The Legal Status of Crew Members in the West Coast Fishing Industry: Employees, Dependent Contractors or Something in Between?
Western Mariner/Western Fish and
Seafood Winter 2003/4
The fishing industry has many unusual features that make its employee/employer relationship somewhat unique. Just how this relationship is categorized at law often depends upon a large number of factors, including the nature of the fishery, the right being asserted and the source of any applicable laws.
A good starting point for analyzing this relationship is the 1972 decision of the British Columbia Court of Appeal in Mark Fishing Co. et al. v. United Fish and Allied Workers’ Union et al. (1972) 24 D.L.R. (3d) 585. In this case the members of the Prince Rupert Vessel Owners Association (a group of trawlers) successfully sued the U.F.A.W.U. for mounting an illegal strike against their vessels causing them both to lose fishing time and to have to dump their catch of fish at sea. During argument, the U.F.A.W.U. attempted to justify their actions under the provisions of the Provincial Trade Union Act, which allowed picketing during a lawful strike. However, in order to establish that there was a lawful strike, they had to show that crewmembers were "employees" and not co-adventurers (partners for a single venture). Mr. Justice Davey in a minority decision accepted the argument of the U.F.A.W.U. and reasoned that since crewmembers did not have control over such things as where the vessel was to fish, when it should return to port and to whom the fish would be sold, they were employees rather than co-adventures. The majority of the court rejected this argument and reasoned that because, crewmembers shared in the losses as well as the profits of a trip, they were co-adventurers rather than employees. As such, the union had no authority to mount a strike for their benefit.
This case was applied in 1993 in the Federal Court case of Klinger v. Mark Fishing Co.  F.C.J. No. 404 (Fed. Ct. Trial Division). This case involved a trawler which had a crew agreement similar to the crew agreements of many West Coast trawlers in the sense that the crew were paid on the basis of a percentage of the sale from the catch after a deduction for certain expenses such as fuel, ice and food. In the case of the trawler, the cost of placing an observer aboard the vessel was also shared by the crew. Unfortunately for all the parties involved, the fish company to which the trawler delivered became insolvent and the trawler was not paid for two deliveries. In addition, several deductions from both the crew and vessel shares for observer fees were never forwarded to the observers and the owners of the trawler had to make a substantial payment to them. When the crew did not get paid they took the position that they were entitled to full payment of their crew share despite the fact that the owner’s had not been paid. Accordingly, they commenced a Federal Court action and had the trawler arrested. Since the provisions of the Employment Standard Act could only be enforced by way of either a complaint made to the Director or an investigation commenced by the Director within six months after the date when the payment of “wages” were due, the Act was not relied upon by the crew at the time of trial. After hearing evidence that in the west coast trawl fishery crew members are normally expected to pay their share of “hole” accounts, the trial judge followed the Mark Fishing case to hold that the crew members were joint venturers and not employees. He held that although the parties did not specifically discuss what would happen in the event of non-payment for fish delivered to a fish processor, it must be presumed that the crew would have agreed to accept the risk. Accordingly, he dismissed the crew’s claim for lost wages and awarded a judgement to the vessel owners’ on their counterclaim for indemnification for the funds paid to the observers.
A more recent case dealing with this issue is the 2003 decision of the Supreme Court of British Columbia in the case of Masyk v. F.A.S. Seafood Producers Ltd. 2003 BCSC 1644. 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. It is reported that 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.
Another recent decision dealing with the nature of the employer/employee relationship is Mercer v. Canada (Minister of National Revenue) 2003 TCC 652 (Tax Court of Canada). 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.
As the first three examples show, deck hands are often classified as something other than employees. From the perspective of a vessel owner, this can be advantageous. However, this is not always the case, as is demonstrated by the case of Mercer v. Canada (Minister of National Revenue).
In the next article, I will discuss another issue related to owner/crew relations, the recent decision of Laboucane v. Brooks et al. dealing with the constitutional validity of the Workers Compensation Act of British Columbia as it applies to workers on fishing vessels.
Caldwell is a Vancouver based lawyer and former fisherman whose practice is
primarily devoted to fisheries, insurance and maritime matters.