On 17 July 2002, during a whale-watching cruise in a Zodiac boat, the plaintiff was seriously injured. The plaintiff and her husband commenced proceedings against the defendants in July 2005. The defendants sought a motion for dismissal, alleging limitation, since the claim would be subject to the provisions of ss 14 and 35 of the Maritime Liability Act, SC 2001, c 6 (MLA), and to art 16 of the Athens Convention 1974, and asserted that under these laws the limitation period was two years from the date of the accident.

The applicants filed a motion to extend the limitation period in the event that the Court upheld the prescription of two years rather than the three-year prescription provided for in the Civil Code of Quebec (CCQ).

Held: Defendants' motion to dismiss is granted. Plaintiff's application to extend the limitation period is denied.

Since 2001, tort liability in maritime matters has been subject to the provisions of the MLA which, by s 35, incorporates the provisions of the Athens Convention 1974 and sets the limitation period at two years for remedies for injuries.

The Zodiac boat used by the parties is a rigid-bottomed vessel whose sides are formed of tubes which are inflated with air, which ensures its lightness. It does not rely on a cushion of air and floats on water like all ships. It is therefore a ship, rather than an air-cushion vehicle or hovercraft, within the meaning of art 1.3 of the Athens Convention 1974 and s 36(1)(a) of the MLA. This latter law, incorporating the Athens Convention, applies in the present case and the remedy is prescribed by a period of two years from the date of the accident.

The Court held that this limitation period should not be extended. In so far as the delay in bringing the appeal resulted from an error by counsel who, without verification, would have relied on the limitation period of the CCQ, 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.