DATE: 20220810
COURT FILE NO.: CV-12-18610
COURT FILE NO.: CV-13-19389
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
COURT FILE NO.: CV-12-18610
BETTY JO LYNN ALGRA, personally and as Estate Trustee of The Estate of Danny Monteiro, deceased, MARISSA MONTEIRO, SIERRA LYNN LOUISE ALGRA and AUSTIN HANK JAMES ALGRA, all minors, by their Litigation Guardian Betty Jo Lynn Algra
Plaintiffs
– and –
PAUL M. MINGAY, The Litigation Administrator of THE ESTATE OF ANDREW COMRIE, HER MAJESTY THE QUEEN IN RIGHT OF CANADA, as represented by the Minister of Fisheries and Oceans, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, as represented by the Minister of Transportation for the Province of Ontario, and THE CORPORATION OF THE TOWN OF LEAMINGTON
Defendants
Myron Shulgan, Q.C. for the Plaintiffs
Dallas J. Lee for the Defendant by CounterClaim, The Estate of Danny Monteiro
Larry J. Abey for the Defendant, Paul M. Mingay, The Litigation Administrator of the Estate of Andrew Comrie.
AND BETWEEN:
COURT FILE NO.: CV-13-19389
DANIELLE FELTHAM
Plaintiff
– and –
PAUL M. MINGAY, The Litigation Administrator of THE ESTATE OF ANDREW COMRIE, THE ESTATE OF DANNY MONTEIRO, ATTORNEY GENERAL OF CANADA, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, and THE CORPORATION OF THE MUNICIPALITY OF LEAMINGTON
Defendants
Greg Monforton for the Plaintiff
Larry Abey for the Defendant, Paul M. Mingay,
The Litigation Administrator of the Estate of
Andrew Comrie
Dallas J. Lee for the Defendant by CounterClaim, The Estate of Danny Monteiro
HEARD: October 20, 2021
RULING ON RULE 21 MOTIONS
MUNROE J.
[1] Before me are r. 21 motions for the determination of a question of law before trial. More specifically, in these boating accident cases,[^1] the moving parties, pursuant to r. 21.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, ask for a determination of the meaning of s. 29(a) of the Marine Liability Act, S.C. 2001, c. 6 (“MLA”) – namely, is the statutorily provided monetary limitation on certain maritime claims inclusive or exclusive of costs and prejudgment interest (“interest”).
[2] The moving parties are the Estate of Andrew Comrie, a defendant in both case CV-12-18610 and case CV-13-19389, and the Estate of Danny Monteiro, a defendant in case CV-13-19389 and a defendant by counterclaim in case CV-12-18610 (“the Estates”). The responding parties are the plaintiffs in both cases, principally Betty Jo Lynn Algra and Danielle Feltham (the “plaintiffs”).
[3] These actions arise out of a fatal boat accident in Lake Erie on June 5, 2011. A power boat, owned by Danny Monteiro and piloted by Andrew Comrie, struck a breakwater off the harbour of Leamington, Ontario. Three persons on the boat were killed: Andrew Comrie, Danny Monteiro, and Sarah Burns. Two others were injured: Betty Jo Lynn Algra and Danielle Feltham.
[4] The plaintiffs issued separate Statements of Claim seeking damages. Both included the three levels of government – federal, provincial, and local – as defendants, but they are not involved in this motion. Moreover, by my ruling on the summary judgment motions, released on August 4, 2022, 2022 ONSC 4539, all three government defendants were dismissed from both cases.
[5] All parties agree that s. 29(a) of the MLA applies to this case.
[6] The claims facially exceed the $1,000,000 statutory limitation.
The Uncontested
[7] Much is uncontested. This includes the appropriateness of this r. 21.01(1)(a) motion to resolve this issue now, and the applicability of s. 29(a) of the MLA to these actions.
Issue
[8] Is the monetary limitation of s. 29(a) of the MLA inclusive or exclusive of costs and interest?
Legal Principles
[9] Section 29(a) of the MLA provides:
The maximum liability for maritime claims that arise on any distinct occasion involving a ship of less than 300 gross tonnage, other than claims referred to in section 28, is
(a) $1,000,000 in respect of claims for loss of life or personal injury; and
(b) $500,000 in respect of any other claims.
[10] The modern principle of statutory interpretation is found in Elmer Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[11] This principle, as articulated by Professor Driedger, has been quoted and adopted by both the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, and more recently by the Court of Appeal for Ontario in Ontario (Attorney General) v. Norwood Estate, 2021 ONCA 493, at para. 66.
[12] Watt J.A., in R. v. Stipo, 2019 ONCA 3, 144 O.R. (3d) 145, at paras. 175-76, after repeating the above principles for statutory interpretation, stated:
This preferred approach recognizes the significant role that context must play when courts construe the written words of a statute. No statutory provision is an island in itself. Its words take their colour from their surroundings: Bell ExpressVu [Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559], at para. 27. All issues of statutory interpretation involve the fundamental question of what Parliament intended. To discover what Parliament intended, we look at the words of the provision, informed by its history, context and purpose: R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at para. 20.
Positions of the Parties
The Estates
[13] The Estates argue that s. 29 is a “hard cap.” The statutory limitation of liability is inclusive of prejudgement interest and costs.
[14] In support, the Estates assert that the statutory language is not ambiguous. It states clearly that the “maximum liability for maritime claims” is $1,000,000. The plain meaning of “maximum liability” is inclusive of everything, with no additional amounts.
[15] The Estates find additional support in a separate, unrelated section of the MLA: Schedule 2, Article 10. That section also contains a liability limitation but includes, at Article 10, s. 2, a specific section providing that interest and costs are not to be included in the limitation prescribed in Articles 7 and 8. This specific inclusion, according to the Estates, underscores that Parliament’s omission of such a provision in another section of the same act shows such omission was intentional – the maximum liability was meant to be inclusive of costs and interest.
[16] Lastly, the Estates argue the logic of their position. This statute is part of implementing legislation for an international treaty. At least on this issue, the object of the treaty is to create liability certainty across the globe regarding maritime accidents. According to the Estates, reading the limitation section as excluding prejudgment interest and costs, destroys the central objective of certainty.
[17] The Estates urge a declaration that s. 29(a) of the MLA limits liability to $1,000,000 and is inclusive of costs and interest.
The Plaintiffs
[18] The plaintiffs argue that the s. 29(a) of the MLA limitation of $1,000,000 is exclusive of interest and costs.
[19] In interpreting this section, the plaintiffs stress the purpose and significance of both prejudgment interest and costs. In large, multi-party marine accident cases where the claims greatly exceed $1,000,000, both the incentive for resolution and the prompt movement of such cases are removed. Reasonable indemnification of a successful plaintiff is gone. This is an access to justice issue. Interpretation as advanced by the Estates would lead to absurd and unjust results thereby eliminating the soundness of their argument. In support, s. 12 of the federal Interpretations Act, R.S.C., 1985, c.1-21, directs a fair and liberal construction of all federal statutes.
[20] The plaintiffs counter the Estates’ argument that an expansive reading of the limitation will destroy the “certainty” objective of the international convention by pointing to the unrelated section later in the MLA that specifically excludes interest and costs from another limitation on liability cap.
[21] The plaintiffs urge a declaration that s. 29(a) limits liability to $1,000,000, exclusive of costs and interest.
Principles Applied
[22] The statutory provision at issue is silent on costs and interest. The competing parties posit opposite interpretations.
[23] To discover the intention of Parliament – whether costs and interest are inclusive or exclusive – I first look at the words of the statute in the context of the particular provision.
[24] The words are, “The maximum liability for maritime claims … is … $1,000,000 in respect of claims for loss of life or personal injury ….”
[25] These simple words must be read together and not interpreted by focusing only on one clause or on another. The maritime claims specifically are identified: claims for loss of life or personal injury. Thus, the “maximum liability” statutory cap is for claims for loss of life or personal injury.
[26] In my view, a claim for costs and a claim for prejudgment interest each serve a different purpose and seek to protect a different interest than a claim for loss of life or personal injury.
[27] LeBel J. in British Colombia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R 371, at paras. 19 – 30, reviewed the “venerable” role of costs in court proceedings. Its traditional purpose is to indemnify the successful party for the expenses sustained either from prosecuting or defending a claim. However, over time courts have recognized that indemnity is not the sole purpose nor, in some cases, the primary purpose. Costs may be used to sanction or penalize a party for unreasonable behaviour. In other words, the award of costs may be used to ensure that litigation is conducted in an efficient, fair and just manner.
[28] Létourneau J.A. in Sherman v. Minister of National Revenue, 2003 FCA 202, [2003] 4 FC 865, at para. 46, echoed this sentiment:
It is now generally accepted that an award of costs may perform more than one function. Costs under modern rules may serve to regulate, indemnify and deter. They regulate by promoting early settlements and restraint. They deter impetuous, frivolous and abusive behaviour and litigation. They seek to compensate, at least in part, the successful party who has incurred, sometimes, large expenses to vindicate rights.
[29] A claim for prejudgment interest also has its own purpose, which is essentially compensatory. J. MacFarland J.A., in Cobb v. Long Estate, 2017 ONCA 717, 416 DLR (4th) 222, at para 86, stated:
Prejudgment interest is meant to compensate for the loss of use of money's worth from the date when the injury is sustained to the time of judgment. The goal is to fairly compensate an injured party and to restore to him or her, so far as money is able to do, all that he or she has lost as result of the injury — but neither too much, nor too little.
The purpose, of course, recognizes the practical reality that it is simply impossible for our civil justice system to render immediate judgment the moment after the injury is sustained.
[30] In my view, the contextual reading of the words of the statute together with an understanding of the function and purposes of costs and interest resolve the interpretation issue. By their very nature and function, claims for costs and interest clearly are not claims for loss of life or personal injury. As I have stated, they each have a different objective and serve to protect different interests. As such, inclusion of costs and interest into the liability limitation of s.29(a) of the MLA is an incorrect interpretation of it.
Conclusion
[31] In consideration of the words of the statute as informed by its history, context and purpose, I determine that the monetary limitation in s. 29(a) of the Marine Liability Act is exclusive of costs and interests.
Costs
[32] If the parties are unable to resolve the issue of costs, the plaintiffs shall provide me with their outline of costs and submissions (no longer than three pages) within 30 days of the date of the release of these reasons. The defendants shall respond in 30 days of service of the costs submissions with the same page limit.
Original Signed by “Justice K.W. Munroe”
Kirk W. Munroe
Justice
Released: August 10, 2022
DATE: 20220810
COURT FILE NO.: CV-12-18610
BETTY JO LYNN ALGRA, personally and as Estate Trustee of the Estate of Danny Monteiro, deceased, MARISSA MONTEIRO, SIERRA LYNN LOUISE ALGRA and AUSTIN HANK JAMES ALGRA, all minors, by their Litigation Guardian Betty Jo Lynn Algra
Plaintiffs
– and –
PAUL M. MINGAY, The Litigation Administrator of THE ESTATE OF ANDREW COMRIE, HER MAJESTY THE QUEEN IN RIGHT OF CANADA, as represented by the Minister of Fisheries and Oceans, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, as represented by the Minister of Transportation for the Province of Ontario, and THE CORPORATION OF THE TOWN OF LEAMINGTON
Defendants
COURT FILE NO.: CV-13-19389
DANIELLE FELTHAM
Plaintiff
– and –
PAUL M. MINGAY, The Litigation Administrator of THE ESTATE OF ANDREW COMRIE, THE ESTATE OF DANNY MONTEIRO, ATTORNEY GENERAL OF CANADA, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, and THE CORPORATION OF THE MUNICIPALITY OF LEAMINGTON
Defendants
RULING ON
RULE 21 MOTIONS
Munroe J.
Released: August 10, 2022
[^1]: By order of King J. dated May 9, 2017, these two cases are to be heard together.