The action arose out of a boating accident that occurred on Lake Erie on 1 July 1990. Bernard Ordon drowned after a pleasure boat owned and operated by Grail (the defendant) sank. The action was commenced on 19 March 1991, less than one year after the accident. Bernard Ordon's widow, Deborah Ordon, the deceased's two minor children, Jeffrey and Stephanie Ordon, and his mother, Bessie Ordon (the plaintiffs) brought claims under provincial statutes.

Before trial, the defendant brought a motion for a determination of several questions of law and for an order striking out certain parts of the statement of claim on the basis that the Family Law Act did not apply to the plaintiffs' causes of action in the maritime context. In response, the plaintiffs sought leave to amend their statement of claim on a nunc pro tunc basis to include a claim for damages for all plaintiffs under the Canada Shipping Act, RSC 1985 c S-9 (the Act).

The Judge concluded that the plaintiffs' claims could be validly brought under the Act. The Judge granted leave to the plaintiffs to amend their statement of claim on a nunc pro tunc basis to plead the relevant provisions of that Act. The effect of this nunc pro tunc order was that the defendant could not invoke the one-year limitation period in s 649 of the Act applying to actions involving fatalities in maritime matters.

The defendant's appeal to certain parts of the Judge's decision was transferred to the Court of Appeal for Ontario. Four other similar boating accident cases (the Lake Joseph actions and the Lac Seul action) were added as a special case. 

The relevant questions on appeal and cross-appeal were:

1. Was the Judge was correct in concluding that the Ontario Court (General Division) has jurisdiction over the plaintiffs' claims, or did he err in concluding that, absent the citing of any particular statutory provision as the basis of their claims, the claims were validated pursuant to the Act?

2. Did the Judge err in granting the plaintiffs leave to amend their claim on a nunc pro tunc basis to plead the Act?

Held: Appeal dismissed.

There are two related questions. The first is whether the Ontario Court has jurisdiction to hear the plaintiffs' claims or, as the defendant contends, only the Federal Court of Canada has such jurisdiction. This issue requires consideration of the meaning and application of s 646 of Pt XIV of the Act, on which the defendant relies to support its position that actions arising out of fatal boating accidents must be commenced in the Federal Court. The second question concerns the content of Canadian maritime law and whether this case, which involves 'maritime matters', may be subject to or affected by provincial legislation.

The basis of the jurisdiction argument is Pt XIV of the Act. The defendant argued that the historical antecedents of Pt XIV indicate that it was never intended to be more than a specific remedial measure, designed to create jurisdiction and to set out the procedure for the federal admiralty courts of this country to hear in rem actions arising out of fatal maritime accidents. The actions brought by the plaintiffs, in contrast, are all in personam actions. Two questions thus arise: first, whether Pt XIV applies only to in rem actions or to both in rem and in personam actions; and, second, whether it encompasses exclusively all recovery available to survivors of those killed in maritime accidents.

There is no dispute that a person injured in a maritime accident can bring a claim in the Admiralty Court against the ship, the owner of the ship, and persons causing the injury by negligent conduct. Section 646 of the Act provides a cause of action to 'dependents', as defined in s 645, of persons killed in maritime accidents. It does not in any way limit the application of Pt XIV to actions in rem. The clear wording of s 646 compels an interpretation that includes both in rem and in personam actions. Section 646 of the Act does not specifically assign the admiralty jurisdiction to the Federal Court alone. Nothing in the language of the section purports to oust the jurisdiction of provincial superior courts to entertain such actions. What is ambiguous is the potential application of other provisions in the Act which appear to apply to recovery for wrongful death. The two most obvious of these provisions are ss 571 and 572. Section 571 is the successor to s 6 of the Maritime Conventions Act 1914. Section 572(1) provides a limitation period of two years for commencing actions against a ship or its owners, but only in a collision context.

It therefore remains to be considered whether only the one-year limitation period in s 649 of the Act applies to these cases, or whether resort can be had to ss 572(1) and (3) of that Act or, alternatively, whether the court has jurisdiction to extend, and should extend, the limitation period in some other manner. Since Pt XIV applies to both in rem and in personam claims, it would seem to follow that the one-year limitation period prescribed in s 649 applies to all of the fatal injury actions. However, the plaintiffs in the Lake Joseph actions argue that the two-year limitation period in s 572(1) of the Act applies in their cases because the accident involved a collision between two boats. Section 572(1) reads: 'No action is maintainable to enforce any claim or lien against a vessel or its owners in respect of any damage or loss to another vessel, its cargo or freight, or any property on board that vessel, or for damages for loss of life or personal injuries suffered by any person on board that vessel, caused by the fault of the former vessel, whether that vessel is wholly or partly at fault, unless proceedings therein are commenced within two years from the date when the damage or loss or injury was caused.'

The wording of that section, standing alone, clearly applies to the Lake Joseph actions, and there is no doubt it would apply to personal injury claims. The difficulty, however, is that Pt XIV applies to both in rem and in personam fatal injury claims. Section 649 states that '[n]ot more than one action lies for and in respect of the same subject-matter'. If that subject-matter is a claim by survivors of persons killed in maritime accidents, those actions must now be brought under Pt XIV of the Act. If that is so, all of Pt XIV must apply to such actions, not just those parts that it is convenient to apply in a given case. In addition to not fitting within the interpretation of Pt XIV, it makes no practical sense to treat cases involving collisions differently from cases involving wrongful death brought about in a different way.

However, to deny the plaintiffs their remedies under the circumstances would be extremely unfair. The plaintiffs' alternative argument was that the Court should rely on its inherent jurisdiction to extend the limitation period where required. Further, the defendants were aware of the claims in all of the actions. There is no suggestion that extending the limitation period, where required, to give effect to the plaintiffs' claims would result in prejudice to the defendants. It would result in a gross injustice if the plaintiffs in the Lake Joseph actions were denied a right to proceed on account of the one-year limitation period contained in s 649 of the Act. That period will be extended as necessary.

With respect to the personal injury claims in the Lake Joseph actions, the limitation period in Pt XIV of the Act clearly cannot apply, since Pt XIV governs only fatal accident claims. The Lake Joseph plaintiffs argue that the two-year limitation period in s 572(1) of Pt IX of the Act should apply, as the accident involved was a collision. There is no reason why that should not be so.

The second issue is not a maritime law issue. It concerns the right of a motions Judge to amend the pleadings on a nunc pro tunc basis. The motions Judge did not err in exercising his discretion as he did. The defendant was aware of the claim being made against him, which was made within one year of the date of the accident. Therefore, to accede to the defendant's position on this issue would result in gross injustice. In any event, the defendant's argument only applies to the adult plaintiffs. The limitation periods for the actions of the minor plaintiffs, Jeffrey Ordon and Stephanie Ordon, have not yet begun to run. Therefore, there is no reason to interfere with the Judge's order permitting the nunc pro tunc amendment.