Before:
The Honourable Mr. Justice Burnyeat
Reasons for Judgment
(In Chambers)
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Counsel for Mr. Laboucane
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S.D.
Matthews
K. Petersmeyer
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Counsel for Donald
Brooks
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D.F. McEwen
G.G. Blue
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Counsel for
Third Parties
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R.C.C. Twining
S. Haywood-Farmer
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Counsel for
Attorney-General of British Columbia
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N.E. Brown
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Date and Place
of Hearing:
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May 12, 2003
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Vancouver, B.C.
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[1]
There are two applications pursuant to Rule 18A
of the Rules of Court. The Defendant, Donald Brooks applies for an order
dismissing the action against him. The Third Party, Thomas Burns doing
business as Zapco Welding and Fabricating, (“Zapco”) applies for an order that
the Third Party Notice of the Defendant be dismissed. The Attorney-General for
British Columbia appears on
this matter in response to a December 18, 2002 Notice of Constitutional Question.
[2]
In issue is whether s. 10(1) of the Workers’
Compensation Act, R.S.B.C. 1996, c. 492 (“Act”) is valid
provincial law of general application or is ultra vires the Province
insofar as it might bar the claim of a worker for damages for personal injuries
arising in the course of employment where the injury took place on a motor
vessel moored at a dock in Prince Rupert Harbour. The issue is also whether
the analysis of the question of whether s. 10(1) of the Act is
valid provincial law or not is to be determined by a pith and substance
analysis or whether it should be analyzed on the basis of inter-jurisdictional
immunity.
BACKGROUND
[3]
On June 13, 1997, Mr. Laboucane was performing a
welding job on a vessel owned by Mr. Brooks. The vessel was a
fishing boat
with a commercial fishing licence and Mr. Brooks was the master of the
vessel.
At the time, the vessel was moored at the dock next to the Zapco
boathouse in Prince Rupert Harbour which is a navigable body of water
used by a variety of marine
vessels including fishing boats, ferries, tugs and barges, freighters
and
recreational vessels. At all material times, Mr. Laboucane was an
employee of Zapco.
PLEADINGS OF THE PARTIES
[4]
An explosion occurred and Mr. Laboucane suffered
injury. In his Statement of Claim, Mr. Laboucane alleges that gasoline vapour
had been allowed to accumulate in the “lazaret” of the vessel, that the vapour exploded,
that the explosion threw him into the air, and that he struck his head on the
boom of the vessel.
[5]
Mr. Laboucane alleges that Mr. Brooks owed him a
duty of care to see that the vessel was reasonably safe and that he failed to
maintain the vessel in a reasonably safe condition by failing to inspect and
repair the fuel tanks and fuel supply system to ensure that gasoline would not
leak, by failing to vent the vessel so as to remove any gasoline vapour, by failing
to warn Mr. Laboucane of the presence of gasoline vapour on the vessel, and by failing
to comply with applicable laws such as Part 24 of the Occupational Health
and Safety Regulations, B.C. Reg. 296/97; ss. 56(1), 56(8) and 56(9) of
the Small Fishing Vessel Inspection Regulations, C.R.C. 1978, c.
1486; and ss. 5 and 6(b) of the Safe Working Practice Regulations,
C.R.C. 1978, c. 1467. In summary, Mr. Laboucane pleads the “maritime common
law of negligence” and, in the alternative, pleads the provisions of the Negligence
Act, R.S.B.C. 1996, c. 333.
[6]
In his defence, Donald Brooks states that, at
all material times, both he and Mr. Laboucane were workers within the scope of
s. 10 of the Act so that any cause of action arises out of and in
the course of employment and is therefore barred by the provisions of the Act.
In his Counterclaim, Mr. Brooks submits in the alternative that he is entitled
to limit his liability pursuant to s. 575 of the Canada Shipping Act,
R.S.C. 1985 c. S-9.
[7]
In his Third Party Notice, Mr. Brooks claims
against Zapco for contribution and indemnity alleging that Zapco did not
instruct Mr. Laboucane as to safety procedures to be followed when welding on a
gasoline powered vessel, failed to supervise Mr. Laboucane, failed to sufficiently
and adequately train Mr. Laboucane, failed to check for or to eliminate or
control any sources of ignition or potential ignition on board the vessel prior
to the commencement of the welding, failed to test for the presence of
flammable or explosive substances prior to the commencement of welding, failed
to maintain its welding equipment in a proper state of repair, failed to ensure
that the welding ground was properly in place prior to the commencement of
welding, and failed to ensure that a fire watch was kept on the vessel.
[8]
In its Statement of Defence to the Third Party
Notice, Zapco denies that it was negligent, states that s. 10 of the Act
applies, states that any cause of action that Mr. Laboucane may have against
Zapco is barred by the provisions of the Act, and that Mr. Brooks
has no valid claim against Zapco for contribution or indemnity.
WORKERS’ COMPENSATION BOARD CLAIM OF
MR. LABOUCANE
[9]
Mr. Laboucane made a claim to the Workers’
Compensation Board (“Board”). That claim was accepted by the Board. By the end
of 2001, Mr. Laboucane had received a total of $163,633.50 in income loss
benefits, $11,214.61 in rehabilitation benefits, and $351,607.86 in health care
benefits. To the extent of those and any other payments made, this action of
Mr. Laboucane is partly a subrogated action on behalf of the Board.
[10] On January 16, 2003 at the request of Mr. Brooks and pursuant to s.
11 of the Act, the Board certified the following determinations
under s. 11 of the Act:
(a) Mr.
Laboucane was a worker within the meaning of Part 1 of the Act at
the time the cause of action arose on June 13, 1997;
(b) the
injuries suffered by Mr. Laboucane arose out of and in the course of his
employment within the scope of Part 1 of the Act;
(c) Mr.
Brooks was a worker within the meaning of Part 1 of the Act at
the time the cause of action of Mr. Laboucane arose on June 13, 1997;
(d) any
action of conduct of Mr. Brooks which caused the alleged breach of duty of care
arose out of and in the course of employment within the scope of Part 1 of the Act;
(e) Zapco was, at the time the cause of action
arose, an employer engaged in an industry within the meaning of Part 1 of the Act;
(f) any action or
conduct of Zapco at the time the cause of action of Mr. Laboucane arose which
may have caused the alleged breach of duty of care of Zapco arose out of and in
the course of employment within the scope of Part 1 of the Act.
SUBMISSIONS OF THE PARTIES
[11] The position of Mr. Laboucane is that the subject matter of his
action is navigation and shipping over which the Federal Government has
jurisdiction pursuant to s. 91(10) of the Constitution Act, 1867
and the maritime law of negligence is at the core of the Federal jurisdiction
over navigation and shipping. Mr. Laboucane submits that the bar created by s.
10 of the Act is inconsistent with and derogates from the
maritime law of negligence and, accordingly, based on the doctrine of
inter-jurisdictional immunity, must be read down or not applied to this action.
[12] Mr. Brooks, Zapco and the Province submit that the pith and
substance of s. 10 of the Act relates to property and civil
rights within the Province, that s. 92(13) of the Constitution Act,
1867 gives the Province exclusive jurisdiction over matters
relating to property and civil rights, and that it cannot be said that this is
a genuine maritime matter within the Federal jurisdiction of navigation and
shipping.
STATUTORY PROVISIONS
[13] The applicable sections of the Act are:
10(1)
The provisions of this Part are in lieu of any right and rights of action, statutory
or otherwise, founded on a breach of duty of care or any other cause of action,
whether that duty or cause of action is imposed by or arises by reason of law
or contract express or implied, to which a worker, dependant or member of the
family of the worker is or may be entitled against the employer of the worker,
or against any employer within the scope of this Part, or against any worker,
in respect of any personal injury, disablement or death arising out of and in
the course of employment and no action in respect of it lies. This provision
applies only when the action or conduct of the employer, the employer’s servant
or agent, or the worker, which caused the breach of duty arose out of and in
the course of employment within the scope of this Part.
96(1)
The Board has exclusive jurisdiction to inquire into, hear and determine all
matters and questions of fact and law arising under this Part, and the action
or decision of the Board on them is final and conclusive and is not open to
question or review in any court, and proceedings by or before the Board must
not be restrained by injunction, prohibition or other process or proceeding in
any court or be removable by certiorari or otherwise into any court, and an
action must not be maintained or brought against a director, officer, appeal
commissioner or employee of the Board in respect of an act, omission or
decision done or made in the belief that it was within the jurisdiction of the
Board; and, without restricting the generality of the foregoing, the Board has
exclusive jurisdiction to inquire into, hear and determine
(a) the question whether an injury has arisen out of or in the
course of an employment within the scope of the Part; ...
(j) whether a person is a worker, a subcontractor, a contractor
or an employer within the meaning of this Part.
[14] The applicable provisions of the Constitution Act, 1867,
are:
91 ...
the exclusive Legislative Authority of the Parliament of Canada extends to all
matters coming within the Classes of Subjects next hereinafter enumerated ...
10. Navigation and Shipping.
92. In
each Province the Legislature may exclusively make Laws in relation to Matters
coming with the Classes of Subjects next hereinafter enumerated ...
13. Property and
Civil Rights in the Province.
DISCUSSION AND CASE AUTHORITIES
[15] Section (10)(1) of the Act is an absolute bar to an
action by a worker against another worker in respect of an injury arising
within the course of employment: Virk v. Bannister 
reflex, (1989), 36
B.C.L.R. (2d) 241 (B.C.C.A.) and Smith v. Vancouver General Hospital
(1981), 31 B.C.L.R. 358 (B.C.C.A.).
[16] By virtue of s. 96(1) of the Act, it is not open to
the Court to determine independently whether a person is a worker within the
meaning of Part 1 of the Act or whether an injury arose within
the course of employment once the Board has made a determination regarding
those issues: Alcyon Shipping Co. v. O’Krane [1961] S.C.R. 299;
and Pasiechnyk v. Saskatchewan (Workers’ Compensation Board)
1997 CanLII 316 (S.C.C.), [1997] 2 S.C.R. 890.
[17] Regarding the constitutionality of s. 10(1) of the Act,
there is a presumption that legislation is constitutional so that the onus
rests on a party challenging the validity of a law to prove that it is
unconstitutional: Nova Scotia (Board of Censors) v. McNeil,
1978 CanLII 6 (S.C.C.), [1978] 2 S.C.R. 662; and Reference re Firearms Act, 2000 SCC 31 (CanLII), [2000] 1
S.C.R. 783. Accordingly, the onus is on Mr. Laboucane to establish that s.
10(1) of the Act is constitutionally inapplicable in these
circumstances.
[18] I am satisfied that, when the constitutional applicability of an enactment
is challenged, the first step in the constitutional analysis is to determine
the “pith and substance” of that enactment. After determining the essential
character or dominant feature of the provision, the second step is to determine
whether the pith and substance of the enactment relates to one of the heads of
power granted to the enacting legislature: Ward v. Canada (Attorney
General), 2002 SCC 17 (CanLII), [2002] 1 S.C.R. 569; Kitkatla Band v. British Columbia
(Minister of Small Business, Tourism and Culture), 2002 SCC 31 (CanLII), [2002] 2 S.C.R. 146;
and R. v. Eurosport Auto Co. 2003 BCCA 281 (CanLII), (2003), 225 D.L.R. (4th)
277 (B.C.C.A.).
[19] In Ward, the Court dealt with whether a charge under
the Federal Marine Mammal Regulations which prohibited the sale, trade or
barter of whitecoat and blueblack seals came within the power of the federal
government to legislate in relation to fisheries or the criminal law or whether
the prohibition fell under the provincial power to legislate on matters
involving property and civil rights. The Court adopted the pith and substance
analysis in reviewing the legislation. The Chief Justice on behalf of the
Court stated:
The pith and substance analysis asks two
questions: first, what is the essential character of the law? Second, does that
character relate to an enumerated head of power granted to the legislature in
question by the Constitution Act, 1867? (at para. 16)
The Chief Justice
then set out the appropriate approach to be taken in applying the pith and
substance test:
The first task in the pith and substance
analysis is to determine the pith and substance, or essential character of the
law. What is the true meaning or dominant feature of the impugned
legislation? This is resolved by looking at the purpose and the legal effect
of the regulation or law .... The purpose refers to what the legislature wanted
to accomplish. Purpose is relevant to determine whether, in this case,
Parliament was regulating the fishery, or venturing into the provincial area of
property and civil rights. The legal effect refers to how the law will affect
rights and liabilities, and is also helpful in illuminating the core meaning of
the law .... (at para. 17)
[20] In Kitkatla, the Court dealt with the question of
whether legislation under the Provincial Heritage Conservation Act
fell within the provincial responsibility for property and civil rights or
within the federal responsibility for Indians and lands reserved to Indians.
It was argued that the Heritage Conservation Act, to the extent
that it allowed for the alteration and destruction of native cultural objects,
should be struck down. On behalf of the Court, LeBel, J. stated:
The beginning of any division of powers
analysis is a characterization of the impugned law to determine the head of
power within which it falls. This process is commonly known as “pith and
substance” analysis .... By thus categorizing the impugned provision, one is
able to determine whether the enacting legislature possesses the authority
under the constitution to do what it did.
A pith and substance analysis looks at both (1)
the purpose of the legislation as well as (2) its effect. First, to determine
the purpose of the legislation, the Court may look at both intrinsic evidence,
such as purpose clauses, or extrinsic evidence, such as Hansard or the minutes
of parliamentary committees.
Second, in looking at the effect of the
legislation, the Court may consider both its legal effect and its practical
effect. In other words, the Court looks to see, first, what effect
flows directly from the provisions of the statute itself; then, second, what
"side" effects flow from the application of the statute which are not
direct effects of the provisions of the statute itself .... (at pp. 170-1)
[21] LeBel, J. also stated that the proper approach is to look first at
the impugned provisions rather than the pith and substance of the entire Act
containing the impugned provisions. In this regard, LeBel, J. cited with
approval the dicta of Dickson, J., as he then was, in Attorney
General of Canada v. Canadian National Transportation Ltd., 1983 CanLII 36 (S.C.C.), [1983] 2
S.C.R. 206, at p. 270 (quoted by Dickson, C.J. in General Motors of
Canada Ltd. V. City National Leasing, 1989 CanLII 133 (S.C.C.), [1989] 1 S.C.R. 641, at p. 665):
The correct
approach, where there is some doubt that the impugned provision has the same
constitutional characterization as the Act in which it is found, is to start
with the challenged section rather than with a demonstration of the validity of
the statute as a whole. I do not think, however, this means that the
section in question must be read in isolation. If the claim to
constitutional validity is based on the contention that the impugned provision
is part of a regulatory scheme it would seem necessary to read it in its
context. If it can in fact be seen as part of such a scheme, attention
will then shift to the constitutionality of the scheme as a whole.
[22] It is critical to note that the Court in Kitkatla found
that there was no intrusion on a federal head of power, that the impugned
portions of the Heritage Conservation Act were, in pith and
substance, law within the legislative competence of the Province under property
and civil rights, and that LeBel, J. on behalf of the Court stated:
Given this
conclusion, it will not be useful to discuss the doctrine of
inter-jurisdictional immunity. It would apply only if the provincial
legislation went to the core of the federal power (See Ordon Estate v. Grail,
1998 CanLII 771 (S.C.C.), [1998] 3 S.C.R. 437, at para. 81; Delgamuukw [v. British Columbia, 1997 CanLII 302 (S.C.C.), [1997] 3
S.C.R. 1010], supra, at paras. 177-78, per Lamer C.J.) (at p. 181)
[23] LeBel, J. cited with approval the three-part test for determining
the pith and substance of a provision as set out by Dickson, J. in General
Motors of Canada, supra, at pp. 666-7:
The first step should be to
consider whether and to what extent the impugned provision can be characterized
as intruding into provincial powers. If it cannot be characterized as intruding
at all, i.e., if in its pith and substance the provision is federal law, and if
the act to which it is attached is constitutionally valid (or if the provision
is severable or if it is attached to a severable and constitutionally valid
part of the act) then the investigation need go no further.
If, on the other hand, the legislation is not in pith and
substance within the constitutional powers of the enacting legislature, then
the court must ask if the impugned provision is nonetheless a part of a valid
legislative scheme. If it is, at the third stage the impugned
provision should be upheld if it is sufficiently integrated into the valid
legislative scheme.
[24] Accordingly, two of the most recent pronouncements of the Supreme
Court of Canada in this regard state the beginning of any division of powers
analysis is the pith and substance analysis to determine the head of power
within which the impugned law falls. That approach to analysis was also
adopted in a recent judgment from our Court of Appeal.
[25] In Eurosport, the Court dealt with the question of
whether s. 42.1(2)(b) of the Insurance (Motor Vehicle) Act
R.S.B.C., 1996 c. 231 which allowed a person to be charged with making a false
statement or representation to I.C.B.C. in order to obtain payment for goods or
services was enacted in furtherance of a valid provincial purpose or whether it
was, in its pith and substance, criminal law. Braidwood, J.A. on behalf of the
Court stated that:
The accepted approach to a division of powers
analysis requires two steps:
1. An identification of the law’s “matter” or
“pith and substance”; and
2. An assignment of the “matter” of the law to
a head of power under the Constitution Act, 1867 .... (at p. 284)
[26] If the pith and substance of an enactment falls within a class of
subjects assigned to the Legislature by s. 92 of the Constitution Act,
1867, the enactment will be valid notwithstanding that it may
have incidental or ancillary effects in areas of federal jurisdiction: General
Motors of Canada v. City National Leasing, 1989 CanLII 133 (S.C.C.), [1989] 1 S.C.R. 641; Reference
re Firearms Act, supra; Air Canada v. British Columbia,
1989 CanLII 95 (S.C.C.), [1989] 1 S.C.R. 1161; Westbank First Nation v. B.C. Hydro and Power
Authority, 1999 CanLII 655 (S.C.C.), [1999] 3 S.C.R. 134, and Eurosport, supra.
In Eurosport, Braidwood, J.A. stated on behalf of the Court:
It is clear
that where the "matter", "dominant characteristic" or
"pith and substance" of an enactment, or part of an enactment, falls
within a class of subjects allocated exclusively to the provincial legislatures
by s. 92 of the Constitution, then any incidental effects the enactment may
have on federal jurisdiction do not affect its validity.
[I]n a federal state it is inevitable that, in pursuing
valid objectives, the legislation of each level of government will impact
occasionally on the sphere of power of the other level of government; overlap
of legislation is to be expected and accommodated in a federal state. [General
Motors of Canada v. City National Leasing, 1989 CanLII 133 (S.C.C.), [1989] 1 S.C.R. 641; [1989] S.C.J.
No. 28 at para. 45.] [p. 669 S.C.R.]
It is possible for provincial
legislation to impact on federal areas of exclusive jurisdiction if that impact
is ancillary to an otherwise valid scheme:
The determination of which head of power a particular law
falls under is not an exact science. In a federal system, each level of
government can expect to have its jurisdiction affected by the other to a
certain degree. As Dickson, C.J. stated in General Motors of Canada Ltd. v.
City National Leasing, 1989 CanLII 133 (S.C.C.), [1989] 1 S.C.R. 641, at p. 669, "overlap of
legislation is to be expected and accommodated in a federal state". Laws
mainly in relation to the jurisdiction of one level of government may overflow
into, or have "incidental effects" upon, the jurisdiction of the
other level of government. It is a matter of balance and of federalism: no one
level of government is isolated from the other, nor can it usurp the functions
of the other.
[Reference re: Firearms Act (Can.), 2000 SCC 31 (CanLII), [2000] 1 S.C.R. 783,
[2000] S.C.J. No. 31 (QL), 144 C.C.C. (3d) 385, 185 D.L.R. (4th) 577, at para.
26]
(at pp. 284-5)
[27] In reviewing the incidental or ancillary effects that legislation
may have in areas of federal jurisdiction, the Court in Kitkatla adopted
and restated the three-part test originally enunciated by Dickson, C.J.C. in General
Motors of Canada, supra:
(a) Do
the impugned provisions intrude into a federal head of power if so, to what
extent?
(b) If
the impugned provisions intrude into a federal head of power, are they
nevertheless part of a valid provincial legislative scheme?
(c) If
the impugned provisions are part of a valid provincial legislative scheme, are
they sufficiently integrated with the scheme? (at p. 173)
[28] The plaintiff submits that the appropriate analysis is to assume the
constitutional validity of s. 10(1) and then to commence with tests for
inter-jurisdictional immunity as set out in Ordon Estate v. Grail,
1998 CanLII 771 (S.C.C.), [1998] 3 S.C.R. 437. I am satisfied that this approach to analysis is contrary
to numerous decisions of the Supreme Court of Canada as well as to the approach
taken in Eurosport. I am satisfied that the analysis as set out
in Ward, Kitkatla, and Eurosport is
the appropriate approach. If the pith and substance of a provision does not
intrude into a power of the other government, it is not necessary to consider
the doctrine of inter-jurisdictional immunity.
[29] Regarding Ordon Estate, it is important to note that
the decisions in Ward, supra, and Kitkatla, supra,
were decided after the decision of the Court in Ordon Estate and
that LeBel, J. in Kitkatla makes it clear that the analysis of
the pith and substance of a provision must be considered first. As well, it
should be noted that: (a) the parties in Ordon Estate conceded that
the subject matter at issue in the appeals was “maritime negligence law”
falling within the exclusive federal jurisdiction (at p. 505); and (b) the
question which was framed by the Court was: “whether and how the provisions of
a provincial statute may function to determine legal issues which arise
incidentally as part of a negligence claim otherwise entirely governed by
federal maritime law.” (at p. 452).
[30] Accordingly, the first question which must be answered is what is
the pith and substance of s. 10(1) of the Act. If the pith and
substance of that section does not intrude into shipping and navigation power
of the federal government, it will not be necessary to consider the doctrine of
inter-jurisdictional immunity. If there is no intrusion, then the provincial
legislation is constitutionally valid. If there is some intrusion into the
federal head of power over shipping and navigation, the next question is
whether the impugned provision is nevertheless part of a valid provincial
legislative scheme with the impugned provision sufficiently integrated within
the scheme.
WHAT IS THE PITH AND SUBSTANCE OF S. 10(1) OF THE ACT?
[31] Applying the pith and substance test to s. 10(1) of the Act,
I am satisfied that the pith and substance of this section is solely within the
exclusive jurisdiction of the Province relating to Property and Civil Rights
within the Province.
[32] Against a person who is found to be a worker, s. 10(1) of the Act
creates a prohibition against that person commencing civil proceedings against
fellow workers or employers where an alleged breach of contract or an alleged
breach of duty of care arises out of and in the course of employment within the
scope of Part 1 of the Act.
[33] The purposes of ss. 10(1) and 96(1) of the Act are two-fold:
first, to substitute the right to compensation granted to workers under Part 1
of the Act regardless of fault in place of the right of action
against employers and other workers covered under the Act; and, second,
to prevent civil actions by workers and their dependents against employers and
other workers in respect of injuries, disabilities, and death arising out of
and in the course of employment.
[34] The legal and practical effect of s. 10(1) of the Act is
to bar actions by workers and their dependents against employers who
collectively fund this no-fault compensation scheme. The legal and practical
effect of s. 10(1) of the Act is to provide what has been
described as the “historic trade-off” in which workers give up their rights of
action in exchange for compensation under the Act. The compensation
is paid regardless of fault, without the need for litigation and its associated
risk, expense, and delay, and without the possibility of an insolvent
defendant: Pasienchnyk, supra, at paras. 25-6; and Reference
re Validity of Sections 32 and 34 of the Workers’ Compensation 1993,
1987 CanLII 118 (NL C.A.), (1987), 44 D.L.R. (4th) 501 (Nfld. C.A.) at p. 527; aff’d 1989 CanLII 86 (S.C.C.), [1989] 1 S.C.R. 922. The overall effect of the Act
is to improve the protection of the economic interests of workers who are hurt
on the job.
[35] On numerous occasions and since the first Workers’ Compensation
Legislation, Canadian Courts and the Privy Council have consistently held that
Workers’ Compensation Legislation providing a statutory right to compensation
without proof of negligence or fault in place of rights of action in tort or
contract is a valid exercise of provincial legislative power over “property and
civil rights” in the province under s. 92(13) of the Constitution Act,
1867: (a) Workmen’s Compensation Board v. Canadian Pacific
Railway Co. (The “Princess Sophia”), [1920] A.C. 184 (P.C.) (Can.); (b)
McColl v. Canadian Pacific Railway Co., [1923] A.C. 126 (P.C.) (Man.);
(c) The Sincennes-McNaughton Lines, Ltd. v. Joseph Bruneau,
[1924] S.C.R. 168; (d) Nelson v. Airwest Airlines Ltd., [1982] 5
W.W.R. 180 (B.C.S.C.); (e) Swinimer v. Canadian National Railway Company
(1953), 58 N.S.R. (2d) (S.C., App. Div.); (f) Bell
Canada v. Qu?ec (Commission de la sant?et de la s?urit?du travail du
Qu?ec), 1988 CanLII 81 (S.C.C.), [1988] 1 S.C.R. 749; (g) Alltrans
Express Ltd. V. British Columbia (Workers’ Compensation Board),
1988 CanLII 83 (S.C.C.), [1988] 1 S.C.R. 897; (h) Isaac v. British Columbia (Workers’ Compensation
Board), 1994 CanLII 1444 (BC C.A.), (1994) 93 B.C.L.R. (2d) 273 (B.C.C.A.); and (i) Northern
Mountain Helicopters Inc. v. British Columbia (Workers’ Compensation Board),
[1998] B.C.J. (Q.L.). No. 2525 (B.C.S.C.).
[36] The “Princess Sophia”
was an appeal from the Court of Appeal of British
Columbia. The Privy Council dealt with whether the Act
was intra vires the Province even though it purported to cover workers
who were crew members who lost their lives while the ship that employed them
was in Alaskan territory. Giving judgment on behalf of their Lordships,
Viscount Haldane stated that the Act was intra vires the
Provincial Legislature:
... The scheme of the Act is not one for
interfering with rights outside the Province. It is in substance a scheme for
securing a civil right within the Province. (at p. 191) ....
The rights
affected were in that case [Royal Bank of Canada v. The King [1913] A.C. 283] rights wholly outside the Province; here the
rights in question are the rights of workmen within British
Columbia. It makes no difference that the accident
insured against might happen in foreign waters. For the question is not
whether there should be damages for a tort, but whether a contract of
employment made with persons within the Province has given a title to a civil
right within the Province to compensation. The compensation, moreover, is to
be paid by the Board and not by the individual employer concerned. No doubt
for some purposes the law sought to be enforced affects the liberty to carry on
its business of a Dominion railway company to which various provisions of s. 91
of the British North America Act of 1867 apply. But for other purposes, with
which the Legislature of British Columbia had jurisdiction to deal under s. 92,
it was competent to that Legislature to pass laws regulating the civil duties
of a Dominion railway company which carried on business within the Province,
and in the course of that business was engaging workmen whose civil rights
under their contracts of employment had been placed by the Act of 1867 within
the jurisdiction of the province. (at p. 192)
[37] While the
decision in The “Princess Sophia” dealt with what
is now s. 10(1) of the Act in the context of whether it
conflicted with the federal jurisdiction over a federally regulated railway,
the principle that it establishes makes it clear that s. 10(1) of the Act
is valid provincial legislation. That finding was made by the
Privy Council even though the cause of action arose outside the Province and
even though the provision had some effect over a federally regulated railway
company to which various provisions of s. 91 of the Constitution Act,
1867 applied.
[38] I find the decision in The “Princess Sophia”
to be indistinguishable from the case at bar. In fact, the case goes further
than what is required in the analysis of the pith and substance of s. 10(1) in
that it is clear that Zapco is not a federally regulated company. If a worker
employed by a federally regulated railway is injured in Alaskan waters while
working on a ship and s. 10(1) of the Act still applies, then it
follows that a worker hurt on a vessel owned by a British Columbian resident
not federally regulated should be subject to s. 10(1) of the Act
even though the accident took place in Prince Rupert harbour.
[39] Canadian courts have also been consistent in holding that other
provincial legislation relating to workers is valid despite having some effect
on federal heads of power. In Quebec (Minimum Wage Commission) v.
Construction Montcalm Inc. 1978 CanLII 18 (S.C.C.), [1979] 1 S.C.R. 754, the Court dealt with
whether provincial minimum wage legislation applied to employees of a
construction company which was building runways at a new international airport
on Crown land. On behalf of the majority, Beetz, J. stated:
In submitting that
it should have been treated as a federal undertaking for the purposes of its
labour relations while it was doing construction work on the runways of Mirabel,
Montcalm postulates that the decisive factor to be taken into
consideration is the one work which it happened to be constructing at the
relevant time rather than the nature of its business as a going concern. What
is implied, in other words, is that the nature of a construction undertaking
varies with the character of each construction project or construction site or
that there are as many construction undertakings as there are construction
projects or construction sites. The consequences of such a proposition are far
reaching and, in my view, untenable: constitutional authority over the labour
relations of the whole construction industry would vary with the character of
each construction project. This would produce great confusion. For instance,
a worker whose job it is to pour cement would from day to day be shifted from
federal to provincial jurisdiction for the purposes of union membership,
certification, collective agreement and wages, because he pours cement one day
on a runway and the other on a provincial highway. I cannot be persuaded that
the Constitution was meant to apply in such a disintegrating fashion. (at pp.
775-6)
[40] Beetz, J. also
stated:
Thus, the requirement that workers wear a
protective helmet in all construction sites including the construction site of
a new airport has everything to do with construction and with provincial safety
regulations and nothing to do with aeronautics .... In my opinion what wages
shall be paid by an independent contractor like Montcalm to his employees engaged
in the construction of runways is a matter so far removed from aerial
navigation or from the operation of an airport that it cannot be said that the
power to regulate this matter forms an integral part of primary federal
competence over aeronautics or is related to the operation of a federal work,
undertaking, service or business. (at pp. 770-1).
[41] In the case at bar, I am satisfied that it should not be the case
that the constitutional authority over whether or not a worker can commence an
action should vary with the character of each project and that the work that
Mr. Laboucane was undertaking on the vessel owned by Mr. Brooks is so far
removed from the federal power over shipping and navigation that it cannot be
said that the work related in any way to an integral part of primary federal
competence.
[42] Nelson, supra, dealt with the
question of whether baring a personal injury damage action under s. 10(1) of
the Act was ultra vires the Province on the basis that it
might bar the claim of an employee of a federally regulated airline. In
concluding that s. 10(1) of the Act was intra vires and
not limited only to “provincially-regulated” employees and employers, Taylor,
J., as he then was, stated:
Works, undertakings and businesses falling
under the legislative authority of Parliament are, of course, subject to
provincial legislation in numerous circumstances. It is where the application
of provincial legislation impairs the ability of such enterprises to carry out
their federal functions that they will be held to enjoy special immunity.
(at p. 183)
[43] After citing with approval the decision in The “Princess
Sophia”, Taylor, J.
stated: “It is well established that provincial legislation will not be
rendered inoperative merely because it may “affect” a matter which falls under
federal control ....” (at p. 183). Taylor, J. then concluded:
The inhibition
imposed by Section 10(1) does not interfere with the ability of the defendant
airline to carry out its federally-authorized functions, nor has it been
suggested that it conflicts with any federal law to which the defendants may be
subject. (at p. 184)
[44] In Isaac, supra, the Court dealt with the
ability of a spouse to claim compensation for the death of her husband where he
had been a Band member employed by the Band in an industrial undertaking on a
Band reserve. In finding that the decision of the Board that Ms. Isaac and her
children were not entitled to compensation was plainly wrong, Goldie J.A. on
behalf of the Court concluded:
In my view, the
compensation scheme of the Act has applied in law since 1916 to those residents
of British Columbia who are
workers in occupations within the scope of Part 1 of the Act. I am
of the further opinion that to apply in fact the compensation scheme to workers
like Mr. Isaac would not impair their "Indianness". (at para. 98)
[45] If a Band member employed on a Band reserve where both the member
and the reserve are within areas of primary federal competence are bound by the
provisions of the Act, I am satisfied that it follows that Mr.
Laboucane and Mr. Brooks and Zapco who are not should also be bound by the
provisions of the Act.
[46] The Ontario Court of Appeal came to the same conclusion in Dreifelds
et al v. Burton et al 1998 CanLII 5013 (ON C.A.), (1998), 38 O.R. (3d) 393 (Ont. C.A.), where the
question which arose was whether the limitation period for an action relating
to a scuba-diving accident which resulted in a death would be established under
the Ontario Family Law Act or under the Canada Shipping Act.
After referring to the decisions in International Terminal Operators Ltd.,
supra; Bow Valley (Bermuda) Ltd., supra; and Whitbread
v. Walley, 1990 CanLII 33 (S.C.C.), [1990] 3 S.C.R. 1273, Goudge, J.A. on behalf of the Court
stated:
In my view, the
jurisprudence I have referred to yields the conclusion that not every tortuous
activity engaged in on Canada's
waterways is subject to Canadian maritime law. Only if the activity sued about
is sufficiently connected with navigation or shipping that the case meets the
test set out by McIntyre J. in ITO which I have quoted above, will it
fall to be resolved under Canadian maritime law.
As the pleadings
reveal, the issues to be resolved in this case focus almost exclusively on the
alleged negligence in the preparation for and conduct of the dive in which
Peter Dreifelds died. No negligence is alleged in the operation of the charter
boat. Indeed, at the time of the accident Mr. Dreifelds was not connected to
it in any way. Its use as a means of transportation to the dive site is of no
relevance to the negligent acts alleged. Nor is it asserted that the negligent
activities pleaded interfered with navigation in any way or affected the
navigability of any waterway.
It is therefore my opinion that the
subject-matter of this case is not integrally connected with maritime matters
and, as a consequence, it does not fall to be resolved under Canadian maritime
law. It is a case about a scuba-diving accident, an activity which, in my
view, is not sufficiently connected to navigation and shipping that maritime
law extends to it. Rather, the "pith and substance" of this action
is a matter of local concern requiring, therefore, that it be resolved pursuant
to the relevant provincial legislation, the Family Law Act. (at p. 400)
[47] As was found in Nelson and in Dreifelds, I am satisfied that the subject-matter
of this case is not integrally connected with maritime matters and does not
fall to be resolved under Canadian maritime negligence law. This is a case
about an industrial accident, an activity which is not sufficiently connected
to navigation and shipping that maritime law extends to it. The fact that the
incident took place on a vessel is of no relevance to the negligent acts
alleged. No negligence is alleged in the operation of the vessel. Nor is it
asserted that the negligent activities in any way interfered with navigation or
affected the navigability of any waterway.
[48] As was the case in Dreifelds, this action is a matter
of provincial concern to be resolved pursuant to the relevant provincial
legislation which is s. 10(1) of the Act.
[49] This conclusion is in accordance with the decision in R. v.
Williams, [2000] B.C.J. No. (Q.L.) No. 539 (B.C.S.C.) where the
question was whether the Liquor Control and Licensing Act
R.S.B.C. 1996, c. 267 applied to the owner and operator of a carol ship operating
in waters around Greater Vancouver. The matter was on appeal from a finding of
guilt in the Provincial Court
and the conclusion that the pith and substance of the Liquor Act
was the regulation of liquor in the Province and not to govern the operation of
vessels. Counsel for the appellant argued that shipping and navigation was a
matter of exclusive federal jurisdiction, that the Province had no
constitutional authority to regulate that activity, and that the trial Judge
erred in applying the pith and substance test to the Liquor Act
as the trial Judge ought to have applied the inter-jurisdictional immunity test
as set out in Bell Canada, supra.
[50] Oppal, J., as he then was, concluded that any analysis should start
with the pith and substance analysis, that the legislation of each level of
government will impact occasionally on the sphere of the power of the other
level of government, and that, in order for provincial law to be declared
unconstitutional, it is necessary to find that the provincial law must affect a
vital or essential part of a federal undertaking without necessarily going so
far as impairing or paralyzing it.
[51] Oppal, J. cited with approval this passage at page 596 of the
judgment of Beetz, J. in Bell Canada, supra:
In order for the inapplicability of provincial legislation
rule to be given effect, it is sufficient that the provincial statue which
purports to apply to the federal undertaking affects a vital or essential part
of that undertaking, without necessarily going as far as impairing or
paralyzing it.
[52] Oppal, J.
concluded that service of alcohol was not a vital part of the operations of a
carol ship and that it could not be said that the application of provincial
liquor laws impairs the operations of carol ships. Oppal, J. also concluded:
Thus it cannot be
said that the enforcement of the Liquor Act encroaches upon the federal power
of navigation and shipping. Moreover, it cannot be said that the
application of the provincial Liquor Act impairs a federal undertaking. (at
para. 30)
[53] In the case at bar, I can make no finding that s. 10(1) of the Act
encroaches in any way upon the federal power of navigation and shipping.
However, even assuming that I am incorrect in that finding, I cannot find that
s. 10(1) affects a vital or essential part of the federal power over navigation
and shipping. I cannot find that there is any encroachment on that federal
power. I cannot find that there is any impairment of the federal undertaking.
[54] While there is a connecting factor relating to maritime matters in
view of the incident being on a vessel, I am satisfied that any connecting
factor is not enough to displace the characterization of the claim of Mr.
Laboucane as a personal injury claim arising out of a workplace accident. In
this regard, it is necessary to show that the subject-matter under
consideration is so integrally connected to maritime matters as to be
legitimate Canadian Maritime law within federal legislative competence: ITO
-International Terminal Operators Ltd. v. Miida Electronics Inc., 1986 CanLII 91 (S.C.C.), [1986]
1 S.C.R. 752 (at para. 20); Monk Corp. v. Island Fertilizers Ltd.,
1991 CanLII 95 (S.C.C.), [1991] 1 S.C.R. 779 (at para. 33); Bow Valley Husky (Bermuda) Ltd. v.
Saint John Shipbuilding Ltd., 1997 CanLII 307 (S.C.C.), [1997] 3 S.C.R. 1210 and Ordon
Estate v. Grail, 1998 CanLII 771 (S.C.C.), [1998] 3 S.C.R. 437 (at para. 73).
[55] I find that the Act and s. 10(1) of the Act
is, in its pith and substance, within the powers of British Columbia granted to
it under s. 92(13) of the Constitution Act, 1867.
I cannot be satisfied that Mr. Laboucane has met the onus of challenging the
validity of s. 10(1) of the Act as being unconstitutional. I cannot
conclude that s. 10(1) of the Act intrudes into a federal head of
power. In its pith and substance, s. 10(1) is a matter of civil rights within
the Province. The leading feature, true nature in character, and the dominant
or most important characteristic of s. 10(1) is a matter of civil rights as
there could be nothing more critical to the question of civil rights than the
question of whether an action to establish damages for breach of contract or
for negligence is or is not available to a citizen of the Province. It cannot
be considered legislation in respect of shipping and navigation merely because
Mr. Laboucane was on a vessel when he was injured.
CONCLUSION
[56] The applications of the Defendant, Donald Brooks, and the Third
Party, Thomas Burns doing business as Zapco Welding and Fabricating, are
granted. The action will be dismissed against the Defendant, Donald Brooks,
and the Third Party Notice will be struck out as against the Third Party. The
parties will be at liberty to speak to the question of costs.
“G.D. Burnyeat, J.”
The Honourable Mr. Justice G.D. Burnyeat
