The claim arose out of a boating accident which resulted in the death of 5 year old Janessa Toney, the daughter and sister of the plaintiffs. The Toney family was out on their boat on Lake Newell in southern Alberta on 27 September 2008 when the steering equipment malfunctioned. Mr Toney called for help and the Royal Canadian Mounted Police and Alberta Fish and Wildlife officials undertook a marine search and rescue operation using a Fish and Wildlife vessel (the Vessel). In the course of the rescue, the vessel capsized. Janessa was pinned under the vessel and drowned.

The plaintiffs submitted their statement of claim for damages for their own personal injuries and for the grief associated with Janessa’s death. The defendants argued the plaintiffs’ claim was time-barred, and therefore brought the application to strike out all or part of the Plaintiffs’ claim.

The Plaintiffs argued that they were not subject to the 2 year limitation period for claims for personal injury to passengers, incorporated into Canadian maritime law from the Athens Convention 1974, because they were not passengers according to the defined statutory meaning. Instead, they argued their claim for personal injuries is subject to the 3 year catch-all limitation period in s 140 of the Marine Liability Act, SC 2001 (the MLA).

Held: Statement of claim struck out as disclosing no reasonable claim under Rule 3.68 which applies where it is plain and obvious the claim cannot succeed or the claim has no reasonable prospect of success.

The plaintiffs’ claim clearly alleges direct personal injury, including nervous shock. The fact that they witnessed their daughter’s or sister’s death and that it contributed to their direct injuries does not make their claim a dependants’ relief claim. The plaintiffs’ personal injuries were compensable under Canadian maritime law. 

The MLA incorporates art 16 of the Athens Convention 1974, and provides for a 2 year limitation period for personal injury claims by passengers. However, s 37 of the MLA restricts the application of art 16 of the Athens Convention to certain types of passengers only. Section 37 MLA provides that art 16 of the Athens Convention does not apply to a person carried on board a ship in pursuance of the obligation on the master to carry shipwrecked, distressed or other persons or by reason of any circumstances that neither the master nor the owner could have prevented. Since it is not plain and obvious the plaintiffs were passengers subject to the 2 year limitation period and their claim was filed within 3 years of the date of the accident, the Court held in this case that the plaintiffs’ claim against Canada should not be struck out.

For reasons unrelated to the Athens Convention 1974, the plaintiffs’ claim against Alberta was out of time and would be struck out. The plaintiffs’ claim under the Fatal Accidents Act RSA 2000 was also out of time and would also be struck out.