Christopher Hogarth, Murray Hogarth
and Diana Ruth Hogarth      Appellants

and

Josephine Perry and John Haller      Appellants

v.

John Emmett Hall, Frances Norma Hall, Susan Frances Hall,
E. Bruce Hall, John Peter Hall by his committee Maureen Hall,
Maureen Hall as executrix of the estate of Yvonne Louise Carroll,
Maureen Hall in her personal capacity, Martha Isabel Hall,
Thomas James Hall, David Robert Hall, Richard Lawrence
Carroll, Marie Helena Carroll, John Gregory Carroll,
Margaret Jane Carroll, Marie Suzanne Carroll,
Joan Shelagh Carroll and Laing Douglas Carroll      Respondents

and

Ontario Holidays Corporation
carrying on business as The Edenvale Inn      Respondent

Christopher Hogarth, Murray Hogarth
and Diana Ruth Hogarth      Appellants

and

The Edenvale Inn or Edenvale and Ontario Holidays
Corporation carrying on business as
the Edenvale Inn or Edenvale      Appellants

v.

Josephine Perry      Respondent

Christopher Hogarth, Murray Hogarth
and Diana Ruth Hogarth      Appellants

and

Ontario Holidays Corporation carrying on business
as the Edenvale Inn      Appellant

and

Josephine Perry and John Haller      Appellants

v.

Joanne Maude Perry, William George Perry, William
Harold Perry, Janet Ellen MacPhee, Ian Forbes Perry,
Susan Joanne Perry, Leslie Carol Perry, Tara Colleen Boyle,
Lindsay Patrick Perry, Roberta Joanne Perry, an infant,
by her Litigation Guardian Joanne Maude Perry
and Josephine Perry, in her capacity as Administratrix of
the Estate of Grant Kevin Perry      Respondents

Larry Grail      Appellant

v.

Deborah Ordon, the Executrix of the Estate of Bernard
Myron Ordon and the said Deborah Ordon, personally,
Jeffrey Michael Ordon, a Minor, by his Litigation Guardian
Deborah Ordon, Stephanie Ordon, a Minor, by her
Litigation Guardian Deborah Ordon, and Bessie Ordon      Respondents

and

The Attorney General of Quebec      Intervener

Indexed as:  Ordon Estate v. Grail

File No.:  25702.

1998:  June 22; 1998: November 26.

Present:  L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major and Bastarache JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

     Maritime law -- Negligence actions -- Negligence actions brought following two boating accidents which resulted in deaths and serious injuries -- Actions including claims for loss of guidance, care and companionship -- Whether provincial legislation constitutionally applicable to maritime negligence claims -- Canada Shipping Act, R.S.C., 1985, c. S-9, s. 646 -- Family Law Act, R.S.O. 1990, c. F.3, s. 61(2)(c) -- Trustee Act, R.S.O. 1990, c. T.23, s. 38(1) -- Negligence Act, R.S.O. 1990, c. N.1.

     Courts -- Jurisdiction -- Maritime negligence claims -- Negligence actions brought in provincial superior court following two boating accidents which resulted in deaths and serious injuries -- Whether Federal Court, Trial Division has exclusive jurisdiction over in personam maritime fatal accident claims by dependants -- Canada Shipping Act, R.S.C., 1985, c. S-9, s. 646 -- Federal Court Act, R.S.C., 1985, c. F-7, s. 22.

     Limitation of actions -- Maritime negligence claims -- Negligence actions brought following two boating accidents which resulted in deaths and serious injuries --Whether applicable limitation period for bringing dependant's fatal accident claim under s. 646 of Canada Shipping Act is one-year period or two-year period -- Canada Shipping Act, R.S.C., 1985, c. S-9, ss. 572(1), 649.

     These appeals and cross-appeals arise out of four negligence actions in relation to two boating accidents which occurred on navigable waters within Ontario. In the first accident, which occurred on Lake Erie, Bernard Ordon drowned after a pleasure boat owned and operated by Larry Grail sank. His widow brought claims for damages pursuant to the Trustee Act and the Family Law Act. Her Family Law Act claim included a claim for compensation for loss of guidance, care and companionship under s. 61(2)(e). The deceased's two children and his mother made similar claims under the Family Law Act. Before trial, Grail brought a motion for an order striking out several paragraphs of the plaintiffs' statement of claim on the basis that they disclosed no reasonable cause of action. The plaintiffs brought a cross-motion for an order amending certain paragraphs nunc pro tunc so as to allow them to plead their action under the Canada Shipping Act. Both the motion and the cross-motion were granted. Grail was granted leave to appeal the motions judge's decision to permit the plaintiffs to amend their statement of claim, in part on the basis that the motions judge's order permitting the action to proceed in the Ontario Court (General Division) under the Canada Shipping Act may have usurped exclusive Federal Court, Trial Division jurisdiction over maritime wrongful death claims under that Act. The plaintiffs cross-appealed the order striking portions of their statement of claim.

     Four other maritime negligence actions were subsequently joined together into a special case to be heard in the first instance by the Court of Appeal. The special case was heard at the same time as the appeal in the Lake Erie action. Three of the special case actions related to a boating collision which occurred on Lake Joseph and resulted in deaths and serious injuries. All of the defendants in those actions took the position that the Ontario Family Law Act, Trustee Act, and the contributory negligence provisions of the Negligence Act do not form part of Canadian maritime law, and that all of the plaintiffs' claims should have been brought pursuant to the Canada Shipping Act. With respect to the wrongful death claims, the defendants took the position that the claims were statute-barred by the one-year limitation period contained in s. 649 of the Canada Shipping Act. They also maintained that maritime wrongful death claims cannot be brought in the Ontario Court (General Division) in light of the exclusive jurisdiction granted to the Federal Court, Trial Division over such matters by s. 646 of the Canada Shipping Act. The fourth action is not at issue here. The Court of Appeal concluded that the Ontario Court (General Division) was properly vested with jurisdiction over the claims. It held that a maritime negligence claim by the estate of the deceased may properly be brought under s. 38(1) of the Trustee Act. It also held that the contributory negligence provisions of the Negligence Act were applicable to maritime negligence actions. It found that a claim for loss of guidance, care and companionship may be brought under the Canada Shipping Act, even if the word "damages" in s. 647 did not originally refer to damages for this variety of non-pecuniary loss. It similarly held that dependants of a person injured but not killed in a boating accident could recover damages for loss of guidance, care and companionship, although such a claim is not provided for in the Act. It decided that siblings may not bring a dependants' fatal accident claim. Finally, the Court of Appeal held that a one-year limitation period applied to the action, but that the circumstances justified a discretionary extension of the limitation period.

     Held: The appeals and cross-appeals should be dismissed.

     The Ontario Court (General Division) shares concurrent jurisdiction with the Federal Court, Trial Division over maritime fatal accident claims by dependants under s. 646 of the Canada Shipping Act. In light of the inherent general jurisdiction of the provincial superior courts, Parliament must use express statutory language where it intends to assign jurisdiction to the Federal Court. In particular, the complete ouster of jurisdiction from the provincial superior courts in favour of vesting exclusive jurisdiction in a statutory court requires clear and explicit statutory wording to this effect. In accordance with the inherent jurisdiction of the superior courts, it has long been held that the provincial superior courts have jurisdiction over matters involving maritime law, including negligence actions resulting from collisions or other accidents involving vessels on inland waters. The Federal Court Act confirms the jurisdiction of the provincial superior courts over matters involving Canadian maritime law, by recognizing the Federal Court, Trial Division's concurrent jurisdiction over such matters. Part XIV of the Canada Shipping Act sets out a statutory regime whereby dependants of a person killed in a maritime accident may bring a claim, either in personam or in rem, for relief. Under s. 646, the dependants of the deceased may maintain an action for damages in the Admiralty Court, which is defined in s. 2 as the Federal Court. When Parliament intended the Federal Court to have exclusive jurisdiction to adjudicate a particular matter in the Canada Shipping Act, it set this intention out in clear language in the Act. By contrast, s. 646 makes no express reference to exclusivity of jurisdiction in the Admiralty Court. Rather, the focus of s. 646 appears to be remedial -- its purpose was to extend an already existing remedy to allow for claims in rem, and not to restrict that remedy by confining jurisdiction to a specific court. The lack of any express language in s. 646 of the Canada Shipping Act excluding superior court jurisdiction, or vesting sole jurisdiction in the Admiralty Court, is sufficient by itself to justify interpreting s. 646 as conferring on the Admiralty Court only concurrent jurisdiction over fatal accident claims by dependants.

     "Canadian maritime law" as defined in s. 2 of the Federal Court Act is a comprehensive body of federal law dealing with all claims in respect of maritime and admiralty matters. The scope of Canadian maritime law is not limited by the scope of English admiralty law at the time of its adoption into Canadian law in 1934. Rather, the word "maritime" is to be interpreted within the modern context of commerce and shipping, and the ambit of Canadian maritime law should be considered limited only by the constitutional division of powers in the Constitution Act, 1867. Canadian maritime law is uniform throughout Canada, and it is not the law of any province of Canada. All of its principles constitute federal law and not an incidental application of provincial law. The nature of navigation and shipping activities as they are practised in Canada makes a uniform maritime law a practical necessity. Much of maritime law is the product of international conventions, and the legal rights and obligations of those engaged in navigation and shipping should not arbitrarily change according to jurisdiction. The need for legal uniformity is particularly pressing in the area of tortious liability for collisions and other accidents that occur in the course of navigation. In those instances where Parliament has not passed legislation dealing with a maritime matter, the inherited non-statutory principles embodied in Canadian maritime law as developed by Canadian courts remain applicable, and resort should be had to these principles before considering whether to apply provincial law to resolve an issue in a maritime action. Canadian maritime law is not static or frozen. The general principles established by this Court with respect to judicial reform of the common law apply with some modifications to the reform of Canadian maritime law, allowing development in the law where the appropriate criteria are met.

     The determination of whether a provincial statute is constitutionally applicable in the context of a maritime negligence law action occurs according to a four-part test. First, prior to engaging in constitutional analysis, a court must determine whether the subject matter affected by the statute falls within the exclusive federal competence over navigation and shipping. If it does, the second step is to determine whether a counterpart to the statutory provision upon which the party seeks to rely is present within existing Canadian maritime law. If no such counterpart exists, the third step involves the court in determining whether or not it is appropriate for Canadian non-statutory maritime law to be altered in accordance with the principles for judicial reform of the law developed by this Court. When applying these principles in the maritime law context, a court should be careful to ensure that it considers not only the social, moral and economic fabric of Canadian society, but also the fabric of the broader international community of maritime states, including the desirability of achieving uniformity between jurisdictions in maritime law matters. Similarly, in evaluating whether a change in Canadian maritime law would have complex ramifications, a court must consider not only the ramifications within Canada, but also the effects of the change upon Canada's treaty obligations and international relations, as well as upon the state of international maritime law. Fourth, if judicial reform of the law is inappropriate, the court must determine whether the particular provincial statutory provision is constitutionally applicable. A provincial statute of general application will be inapplicable in a maritime negligence law context where this application would have the effect of regulating indirectly federal maritime negligence law, whether by supplementing existing rules of maritime negligence law in such a manner that the provincial law effectively alters rules within the exclusive competence of Parliament to amend, or otherwise. The inapplicability of provincial law in the context of a maritime negligence action stems from an application of the doctrine of interjurisdictional immunity. Maritime negligence law is part of the unassailable core of Parliament's exclusive jurisdiction over navigation and shipping. In the context of an action arising from a collision between boats or some other accident, maritime negligence law encompasses the range of possible claimants, the scope of available damages, and the availability of a regime of apportionment of liability according to fault. A provincial statute of general application dealing with such matters within the scope of the province's legitimate powers cannot apply to a maritime law negligence action, and must be read down to achieve this end. The attribution to Parliament of exclusive legislative jurisdiction over navigation and shipping stems in large part from the national and international dimensions of maritime law, and the corresponding requirement for uniformity in maritime law principles. If matters of maritime law were regulated by the various provincial legislatures, this would drastically confuse the day-to-day reality of navigation and shipping in Canadian waters, and would make it impossible for Canada as a country to abide by its international treaty obligations relating to maritime matters. Moreover, unlike most other areas of exclusive federal jurisdiction, maritime law has historically been a specialized area of law, adjudicated within separate courts through the application of principles and rules of law which do not derive solely from traditional common law and statutory sources. The multiplicity of legal sources, including international sources, which nourish Canadian maritime law render it a body of law in which uniformity is especially appropriate. The interference of provincial statutes with core areas of Canadian maritime law, such as the law of maritime negligence, would interfere with its historical roots and with its appropriately unique character.

     Section 647(2) of the Canada Shipping Act, which provides for the awarding of damages in relation to a dependant's fatal accident claim, is silent as to the nature of the compensable loss. Historically, damages in relation to fatal accidents were restricted to compensation for pecuniary loss only, with damages for lost guidance, care and companionship considered to be non-pecuniary in nature and therefore not recoverable. The Canada Shipping Act is also silent as to whether damages may be awarded to a dependant of a person injured but not killed in a boating accident. At common law, a person injured in a boating accident can sue for damages for his or her own injuries, but the dependants of the injured person are generally permitted to recover only in limited circumstances. The common law rules barring recovery in both instances should be judicially reformed to allow claims for damages for loss of guidance, care and companionship and to allow such claims to be brought by dependants of a person injured but not killed in a boating accident. Contemporary conceptions of loss include the idea that it is truly a harm for a dependant to lose the guidance, care and companionship of a spouse, parent or child. Changing the definition of "damages" within the context of maritime accident claims is required to keep non-statutory maritime law in step with modern understandings of fairness and justice, as well as with the dynamic and evolving fabric of our society. Given the finding that dependants' claims for loss of guidance, care and companionship may be brought under Canadian maritime law without resort to provincial statutes, it is unnecessary to address the constitutional applicability of Part V of the Family Law Act to a maritime law claim for loss of guidance, care and companionship.

     Dependants' fatal accident claims are a creature of statute. In the maritime context, s. 645 of the Canada Shipping Act sets out the list of eligible plaintiffs in clear terms, and the list does not include siblings. While it may be desirable for Parliament to expand the list of eligible dependants, it would be inappropriate for the courts to undertake this task unilaterally by reforming non-statutory maritime law in order to supplement the statutory provision. The class of eligible plaintiffs with respect to dependants' personal injury claims is not prescribed by statute, but rather derives from the common law. It should be defined in the same manner as the class of dependants in fatal accident cases is defined in s. 645 of the Canada Shipping Act. Since the determination of the eligible class of plaintiffs with respect to maritime negligence actions is clearly an issue of maritime negligence law falling within the core of Parliament's exclusive competence over navigation and shipping, Part V of the Family Law Act is constitutionally inapplicable to allow for the bringing of dependants' claims by siblings, whether involving a fatal accident or personal injury.

     It is appropriate for this Court to reform Canadian maritime law to allow a claim by an executor brought in the name of the deceased with respect to an action which the deceased could have brought had he or she lived. The anachronism and unfairness of applying the actio personalis moritur cum persona rule in maritime negligence actions is well illustrated by the fact that all common law jurisdictions in Canada have enacted legislation abolishing the rule, and now permit recovery by estates of deceased persons. Accordingly, the constitutional applicability of the Trustee Act to allow for such claims in the instant appeals need not be determined.

     A general regime of apportionment of liability according to fault, with joint and several liability among tortfeasors and contribution between tortfeasors, applies in Canadian maritime negligence actions. Accordingly, it is not necessary to consider the constitutional applicability of the Negligence Act in these appeals.

     The dependants' fatal accident claims as well as all other claims in the three Lake Joseph actions are subject to the two-year limitation period set out in s. 572(1) of the Canada Shipping Act and are therefore not statute-barred. Section 572 is contained in Part IX of the Act, which deals with collisions between vessels. While in Part XIV, which deals with dependants' fatal accident claims, s. 649 provides for a one-year limitation period, Part XIV does not constitute a cohesive whole or a complete code with respect to dependants' fatal accident claims. The plaintiffs' fatal accident claims fall within the clear wording of s. 572(1). Moreover, statutory provisions creating a limitation period must be strictly construed in favour of the plaintiff. The ambiguity created by the existence of two distinct limitation periods in the Canada Shipping Act should thus be resolved by allowing the plaintiffs in the Lake Joseph actions to rely upon the longer period provided for in s. 572(1). Strongly buttressing the appropriateness of applying this general principle of strict construction of limitations statutes is the fact that applying the one-year limitation period in s. 649 to all fatal accident claims stemming from boating collisions would place Canada in breach of its international treaty obligations.

     é
IACOBUCCI and MAJOR JJ.:

1     These appeals and cross-appeals arise out of four negligence actions that were commenced in the Ontario Court (General Division) in relation to two boating accidents which occurred on navigable waters within Ontario. The first action arose out of a boating accident that occurred on Lake Erie on July 1, 1990. Bernard Ordon drowned after a pleasure boat owned and operated by Larry Grail sank. The other three actions relate to a boating collision which occurred on Lake Joseph, near Port Carling, Ontario, on September 2, 1990, resulting in the death of two occupants of the boat that was hit and in serious injury to the other two occupants. The appeals and cross-appeals raise several important issues of maritime law.

2     As a preliminary jurisdictional matter, the Court is asked to determine whether the adjudication of maritime fatal accident claims brought by dependants of the deceased is a matter within the exclusive jurisdiction of the Federal Court, Trial Division, or whether jurisdiction over such claims is shared between that court and the provincial superior courts.

3     The central question in these appeals and cross-appeals concerns the constitutional applicability of provincial statutes of general application to maritime negligence claims. Five constitutional questions have been stated for the Court's consideration. Each question concerns the constitutionality and, more importantly, constitutional applicability of a provincial or (in one instance) pre-Confederation statute in relation to a negligence claim arising from a boating accident. The general question which this Court is called upon to answer is 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.

4     Related to the constitutional questions are various subsidiary questions regarding the eligibility of specific categories of negligence claimants in a maritime law action, and the availability of damages in the context of such an action for loss of guidance, care and companionship. These questions in turn raise issues regarding the appropriate scope of judicial reform of Canadian maritime law.

5     Finally, three of the appeals raise the issue of the applicable limitation period for fatal accident claims by dependants of a person killed in a boating collision.

6     Following Bernard Ordon's drowning on July 1, 1990, his widow Deborah Ordon made claims against Larry Grail, the owner and operator of the boat. She brought claims both in her capacity as the deceased's executrix and in her personal capacity, for damages pursuant to s. 38(1) of the Trustee Act, R.S.O. 1990, c. T.23, and s. 61 of the Family Law Act, R.S.O. 1990, c. F.3, respectively. Her Family Law Act claim included claims for lost income and support, lost services, out-of-pocket expenses, personal trauma and nervous shock caused by her husband's death, as well as a claim for compensation for loss of guidance, care and companionship under s. 61(2)(e) of the Family Law Act. The deceased's two children and his mother made similar claims pursuant to the Family Law Act, including claims for loss of guidance, care and companionship under s. 61(2)(e). The corporation of which Ordon was owner, president, and manager also brought a claim against Grail, although that claim has since been abandoned. The action was commenced on March 19, 1991, less than one year after the accident.

7     Before trial, Grail brought a motion in the Ontario Court (General Division) requesting determination of several questions of law prior to trial under Rule 21.01(1a) of the Rules of Civil Procedure, O.Reg. 560/84, and consequent to that, an order striking out several paragraphs of the plaintiffs' Statement of Claim (including the paragraphs pleading the Family Law Act) on the basis that they disclosed no reasonable cause of action. The plaintiffs brought a cross-motion for an order amending certain paragraphs of the Statement of Claim nunc pro tunc so as to allow them to plead their action under the Canada Shipping Act, R.S.C., 1985, c. S-9. McMahon J. granted both the motion and the cross-motion.

8     Grail then sought and was granted leave to appeal the motions judge's decision to permit the plaintiffs to amend their Statement of Claim. Leave was granted in part on the basis that the motions judge's order permitting the action to proceed in the Ontario Court (General Division) under the Canada Shipping Act may have usurped exclusive Federal Court (Trial Division) jurisdiction over maritime wrongful death claims under that Act. The plaintiffs cross-appealed the order striking portions of their Statement of Claim.

9     Subsequently, by order of Dubin C.J.O., four other maritime negligence actions were joined together into a special case to be heard in the first instance by the Court of Appeal for Ontario. These four actions as well as the Lake Erie action were heard together by the Court of Appeal.

10     Three of the special case actions related to a boating collision which occurred on Lake Joseph, near Port Carling, Ontario, on September 2, 1990. The plaintiffs in these three Lake Joseph actions alleged that a "Charger" motorboat owned by Diana Hogarth and operated by her son Christopher Hogarth collided with a "Starcraft" motorboat owned by John Haller and operated by his daughter Josephine Perry. Also in the Starcraft boat with Josephine Perry were her husband Grant Perry as well as Peter Hall and his wife Louise Carroll. No one else was in the Charger boat with Christopher Hogarth. As a result of the collision, Grant Perry and Louise Carroll were killed. Peter Hall suffered serious and permanent brain injuries. Josephine Perry suffered serious personal injuries.

11     Following the accident, three actions were brought against Diana Hogarth, her husband Murray Hogarth, their son Christopher Hogarth, Pioneer Petroleums Inc. (the Hogarth family company), the Edenvale Inn (the bar where it is alleged Christopher Hogarth became intoxicated shortly prior to the accident) and Ontario Holidays Corporation, the owner of the bar. John Haller and Josephine Perry were also named as defendants in two of the actions. In the third action, Josephine Perry was the plaintiff. On consent, the actions against Pioneer Petroleums Inc. have since been discontinued.

12     The first Lake Joseph action, Joanne Perry et al. v. Hogarth et al., was commenced on March 11, 1992. The action was brought by the parents, brothers, sisters and infant daughter of Grant Perry for loss of guidance, care and companionship and for pecuniary losses. The siblings of Grant Perry claimed damages under the Family Law Act. The parents and daughter of Grant Perry claimed damages under the Family Law Act or, alternatively, through the administratrix of Grant Perry's estate under the Canada Shipping Act. As well, the estate of Grant Perry by his administratrix claimed expenses arising from his death under the Trustee Act or alternatively under the Canada Shipping Act.

13     The second Lake Joseph action, Hall et al. v. Hogarth et al., was commenced on June 1, 1992 in relation to the death of Louise Carroll and the injuries sustained by Peter Hall. The action was brought by the parents, brothers and sisters of both Peter Hall and Louise Carroll under the Family Law Act or alternatively under the Canada Shipping Act for loss of guidance, care and companionship and for pecuniary losses. The estate of Louise Carroll, by her executrix, claimed expenses arising from her death under the Trustee Act. In addition, Peter Hall brought a claim for pecuniary losses relating to his injuries and for loss of guidance, care and companionship as a result of his wife's death under the Family Law Act or alternatively under the Canada Shipping Act.

14     The third Lake Joseph action, Josephine Perry v. Hogarth et al., was commenced on August 31, 1992. Josephine Perry claimed damages under the Family Law Act or alternatively under the Canada Shipping Act for her own injuries including shock, as well as damages for loss of guidance, care and companionship and pecuniary losses resulting from the death of her husband, Grant Perry.

15     All of the defendants in the first two Lake Joseph actions pleaded contributory negligence on the part of Josephine Perry as operator of the boat that was struck and on the part of John Haller, Peter Hall, and the deceased Louise Carroll. Josephine Perry pleaded contributory negligence on the part of her co-defendants and on the part of Peter Hall and Louise Carroll. The defendant Ontario Holidays Corporation also pleaded contributory negligence on the part of the three Hogarth defendants.

16     All of the defendants in the Lake Joseph actions took the position that the Ontario Family Law Act, Trustee Act, and the contributory negligence provisions of the Negligence Act, R.S.O. 1990, c. N.1, do not form part of Canadian maritime law, and that all of the plaintiffs' claims should have been brought pursuant to the Canada Shipping Act. As a consequence, it was pleaded that none of the claims made pursuant to these provincial statutes disclosed a reasonable cause of action or defence. With respect to the wrongful death claims brought by the dependants of Grant Perry and Louise Carroll, the defendants took the position that the claims were statute-barred by the one-year limitation period contained in s. 649 of the Canada Shipping Act. Further, the defendants took the position that maritime wrongful death claims cannot be brought in the Ontario Court (General Division) in light of the exclusive jurisdiction granted to the Federal Court, Trial Division over such matters by s. 646 of the Canada Shipping Act.

17     The fourth action making up the special case that was heard by the Court of Appeal along with the Lake Erie action was an action in relation to a boating accident on Lac Seul on June 25, 1992 which resulted in the drowning of one of the occupants of the boat. Leave to appeal to this Court in the Lac Seul action was not sought, and consequently nothing more need be said about that action.

18     Constitution Act, 1867

19     The motions judge in the Ordon et al. v. Grail action was asked to determine three preliminary points of law, only one of which is relevant to this appeal, namely, whether a plaintiff who alleges the negligent operation of a vessel may assert a claim for damages under the Family Law Act, i.e., under a provincial statute.

20     McMahon J. reviewed two decisions of this Court which he believed to be determinative of the issue: ITO--International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752, and Whitbread v. Walley, [1990] 3 S.C.R. 1273. He found that these cases established that tortious liability for conduct arising in a maritime context is governed exclusively by Canadian maritime law, which is federal law that is uniform across Canada. He concluded that the Family Law Act therefore had no application to the immediate cause of action, and ordered that the portions of the Statement of Claim pleading the Family Law Act be struck out. McMahon J. granted the plaintiffs' cross-motion to amend the Statement of Claim nunc pro tunc in order to plead their claims under the Canada Shipping Act.

     B. Court of Appeal for Ontario

     (1) Order of Dubin C.J.O.

21     On November 10, 1994, Dubin C.J.O. joined the three Lake Joseph actions and the Lac Seul action into a special case to be heard at first instance by the Court of Appeal for Ontario. Ten questions were stated for the court's consideration. The special case was heard at the same time as the appeal in the Lake Erie action. In addition to the issues with respect to the applicability of the Family Law Act and the jurisdiction of Ontario Court (General Division) which were raised by the Lake Erie action, the special case dealt with the following issues: (1) the applicability of the Act respecting compensation to the Families of Persons killed by Accident, and in duels, C.S.C. 1859, c. 78, and of the English Fatal Accidents Acts, 1846 to 1908 to a maritime fatal accident claim; (2) the relevant limitation period with respect to a maritime fatal accident claim by a dependant; (3) the ability of dependants of a person injured but not killed in a maritime accident to bring an action for damages; (4) the ability of siblings of a person killed or injured in a maritime accident to bring a dependant's claim for damages; (5) the effect of contributory negligence upon a negligence claim in the maritime context; (6) the applicability of the Ontario Trustee Act to a maritime fatal accident claim; and (7) the applicability of the Ontario Occupiers' Liability Act, R.S.O. 1990, c. 0.2 to a maritime fatal accident claim.

22     The Court of Appeal rendered a per curiam judgment in relation to the Lake Erie action and the stated case on October 22, 1996.

23     The court dealt first with the jurisdictional issue of whether Part XIV of the Canada Shipping Act assigns exclusive jurisdiction over maritime fatal accident claims by dependants to the Federal Court, Trial Division. The court noted that the provincial superior courts have long exercised jurisdiction over maritime negligence actions relating to collisions on inland waters. Referring to other sections of the Canada Shipping Act which explicitly assign exclusive jurisdiction to the Federal Court over specific matters, the Court concluded that where Parliament intended the Federal Court to have exclusive jurisdiction, it said so in clear words. The Court found nothing in Part XIV of the Act that expressly or impliedly excluded provincial superior court jurisdiction over fatal accident claims by dependants, and therefore concluded that the Ontario Court (General Division) was properly vested with jurisdiction over the claims.

24     Next, in order to deal with the questions regarding the applicability of provincial and British statutes to the various actions, the Court turned to consider more broadly the content of Canadian maritime law. Three decisions of this Court were considered on this point: ITO, supra, Whitbread, supra, and Q.N.S. Paper Co. v. Chartwell Shipping Ltd., [1989] 2 S.C.R. 683. The general principles drawn from these three cases by the Court of Appeal were the following: Canadian maritime law as defined in s. 2 of the Federal Court Act, R.S.C., 1985, c. F-7, should be understood within the modern context of commerce and shipping, and its content should not be considered frozen by the Admiralty Act, 1934, S.C. 1934, c. 31. It is the maritime law of England as it has been incorporated into Canadian law. It is a body of federal law that is uniform throughout Canada, and it is not the law of any province of Canada. In particular, Canadian maritime law governs all tortious liability arising in a maritime context, whether the impugned conduct occurred in a major shipping lane or on an inland lake. Finally, the Court of Appeal read this Court's decision in ITO, supra, as stating that a court adjudicating a maritime law matter may apply provincial law which is incidentally necessary to resolve the issues presented by the parties.

25     
With respect to the application of provincial law to the maritime law actions on appeal, the Court of Appeal noted that this Court has applied provincial legislation to maritime accidents in the past, notably in Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802. The Court of Appeal concluded that this Court in ITO, Whitbread and Chartwell had not overruled its earlier decision in Stein. The Court of Appeal stated as a guiding principle that when considering whether a particular provincial law should be applied to a maritime accident claim, a court should determine whether the provincial law would encroach upon or destroy the uniformity of federal maritime law so as to frustrate the exclusive, uniform federal jurisdiction relating to navigation and shipping. The court proceeded to apply this principle in considering the applicability of each provincial statute at issue in the appeals.

26     Family Law Act: The Court of Appeal found that Parliament has already defined the class of persons who may recover in a maritime wrongful death claim in Part XIV of the Canada Shipping Act, such that to apply the Family Law Act to supplement this class would conflict with federal maritime law.

27     An Act respecting compensation to the Families of Persons killed by Accident, and in duels and the English Fatal Accidents Acts, 1846 to 1908: The Court of Appeal found that any claims formerly available under these statutes for maritime wrongful death have been displaced by the provisions of Part XIV of the Canada Shipping Act. In addition, the Court found that none of these statutes provided any benefit that was not already provided by Part XIV.

28     Trustee Act: The court noted that, whereas the Canada Shipping Act does not provide that the estate of the deceased can bring a claim for damages arising after an accident but prior to death, s. 38(1) of the Trustee Act expressly provides for such recovery. Applying the principles it had earlier set out, the Court found that the Trustee Act, like the Contributory Negligence Act in the Stein case, could be called upon to fill the gap. The Court concluded that applying the Trustee Act in this way would not compromise the fundamental principles of Canadian maritime law or the uniformity of that law.

29     Occupiers' Liability Act: The Court of Appeal found that there was no gap in federal maritime law which the Occupiers' Liability Act could be called upon to fill, in the sense that the liability of a defendant occupier of a boat can be determined by reference to basic principles of negligence law in their maritime context. The Court of Appeal concluded that the Occupiers' Liability Act cannot be applied to an accident which occurred on a body of inland water.

30     Negligence Act: On the authority of Stein, supra, the Court of Appeal concluded that the contributory negligence provisions of the Negligence Act may be applied to apportion liability.

31     Following its consideration of the applicability of the various provincial statutes, the Court of Appeal dealt with the classes of plaintiffs eligible to bring claims and the types of losses for which they could recover.

32     The court found that, although a claim for loss of guidance, care and companionship cannot be brought under the Family Law Act (in light of the foregoing analysis), such a claim may be brought under the Canada Shipping Act. The Court held that, even if the word "damages" in s. 647 of the Canada Shipping Act did not originally refer to damages for this variety of non-pecuniary loss, Canadian maritime law is not frozen or static, and should develop to allow for such a claim in conformity with contemporary concepts of loss resulting from wrongful death.

33     The court similarly held that dependants of a person injured but not killed in a boating accident could recover damages for loss of guidance, care and companionship. The Court found that, although such a claim is not provided for in the Canada Shipping Act, it would be anomalous to provide for such recovery in fatal accident cases but not in cases of personal injury, particularly cases of serious personal injury such as that suffered by Peter Hall in the Lake Joseph accident. The Court accordingly allowed for the claim as part of the "continued appropriate growth of Canadian maritime law" (pp. 674-75).

34     With respect to eligible claimants, the Court of Appeal noted that those who may make a claim for wrongful death in the maritime context are specifically listed in the definition of "dependants" in s. 645 of the Canada Shipping Act. That definition lists the wife, husband, parents and children of the deceased, but not siblings or common law spouses. Since the Canada Shipping Act is the controlling legislation, the court found that siblings are not permitted to assert a claim. However, in accordance with the decision of this Court in Miron v. Trudel, [1995] 2 S.C.R. 418, the Court of Appeal held that it was necessary to interpret the words "husband" and "wife" in s. 645 of the Canada Shipping Act as including common law spouses, in order to comply with constitutional equality requirements.

35     The final issue considered by the Court of Appeal was the applicable limitation period in relation to the Lake Joseph claims. The issue was stated as whether only the one-year limitation period specified in s. 649 of the Canada Shipping Act could apply to the dependants' claims, or whether resort could be had to the two-year limitation period in s. 572(1) of the Act, or alternatively whether the court had jurisdiction to extend, and should extend, the limitation period in some other manner. The Court of Appeal held that where a dependant of a person killed in a boating accident brings a claim, that claim must be brought under Part XIV of the Canada Shipping Act, such that the limitation period in that Part must apply, notwithstanding the existence of a distinct and longer limitation period in s. 572(1) which expressly applies to collisions between boats resulting in loss of life. On the other hand, the dependants' claims relating to the injuries of Peter Hall were found to be governed by the two-year limitation period under s. 572(1).

36     Having found that the dependants' fatal accident claims were statute-barred, the Court was of the opinion that to deny the plaintiffs their recourse under the circumstances would be extremely unfair and would result in a gross injustice. Relying upon the decision of this Court in Basarsky v. Quinlan, [1972] S.C.R. 380, the Court of Appeal found that special circumstances existed which justified a discretionary extension of the limitation period. It found these special circumstances in the fact that, at the time the Lake Joseph actions were commenced, it was generally thought that maritime wrongful death claims by dependants could be brought pursuant to provincial legislation, which in this case provided a longer limitation period. The court also noted that the defendants in this case were aware of the nature of the claims against them and would suffer no prejudice as a result of the exercise of the court's discretion.

37     Defendants in the three Lake Joseph actions and the Lake Erie action applied for and were granted leave to appeal to this Court. Several plaintiffs also applied for and were granted leave to cross-appeal. On March 16, 1998, Iacobucci J. stated five constitutional questions for consideration by this Court in relation to the appeals and cross-appeals:

1     Whether the provisions of Part V of the Family Law Act, R.S.O. 1990, c. F.3, in whole or in part, allowing claims for loss of guidance, companionship and other losses, are constitutionally inapplicable to losses arising from a personal injury suffered by another arising out of the alleged negligent operation or ownership of a vessel on inland waters in Ontario, and/or ultra vires insofar as they purport to govern losses or damages arising out of a boating accident.

2     Whether the provisions of the Act respecting compensation to the Families of Persons killed by Accident, and in duels, C.S.C. 1859, c. 78, are constitutionally inapplicable in whole or in part to an action based on alleged negligent operation or ownership of a vessel on inland waters in Ontario resulting in a fatality, and/or ultra vires insofar as they purport to govern losses or damages arising out of a boating accident.

3     Whether the provisions of s. 38(1) of the Trustee Act, R.S.O. 1990, c. T.23, are constitutionally inapplicable in whole or in part to an action based on alleged negligent operation or ownership of a vessel on inland waters in Ontario resulting in a fatality, and/or ultra vires insofar as they purport to govern losses or damages arising out of a boating accident.

4     Whether the provisions of the Negligence Act, R.S.O. 1990, c. N.1, allowing the apportionment of liability in accordance with fault are constitutionally inapplicable in whole or in part to an action based on the alleged negligent operation or ownership of a vessel on inland waters in Ontario resulting in personal injury or death, and/or ultra vires insofar as they purport to govern losses or damages arising out of a boating accident.

5     Whether the provisions of the Occupiers' Liability Act, R.S.O. 1990, c. O.2, allowing claims for damages are constitutionally inapplicable in whole or in part in an action based on alleged negligent operation or ownership of a vessel on inland waters in Ontario resulting in a fatality, and/or ultra vires insofar as they purport to govern losses or damages arising out of a boating accident.

38     The issue of the applicability of the Occupiers' Liability Act was raised only by the litigants in the Lac Seul action. As leave to appeal to this Court was not sought in the Lac Seul action, the issue is moot, and accordingly these reasons do not address constitutional question No. 5.

39     The issues in this appeal are the following:

40     Only some of the original defendants in these four actions have sought leave to appeal to this Court, and accordingly some defendants are appellants and some are respondents to the appeals brought by the other defendants. However, the defendants' submissions, whether made as appellant or respondent, tend to support one another and to be opposed to those of the plaintiff-respondents. In the interests of clarity and brevity, we shall use in these reasons the terms "plaintiffs" and "defendants" to refer to the original plaintiffs and defendants, whether they are appellants or respondents before this Court.

41     The defendants submit that s. 646 of the Canada Shipping Act assigns exclusive jurisdiction to the Federal Court, Trial Division to entertain in personam fatal accident claims by dependants of a deceased arising from the alleged negligent operation or ownership of a vessel on inland waters in Ontario. They argue that the Ontario Court (General Division) is therefore without jurisdiction to hear such claims, and that the claims by the dependants of the deceased in these appeals were brought in the wrong court.

42     At the outset, it is important to identify the precise type of claim with respect to which the jurisdiction of the Ontario Court (General Division) is disputed. None of the parties in these appeals disputes the jurisdiction of a provincial superior court to hear claims for personal injury (whether by the injured party or, assuming such a claim may be brought, by his or her dependants) arising out of a boating accident. It is only claims by dependants of a person killed in a boating accident which are at issue. As well, none of the parties disputes that, if it is found that the estate of a person killed in a boating accident is entitled to maintain an action to pursue the claims of the deceased him- or herself, the provincial superior courts possess jurisdiction to entertain the action. Finally, it is relevant to note (although it is not determinative of the issue of jurisdiction) that all of the claims at issue in these appeals have been brought in personam (i.e., against the owners and those allegedly responsible for the operation of the boat) and not in rem (i.e., against the boat itself). The issue presented for this Court's consideration is, therefore, specifically, whether the Ontario Court (General Division) has jurisdiction to entertain an in personam fatal accident claim by a dependant of the deceased arising out of a boating accident which occurred on navigable waters within Ontario, or whether such jurisdiction has been ousted by s. 646 of the Canada Shipping Act.

43     We agree with the Court of Appeal for Ontario that s. 646 of the Canada Shipping Act does not assign exclusive jurisdiction over dependants' maritime fatal accident claims to the Federal Court, Trial Division. Rather, the Federal Court, Trial Division and the provincial superior courts have concurrent jurisdiction over such claims. We arrived at this conclusion for many reasons. They include a consideration of the intended meaning and purpose of s. 646 of the Canada Shipping Act in light of the history of maritime fatal accident claims in Canadian law, the wording of s. 646, its statutory context, previous jurisprudence, and policy considerations regarding the jurisdiction of the Federal Court.

44     It is well settled, and the defendants do not dispute, that as a general rule provincial superior courts have plenary and inherent jurisdiction to hear and decide all cases that come before them, regardless of whether the law applicable to a particular case is provincial, federal or constitutional: Valin v. Langlois (1879), 3 S.C.R. 1, at pp. 19-20; Ontario (Attorney General) v. Pembina Exploration Canada Ltd., [1989] 1 S.C.R. 206, at p. 217; Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626, at paras. 26-32.

45     This general rule is subject to important exceptions. In particular with reference to these appeals, Parliament may, within constitutional limits, derogate from the jurisdiction of the provincial courts by conferring jurisdiction upon federal courts constituted by statute pursuant to s. 101 of the Constitution Act, 1867. This exception was acknowledged by Pigeon J., writing for the majority of the Court in R. v. Thomas Fuller Construction Co. (1958) Ltd., [1980] 1 S.C.R. 695, at p. 713, where he stated:

46     As a statutory court, the Federal Court of Canada has no jurisdiction except that assigned to it by statute. In light of the inherent general jurisdiction of the provincial superior courts, Parliament must use express statutory language where it intends to assign jurisdiction to the Federal Court. In particular, it is well established that the complete ouster of jurisdiction from the provincial superior courts in favour of vesting exclusive jurisdiction in a statutory court (rather than simply concurrent jurisdiction with the superior courts) requires clear and explicit statutory wording to this effect. This latter principle finds early expression in the judgment in Peacock v. Bell (1677), 1 Wms. Saund. 73, 85 E.R. 84, at pp. 87-88:

47     In accordance with the inherent jurisdiction of the superior courts, it has long been held that the provincial superior courts have jurisdiction over matters involving maritime law, including negligence actions resulting from collisions or other accidents involving vessels on inland waters: Shipman v. Phinn (1914), 31 O.L.R. 113 (H.C.), aff'd (1914), 32 O.L.R. 329 (C.A.); Pile Foundations Ltd. v. Selkirk Silica Co. (1967), 59 W.W.R. 622 (Man. Q.B.); Heath v. Kane (1975), 10 O.R. (2d) 716 (C.A.); Harvey v. Tarala (1977), 6 Sask. R. 74 (Q.B.); Ontario (Attorney General) v. Pembina Exploration Canada Ltd., supra.

48     The Federal Court Act confirms the jurisdiction of the provincial superior courts over matters involving Canadian maritime law, by recognizing (in s. 22 of the Act) the Federal Court, Trial Division's concurrent jurisdiction over such matters. Section 22 of the Federal Court Act states in relevant part:

49     The defendants do not contest the general proposition that the Federal Court, Trial Division shares concurrent jurisdiction over maritime matters with the provincial superior courts. Rather, they submit that jurisdiction to adjudicate a specific variety of maritime matter, namely in personam fatal accident claims brought by dependants of the deceased, has, in the language of s. 22(1) of the Federal Court Act, "been otherwise specially assigned" by statute. They argue that s. 646 of the Canada Shipping Act specially assigns jurisdiction over such claims to the Federal Court, Trial Division, to the exclusion of the provincial superior courts.

50     The defendants' argument in favour of exclusive jurisdiction in the Federal Court, Trial Division may be summarized as follows: (a) Part XIV of the Canada Shipping Act is the only basis at law whereby dependants of a person killed in a maritime accident may seek relief; (b) s. 646 of the Canada Shipping Act specifies an exclusive forum for such claims by providing that a dependant "may maintain an action for damages in the Admiralty Court"; and (c) the "Admiralty Court" is defined in s. 2 of the Canada Shipping Act as the Federal Court. The jurisdiction argument is most elaborately advanced by the appellant Grail who, in support of his interpretation of s. 646 of the Canada Shipping Act, relies upon the wording of ss. 646 and 650 of the Act, the judgment of this Court in Stein, supra, as well as Hansard and other sources with respect to the original legislative purpose underlying what is now s. 646. Throughout his submissions on this issue, the appellant Grail also emphasizes what he perceives (wrongly in our view) as a distinction between the Federal Court's jurisdiction over maritime accidents involving a collision and its jurisdiction over accidents not involving a collision.

51     The history of maritime fatal accident claims in the United Kingdom and Canada was thoroughly reviewed by the Court of Appeal for Ontario in the judgment below. A review of this history is of assistance in determining the intended effect of Part XIV of the Canada Shipping Act. A brief summary of that history follows here.

52     Prior to the enactment of the Fatal Accidents Act, 1846 (U.K.), 9 & 10 Vict., c. 93 ("Lord Campbell's Act"), all claims which might have been brought by a person killed by the wrongful act or omission of another (whether in the maritime context or otherwise) died with the victim, in accordance with the common law maxim actio personalis moritur cum persona. Lord Campbell's Act remedied this gap in the law by creating a statutory right in dependants of the deceased to bring an action against the person whose wrongful act or omission had caused the death.

53     In Seward v. The "Vera Cruz" (1884), 10 App. Cas. 59, however, the House of Lords limited the applicability of Lord Campbell's Act in the maritime context. The Lords held that a dependant was entitled to bring only an action in personam against the person or persons at fault, and was precluded from bringing an action in rem against the ship itself. The effect of this ruling was that any meaningful recourse by a dependant for wrongful death caused by a foreign ship was largely precluded, given the difficulty involved in bringing the owners and crew of a foreign ship before British courts.

54     To remedy this deficiency, the British Parliament enacted s. 5 of the Maritime Conventions Act, 1911 (U.K.), 1 & 2 Geo. 5, c. 57, which provided:

55     In Canada, Parliament adopted a virtually identical provision in s. 6 of the Maritime Conventions Act, 1914, S.C. 1914, c. 13. However, in The Ship Catala v. Dagsland, [1928] Ex. C.R. 83, the Exchequer Court concluded that the governing rule with respect to in rem fatal accident claims was that established by the House of Lords in Seward v. The "Vera Cruz", which the Exchequer Court found had not been affected by the enactment of the Maritime Conventions Act, 1914. Consequently, as a matter of Canadian law after 1928, a dependant of a person killed in a maritime accident did not have the right to bring an in rem claim against the ship responsible for the death: see Rogers v. S.S. Baron Carnegie, [1943] Ex. C.R. 163. We note that the modern version of s. 6 of the Maritime Conventions Act, 1914 is now s. 571 of the Canada Shipping Act.

56     In 1948, Parliament passed the Act to amend the Canada Shipping Act, 1934, S.C. 1948, c. 35, which contained several amendments to the Canada Shipping Act, including the introduction of what is now Part XIV dealing with fatal accidents. In moving second reading of the amending legislation in the House of Commons, the Minister of Transport introduced the new fatal accidents provisions in the following terms (House of Commons Debates (May 17, 1948), at p. 3994):

57     We agree with the Court of Appeal for Ontario that the above passage summarizes the effect of the enactment of what is now Part XIV of the Canada Shipping Act with respect to in rem actions by dependants. The Court of Appeal noted that this review of the history of Part XIV of the Act, and of s. 646 in particular, does not yield an answer to the specific question as to whether s. 646 was intended by Parliament to oust the jurisdiction of the superior courts over fatal accident claims by dependants. However, in our view, the history underlying the enactment of Part XIV, including especially the lack of an indication that Part XIV was designed in any way to restrict the remedies already available to aggrieved dependants, does assist a court in determining that s. 646 does not assign exclusive jurisdiction. In addition, the wording of s. 646, which is admittedly unclear, uses permissive language regarding Federal Court jurisdiction and in this respect is consistent with the historical purpose of adding in rem actions to the Federal Court and not exclusively assigning that jurisdiction to the Federal Court. Given the remedial purpose of Part XIV of the Canada Shipping Act, the defendants' submission that the new provisions ousted the jurisdiction of the superior courts to try maritime fatal accident claims (to the clear detriment of claimants) is somewhat illogical.

58     The current Part XIV (ss. 645 to 653) of the Canada Shipping Act, then, sets out a statutory regime whereby dependants of a person killed in a maritime accident may bring a claim, either in personam or in rem, for relief. Section 646 of the Act reads as follows:

59     The wording of Part XIV of the Canada Shipping Act leaves something to be desired. While s. 646 does not expressly exclude the jurisdiction of the provincial superior courts, the provision does appear to confer jurisdiction, and in so doing refers only to the Admiralty Court. Further, s. 650 of the Act confers a dispensing power only on "the Admiralty Court or a judge thereof". While on its face, the wording of these provisions lends a certain logic to the defendants' proposition that only the Federal Court has jurisdiction to entertain maritime fatal accident claims by dependants, Parliament's omission to acknowledge the jurisdiction of the provincial superior courts over dependants' fatal accident claims in ss. 646 and 650 falls short of evincing an intention either to create a new cause of action with exclusive jurisdiction in the Federal Court, or to oust completely the jurisdiction of the superior courts over an existing cause of action in favour of the Federal Court.

60     As noted by the Court of Appeal below, when Parliament intended the Federal Court to have exclusive jurisdiction to adjudicate a particular matter in the Canada Shipping Act, it set this intention out in clear language in the Act. For example, ss. 209(2) and 453, as well as the newly enacted s. 580(1) (see S.C. 1998, c. 6), state:

61     The lack of any express language in s. 646 of the Canada Shipping Act excluding superior court jurisdiction, or vesting sole jurisdiction in the Admiralty Court, is sufficient by itself to justify interpreting s. 646 as conferring on the Admiralty Court only concurrent jurisdiction over fatal accident claims by dependants. This finding accords with the basic principle of statutory construction that a statute should not be interpreted as abrogating the inherent jurisdiction of the superior courts unless it employs clear language to this effect: Peacock v. Bell, supra; Board v. Board, supra; Re Minister of Social Welfare and Rehabilitation and Dube, supra; Canada (Human Rights Commission) v. Canadian Liberty Net, supra.

62     Some support for this approach to the interpretation of jurisdictional provisions relating to the Federal Court is provided by recent amendments to the Federal Court Act with respect to proceedings against the Crown. Prior to 1992, s. 17(1) of the Federal Court Act assigned exclusive jurisdiction to the Federal Court, Trial Division in all cases in which relief was claimed against the federal Crown. The exclusion of provincial superior court jurisdiction had the undesirable result that civil claims against both the federal government and another party (private persons, corporations, or other governments) could not be dealt with by a single court. Instead, costly and burdensome parallel proceedings had to be launched in both the Federal Court, Trial Division and the relevant provincial court. With the passage of the Act to amend the Federal Court Act, the Crown Liability Act, the Supreme Court Act and other Acts in consequence thereof, S.C. 1990, c. 8, which came into force on February 1, 1992, s. 17(1) of the Federal Court Act was amended so that it now assigns the Federal Court, Trial Division only concurrent jurisdiction over civil claims against the federal Crown. We are of the view that it accords with Parliament's general objective of avoiding unnecessary parallel proceedings to apply an interpretive principle which has the same beneficial effect. Parliament must be assumed not to have intended to impair or defeat the remedies it has made available to maritime fatal accident claimants by imposing costly and useless procedural hurdles to the bringing of an action. We can think of no reason as a matter of policy or principle to confine jurisdiction over maritime fatal accident claims to the Federal Court alone. This ground of appeal therefore fails.

63     Before moving on to consider the remaining grounds of appeal, three issues should be briefly addressed. First, the appellant Grail relies upon the decision of this Court in Stein, supra, in support of his submission that s. 646 of the Canada Shipping Act should be interpreted as assigning exclusive jurisdiction to the Federal Court. In particular, he relies upon the following passage from the judgment of Ritchie J., writing for the Court (at pp. 820-81):

64     Second, we consider it appropriate to address briefly the appellant Grail's submission that fatal accident claims by dependants are subject to different statutory regimes within the Canada Shipping Act depending upon whether or not the accident involved a collision between ships. The Canada Shipping Act contains numerous provisions dealing with fatal accident claims. Most of these provisions are contained in Part XIV of the Act. Several others are contained in Part IX of the Act, dealing with collisions, whose focus is primarily upon apportionment of liability, limitation periods, and the reporting of collisions. Where a fatal accident claim does not stem from a collision between vessels, of course, the collisions provisions of the Act will not come into play. Where a claim does relate to a collision, the relevant provisions of Part IX must be read in conjunction with Part XIV and, as is discussed below, with other sources of Canadian maritime law, as interrelated components of a single larger regime dealing with maritime fatal accidents. We will return to a discussion of the interplay between Parts IX and XIV of the Canada Shipping Act later on in these reasons, when discussing the relevant limitation period with respect to the three Lake Joseph actions.

65     Third, several of the parties have asked this Court, in the event that s. 646 of the Canada Shipping Act is found to confer exclusive jurisdiction upon the Federal Court, to decide whether the Ontario Court (General Division) nonetheless has jurisdiction to grant them relief under any of the following three potential sources of maritime law: (1) the Act respecting compensation to the Families of Persons killed by Accident, and in duels; (2) the English Fatal Accidents Acts, 1846 to 1908; or (3) non-statutory principles of Canadian maritime law. In light of our finding that s. 646 does not establish an exception to the concurrent jurisdiction of the Ontario Court (General Division) over maritime law claims under the Canada Shipping Act, it is not necessary to answer this jurisdictional question.

66     The constitutional issue raised by the present appeals is whether a validly enacted provincial statute of general application may be applied to deal with incidental aspects of a maritime negligence claim that is otherwise governed entirely by federal maritime law. The issue has never been directly addressed by this Court in constitutional form.

67     The issue arises because the plaintiffs in these actions wish to have the advantage of certain causes of action created by the Ontario Family Law Act and Trustee Act, and of the contributory negligence provisions of the Ontario Negligence Act. The Canada Shipping Act does not expressly provide for dependants' fatal accident claims by siblings of the deceased, for damage claims by the deceased's executor in the name of the deceased, for claims for loss of guidance, care and companionship, or for a general regime of apportionment according to fault. The provincial statutes do. The plaintiffs submit that the application of these provincial statutes to permit such claims is merely incidental to the maritime law character of the actions themselves, which are otherwise governed by the common law of negligence as embodied in federal maritime law.

68     This Court's recent maritime law jurisprudence makes clear that Canadian maritime law is a body of federal law, uniform across the country, within which there is no room for the application of provincial statutes. What the case law does not explicitly address, however, is whether and when it is contrary to the division of powers as set out in the Constitution Act, 1867 for provincial statutes of general application to apply on their own terms as provincial law within a factual context which is otherwise governed by federal maritime law. The plaintiffs in these appeals submit that, although provincial statutes are not usually applicable to resolve maritime matters, they should nevertheless be applied as incidentally necessary to fill gaps which may exist in federal maritime negligence law. The defendants, for their part, submit that provincial statutes can have no incidental application to any matter within the scope of Parliament's exclusive jurisdiction over maritime law (i.e., navigation and shipping) under s. 91(10) of the Constitution Act, 1867.

69     
Counsel for the plaintiffs rely in particular upon two cases in which provincial statutes of general application have been applied by this Court in a maritime negligence law context. In Canadian National Steamships Co. v. Watson, [1939] S.C.R. 11, a crew member of a ship owned by the appellant company successfully brought an action in negligence against the company following an accident at sea in which he suffered personal injury. At issue in the appeal to this Court was, inter alia, whether the trial judge had applied the wrong law of negligence in awarding damages to the seaman. The majority judgment of the Court on this point was delivered by Duff C.J., whose reasons read in relevant part, at pp. 15-16:

70     Similarly, in Stein, supra, an action was brought by the widow and executors (on behalf of dependants) of Charles Stein, a crew member on a small sailboat who died when the boat collided with a barge near Vancouver. The trial judge found that the crew of the sailboat was contributorily negligent, and apportioned liability on the basis of 75 per cent to the barge and 25 per cent to the sailboat. The Federal Court of Appeal overturned the trial judgment. On appeal to this Court, the trial judgment was restored. Ritchie J., speaking for the Court, gave the following reasons at p. 823 in addressing the issue of contributory negligence:

71     Subsequent to the decision in Stein, a reorientation has occurred in this Court's maritime law jurisprudence, beginning most notably with the decision in ITO, supra, followed by Chartwell, supra, Whitbread, supra, Monk Corporation v. Island Fertilizers Ltd., [1991] 1 S.C.R. 779; Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210, and Porto Seguro Companhia De Seguros Gerais v. Belcan S.A., [1997] 3 S.C.R. 1278. These cases establish a number of basic principles and themes regarding the sources and content of Canadian maritime law, the role of provincial law in relation thereto, and the scope for gradual change and development in maritime law. These general principles and themes, insofar as they are relevant to the instant appeals, may be summarized as follows:

1     "Canadian maritime law" as defined in s. 2 of the Federal Court Act is a comprehensive body of federal law dealing with all claims in respect of maritime and admiralty matters. The scope of Canadian maritime law is not limited by the scope of English admiralty law at the time of its adoption into Canadian law in 1934. Rather, the word "maritime" is to be interpreted within the modern context of commerce and shipping, and the ambit of Canadian maritime law should be considered limited only by the constitutional division of powers in the Constitution Act, 1867. The test for determining whether a subject matter under consideration is within maritime law requires a finding that the subject matter is so integrally connected to maritime matters as to be legitimate Canadian maritime law within federal competence: ITO, supra, at p. 774; Monk Corporation, supra, at p. 795.

2     Canadian maritime law is uniform throughout Canada, and it is not the law of any province of Canada. All of its principles constitute federal law and not an incidental application of provincial law: ITO, supra, at pp. 779, 782; Chartwell, supra, at p. 696.

3     The substantive content of Canadian maritime law is to be determined by reference to its heritage. It includes, but is not limited to, the body of law administered in England by the High Court on its Admiralty side in 1934, as that body of law has been amended by the Canadian Parliament and as it has developed by judicial precedent to date: ITO, supra, at pp. 771, 776; Chartwell, supra, at pp. 695-96.

4     English admiralty law as incorporated into Canadian law in 1934 was an amalgam of principles deriving in large part from both the common law and the civilian tradition. It was composed of both the specialized rules and principles of admiralty, and the rules and principles adopted from the common law and applied in admiralty cases. Although most of Canadian maritime law with respect to issues of tort, contract, agency and bailment is founded upon the English common law, there are issues specific to maritime law where reference may fruitfully be made to the experience of other countries and specifically, because of the genesis of admiralty jurisdiction, to civilian experience: ITO, supra, at p. 776; Chartwell, supra, at pp. 695-97.

5     The nature of navigation and shipping activities as they are practised in Canada makes a uniform maritime law a practical necessity. Much of maritime law is the product of international conventions, and the legal rights and obligations of those engaged in navigation and shipping should not arbitrarily change according to jurisdiction. The need for legal uniformity is particularly pressing in the area of tortious liability for collisions and other accidents that occur in the course of navigation: Whitbread, supra, at pp. 1294-95; Bow Valley Husky, supra, at pp. 1259-60.

6     In those instances where Parliament has not passed legislation dealing with a maritime matter, the inherited non-statutory principles embodied in Canadian maritime law as developed by Canadian courts remain applicable, and resort should be had to these principles before considering whether to apply provincial law to resolve an issue in a maritime action: ITO, supra, at pp. 781-82; Bow Valley Husky, supra, at p. 1260.

7     Canadian maritime law is not static or frozen. The general principles established by this Court with respect to judicial reform of the law apply to the reform of Canadian maritime law, allowing development in the law where the appropriate criteria are met: ITO, supra, at p. 774; Bow Valley Husky, supra, at pp. 1261-68; Porto Seguro, supra, at pp. 1292-1300.

72     These appeals provide an appropriate occasion on which to resolve the issue of whether and when it is constitutionally permissible for provincial statutes to be applied in the context of a maritime law negligence claim. All of the relevant principles for this resolution have been stated in one form or another in the Court's recent maritime law jurisprudence. We believe that it will prove useful for future cases if these principles are assembled and synthesized into a test that may be applied in any instance where a provincial statute is sought to be invoked as part of a maritime law negligence claim. The test has four steps.

73     The first step involves a determination of whether the specific subject matter at issue in a claim is within the exclusive federal legislative competence over navigation and shipping under s. 91(10) of the Constitution Act, 1867. Is the matter truly a matter of Canadian maritime negligence law? As stated by McIntyre J. in ITO, supra, at p. 774, and as restated by Iacobucci J. in Monk Corporation, supra, at p. 795, it must be determined whether the facts of a particular case raise a maritime or admiralty matter, or rather a matter which is in pith and substance one of local concern involving property and civil rights or any other matter which is in essence within exclusive provincial jurisdiction under s. 92 of the Constitution Act, 1867. The test for making this determination is to ask whether the subject matter under consideration in the particular case is so integrally connected to maritime matters as to be legitimate Canadian maritime law within federal legislative competence. As is clear from this Court's recent jurisprudence on the issue, the answer to this question is to be arrived at through an examination of the factual context of the claim.

74     Once the court determines that the subject matter at issue is legitimately one of Canadian maritime negligence law, the second step involves a determination of whether it is necessary for the party who seeks to rely upon the provincial statute within the context of a maritime negligence claim to do so. That is, before engaging in what may well be an unnecessary constitutional analysis of the applicability of a provincial law, a court should consider whether a counterpart to the statutory provision upon which the party seeks to rely is present within Canadian maritime law itself. Such a counterpart could be a duplication of the provincial law within federal maritime law (e.g., a cause of action for dependants of a person killed), or it could be a provision or rule which deals with the same issue as the provincial provision but in a different manner (e.g., common law agency principles as contained in Canadian maritime law deal with agency issues in a manner different from the agency principles contained in the Civil Code of Québec, S.Q. 1991, c. 64). Of course, where Canadian maritime law deals differently with an issue addressed in the provincial statute sought to be relied upon, it may still be necessary to engage in a constitutional analysis if the party seeking to rely upon the provincial statute argues that the federal and provincial laws should operate simultaneously.

75     Whatever the case, it is important to canvass all of the relevant sources of Canadian maritime law when seeking to determine whether an issue has already been addressed. Canadian maritime law has sources which are both statutory and non-statutory, national and international, common law and civilian: Chartwell, supra, at pp. 695-97. As stated by McIntyre J. in ITO, supra, at p. 774, the scope and content of Canadian maritime law is defined in s. 2 of the Federal Court Act in a comprehensive manner, encompassing all claims in respect of maritime and admiralty matters. The sources of Canadian maritime law include, but are not limited to, the specialized rules and principles of admiralty, and the rules and principles adopted from the common law and applied in admiralty cases, as administered in England by the High Court on its Admiralty side in 1934 and as amended by the Canadian Parliament and developed by judicial precedent to date. The sources of Canadian maritime law have recently been interpreted by this Court on several occasions: see ITO, supra, Chartwell, supra, Whitbread, supra, Monk Corporation, supra, Bow Valley Husky, supra, and Porto Seguro, supra. Litigants should investigate all sources of Canadian maritime law before seeking to rely upon a provincial statute in their place, and courts should be equally reluctant to move on to a determination of constitutional applicability without having resolved this preliminary issue.

76     The third step, if existing sources of Canadian maritime law do not contain a counterpart to the provision sought to be relied upon, also takes place prior to engaging in constitutional analysis. A court must determine whether or not it is appropriate for Canadian non-statutory maritime law to be altered in accordance with the principles for judicial reform of the law as developed by this Court in Watkins v. Olafson, [1989] 2 S.C.R. 750, and R. v. Salituro, [1991] 3 S.C.R. 654, as well as in Bow Valley Husky, supra, and in the present case. The court should engage in this step of the analysis regardless of whether or not the possibility of judicial reform of existing maritime law is raised by the parties.

77     This form of pre-constitutional analysis was adopted and applied by McLachlin J., speaking for the Court on this issue, in Bow Valley Husky, supra. In that case, the plaintiffs sought to rely upon the Newfoundland Contributory Negligence Act, R.S.N. 1990, c. C-33,