Three boating accidents occurred on Ontario navigable waters. Five negligence actions were commenced in the Ontario Court (General Division), which led to appeals and cross-appeals to the Ontario Court of Appeal. The first negligence action involved a boating accident that occurred on Lake Erie on 1 July 1990. A pleasure boat owned and operated by Larry Grail sank and Bernard Ordon drowned. The deceased's widow, two minor children and mother brought claims for compensation under Ontario provincial statutes. Four similar boating accident cases (the three Lake Joseph actions and the Lac Seul action) were added as a special case to be heard by the Ontario Court of Appeal: see Ordon Estate v Grail (CMI955). Leave to appeal to the Supreme Court was not sought for the Lac Seul action.

The questions on appeal and cross-appeal included whether the Ontario Court (General Division) had jurisdiction under Pt XIV of the Canada Shipping Act RSC, 1985, c S-9 (the Act) to entertain an in personam fatal accident claim by a dependant of the deceased arising from the alleged negligent operation or ownership of a vessel on navigable waters within Ontario; and what limitation period applied to the three Lake Joseph actions.

Held: Appeals and cross-appeals dismissed.

The Ontario Court (General Division) had jurisdiction over the claims. Section 646 of the Act did not use express language to exclude superior court jurisdiction or vest sole jurisdiction in the Admiralty Court, and conferred only concurrent jurisdiction on the Admiralty Court over the fatal accident claims brought by the dependants. By contrast, s 580(1) of the Act used express language to confer exclusive jurisdiction to the Admiralty Court with respect to 'any matter in relation to the constitution and distribution of a limitation fund pursuant to Articles 11 to 13 of the [Limitation of Liability for Maritime Claims] Convention'.

Prior to 1910, aside from the common law of the sea, no rules existed in international law to deal with the consequences of collisions between vessels. On 23 September 1910, representatives of several maritime states of the world convened at Brussels and signed the International Convention for the Unification of Certain Rules of Law with Respect to Collisions between Vessels. Article 7 of the Convention reads in relevant part as follows:

Actions for the recovery of damages [resulting from a collision] are barred after an interval of two years from the date of the casualty. ...

The High Contracting Parties reserve to themselves the right to provide, by legislation in their respective countries, that the said periods shall be extended in cases where it has not been possible to arrest the defendant vessel in the territorial waters of the State in which the plaintiff has his domicile or principal place of business.

Great Britain was one of the signatories to the Brussels Convention and subsequently enacted the Maritime Conventions Act 1911 to give it effect. Section 8 of that Act adopts the two-year limitation period for damages for loss of life or personal injuries that was specified in art 7 of the Convention. Canada was not an original signatory, but adhered to the Convention effective 28 October 1914. The same year, the Maritime Conventions Act 1914 was enacted for the express purpose (according to the preamble of the Act) of giving effect to the Brussels Convention in Canada. Section 9 of the Act provided for the same two-year limitation period as was specified in the English legislation, using identical language.

In 1934, Parliament enacted the Canada Shipping Act 1934, SC 1934, c 44. Part XII of that Act related to navigation, collisions and limitation of liability, and contained s 647, which was identical in wording to s 9 of the Maritime Conventions Act 1914. Aside from some insignificant changes in the language of the section, this provision has remained in force and currently appears in Pt IX of the Act as s 572(1). The two-year limitation period first specified in the Brussels Convention thus remains in effect, in accordance with Canada’s international obligations.

The plaintiffs' fatal accident claims fall within the clear wording of s 572(1). They are actions against those who are responsible for a boating collision, claiming damages for loss of life suffered by persons on board the vessel that was collided with. There is nothing in the language of s 572(1) to suggest that the plaintiffs' claims are not covered by its words. The confusion stems only from the fact that their claims also fall within the clear wording of s 649.

The limitation period prescribed in s 572(1) applies to actions brought against any person responsible for the fault of the vessel. It is clear from the broad language used to describe the class of defendants who are subject to s 572(1) that Parliament intended that the two-year limitation period apply to claims against all parties at fault in a collision, regardless of how they may have contributed to the ultimate accident. This intention accords with the apparent purpose and scope of the Brussels Convention. Further, it makes sense as a matter of policy and practice for all persons who are at fault in causing a collision to be subject to the same limitation period. The alternative approach would see portions of a plaintiff's claim statute-barred based solely on the physical location of particular defendants at the time of the accident, rather than based on factors which are relevant to the plaintiff's ability to bring the action within a particular period of time.

Since statutory provisions creating a limitation period must be strictly construed in favour of the plaintiff, the ambiguity created by the existence of two distinct limitation periods in the Act should be resolved by allowing the plaintiffs in the Lake Joseph actions to rely upon the longer period provided for in s 572(1). Parliament apparently intended that both limitation periods should co-exist. In the absence of any valid reason to justify applying a shorter limitation period which would have the effect of barring the plaintiffs' claims, the plaintiffs should have the benefit of the more favourable limitation period.

Strongly buttressing the appropriateness of applying this general principle of strict construction of limitations statutes is the fact that applying the one-year limitation period in s 649 to all fatal accident claims stemming from boating collisions would place Canada in breach of its international treaty obligations. Although international law is not binding upon Parliament or the provincial legislatures, a court must presume that legislation is intended to comply with Canada's obligations under international instruments and as a member of the international community. In choosing among possible interpretations of a statute, a court should avoid interpretations that would put Canada in breach of such obligations.

In this case, applying the one-year limitation period contained in s 649 would not place Canada in direct contravention of the Brussels Convention, because the Convention has application only to collisions involving sea-going vessels. However, Parliament has used language in s 572(1) which makes the two-year limitation period applicable in all cases involving collisions. There is no reason, particularly in light of the fundamental importance of uniformity in maritime law, to read into the broad language of s 572 an exception in cases of collisions on inland waters. The dependants' fatal accident claims in the Lake Joseph actions are therefore subject to a two-year limitation period, and are not statute-barred.