Jan 5, 2016

Athens Convention - Limitation Period - Provincial Limitation Laws not Applicable - Change in legislation not given retrospective effect - No Discretion to Extend Limitation Period - Choice of Provincial Law in Contract

Malcolm v. Shubenacadie Tidal Bore Rafting Park Limited, 2014 NSSC 217 (CanLII)

It is arguable that this case is correctly decided but for the wrong reasons. Specifically, the holding that limitation provisions are always substantive and will never be given retrospective effect is questionable. As discussed in St. Jean v Cheung, 2008 ONCA 815, a decision by the Ontario Court of Appeal, limitation provisions may be classified as procedural or substantive and may have retrospective application depending on their effect. The changes to the Marine Liability Act in 2009 had the effect of exempting adventure tourism activities from the two year limitation period contained in Athens Convention and substituted the three year period contained in s.140. For this action, at the time the changes to the Marine Liability Act came into force on 21 September 2009, the two year period under the Athens Convention had not expired and the effect of s. 140 was to extend the time within which the plaintiff could bring its action to August 2011. In such circumstances, under the approach discussed in St. Jean v Cheung, the amendments arguably should have been given retrospective effect and the limitation period would have expired in or about August 2011.