Employment Law
Case Summaries
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.