These summaries are prepared by Brad M. Caldwell,
401-815 Hornby Street,
Vancouver, B.C.,
V6Z 2E6.
Telephone (604) 689-8894
E-mail: bcaldwell@admiraltylaw.com
Recently posted cases are located on the Main Fisheries page (link)Copies of many of the
decisions referred to can be obtained from the web site of the
Canadian Legal Information
Institute. At this site, these cases can also be noted up using the Reflex
Record to determine whether they have been changed upon appeal.
Aboriginal Rights and Defence - Whether Aboriginal
Communal Fishing Management Entity employer as defined by Nova Scotia
Workers' Compensation Act
Employment Law - Whether Aboriginal Communal Fishing
Management Entity employer as defined by Nova Scotia Workers' Compensation
Act
Mime'j Seafoods Ltd. v. Nova Scotia (Workers'
Compensation Appeals Tribunal) 2007, NSCA 115 [link]
This case involved judicial review of a decision of the Nova Scotia
Workers' Compensation Appeal Tribunal that held that Mime'j Seafoods Ltd.
was a employer for the purpose of assessments under the Workers'
Compensation Act.
Mime'j Seafoods Ltd. was an aboriginal communal fishing management entity
that was incorporated for the sole purpose of accommodating D.F.O.'s
requirement that fishing licences be held by either a band or some other
entity recognized by Canadian law. It was the owner of 12 fishing vessels
used in the aboriginal fishery and holder of multiple licences granted under
the Aboriginal Communal Fishing Regulations. It leased vessels and licences
to captains and deckhands for use in the fishery. It also underwrote the
operating expenses, provided fishing gear and controlled the disbursement of
the proceeds of the landed catch.
Although Mime'j was not asserting any aboriginal or treaty right (para.
5), it argued that because the Act provides no definition for the
word "employed" it was necessary to go the the common law to determine
whether or not the crews of the Mime'j vessels were employed (para 37-8). In
doing so, the aboriginal world view would suggest that the "various fishers
are engaged in a variety of separate joint venture operations" (para. 39).
After a detailed review of the principals of statutory interpretation and
the applications of those principals to the Act, the court concluded
that Mime'j was an employer under the Act without the need to resort to the
common law. Consequently, it was not necessary to consider the aboriginal
world view on the definition of employment.
Employment Law
Masyk
v. F.A.S. Seafood 2003
BCSC 1644 (B.C.S.C.)
This case involved a deckhand who
was suing the owner of several fishing vessels for wrongful dismissal without
proper notice. One issue that was raised during a summary trial application was
whether or not the deckhand was an employee so as to be able to sue for wrongful
dismissal without notice. The
court accepted the vessel owner’s argument that the deckhand was a dependant
contractor or free agent rather than an employee and, accordingly, was not
automatically entitled to the protection against dismissal without notice
provide by either Provincial or Federal legislation. As such, the Court held it was incumbent upon the deckhand to pursue work
opportunities with the vessel owner and/or skipper rather than simply waiting to
be called to work.
Editors Note: See also the article posted to
the Papers section of the Fisheries’ Page entitled, The
Legal Status of Crew Members in the West Coast Fishing Industry:
Employees, Dependant Contractors or Something in Between.
Employment Law –
Employment Insurance Appeal
Judicial Review
Crown Liability
Mercer
v. Canada (Minister of National Revenue [2003] T.C.J. NO. 543, 2003 TCC 652 (Tax Ct. of
Canada) (Cain D.T.C.J.)
This case dealt the issue of whether or not the
common law spouse of an East Coast fish boat owner who worked as a deckhand on
his fishing vessel could be considered an employee for the purpose of a section
of the Employment Insurance Act that excluded coverage for employees who
do not work at arms length from their employers. Based upon the evidence that the deckhand received 79 per
cent of the share of the catch while only performing 50 per cent of the duties,
the Court excluded coverage based upon the assumption that she was an employee.
|