Constitutional Issues in Maritime Law
Commentaries are intended as an introduction or overview of the topic. The commentaries for some topics are more detailed than others but none of them should be taken as a complete and full recitation of the law applicable to the topic.
Constitutional Issues/Canadian Maritime Law
The cases under this topic consider the division of powers between the federal and provincial governments under the Constitution Act in relation to maritime matters. Such issues normally arise where a provincial law of general application purports to apply to a fact situation with a marine component or where a provincial law provides a different remedy than Canadian maritime law. (It should be noted that constitutional issues can arise in cases concerning the Admiralty jurisdiction of the Federal Court and, for this reason, cases digested under the topic Admiralty Jurisdiction may also be relevant and should be consulted.)
The analytical framework to be used in a division of powers analysis has changed significantly over the years and, in particular, since 2007. Prior to 2007, in division of powers disputes, the constitutional doctrine of interjurisdictional immunity was frequently applied to render provincial statutes inapplicable to matters within federal legislative jurisdiction. In Canadian Western Bank v. Alberta, 2007 SCC 22 (a non-marine case) and British Columbia (Attorney General) v. Lafarge Canada Inc., 2007 SCC 23, the Supreme Court of Canada was extremely critical of the interjurisdictional immunity doctrine finding that it unfairly favoured parliament over the provincial legislatures, created uncertainty and was not compatible with "flexible federalism". To rectify these perceived inequities, the Supreme Court modified the analytical framework to be used in division of powers disputes. The currently applicable analytical framework is as follows:
1. Pith and Substance: The first step is to analyze the pith and substance of the impugned legislation. This involves an inquiry into the true nature of the law in question to identify the "matter" to which it essentially relates. Two aspects of the law must be considered; the purpose of the enacting legislature in adopting it and the legal effect of the law. If the pith and substance analysis leads to the conclusion that the law is in relation to a matter coming within the legislative jurisdiction of the enacting body under the Constitution Act, then it is valid and the potential application of the interjurisdictional immunity and paramountcy doctrines must be considered. If the pith and substance analysis leads to the conclusion that the law is invalid, that is the end of the matter.
2. After the pith and substance analysis, the court should generally proceed to a consideration of the doctrine of paramountcy before interjurisdictional immunity. The potential application of the interjurisdictional immunity doctrine should generally be considered only where there is prior case law favouring its application to the subject matter at hand. The doctrine is of limited application and should generally be reserved for situations already covered by precedent.
3.Paramountcy: Paramountcy involves an inconsistency between the provincial enactment and the federal enactment. Where a provincial statute is inconsistent with a federal statute, the provincial law is inoperative to the extent of the inconsistency. The inconsistency can be actual conflict in operation such as where one statute says "yes" and the other "no". Inconsistency can also arise when the provincial statute has the effect of frustrating the purpose of the federal statute. The standard for frustration of purpose is high. A provincial statute will not be found to frustrate the purpose of a federal statute merely because it restricts a permissive federal statute.
4. Interjurisdictional Immunity: Prior to 2007, the interjurisdictional immunity doctrine was invoked whenever a provincial law "affects" a vital or essential part of a federal power or undertaking. The so-called "affects" test was modified in Canadian Western Bank v. Alberta and British Columbia (Attorney General) v. Lafarge Canada Inc. such that the doctrine now only applies when the provincial law "impairs", without necessarily sterilizing or paralyzing, the “basic, minimum and unassailable content” or “core” of the federal legislative power in question. "Impairs" implies that there must be adverse consequences. The "core" of a federal legislative power means “the minimum content necessary to make the federal power effective for the purpose for which it was conferred”.
The new analytical framework developed for division of powers disputes would appear to make it more likely that provincial laws of general application will apply to matters that are otherwise governed by Canadian maritime law. Recent examples include: R. v. Mersey Seafoods Ltd.,2008 NSCA 67 (occupational health and safety legislation); Jim Pattison Ent. v. Workers' Compensation Board, 2011 BCCA 3 (occupational health and safety legislation); and, Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44 (workers' compensation legislation). However, there are also many recent cases where provincial laws were held not to be applicable, including, British Columbia (Attorney General) v. Lafarge Canada Inc., Chalets St-Adolphe inc. v. St-Adolphe d'Howard (Municipalit de), 2011 QCCA 1491 and West Kelowna (District) v. Newcombe, 2015 BCCA 5, all of which concerned municipal by-laws.
For further background and a historical review of the important cases in this area please see the below papers but take note that the papers are not current and this area continues to develop.
Statutes and Regs
The database contains 43 case summaries relating to Constitutional Issues in Maritime Law. The summaries are sorted in reverse date order with 20 summaries per page. If there are more than 20 summaries, use the navigation links at the bottom of the page.
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Mortgages - Priorities - Application of Provincial Statutes
Royal Bank v. 1132959 Ontario Ltd., 2008 CanLii 40231
This was an application by the Appellant bank (the “Bank”) for possession of a yacht pursuant to rights allegedly acquired through a general security interest. The application was opposed by the Respondent, who was registered as the owner of the yacht under the Canada Shipping Act (“CSA”), on the grounds that the bank’s interest was not registered under the CSA. The background facts are important. The Bank entered into a general security agreement dated 9 March 2001 with a numbered company (“Numbered Co.”) and registered its interest under the Ontario Personal Property Security Act (“PPSA”). On 17 April 2004 the Numbered Co. acquired title to the yacht and, although it is not entirely clear from the judgment, it appears that the yacht was registered under the CSA at that time. On 13 February 2008 the sole shareholder of the Numbered Co. made an assignment in bankruptcy. On 12 March 2008 the Numbered Co. entered into a security agreement with the Respondent, the brother of the company’s sole shareholder. The security agreement was allegedly to secure a prior debt owed to the Respondent. This security agreement was never registered under the PPSA. On 20 March 2008 the Respondent was given a marine mortgage over the yacht as further security for the debt allegedly owed between the brothers. This marine mortgage was registered under the CSA but not the PPSA. On 10 April 2008 the marine mortgage was discharged and the yacht was transferred to the Respondent in full payment of the debt allegedly owed. On these facts the Court held that there was no doubt that on 17 April 2004 the Bank acquired a perfected security interest in the yacht pursuant to the after acquired property clause in the security agreement. The Court further held that the Bank’s interest had priority over any interest the Respondent had pursuant to the agreement of 12 March 2008 since that agreement was not registered. However, the Court recognized that the real issue was whether a registered interest under the CSA could take priority over a prior interest registered under the PPSA. The Respondent alleged that the CSA provided a complete code and registry of all interests in vessels. The Court disagreed and held that the CSA created two types of registers; mandatory and voluntary. Pleasure craft are not required to be registered and fall within the voluntary registry. Therefore, the Court held the Bank was not required to register its interest under the CSA registry. In result, the Court held the Bank’s interest had priority.
(Note: This has been a vexing issue for years and has the potential to cause serious difficulties for both lenders and borrowers. Although the equities of this case certainly favoured the bank, the Court’s analysis does not withstand any serious scrutiny. The distinction between mandatory and voluntary registration is no more than descriptive and does not provide a legal basis for the decision. Also, the mandatory - voluntary distinction is probably not accurate in respect of a mortgagee. The prevailing view is that if the vessel is registered (whether voluntarily or mandatorily) then any mortgage or security interest must be registered. It is submitted that the Court should have done a proper constitutional analysis taking into account the dual aspect doctrine, interjurisdictional immunity and paramountcy. Also, one cannot help but think that if, after the constitutional analysis, Canadian maritime law applied, then equitable considerations would have played an important part in any ranking.)
Constitutional law- Application of Provincial Statutes - Occupational Health and Safety
R. v. Mersey Seafoods Ltd., 2008 NSCA 67
The accused in this case was a corporation that operated various factory fishing vessels. The accused was charged with offences under the Nova Scotia Occupational Health and Safety Act (“OHSA”). The charges were dismissed in the lower courts on grounds that the safety and operation of vessels was within the exclusive jurisdiction of the Federal Government and the OHSA was inapplicable. On appeal to the Nova Scotia Court of Appeal, the Court first considered whether, and had little difficulty in concluding that, the pith and substance of the OHSA was within a head of power granted to the provinces. The Court next considered whether the OHSA infringed Parliament’s constitutional powers in relation to navigation and shipping. The Court referred to and relied extensively on the Supreme Court of Canada’s decisions in Canadian Western Bank v. Alberta,  2 S.C.R. 3, 2007 SCC 22 and British Columbia (Attorney General) v. Lafarge Canada Inc.,  2 S.C.R. 86, 2007 SCC 23. The Court noted that under the revised test established in those cases a provincial statute will only attract federal interjurisdictional immunity when the statute “impairs” (rather than merely “affects”) either (1) the “core”of a federal competence or (2) a vital or essential part of a federal undertaking. The Court held that any impact of the OHSA on navigation and shipping was merely incidental. The Court therefore held that the interjurisdictional immunity doctrine did not apply to oust the application of the OHSA. The Court next considered the paramountcy doctrine and noted that for the doctrine to apply there must be both federal and provincial laws and that it must be impossible to comply with both laws or that to apply the provincial law would frustrate the federal law. The Court found that the only applicable federal law was the Canada Shipping Act but held that there was no “operational conflict” between the OHSA and the Canada Shipping Act and the OHSA did not frustrate the purpose of the Canada Shipping Act. Accordingly, the Court confirmed that the OHSA applied to vessels operated by the accused.
Personal Injury - Athens Convention - Limitation Period - No Power to Extend - Applicable Law
Russell et al. v. MacKay, 2007 NBCA 55
The Plaintiff was a passenger on a whale watching vessel and was injured at sea when she tripped over a cooler while leaving the washroom on the vessel. The accident occurred on 3 August 2003 but action was not commenced until 20 July 2006. The Defendants brought this motion to dismiss the Plaintiff's claim on the grounds that it was statute-barred by the two year limitation period in the Athens Convention as enacted by the Marine Liability Act. The Plaintiff argued that the applicable limitation period was six years as provided the New Brunswick Limitation of Actions Act. Alternatively, the Plaintiff argued that the Court had the discretion to suspend or interrupt the running of the limitation period. The trial Judge concluded that the Plaintiff's claim was in pith and substance in relation to navigation and shipping and governed by federal Canadian maritime law and not the provincial limitations statute. The trial Judge then considered whether the court had a discretion to suspend or interrupt the running of the limitation period. The trial Judge referred to art. 16(3) of the Athens Convention which provides that “The law of the court seized of the case shall govern the grounds of suspension and interruption of limitation periods...”. The trial Judge held that the phrase “law of the court seized of the case” referred to Canadian maritime law and not the law of New Brunswick. The trial Judge noted that a three part test had been established to determine when an extension of a limitation period should be made under s. 572(3) of the Canada Shipping Act and that this was the appropriate test to apply. The test was: 1. did the Plaintiff have a valid prima facie case; 2. was the Defendant aware of the claim and would it suffer prejudice by an extension, other than the loss of the limitation defence; and 3. having regard to all the circumstances, was it in the best interest of justice that time be extended. Applying this test the trial Judge held it was in the best interests of justice that the limitation period be interrupted or extended.
On appeal to the New Brunswick Court of Appeal, the Court of Appeal agreed with the trial Judge that the case was to be governed by federal maritime law and further agreed that the limitation period was to be found in the Athens Convention but disagreed with respect to the powers of the court to suspend or extend the limitation period. Specifically, the Court of Appeal said that the trial Judge erred in relying upon and applying the test flowing from the old s. 572(3) of the Canada Shipping Act which dealt with collisions between ships (as does its successor in s.23 of the Marine Liability Act ) not injuries to passengers. The Court said that Art. 16 of the Athens Convention did not include any power to extend the limitation period and held that superior courts do not have inherent powers to extend limitation periods. The Court of Appeal next considered the meaning of Art. 16(3) and noted that the reference to the law of the court seized of the case did not imply such law would necessarily provide grounds for suspension or interruption. The Court held that there was no federal legislation that would provide grounds for suspension or interruption. Finally, the Court considered whether the law should be reformed to include a power to suspend or interrupt a limitation period and suggested, without deciding, that 1) waiver; (2) estoppel; (3) absence from the jurisdiction; (4) infancy; and (5) mental incompetency might be grounds. However, as the evidentiary record supported none of these grounds, the matter was not decided.
Constitutional Law – Application of Provincial Statutes - Harbours - Municipal By-Law
British Columbia (Attorney General) v. Lafarge Canada Inc., 2007 SCC 23
The issue in this case was whether the Vancouver Port Authority was required to obtain a City development permit to build a cement plant on port lands. The Supreme Court of Canada noted that the development of waterfront lands could come under either federal or provincial jurisdiction but applied the doctrine of paramountcy and held that the City bylaw was not applicable. In reaching this conclusion the Court considered and rejected the doctrine of interjurisdictional immunity. The Court said the doctrine of interjurisdictional immunity should generally not be applied where the subject matter has a double aspect and both the federal and provincial governments have a compelling interest. Further, the Court said the interjurisdictional immunity doctrine does not apply to every element of a federal undertaking but is restricted to the “essential and vital elements” of the undertaking. Here, the land use controls in the Canada Marine Act were not a core or vital element of the federal power over navigation and shipping and therefore, the interjurisdictional immunity doctrine did not prevent the province and City from legislating. However, the Supreme Court went on to find that the preconditions for the application of the paramountcy doctrine were met. Those preconditions are: 1. valid and applicable federal law; 2. valid and applicable provincial law; and, 3. these valid laws are incapable of simultaneous enforcement. (Note: In separate reasons Justice Bastarache reached the same conclusion as the majority but did so solely on the basis of the interjurisdictional immunity doctrine.)
Constitutional law- Application of Provincial Statutes - Validity of Local Bylaw Prohibiting Mooring
Ramara (Township) v. Guettler, 2007 CanLII 16453
The Defendant argued that a municipal bylaw prohibiting mooring in any “canal, waterway or slip” owned by the municipality was constitutionally invalid. In very short reasons the Court held that as the municipality owned the lands above and below the water of the canal it had the power to legislate. The Court noted that the federal Parliament also had the power to legislate and this was a straightforward case of overlapping jurisdiction.
Constitutional Law - Occupiers Liability Act - Personal Injury on Wharf
Jackson v. Fisheries and Oceans Canada, 2006 BCSC 1492
This case concerned the constitutional applicability of the Occupiers Liability Act of British Columbia to a slip and fall that occurred while the Plaintiff was walking down a ramp from the shore to a wharf administered by Fisheries and Oceans Canada. The Defendants argued that the Occupiers Liability Act had no application as the matter was to be governed by Canadian Maritime Law. The Judge considered the decision of the Supreme Court of Canada in Ordon v Grail,  3 SCR 437 but held that a provincial statute could incidentally affect matters coming within the exclusive jurisdiction of Parliament. The Judge noted that the Defendants needed to show that the subject matter of the Plaintiff's claim “is so integrally connected to maritime matters as to be legitimate Canadian Maritime law within federal competence” and held that they had failed to do this. It is noteworthy that the Judge considered the case of Peters v ABC Boat Charters,  B.C.J. No. 2345, where it was held that the Occupiers Liability Act applied to a slip and fall on board a ship, and was asked to not follow it on the grounds that it had been implicitly overruled by Ordon v Grail. The trial Judge held, however, that Peters v ABC Boat Charters was still good law.
Constitutional Law – Division of Powers – Log Salvage - Forest Act – Salvage Convention
Early Recovered Resources Inc. v. British Columbia, 2005 FC 995
The issue in this case was the constitutional validity or applicability of: first, Part 9 of the Forest Act of British Columbia and the associated Log Salvage Regulation passed pursuant thereto; and second, the Canada Shipping Act and the International Convention on Salvage (the “Salvage Convention”). Part 9 of the Forest Act and the Log Salvage Regulation regulate, inter alia, the recovery of logs adrift within a prescribed geographic area. The Plaintiff argued that the Forest Act and Log Salvage Regulation were invalid regulation by the province of “marine salvage”, a core element of exclusive federal jurisdiction over navigation and shipping. The Judge reviewed relevant authorities and held that the appropriate approach to the analysis was to employ a “pith and substance” analysis to determine: 1. whether the impugned provisions intrude on a federal head of power and to what extent; 2. If they do intrude, are they nevertheless part of a valid provincial legislative scheme; and, 3. If they are part of a valid provincial scheme, are they sufficiently integrated with that scheme. The Judge specifically rejected the suggestion that the appropriate analysis was to apply the “inter-jurisdictional immunity” test set out in Ordon v Grail,  3 SCR 437. He held that the “inter-jurisdictional immunity” doctrine need not be considered if the pith and substance of the impugned provision does not intrude into a power of the other government. He then reviewed the provisions of Part 9 of the Forest Act and the associated regulations and noted that Part 9 provided a framework for dealing with forestry resources that had become drift timber and needed to be recovered and salvaged to realize its value. He held that these provisions had nothing to do with navigation and shipping and that any connection with navigation and shipping was tenuous. He further held that Part 9 of the Forest Act and the regulations were an integral part of a valid resource management scheme and even if they intruded on the federal navigation and shipping power such intrusion was merely incidental and did not affect the constitutional validity of the legislation. The Judge then considered the constitutional validity of the Canada Shipping Act and the Salvage Convention insofar as they purported to regulate the recovery and sale of logs and the distribution of the proceeds of sale. He addressed the issue of whether logs were “property” within the meaning of the convention and held that they were. He then declared that the Canada Shipping Act and the Salvage Convention were invalid insofar as they purported to regulate the recovery and sale of logs and the distribution of the proceeds of sale. The reason given for this declaration was to remain consistent with his previous holding that the Forest Act was valid provincial legislation.
Canadian Maritime Law – Workers Compensation
Laboucane v. Brooks et al., 2003 BCSC 1247
The issue in this important summary trial application was whether section 10(1) of the Workers Compensation Act of British Columbia was valid provincial law or whether it was ultra vires the province as infringing upon Federal jurisdiction over navigation and shipping. The underlying facts were that the Plaintiff was injured while performing a welding job on the Defendant's fishing vessel. The Plaintiff commenced these proceedings against the Defendant alleging his injuries were caused by the Defendant's negligence. The main defence to the action was that both Plaintiff and Defendant were “workers” within the meaning of the Workers Compensation Act, that the accident arose out of and during the course of employment and that s. 10(1) of that Act prohibited the Plaintiff from commencing or continuing the action. The Court reviewed many of the leading constitutional authorities and concluded that the proper approach was to first determine the “pith and substance” of the enactment and then to determine whether the pith and substance of the enactment relates to one of the heads of power granted to the enacting legislature. Further, the Court noted that if the pith and substance falls within the class of subjects assigned to the Province then the legislation will be valid notwithstanding that it may have incidental or ancillary affects in areas of Federal jurisdiction. The Court rejected the submissions of the Plaintiff that the appropriate analysis was to assume the constitutional validity of the provision and to commence with the tests set out in Ordon v Grail,  3 SCR 437. Applying the pith and substance approach the Court had little difficulty in concluding that the pith and substance of s. 10(1) of the Workers Compensation Act was solely within the exclusive jurisdiction of the Province in relation to Property and Civil Rights. The Court further held that the fact that the accident took place on a vessel was of no relevance and that the subject matter was not integrally connected with maritime matters and did not fall to be resolved under Canadian Maritime Law. In fact, the Court found there was no encroachment upon the Federal power over navigation and shipping. (Editors Note: It is arguably difficult to reconcile the approach in this case with the four part test set out in Ordon v Grail,  3 SCR 437. Additionally, it is difficult to reconcile the finding in this case that there was no encroachment on Federal jurisdiction when the Supreme Court of Canada in Ordon v Grail held that Maritime negligence law is a core element of Federal jurisdiction and that it was constitutionally impermissible for a provincial statute to regulate this area.)
Constitutional Law - Division of Powers - s. 92(10) of the Constitution Acts 1867-1992
Island Tug & Barge Ltd. v. Communication, Energy and Paperworkers Union, 2003 BCCA 247
The Respondent union had set up a “water” picket attempting to prevent vessels from berthing at the Petro-Canada terminal in Vancouver where the union was on strike. The Appellant tug and barge operators sought an injunction from the BC Supreme Court to restrict or limit the picketing. The BC Supreme Court held that it did not have jurisdiction as the matter fell within provincial jurisdiction and the provincial Labour Relations Code removed the courts’ jurisdiction to enjoin picketing. The decision was affirmed on appeal on the basis that the Appellant’s business was conducted wholly within the province and s. 92(10) of the Constitution Acts 1867-1992 therefore governed. That section assigns to provincial jurisdiction local works except, inter alia, shipping lines connecting the province to other provinces or beyond the limits of the province. By implication, therefore, a shipping line operated wholly within the province was within provincial jurisdiction and the BC Labour Relations Code applied.
Constitutional Law – Distribution of Powers – Navigation and Shipping – Salvage
Gulf Log Salvage Co-Operative Assoc. v. Early Recovered Resources, 2003 FCA 35
This case concerned the constitutional validity of the Log Salvage Regulations of British Columbia. An application for summary judgment was brought by the Province of British Columbia for a declaration that the Regulations were valid. The motions Judge dismissed that application leaving no doubt that he considered the Regulations ultra vires (2002 FCT 184). The Province of British Columbia appealed to the Federal Court of Appeal but the Court of Appeal held that it was not appropriate to rule on the constitutional validity of a statute except upon an adequate record and that there was not an adequate record before the Court.
Application of Provincial Statutes
R v. Kupchanko, 2002 BCCA 63
This case raised the issue of the constitutional validity of an Order made pursuant to section 7(4) of the Wildlife Act of British Columbia prohibiting motorized vessels in excess of 10 horsepower from navigating part of the Columbia River. The accused argued that the Order was an invalid infringement on Federal Government jurisdiction over navigation and shipping. At first instance, the Provincial Court agreed and the accused was acquitted. On appeal, the summary conviction appeal judge held that the impugned order was aimed at promoting the dominant purpose of the Act to which it was a part. That purpose was to protect wildlife and their habitat, a matter clearly within the constitutional jurisdiction of the provinces. The judge held that the fact that the Federal Government through the Canada Shipping Act had also legislated restrictions on boating similar to those in the impugned Order did not render the Order invalid as the Federal Government had not legislated specifically with respect to that part of the Columbia River the Order regulated. The summary conviction appeal judge held that there would have to be an express contradiction between federal legislation and provincial legislation before otherwise valid provincial legislation could be declared invalid. In reaching this decision the summary conviction appeal judge relied in large measure upon dicta of the British Columbia Court of Appeal in Windermere Watersports Inc. v Invermere, (1989) 37 BCLR (2d) 112. On further appeal the Court of Appeal of British Columbia reconsidered the Windermere case in light of recent judgments of the Supreme Court of Canada which were recognized to significantly narrow the scope for the application of provincial laws to maritime matters. The Court of Appeal affirmed the result in the Windermere case but noted that the holding therein that the province could enact legislation affecting a matter of shipping and navigation was incorrect. Accordingly, the Court of Appeal allowed the appeal and held that the Order under the Wildlife Act was inapplicable to conveyances operating in navigable waters.
Application of Provincial Statutes
R v. Jail Island Aquaculture Ltd.,  N.B.J. No. 338
In this matter the accused had been charged with various offences under the Occupational Health and Safety Act of New Brunswick. The charges arose out of a fatal accident that occurred on board the accused’s barge while smolt salmon were being unloaded into a salmon cage. The accused argued that as the accident occurred on a ship it fell within exclusive federal jurisdiction with respect to maritime law and, in particular, navigation and shipping. At first instance, the Provincial Court Judge dismissed the motion holding that the case was not about shipping but was about aquaculture, a matter coming within provincial jurisdiction under property and civil rights. The accused then brought an application for judicial review to the Court of Queen’s Bench. The Court of Queen’s Bench did not deal with the substantive issues raised in the application as it was of the view that the application was in pith and substance an appeal from the order of the Provincial Court Judge and held that there was no right to appeal such an interlocutory decision.
Application of Provincial Statutes
R v. Williams, 2000 BCSC 449
In this matter the accused was charged with selling liquor on board his vessel without a liquor licence in contravention of the Liquor Control and Licencing Act of British Columbia. The defences argued were that the Liquor Control and Licencing Act was ultra vires the province insofar as it attempted to regulate vessels, a matter coming under Federal maritime law, and that the vessel was operating outside the territorial jurisdiction of the province. The court determined that the proper test to apply was whether the provinical legislation affected a vital part of the federal undertaking or whether it impaired or sterilised a federal undertaking. If it did either, it was ultra vires. The court found, however, that the sale of liquor on a vessel was not a vital part of a ship's operations. The court held, therefore, that the Liquor Control and Licencing Act did not encroach upon federal jurisdiction over navigation and shipping and did not impair a federal undertaking.The court further held that the vessel was, at the material times, operating in and around the Greater Vancouver area which was within the territorial jurisdiction of the Province of British Columbia.
Fatal Accidents - Limitation Periods - Application of Provincial Prescription Statute
Nicholson v. Canada,  3 FC 225
This was a summary judgment motion by the Crown for an order dismissing the claims of the Plaintiffs as time barred. The Plaintiffs were the dependents and the executor of the deceased who died when his vessel hit a rock and sank. The Plaintiffs alleged that the accident was caused by the breach of statutory duties on the part of the Coast Guard. The accident occurred on April 2, 1992, but the action was not commenced until March 30, 1994. The Defendant argued that the applicable limitation period was one year from the time of death as prescribed by section 649 of the Canada Shipping Act. (Note: This provision has since been amended and the limitation period is now two years.) The Plaintiffs argued that the discoverability principle operated to extend the time bar under the circumstances of the case, that the court had inherent jurisdiction to extend the limitation period, that there was a non-statutory cause of action to which section 649 did not apply, that the tolling provision of the Ontario Limitations Act applied, and that, in any event, the claim of the estate was not covered by section 649. The court dealt with each of these arguments. With respect to the discoverability principle (i.e. that the limitation does not run until the Plaintiff is aware of the material facts giving rise to a cause of action) the court held that this principle applied but that it did not assist the Plaintiffs as they were aware of the material facts at the conclusion of the inquest into the death of the deceased yet they did not commence their action within one year from that date. With respect to the inherent jurisdiction of the court to extend the limitation period, the court held that, in the absence of a clear statutory authority it had no such jurisdiction. (Note: This is contrary to the decision of the Ontario Court of Appeal in Dreifelds v Burton, (March 6, 1998) No. C 2456 &: C24580 (Ont. C.A.) but is consistent with the decision of the British Columbia Supreme Court in Vogel v Sawbridge, (April 3, 1996) No. 24638 Kelowna Registry.) With respect to the alleged common law non-statutory cause of action, the court held that there was no such cause of action. With respect to the argument that the tolling provisions of the Ontario Limitation Act applied, the court held that the incorporation of the tolling provisions would be inconsistent with the statutory scheme set out in Part XIV of the Canada Shipping Act. Finally, with respect to the action by the executor of the estate of the deceased, the court held that this action (which was newly created by the Supreme Court of Canada in Ordon Estate v Grail,  3 S.C.R. 437) was not time barred as it was not a claim by dependents and was governed by the two year limitation period in the Ontario Trustee Act as incorporated by section 39 of the Federal Court Act. (Note: It is not apparent why the limitation period in the Ontario Trustee Act would apply to the action by the executor as that action is a common law action and is not based on the Trustee Act.)
Application of Provincial Statutes
The Queen v. Will, 44 O.R. (3d) 315
At issue in this case was the constitutional validity of a regulation passed pursuant the Provincial Parks Act of Ontario requiring visitors to provincial parks to purchase a $10 permit to stay in the park overnight. The accused anchored his boat in Echo Bay on the eastern shore of Georgian Bay in Lake Huron. Echo Bay was within the boundaries of a provincial park. The accused, however, refused to purchase the $10 permit and was charged. The accused argued that the regulation was constitutionally inapplicable. The Justice of the Peace that heard the case at first instance (reported at  O.J. 5922) held that the Federal Government had exclusive power to legislate in respect of navigation and shipping and that this included the right to anchor without charge. He held that only the Federal Government may interfere with navigation. He further held that "a province cannot justify even a slight interference with navigation". Accordingly, the Justice of the Peace found the impugned regulation to be constitutionally not applicable to the accused. The court on appeal agreed with the Justice of the Peace. (Note: It is difficult to reconcile this decision with that in The Queen v Kupchenko summarized below.)
Definition of Canadian Maritime Law - Applicability of Provincial Statutes - Fatal Accident Limitation Period
Ordon Estate v. Grail,  3 SCR 437
This case is essential reading for all Canadian maritime law practitioners. It concerns four separate actions commenced in the Ontario Court General Division. The actions involved two boating accidents which resulted in fatalities and in serious personal injury. The actions gave rise to similar legal issues. The issues were:
Do the superior courts of the provinces have jurisdiction over maritime fatal accident claims or are such claims within the exclusive jurisdiction of the Federal Court?;
When can provincial statutes of general application apply to maritime negligence claims? Specifically:
Do the provisions of the Ontario Family Law Act allowing claims for loss of care, guidance and companionship by dependants (including common law spouses and siblings) apply to boating accidents?
Do the provisions of the Ontario Trustee Act allowing the estate of a deceased person to bring an action for damages apply to boating accidents?
Do the provisions of the Ontario Negligence Act apply to boating accidents?
Is the the limitation period for fatal boating accidents one or two years?
The Supreme Court of Canada held as follows:
Provincial superior courts have an inherent general jurisdiction over maritime matters that can only be taken away by clear and explicit statutory language. The provisions of the Canada Shipping Act granting jurisdiction over fatal accident claims to the "Admiralty Court" (which is defined as the Federal Court) do not expressly exclude superior court jurisdiction. Therefore the superior courts have concurrent jurisdiction with the Federal Court over maritime claims.
The determination of whether a provincial statute is constitutionally applicable to a maritime negligence action involves a four part analysis:
Step 1: First, it must be determined whether the matter at issue is within the exclusive federal legislative competence over navigation and shipping, ie. is the subject matter under consideration so integrally connected to maritime matters so as to be legitimate Canadian Maritime Law;
Step 2: If the answer to step 1 is yes, the second step is to determine whether Canadian Maritime Law provides a counterpart to the statutory provision. If it does, Canadian Maritime Law applies;
Step 3:If there is no counterpart provided by Canadian Maritime Law, the third step is to consider whether the non-statutory Canadian Maritime Law should be altered in accordance with the principles of judicial reform established by the court, ie. to reflect the changing social, moral and economic fabric of the country. Such changes should only be incremental. Changes with complex or uncertain ramifications should be left for the legislature. Additionally, in making changes to Canadian Maritime Law the courts should consider the fabric of the broader international community of maritime states and the desirability of maintaining uniformity in maritime law;
Step 4: Finally, and only if the matter cannot be resolved through the application of steps 1 through 3, the court must determine whether the provincial statute is constitutionally applicable to a maritime claim. The Supreme Court noted that matters within exclusive federal jurisdiction are subject to provincial statutes of general application provided the provincial laws do not go to the core of the federal jurisdiction. If they do, they will be read down. The Court held that Maritime negligence law is a core element of federal jurisdiction over maritime law and that it would therefore be constitutionally impermissible for a provincial statute to regulate this area of law. The Court cautioned that they were not saying that no provincial statute could ever apply in any maritime context, however, the Court was of the opinion that this would be a relatively rare occurrence.
With respect specifically to the application of the Ontario Family Law Act to boating accidents, the Supreme Court applied the above analysis and held that Canadian Maritime Law should be reformed to allow claims by dependants for loss of guidance, care and companionship in respect of both personal injury accidents and fatal accidents. The Court further held that "dependants" should include common law spouses but not siblings. Because the Court was able to incrementally reform Canadian Maritime Law to address the issues raised it did not need to consider the constitutional applicability of the Family Law Act (step 4) except with reference to whether siblings could be plaintiffs and, on this issue, the Court held the Family Law Act should be read down so as not to apply to maritime negligence actions;
With respect to the application of the Ontario Trustee Act, the Supreme Court also held that Canadian Maritime Law should be reformed to allow a claim by an executor of a deceased. Accordingly, the Court did not decide the constitutional applicability of the Act;
With respect to the application of the Ontario Negligence Act, the Supreme Court noted that Canadian Maritime Law includes a general regime of apportionment of liability resulting in joint and several liability and contribution among tortfeasors. Thus, once again, having found a remedy in Canadian Maritime Law the Court did not address the constitutional question of whether the Negligence Act applied;
The final issue considered in the case was whether a fatal accident claim is subject to a one or two year limitation period. The issue arises because section 649 of the Canada Shipping Act provides that the limitation period for a fatal accident is one year whereas section 572(1), which deals with collisions, provides for a two year limitation period. The Court held that the plaintiff's claims prima facie came within section 572(1). The Court further held that the ambiguity created by the two sections must be resolved in favour of allowing the plaintiff to rely on the longer period.
Fatal Diving accident - Application of Canadian Maritime Law - Limitation Periods
Dreifelds v. Burton, 1998 CanLII 5013
This was an appeal from a decision of the Ontario Court General Division. The case concerned a fatal scuba diving accident in Lake Ontario. A chartered vessel was used to take the divers to the dive site but the vessel was otherwise not involved in the accident. The deceased died from a gas embolism. The issue in the case was whether the accident was governed by Canadian maritime law and the one year limitation period in the Canada Shipping Act or by the two year period in the Ontario Family Law Act. Both at the trial level and on appeal it was held that the case was not governed by Canadian maritime law and that the two year period in the Family Law Act applied. The Court of Appeal noted that "not every tortious activity engaged in on Canada's waterways is subject to Canadian maritime law. Only if the activity sued about is sufficiently connected with navigation or shipping... will it fall to be resolved under Canadian maritime law."
It is noteworthy that the Court of Appeal said, in obiter dicta, that if the case was governed by the one year limitation period in the Canada Shipping Act, the Court would nevertheless have the inherent jurisdiction to extend the one year limitation period and would have done so in the absence of any prejudice to the Defendants. (Editor's Note: Compare this to the decision of the British Columbia Supreme Court in Vogel v Sawbridge et.al.(April 3, 1996) No. 24638 Kelowna Registry (B.C.S.C.) where that Court refused to recognize any such inherent jurisdiction.)
Bow Valley Husky Ltd. v. St. John Shipbuilding Ltd., 1997 CanLII 307
This is an extremely important case that all maritime law practitioners should read carefully. The case involved a breach of contract and negligence claim relating to the building of an off shore oil platform owned by the Plaintiff. The significant maritime law issue was whether the Plaintiff's claim was barred by reason of contributory negligence. The Defendant argued that because the matter was governed by Canadian Maritime Law the Newfoundland Contributory Negligence Act, which would have apportioned liability, did not apply and the Plaintiff's claim was barred. The Supreme Court of Canada agreed that the Newfoundland Contributory Negligence Act did not apply to maritime torts. The court noted that the "(a)pplication of provincial laws to maritime torts would undercut the uniformity of maritime law". Nevertheless, the court said that this was "an appropriate case for ... an incremental change to the common law in compliance with the requirements of justice and fairness". The court held that the contributory negligence bar did not apply to maritime torts. This case is of significance not only because of the ruling on contributory negligence but also because the court dealt specifically with the so called "gap rule" (which holds that, for matters within the constitutional jurisdiction of both the provinces and the federal government, the provinces may legislate where the federal government has not done so). The court held that the absence of federal legislation did not mean there was a "gap" which the provinces could fill because the common law applied to fill any such gap. ( Although not specifically enunciated in the judgement, presumably this is because the Federal Court Act enacts the common law as Canadian Maritime Law.) The significance of this may be that no provincial statute can ever apply to a matter governed by Canadian Maritime Law.
Contribution and Indemnity
Ferguson v. Arctic Transportation Ltd. et.al., No. T-1941-93 (F.C.T.D.)
The issue in this matter was whether the Federal Court had jurisdiction to determine issues of contribution and indemnity raised in a Third Party action. The facts were that the Plaintiff, a pilot with the Panama Canal Commission, was injured on board a ship owned and operated by the Defendants while it was transiting the Panama Canal. The Defendant commenced Third Party proceedings against the Panama Canal Commission alleging that the Plaintiff's injuries were caused by the negligence of employees of the Commission. The Commission argued that the claim for contribution and indemnity was not a claim recognized by Canadian Maritime Law and was therefore not within the jurisdiction of the Federal Court. The Court, however, held that it did have jurisdiction as the claim related to pilotage. The Court further noted that Canadian Maritime Law includes the law of torts.
Contribution and Indemnity
Canada v. Mallett and Associates Engineering Ltd., 1997 CanLII 9838
This was an action against the Defendant for breach of contract and negligence in relation to dredging of the Liverpool Harbour and construction of a containment facility. The Defendant in turn brought Third Party proceedings against subcontractors. The Third Parties brought this application to strike out the Third Party proceedings on the grounds that they were governed by Canadian Maritime Law which did not recognize a claim for contribution and indemnity. The Court refused to strike out the proceedings holding, first, that it was not clear the matter was entirely governed by Canadian Maritime Law and, secondly, that it was arguable whether there was a right to contribution and indemnity under Canadian Maritime Law.