with a Court order pursuant to rule 1716. The Plaintiff argued that they were not adding new parties but were merely correcting a misnomer. The Court held that for the Plaintiff to prevail the burden was on it to lead evidence showing the new ships were in the path of the "Malaspina". As the Plaintiff led no such evidence, the application was allowed and the Court ordered the action against these additional Defendants had not been properly commenced.
I. Deveau Fisheries Ltd. v. Cummins Americas, Inc., No. T-1312-95 (F.C.T.D.)
This case concerned a claim by the Plaintiff against the Defendant for negligent repair of a ship's engine. The Defendant in turn commenced Third Party proceedings against a sub-contractor for contribution and indemnity in respect of work done by the sub-contractor to the cylinder heads of the engine. The sub-contractor brought a motion to strike the Third Party action on the grounds that it was not within the jurisdiction of the Federal Court. The sub-contractor argued that all of the work that it did was done in its own shop. It did not do any work to the ship or on the ship. The Court, however, held the work done was necessary to enable the ship to carry out its operations and was therefore governed by maritime law and within the admiralty jurisdiction of the Court.
Addition of Defendant by Defendant
Ferguson v. Arctic Transportation Ltd.,  1 FC 771
This was an action by the Plaintiff against the Defendant shipowner for personal injuries suffered by the Plaintiff while the Defendant ship was transiting the Panama Canal. At the time of the accident the Plaintiff was employed as a Pilot by the Panama Canal Commission. The Defendant in the case had previously joined the Panama Canal Commission as a Third Party and now sought leave, against the wishes of the Plaintiff, to have it added as a Defendant. The Court refused the Defendant's motion. In doing so, the Court held that the Plaintiff has the prima facie right to choose the Defendants against whom it wishes to proceed and that this right should only be departed from in exceptional circumstances.