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LIMITATION OF ACTIONS - Time - When time begins to run

Monday, January 07, 2019 @ 7:27 AM  

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Appeal by Fishery Products International from a summary trial ruling that the claim brought by the respondents, the Roses, was within time. The respondents were commercial fishermen who stored a 16,000-kilogram fishing net with the appellant between 1994 and 1998. When they requested return of the net, the appellant advised the net could not be located. Litigation ensued. The appellant conceded that the net had been within its care and control and that it breached its legal duty to return the net to the respondents. The sole issue at trial was the appellant’s limitation defence. The trial judge found that the claim was brought within time and granted judgment in favour of the respondents. The trial judge found that the respondents were not aware of the net missing until 2003 or 2004, and that the action commenced in 2008 was within the six-year limitation period. FPI appealed.

HELD: Appeal dismissed. The trial judge, in assessing the evidence provided by the witnesses, did not make palpable and overriding errors in his factual determinations or in the inferences made based on those determinations. The reasons for judgment indicated the trial judge undertook a measured review of the evidence of each witness, and assessed credibility, reliability and weight with respect to the evidence presented. Sufficient reasons were provided for preferring particular evidence in instances where testimony conflicted regarding the timeline. The trial judge’s findings were entitled to deference. In concluding that the action was within time, the trial judge did not err in drawing an adverse inference against the appellant for failing to call a plant manager as a witness, as the judge made it clear that the witness’s testimony would not have been material to the overall conclusion. The trial judge did not misapprehend the standard of proof or apply the wrong standard of proof. The conclusion that the limitation period began to run upon a demand for the return of the net did not disclose any palpable and overriding error or error of law.

Rose v. Fishery Products International Ltd., [2018] N.J. No. 361, Newfoundland and Labrador Court of Appeal, J.D. Green C.J.N.L., C.W. White and F.P. O'Brien JJ.A., November 27, 2018. Digest No. TLD-January72019001