On 2 April 1992, Michael Douglas Nicholson was operating a self-propelled barge (the Sandman) on the Severn River in Ontario. The Sandman glanced off a rock on the port bow and immediately took a heavy list to starboard; 30 seconds afterwards, the barge rolled over and sank with Mr Nicholson, who drowned. On 30 March 1994, Susan Nicholson, in her personal capacity and as executrix of her late husband's estate, Caely Nicholson, and Andrew Nicholson, a minor, through his mother, as litigation guardian (the plaintiffs), commenced this action in the Federal Court, Trial Division.

The plaintiffs allege that the Sandman was improperly constructed without a centerline bulkhead, bilge alarm and fitted pumping system. The Sandman's construction sketch was approved by the Canadian Coast Guard. The plaintiffs say the Canadian Coast Guard, in doing so, was in breach of its statutory duties.

The defendant says that the plaintiffs' actions were time-barred by s 649 of the Canada Shipping Act, RSC 1985, c S-9 (the Act), which provided at the time when the plaintiffs' actions were commenced that '[n]ot more than one action lies for and in respect of the same subject-matter of complaint, and every action must be commenced not later than twelve months after the death of a deceased'. The defendant moved for summary judgment dismissing the plaintiffs' actions.

Held: All claims, with one exception, are statute-barred under s 649 of the Act; the survival action commenced by the estate of Michael Nicholson can proceed as it is not affected by the prescribed one-year limitation period.

In Ordon Estate v Grail, 1998 CanLII 771 (SCC), [1998] 3 SCR 437 (CMI971), the Supreme Court held the Act contained two different limitation periods, each of which could apply to a dependant's fatal accident claim arising out of a boating collision: s 649, contained in Pt XIV of the Act, providing a one-year limitation period; and s 572, in Pt IX of the Act, providing a two-year limitation period. The Court resolved the issue in favour of the two-year limitation period, reasoning that Pt XIV of the Act was not a complete code, the policy and logic behind the two-year limitation period was anchored on the Collision Convention 1910, the clear wording of s 572 and the rule of the strict construction of limitation periods.

In Ordon Estate v Grail, the Supreme Court emphasised at [122] the importance to be clear regarding the specific claims which are alleged to be statute-barred. The nature of the claims in this action are dependants' fatal accidents claims which the Court held could fall within two different limitation periods in the same Act. In this case, however, s 572 is of no avail to the plaintiffs because their claims do not arise out of a boating collision.

The parties have agreed that the 1998 amendment to s 649 of the Act, now providing for a two-year limitation period, is not retroactive to reach back to the time the plaintiffs brought their action. The result is that the applicable limitation period for the bringing of the action is the one-year period calculated from Mr Nicholson's death provided for in s 649 of the Act.

The discoverability principle does apply here, so that the time did not begin to run until 18 November 1992 when the plaintiffs learned at the inquest that they might have a cause of action against the defendant. This did not, however, help the plaintiffs, because the statement of claim was not filed until 30 March 1994, more than one year later.

This Court does not have inherent jurisdiction to extend the limitation period for reasons of fairness and justice. The plaintiffs are also not entitled to a claim for maritime wrongful death under non-statutory principles of Canadian maritime law. Such a claim does not exist. A dependant's fatal accident claim is a creature of statute, whose very purpose was to cure a defect in the common law. When Parliament legislates, as it has here, it occupies the field.

In Ordon Estate v Grail, Canadian maritime law was reformed by removing the common law bar to the survival of an action, thus permitting the estate of the deceased to maintain an action. This common law action, known as a survival action, is by its very nature different than a dependant's fatal accident claim to which Pt XIV of the Act applies. Because of this distinction, s 649 of the Act, which relates to a dependant's fatal accident claim, cannot apply to bar this newly created cause of action which is not a dependant's claim. The two-year limitation period thus applies to the estate's survival action.