ROD MOHR Plaintiff - v. -, 2003 ABQB 294

Mohr v. 477470 Alberta Ltd., 2003 ABQB 294 Date: 2003 0401 Action No. 0203 05592 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF EDMONTON BETWEEN: ROD MOHR Plaintiff - and - 477470 ALBERTA LTD., CARRYING ON BUSINESS AS NORTHERN SKY, AIRCO AIRCRAFT CHARTERS LTD., AIRCO AIRCRAFT CHARTERS LTD., CARRYING ON BUSINESS AS AIRCO AIRCRAFT CHARTERS, AND PER THOWSEN Defendants _______________________________________________________ MEMORANDUM OF DECISION of the HONOURABLE MR. JUSTICE R. P. MARCEAU _______________________________________________________ APPEARANCES: Rod P. Duncan McGregor Stillman LLP for the Plaintiff L. W. Olesen, Q.C. Bryan & Company

for the Defendants Airco Charters Ltd. and Per Thowsen [ 1 ] This is an appeal from the decision of Master W. J. Quinn who granted an application by the Defendants for

summary judgment dismissing the Plaintiff’s claim. FACTS: [ 2 ] The Plaintiff claims that he was injured when the Defendant Airco Aircraft Charters crashed an aircraft in which he was a passenger shortly after takeoff from Rainbow Lake on the 15 of January, 1998. The Defendant 477470 Alberta Ltd. carrying on business as Northern Sky had sold the ticket to the Plaintiff. Northern Sky employed Airco to actually supply its aircraft and pilot to transport the Plaintiff and other passengers.

Per Thowsen was the pilot of the aircraft. [ 3 ] The Plaintiff’s action was commenced on March 19 th , 2002, more than four years after the accident but less than two years after the Transportation Safety Board of Canada posted its report into the causes of the crash on its Internet website. That date was May 18, 2000 although the report was released to parties deemed to be “interested persons” on January 27, 1999, shortly after the end of one year after the accident. Passengers are not deemed to be interested persons so they are not automatically sent a copy of the report.

POSITION OF THE PARTIES: [ 4 ] The position of both parties is that the Limitations Act R.S.A. 2000 c. L-12 when read with Section 5(1) of the Limitation of Actions Act, R.S.A. 1980 c. L-15 provide for a limitation period of two years from the date the cause of action arose. [ 5 ] The Defendants claim the cause of action arose when he knew or ought to have known that his injuries had been sustained, as well as the identity of the parties who were negligent.

The Plaintiff’s argument is that although he knew the name of the airline he was flying with, Airco, and he knew he had purchased the ticket from Northern Sky, he did not know the name of the pilot nor did he know, until he saw the report posted on the Internet, the name of the pilot and that pilot error and the negligence of Airco in employing the pilot was the cause of the accident.

In other words, he did not know that his injuries were attributable to the negligence of these Defendants. [ 6 ] The Defendants’ answer to the identity problem is that through the exercise of minimal, not even reasonable, inquiry the Plaintiff could have ascertained from the police or by writing to the Transportation Safety Board the identity of the pilot well within the limitation period. The Defendants say that in any event if only the identity of the pilot was the unknown the action could have been commenced naming the pilot as John Doe with substitution to correct the name once known.

IDENTITY OF THE PILOT [ 7 ] For the reasons I will give with respect to the other point raised on this appeal, namely when did the cause of action arise, I am of the opinion that there is an onus on the Plaintiff to make reasonable inquiries as to facts which are easily ascertainable. In this case the failure to inquire of anyone about the identity of the pilot is fatal to the Plaintiff’s contention that he did not know the name of the pilot and therefore did not discover he had a cause of action against the named pilot.

MAIN ISSUE - WHEN DID THE CAUSE OF ACTION ARISE? [ 8 ] The substantial issue joined by the parties to this action is what efforts are required to be made by the Plaintiff to discover a cause of action. The Defendants’ position is that the Plaintiff knew on the day of the crash that he had been in a plane which crashed

shortly after takeoff. He knew the identity of the carrier; he knew who had sold him the ticket; he knew the plane had a pilot; he knew the airport from which the plane had taken off. Minimal effort would have been required to find the identity of the pilot and the exact name of the airport authority.

A reasonable person would have concluded that the accident did not occur without someone’s negligence unless there were atmospheric conditions that caused the crash without the negligence of anyone. [ 9 ] The Plaintiff argues that even had further inquiries been made by him, he could not know that negligence was involved nor whose negligence was involved.

Counsel for the Plaintiff speculates the negligent causes may be the height of the trees at the end of the runway, pilot error, air controller error, airport authority error, mechanical failure attributable to a company supplying engineering services, failure of a component, which would indicate negligence on the part of the manufacturer of the component and other non- tortious causes such as a surprise change in the weather.

The Plaintiff says that until the Transportation Safety Board made its report the Plaintiff could not know who to blame, could not know if there was a cause of action and, if so, against whom the cause of action arose. ANALYSIS: [ 10 ] The only cases brought to my attention by counsel were Mahan v. Hindes 2001 ABQB 831 (CanLII) , [2001] A.J. No. 1271 (Q.B.) and Peixeiro v. Haberman 1997 CanLII 325 (SCC) , [1997] 3 S.C.R. 549 and C of A 151 D.L.R. (4 th ) 429. [ 11 ] Mahan v. Hindes is a decision of Mason J. of this court on October 1 st , 2001.

Mason J. at paragraph 25 stated that the same principle and two year limitation period pertain whether the common law discoverability rule or the provisions of the new Limitations Act apply. [ 12 ] The Plaintiff in this case is in effect making an application under

Section 2 of the new Limitations Act which reads: Application 2(1) This Act applies where a claimant seeks a remedial order in a proceeding commenced on or after March 1, 1999, whether the claim arises before, on or after March 1, 1999

(2) Subject to sections 11 and 13, if, before March 1, 1999, the claimant knew, or in the circumstances ought to have known, of a claim and the claimant has not sought a remedial order before the earlier of (

a) the time provided by the Limitation of Actions Act , RSA 1980 c. L-15 , that would have been applicable but for this Act, or (

b) two years after the Limitations Act , SA 1996 c. L-15.1 , came into force, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim. [ 13 ] I take Mason J.’s statement to mean that when the Legislature chose to allow a remedial order “if the claimant knew, or in the circumstances ought to have known, of a claim” the Legislature was simply codifying the common law then in existence. Given the decision in Peixeiro v.

Haberman I agree with Mason J. that the test for discoverability was not changed by the change to the Limitations Act . [ 14 ] Mason J. stated the rule that emerges from Kamloops (City) v. Nielsen 1984 CanLII 21 (SCC) , [1984] 2 S.C.R. 2 ; Central Trust v. Rafuse 1986 CanLII 29 (SCC) , [1986] 2 S.C.R. 147 ; Costello v. Calgary (City) (1989) 1989 ABCA 194 (CanLII) , 97 A.R. 348 (C.A.) leave to appeal refused (1990) 102 A.R. 160 (S.C.C.) is as follows and I quote at paragraph 29 of Mahan v.

Hindes : Where the accrual of a cause of action triggers the commencement of a statutory limitation period, as is contemplated by s. 51(

b) of the

old Limitation of Actions Act , the common law discoverability rule applies. Under that rule, a statutory limitation period does not begin to run until the material facts on which the cause of action is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence. [ 15 ] The facts in Mahan v. Hindes were that the plaintiff, having been involved in a motor vehicle accident, obtained from the police a copy of the incident report respecting the complaint of the accident.

It identified Stephen Lindsay Dewitt as the owner of the Ford Explorer which had been involved in the motor vehicle accident and whose driver, in the opinion of the plaintiff, had negligently caused the accident. The plaintiff’s solicitors further obtained a report entitled “Alberta Collision Report Form - Collision Case 223527". It also identified Dewitt as the owner of the Explorer.

In September 1997 the Plaintiff’s solicitors received a certificate from the Alberta Motor Vehicles Division which identified the Explorer as being registered to Dewitt with an expiry date of April 30, 1997, some eight days before the accident. [ 16 ] In fact the owner of the Explorer was Ford Credit Canada Limited and Dewitt was the lessee. [ 17 ] A search at the personal property registry would have disclosed the lease which was registered as a personal property security interest. [ 18 ] Mason J. found that the cause of action arose when, by the exercise of due diligence, the plaintiff ought to have known that Ford Credit was the owner of the Explorer.

He equated that time with the time when the plaintiff should have been put on inquiry with respect to the ownership of the Explorer. He concluded that time was when the Statement of Defence was filed which contained a general denial of all of the facts pled in the Statement of Claim which would include a denial of ownership.

Mason J. specifically made a finding that the plaintiff should not be held to have been put on inquiry by the fact that registration had expired eight days before the accident nor that a search of the personal property registry would have revealed Ford Credit’s ownership. [ 19 ] I adopt the test employed by Mason J. and ask the question whether the Plaintiff should have been put on inquiry with respect to the existence of the cause of action. [ 20 ] In Mahan v. Hindes Mason J. quoted Peixeiro v.

Haberman as saying: Once the plaintiff knows that some damage has occurred and has identified the tortfeasor ..., the cause of action has accrued. [ 21 ] If I understand the Defendants’ argument, this quotation is to be interpreted as saying that all that is needed for a cause of action to arise is damage and identity, both of which were easy to ascertain using hindsight. By that I mean that once the Plaintiff had the report from the Transportation Safety Board the finger was pointed only at the pilot and aircraft owner and vicariously the seller of the ticket.

Two of these parties were known to the Plaintiff on the day of the crash and the pilot’s name was easily ascertainable. [ 22 ] The Plaintiff argues that the same quotation means something different. Not only does the Plaintiff have to know that he suffered damage and the identity of the tortfeasor but also that the tortfeasor was a tortfeasor i.e. that person negligently caused the injury complained of. I agree in part with the Plaintiff’s argument. It is not sufficient that the Plaintiff knows someone, for instance a colleague at work whose name is known to the Plaintiff.

The Plaintiff must know that the colleague is a potential tortfeasor. I do not, however, agree that the Plaintiff must do any more than recognize the tortfeasor as a potential tortfeasor for the action to arise. The Plaintiff need not know with certainty the particulars of the negligence of the tortfeasor. [ 23 ] In Peixeiro v. Haberman at paragraph 34 Justice Major set out the rationale for short limitation periods: Short limitation periods indicate that the legislature put a premium on their function as a statute of repose.

This is one of the three rationales which serve society and the courts’ continued interest in maintaining the respect of these statutes. Whatever interest a defendant may have in the universal application of a limitation period must be balanced against the concerns of fairness to the plaintiff who was unaware that his injuries met the conditions precedent to commencing an action: Murphy v. Welsh, supra ; M. (K.) v. M. (H.) ,

1992 CanLII 31 (SCC) , [1992] 3 S.C.R. 6 , 96 D.L.R. (4 th ) 289 . All the rationales were set out in M. (K.) v. M. (H.) , where this Court considered the Limitations Act , R.S.O. 1980, c. 240 (now R.S.O. 1990, c L.15 ) in order to determine the time of accrual of the cause of action in a manner consistent with its purposes (at pp.29-30): There are three, and they may be described as the certainty, evidentiary, and diligence rationales.... Statutes of limitations have long been said to be statutes of repose.... The reasoning is straightforward enough.

There comes a time, it is said, when a potential defendant should be secure in his reasonable expectation that he will not be held to account for ancient obligations.... The second rationale is evidentiary and concerns the desire to foreclose claims based on stale evidence. Once the limitation period has lapsed, the potential defendant should no longer be concerned about the preservation of evidence relevant to the claim....

Finally, plaintiffs are expected to act diligently and not “sleep on their rights”; statutes of limitation are an incentive for plaintiffs to bring suit in a timely fashion. [ 24 ] The rationale that applies here is the Defendant says the Plaintiff “slept on his rights”. The Plaintiff claims there was no way of knowing who was to blame for the plane crash until the report of the Transportation Safety Board was posted on the Internet website. [ 25 ] There are several reasons why I am convinced the Plaintiff has not established that he acted diligently. 1.

The Plaintiff’s own material shows that the report of the Transportation Safety Board was released to the “interested parties” on January 27, 1999. That is just shortly after the end of one year after the plane crash. The Plaintiff has not deposed in his affidavit that he even wrote to the Board requesting a copy of the report. There is no evidence that had he done so the Board would not have forwarded a copy to him at about the same time or shortly after it became available to the “interested parties”.

In fact since they posted the report later on their website I would think the report was available to the public from January 27, 1999 on. 2. There is no evidence that the Plaintiff consulted a lawyer within the limitation period. Counsel for the Plaintiff says that had he consulted a lawyer the lawyer would not have known who to sue without the Transportation Safety Board report. The lawyer would have to speculate that fault may lie with any of the number of entities earlier referred to.

It is my view that given the circumstances of the crash which were known to the Plaintiff there was a strong indication the pilot or the company was at fault and at the very least should have been sued within the limitation period. As in Mahan v. Hindes a lawyer, out of an abundance of caution, would probably have included the airport authority, the Government of Canada vicariously liable for its controllers and perhaps a pseudonym A.B.C. Company as manufacturer of components which may have failed and perhaps another pseudonym for the persons supplying engineering services to the aircraft.

That would have been standard, acceptable civil procedure practice. A plaintiff is not required to know and sue only those against whom he will be successful – that is for the trial. But he must sue, in a timely manner, those who he can reasonably ascertain may be potential tortfeasors. 3. The Plaintiff on January 28 th , 1998, some two weeks after the crash, made a claim to an adjuster representing the Defendant companies for his lost luggage.

At the foot of his claim he wrote: “This is submitted without prejudice to any further claims for other injuries or losses.” Clearly he knew of a potential claim against the very companies he later sued. 4. Finally the Plaintiff cannot claim that he was somehow at a disadvantage because of some excusable reason, such as minority, or lack of education, or some traumatic event such as sexual abuse. The contrary is true. At the time of the crash the Plaintiff was the chief operating officer of a hospital authority which operated several hospitals in northwestern Alberta.

This is a position requiring a great deal of competence and one which puts him in contact with legal problems and lawyers on a regular basis. The Plaintiff simply slept on his rights and did not exercise any diligence in pursuing his claim. [ 26 ] In the result, the appeal is denied and the Master’s Order stands.

[ 27 ] The parties may speak to costs within 30 days of this memorandum if necessary. HEARD on the 21st day of March, 2003. DATED at Edmonton, Alberta this 1st day of April, 2003. __________________________ J.C.Q.B.A.