The plaintiffs are the surviving spouses, children and estates of two Chicago, Illinois, residents who disappeared on 30 August 2002 while they were on a hunting trip. The boat in which they were passengers capsized while navigating on Lake Louis in Northern Quebec. The boat had been chartered by the defendants to provide transportation of the victims during the hunting trip. The boat was also operated by an employee or representative of the defendants. The plaintiffs instituted their action on 26 August 2005, a few days before the expiry of the three-year prescriptive period stipulated by art 2925 of the Quebec Civil Code (CCQ) and well after the two-year period stipulated in the Marine Liability Act, SC 2001, c 6 (the MLA).

The only issue before the Court was whether their actions were subject to the three-year prescription of the CCQ or the two-year prescription of the MLA.

Held: The defendants' motion to dismiss the action is granted. The plaintiffs' motion to extend, suspend or interrupt prescription is denied.

The MLA incorporates the Athens Convention 1974 and extends its application in Canada. Section 36 of the MLA provides as follows:

(1) For the purposes of this Part and Articles 1 to 22 of the Convention,

(a) the definition 'ship' in Article 1 of the Convention shall be read as including any vessel or craft designed, used or capable of being used solely or partly for navigation, without regard to method or lack of propulsion and whether seagoing or not, but not including an air cushion vehicle; and

(b) in the definition 'contract of carriage' in Article 1 of the Convention, the expression “carriage by sea” shall be read as “carriage by water”. ...

(2) For greater certainty, in the application of the Convention under this Part, Article 19 of the Convention applies to owners of all ships, whether seagoing or not.

Section 37 of the MLA provides:

(1) Articles 1 to 22 of the Convention have the force of law in Canada.

(2) Articles 1 to 22 of the Convention also apply in respect of

(a) the carriage by water, under a contract of carriage, of passengers or of passengers and their luggage from one place in Canada to the same or another place in Canada, either directly or by way of a place outside Canada; and

(b) the carriage by water, otherwise than under a contract of carriage, of persons or of persons and their luggage, excluding

(i) the master of a ship, a member of a ship’s crew or any other person employed or engaged in any capacity on board a ship on the business of the ship, and

(ii) a person carried on board a ship other than a ship operated for a commercial or public purpose.

By virtue of these provisions, an accident involving a 'ship' (as defined above) navigating on interior or inland waters, transporting passengers, whether under a contract of carriage of persons or not, and in the course of which a passenger perishes, may give rise to the application of the provisions of the Athens Convention 1974.

In Whitbread v Walley (CMI961), the Supreme Court affirmed the uniform application of Canadian maritime law throughout the country, irrespective of the type of navigable waters. The key decision of Ordon Estate v Grail (CMI971) has the effect of severely limiting the application of provincial law in the context of an accident occurring within Canadian navigable waters. By contrast, in Isen v Simms (CMI606), the Supreme Court held that the claim of the plaintiff resulting from injuries sustained while preparing a boat for transport on a provincial highway was not governed by federal maritime law but by provincial law.

In this case, the accident and the claims resulting therefrom are in direct connection with the operation of a ship:

a) the accident occurred on water;

b) the injuries were caused to the victims as a direct result of the boat capsizing into the waters of Lake Louis. Lake Louis is used as a waterway, where sea-planes land to bring passengers and supplies to hunting camps and installations from which boats transport hunters to various hunting spots apparently not easily accessible by land;

c) there was a contract of transport of passengers and their equipment in as much as the boat transport was part and parcel of the hunting trip that the deceased had booked;

d) there is an issue as to the seaworthiness of the boat inasmuch as it capsized during navigation over a lake exposed to high winds;

e) there is a serious concern with respect to good seamanship in as much as it is alleged that the boat capsized as a direct result of the negligence of the defendant.

The facts and legal issues of the present case must therefore be examined in the light of federal maritime law as opposed to provincial civil law. As a result, the prescriptive period applicable to the present claim will be the two‑year period provided by the MLA as opposed to the three-year prescription of the CCQ. There are two dispositions of the federal law which may apply here: s 14 MLA and art 16 of the Athens Convention. Section 14 MLA provides for the application of a two-year prescription to the claims at issue. Article 16 of the Athens Convention provides for the application of the same two‑year prescription which can be extended to three years if a proper case of suspension or interruption of prescription is made. Counsel for the defendants has argued that the provisions of the Athens Convention do not apply because the Convention only applies to transport by sea on a sea-going vessel. With respect, the Court disagrees. The wording of ss 36 and 37 MLA extends the application of the Convention. The statements of claim allege that the two victims were passengers in a boat, being transported from two points over Lake Louis in the context of a hunting expedition which they had paid for. Therefore, at this stage of the proceedings, the Court must conclude that the trial Judge may find that art 16 of the Convention applies to the present case by opposition to, or in conjunction with, s 14 MLA. Article 16 of the Convention does not fundamentally differ from s 14 MLA: the claims are time‑barred after two years in both situations. The only apparent difference is the direct reference to the possibility of applying rules of the Court seized of the case relative to interruption or suspension of prescription.

The difficulty lies in the interpretation to be given to art 16.3 of the Convention, which provides for a possible modification of the prescriptive period from two years to three years if, pursuant to the law of the Court seized of the case, the two-year prescription has been interrupted or suspended. Clearly, the 'law of the Court' is the law applicable to the territory where the Court sits. Whether the court sits in Quebec or elsewhere in Canada, the 'law of the Court' is to be understood as referring to the law of Canadian maritime law as opposed to the codified dispositions of the CCQ.

The statements of claim disclose no facts which may permit the Court to retain an argument of interruption or suspension of prescription. The motions to suspend allege that the error in the choice of the limitation period is due not to the fault of the plaintiffs but to the inadvertence and excusable error of plaintiffs' counsel, who, by their own admission, failed to consider the application of s 14 MLA or art 16 of the Convention.

In the case of Nolet-Charron v Les Croisières Baie de Gaspé Inc (CMI1032), Jean-Roch Landry J of this Court was faced with the same problem. A little more than a year ago, he decided that art 16 of the Convention was applicable to the circumstances of the case before him and that the two-year prescriptive period had to be taken in consideration in a situation where a passenger in a Zodiac boat was injured while on a whale-watching excursion. Landry J refused however to extend the prescriptive delay of two years: 'Dans la mesure où le retard à intenter le recours résulte d'une erreur des procureurs qui, sans vérification, s'en seraient remis au délai de prescription du Code civil, il est reconnu que l'ignorance de la Loi ne peut constituer une excuse. La preuve démontre que les demandeurs ont consulté les procureurs six mois et demi après l'accident de sorte que pour vérifier le délai de prescription, une période d'environ un an et demi était encore disponible.' [In so far as the delay in commencing the appeal results from an error by counsel who, without verification, relied on the limitation period of the Civil Code, it is recognised that ignorance of the law cannot constitute an excuse. The evidence shows that the plaintiffs consulted counsel six and a half months after the accident so that to verify the statute of limitations, a period of about a year and a half was still available.]

Based on this opinion, the Court has little or no choice. The error or omission of counsel may have the effect of shifting the burden of the loss upon others, but it cannot allow an extension or interruption of an extinctive prescription.

The plaintiffs argue that Canadian maritime law provides for a discretionary power of the Court to extend the two-year prescriptive period. Their argument finds its source in s 572(3) of the Canada Shipping Act and in s 23(2) MLA. However, this discretionary power may only be invoked in situations where the claim results from a collision between two ships, which is obviously not the case here. While it is quite clear that the plaintiffs have demonstrated a prima facie case against the defendants and have always envisaged their intention to take action against the defendants, it would not be in the best interests of justice and the judicial system to see an extinctive prescriptive period extended on the sole basis of an error, omission or inadvertance of counsel.