Date of Release: April 3, 1996. No. 24638 Kelowna Registry IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: BERNIE VOGEL, as Executor of the Estate of the late Marlies Thurston, MARK THURSTON, JANICE THURSTON and DAVID THURSTON PLAINTIFFS AND: DAVID SAWBRIDGE, JANE SAWBRIDGE, ANCHORAGE HOLDINGS CO. LTD., RICHARD RISPIN and LINDA RISPIN carrying on business as THE ANCHORAGE MARINA, and MITCHELL FOTHERGILL MARINE & ASSOCIATES LTD., and MICHAEL GEORGE FOTHERGILL DEFENDANTS __________________________________________________________________ AND: No. 24639 Kelowna Registry IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: MARJORIE BARKER PLAINTIFF AND: DAVID SAWBRIDGE, JANE SAWBRIDGE, ANCHORAGE HOLDINGS CO. LTD., RICHARD RISPIN and LINDA RISPIN carrying on business as THE ANCHORAGE MARINA, and MITCHELL FOTHERGILL MARINE & ASSOCIATES LTD., and MICHAEL GEORGE FOTHERGILL DEFENDANTS _________________________________________________________________ REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE PRESTON ___________________________________________________________________ Date and place of hearing: March 15, 1996 at Kelowna, British Columbia Counsel for the plaintiffs: John A. McAfee Counsel for the defendants David and Jane Sawbridge: Paul A. CotŠ Counsel for the defendants Anchorage Holdings Co. Ltd. Richard and Linda Rispin c.b.a. The Anchorage Marina: James R. Fowler _____________________ 1 These two actions arise out of the deaths of Robert Lewis Thurston and Edward Barker aboard the motor sailing ketch "Kingfisher". The ketch was moored in Nanaimo Harbour, British Columbia, at the time of the deaths. The plaintiffs allege that the deaths were caused by faulty operation of a heater installed in the ketch which extracted oxygen from and emitted carbon monoxide into the cabin where the deceaseds were sleeping. 2 The applications that are the subject of these reasons for judgment are brought pursuant to R. 18A. The applicants seek a declaration that the actions were commenced outside the one year limitation period provided in s. 649 of the Canada Shipping Act R.S.C. 1985 c.S-9. 3 Mr. Thurston and Mr. Barker died on December 22, 1992. These actions were commenced on December 21, 1994. Both actions seek relief under the Family Compensation Act, R.S.B.C. 1979, c.120. 4 The Issues on this Application 1. Are the claims of the plaintiffs governed by Canadian maritime law? 2. Are the curative provisions of the Limitation Act, R.S.B.C. 1979 c. 236 which provide that, in certain circumstances, the period of limitations applicable under that Act may be extended, applicable to the one year limitation period provided by s. 649 of the Canada Shipping Act? Discussion 5 I am satisfied that Canadian maritime law applies to these actions. They are so integrally connected to maritime matters as to be within the Federal domain of maritime law. The Kingfisher was moored on a body of water within the ebb and flow of the tide. Nanaimo Harbour is a body of navigable water. The allegation of the plaintiffs is that the deaths of Mr. Thurston and Mr. Barker were caused by the malfunction of one of the parts of the ship, the heater. The defendants are all said to be persons whose acts or omissions form part of the chain of events which led to the operation of the malfunctioning heater and to the deaths of Mr. Thurston and Mr. Barker. 6 Accordingly, the liability in tort of the defendants, if any, arises in a maritime context and is to be determined under Canadian maritime law. 7 The provisions of the Family Compensation Act provide the statutory basis for actions brought by dependents arising out of the wrongful death of a person upon whom they were dependent. This Act applies to causes of action arising within the province. The Canada Shipping Act has similar provisions which accomplish the same object, namely, the provision of a statutory basis for dependents' actions arising from a wrongful death. The provisions of the Canada Shipping Act govern causes of action which fall to be determined under Canadian maritime law. Section 646 of the Canada Shipping Act provides for the liability of defendants for damages. Section 646 reads: Where the death of a person has been caused by a wrongful act, neglect, or default that, if death had not ensued, would have entitled the person injured to maintain an action in the Admiralty Court and recover damages in respect thereof, the dependants of the deceased may, notwithstanding his death, and although the death was caused under circumstances amounting in law to culpable homicide, maintain an action for damages in the Admiralty Court against the same defendants against whom the deceased would have been entitled to maintain an action in the Admiralty Court in respect of the wrongful act, neglect or default if death had not ensued. 8 Section 649 of that Act provides for the limitation period governing such actions: Not more than one action lies for and in respect of the same subject-matter of complaint, and every action shall be commenced not later than twelve months after the death of a deceased. 9There is no curative provision in s. 649 or elsewhere in the Canada Shipping Act which would allow a Court to extend that limitation period. I should note however, that there are curative provisions in s. 572 which permit a Court to extend the two year limitation period provided by that section. The relevant portion of s. 572 reads as follows: 572 (1) No action is maintainable to enforce any claim . . . against a vessel or its owners in respect of any damage or loss to another vessel, . . . caused by the fault of the former vessel, whether such vessel is wholly or partly in fault, unless proceedings therein are commenced within two years from the date when the damage or loss or injury was caused... (2) Any Court having jurisdiction to deal with an action to which this section relates may, in accordance with the Rules of Court, extend any such period, to such extent and on such conditions as it thinks fit, ... Clearly, the matter of curative provisions relating to the limitation periods imposed by the Act were within the minds of the framers of the Act. No curative provisions were provided with respect to s. 649. 10 Counsel for the plaintiff, Mr. McAfee, relies upon the following statement of Mr. Justice Hutcheon in Shulman (Guardian ad Litem of) v. McCallum, [1993] 7 W.W.R. 567 at p.571 (B.C.C.A.): I note that the decided cases demonstrate an exception not discussed in Ito [Miida Electronics Inc. v. Mitsui O.S.K. Lines Ltd., (sub nom. ITO - International Terminal Operators Ltd. v. Miida Electronics Inc.) [1986] 1 S.C.R. 752] or Chartwell [Q.N.S. Paper Co. v. Chartwell Shipping Ltd., [1989] 2 S.C.R. 683]. If the Canadian maritime law does not provide the necessary principle or rule, the courts in those cases have applied the law in force in the locality of the proceedings. 11Shulman dealt with an issue very similar to the issue before me on these applications. The action in Shulman arose out of the collision of an 18 foot motor boat with a boom of logs on Comox Lake. A common-law wife of the plaintiff in an action brought pursuant to the Family Compensation Act died as a result of the collision. The common-law spouse is entitled to bring a claim under the Family Compensation Act; however, she cannot bring a claim under the fatal accident provisions of the Canada Shipping Act. The matter first came before Mr. Justice Cohen in this Court and he determined that the action was governed by Canadian maritime law and that the Family Compensation Act did not form a part of Canadian maritime law. Mr. Justice Hutcheon's comment to which I have previously referred was made in the context of an appeal from that finding. In dismissing the appeal, Mr. Justice Hutcheon went on to say at p. 572: Apart from the subject of contributory negligence in the cases cited above, Parliament has legislated in the area of fatal accident legislation as it affects the present case. There is no place for local legislation. Decision 12 The facts of this case compel the same conclusion as that reached by Mr. Justice Hutcheon in Schulman. This action falls to be determined under Canadian maritime law. The fatal accident provisions of the Canada Shipping Act provide the statutory basis for the plaintiff's claims. The limitation period applicable to claims brought pursuant to those provisions is contained in s. 649 which imposes a limitation period of one year. There are no curative provisions set out in the Act which allow the Court to extend that limitation period. 13 This Court will not exercise any inherent jurisdiction it might have to extend the limitation provision provided in the statute. To do so would conflict with and abrogate the clear provisions of a statute. It is not contended that the defendants have either waived their right to rely on the limitation period or are estopped from doing so (A.G. Can. v. DeLaurier, [1979] 1 W.W.R. 277 (Man. Q.B.)). 14 The curative provisions of the Limitation Act apply to the limitation period set forth in that Act. They do not form a separate body of law capable of being imported into a federal statute simply on the basis that no curative provision exists relating to a specific limitation period in that federal statute. Furthermore, the presence of curative provisions permitting the extension of the limitation period in s. 572 of the Canada Shipping Act demonstrates that the framers of that Act put their minds to the issue of curative provisions relating to limitation periods. 15 Accordingly, the applicants, the defendants David Sawbridge, Jane Sawbridge, Anchorage Holdings Co. Ltd. and Richard Rispin and Linda Rispin, carrying on business as The Anchorage Marina are entitled to a declaratory judgment that the action against them was commenced outside the limitation period provided for by the Canada Shipping Act. Both actions as against those defendants will be dismissed. 16 Unless there are matters that would provide a foundation for submissions on costs, the applicants are entitled to their costs on Scale 3. New Westminster, B.C. April 2, 1996. "B.M. Preston, J."