1 File No SUPREME COURT OF CANADA BETWEEN: (ON APPEAL FROM THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL) MARINE SERVICES INTERNATIONAL LIMITED and DAVID PORTER APPELLANTS (Appellants) - and - THE ESTATE OF JOSEPH RYAN, by its Administratrix, Yvonne Ryan and YVONNE RYAN, in her own right and STEPHEN RYAN, a minor, by his guardian, ad litem, Yvonne Ryan and JENNIFER RYAN, a minor by her guardian ad litem, Yvonne Ryan and THE ESTATE OF DAVID RYAN, by its Administratrix, Marilyn Ryan and MARILYN RYAN, in her own right and DAVID MICHAEL RYAN, a minor, by his guardian ad litem, Marilyn Ryan and J AND Y FISHERIES INC., AND D AND M FISHERIES INC., bodies corporate, trading and operating as RYAN S FISHERIES PARTNERSHIP and UNIVERSAL MARINE LIMITED and THE ATTORNEY GENERAL OF CANADA - and - RESPONDENTS (Respondents) WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMISSION, ATTORNEY GENERAL OF NOVA SCOTIA, ATTORNEY GENERAL OF NEWFOUNDLAND AND LABRADOR, ATTORNEY GENERAL OF BRITISH COLUMBIA, ATTORNEY GENERAL OF ONTARIO and ATTORNEY GENERAL OF SASKATCHEWAN INTERVENERS (Interveners) FACTUM OF THE RESPONDENT, ATTORNEY GENERAL OF CANADA (Pursuant to r.42 of the Rules of the Supreme Court of Canada) Supreme Factum Tel.: Fax: Limoges Street Longueuil, Québec J4G 1C4 S
2 - 2 - Peter Southey Christine Mohr Ontario Regional Office The Exchange Tower Suite King St. West Toronto, Ontario M5X 1K6 Tel.: (Mr. Southey) Tel.: (Ms. Mohr) Fax: Counsel for Respondent The Attorney General of Canada Christopher Rupar Department of Justice Canada Civil Litigation Section East Tower, Room Wellington Street Ottawa, Ontario K1A 0H8 Tel.: Fax: Agent for Respondent The Attorney General of Canada Peter O'Flaherty Goodland O Flaherty Suite Forest Road St. John's, Newfoundland & Labrador A1C 2B9 Tel.: Fax: Counsel for Appellants Patricia J. Wilson Osler, Hoskin & Harcourt LLP Suite Albert Street Ottawa, Ontario K1R 7Y6 Tel.: Fax: Agent for Appellants
3 - 3 - Corwin Mills, Q.C. Mills Pittman PLC Inc. Suite Manitoba Drive Clarenville, Newfoundland & Labrador A5A 1K2 Tel.: Fax: Counsel for Respondents The Estate of Joseph Ryan, by it s Administratix, Yvonne Ryan, Yvonne Ryan, in her own right, Stephen Ryan, a minor, by his Guardian, ad litem, Yvonne Ryan, Jennifer Ryan, a minor, by her Guardian, ad litem, Yvonne Ryan, the Estate of David Ryan, by it s Administratrix, Marilyn Ryan, and Marilyn Ryan, in her own right, David Michael Ryan, a minor, by his Guardian, ad litem, Marilyn Ryan, J and Y Fisheries Inc., and D and M Fisheries Inc., bodies corporate, trading and operating as Ryan s Fisheries Partnership Colleen Bauman Sack Goldblatt Mitchell LLP Suite Metcalfe Street Ottawa, Ontario K1P 5L4 Tel.: Fax: Agent for Respondents The Estate of Joseph Ryan, by it s Administratix, Yvonne Ryan, Yvonne Ryan, in her own right, Stephen Ryan, a minor, by his Guardian, ad litem, Yvonne Ryan, Jennifer Ryan, a minor, by her Guardian, ad litem, Yvonne Ryan, the Estate of David Ryan, by it s Adminstratrix, Marilyn Ryan, and Marilyn Ryan, in her own right, David Michael Ryan, a minor, by his Guardian, ad litem, Marilyn Ryan, J and Y Fisheries Inc., and D and M Fisheries Inc., bodies corporate, trading and operating as Ryan s Fisheries Partnership Jamie Martin Roebothan, McKay & Marshall 34 Harvey Road St. John's, Newfoundland & Labrador A1C 5W1 Tel.: Fax: Counsel for Intervener Workplace Health Safety and Compensation Commission Henry S. Brown, Q.C. Gowling Lafleur Henderson LLP Suite Elgin Street Ottawa, Ontario K1P 1C3 Tel.: Fax: Agent for Intervener Workplace Health, Safety and Compensation Commission
4 - 4 - Henry S. Brown, Q.C. Gowling Lafleur Henderson LLP Suite Elgin Street Ottawa, Ontario K1P 1C3 Tel.: Fax: Agent for Interveners Attorney General of Nova Scotia and Attorney General of Saskatchewan Robert E. Houston, Q.C. Burke-Robertson Suite MacLaren Street Ottawa, Ontario K2P 2H3 Tel.: Fax: Agent for Interveners Attorney General of Newfoundland and Labrador, Attorney General of British Columbia and Attorney General of Ontario
5 - i - TABLE OF CONTENTS FACTUM OF THE RESPONDENT ATTORNEY GENERAL OF CANADA Page PART I STATEMENT OF FACTS... 1 A. Overview... 1 B. Background Facts... 2 i. The Ryan s Commander... 2 ii. Proceedings below... 4 (a) Decision of the Commission s Internal Review Specialist... 4 (b) Decision of Hall J (c) Decision of the Newfoundland and Labrador Court of Appeal... 6 iii. Legislative Provisions at issue... 9 PART II POINTS IN ISSUE PART III ARGUMENT A. Standard of Review B. Statutory Interpretation i. Constitutional Overview ii. iii. Section 6 grants a derivative right of action to dependants based exclusively on Canadian maritime law Parliament has not expressly chosen to limit maritime negligence claims through an incorporation by reference of provincial law... 20
6 - ii - TABLE OF CONTENTS FACTUM OF THE RESPONDENT ATTORNEY GENERAL OF CANADA Page iv. The GECA and the Merchant Seamen Compensation Act ( MSCA ) C. Paramountcy i. General Principles ii. Pith and Substance of the Newfoundland Workplace Health and Safety Compensation Act iii. Validity of the Marine Liability Act iv. Operational Conflict is Patent v. Frustration of Federal Purpose vi. Co-operative Federalism D. Interjurisdictional Immunity i. Analytical Order ii. The Core of Navigation and Shipping iii. Impairment iv. Conclusion E. This Constitutional Limit on Provincial Workers Compensation Schemes is narrow PART IV COSTS PART V NATURE OF ORDER SOUGHT PART VI ALPHABETICAL TABLE OF AUTHORITIES... 41
7 - iii - TABLE OF CONTENTS FACTUM OF THE RESPONDENT ATTORNEY GENERAL OF CANADA Page PART VII STATUTES, REGULATIONS, RULES Constitution Act, 1867, ss. 91, Federal Courts Act, R.S.C. 1985, c. F-7, as am., ss. 2, 22(1)(d), (g), Marine Liability Act, S.C. 2001, c. 6, as am., ss. 5, 6, Workplace Health, Safety and Compensation Act, R.S.N.L. ch. W-11, as am., s
8 - 1 - Statement of Facts FACTUM OF THE RESPONDENT ATTORNEY GENERAL OF CANADA PART I STATEMENT OF FACTS A. OVERVIEW 1. Provincial legislation cannot extinguish a statutory cause of action validly enacted by Parliament. This essential consequence of the division of legislative powers in Canada s constitution is not altered by the laudable objectives of co-operative federalism, nor by the appropriate concern of courts to construe federal and provincial statutes in a manner that best achieves constitutional objectives of both legislatures. A validly enacted provincial statutory provision must be inoperable or inapplicable if it directly conflicts with a validly enacted federal statutory provision and frustrates the purpose of a federal legislative scheme or if it not only impairs, but eliminates a federal cause of action at the exclusive core of a head of federal legislative jurisdiction. Any other result would eliminate and frustrate the fundamental division of legislative jurisdictions allocated by sections 91 and 92 of the Constitution Act, The Marine Liability Act was enacted by Parliament in Parliament had originally legislated to provide this derivative claim in 1948, but broadened its scope in section 6 of the Marine Liability Act in response to this Court s decision in Ordon Estate v. Grail. In that case, this Court found that marine liability lies at the essential core of Parliament s exclusive legislative jurisdiction over navigation and shipping. The Court made clear that only Parliament (and not provincial legislatures) can legislate a derivative cause of action for damages by families of people injured or killed in circumstances governed by maritime law, along with other related matters such as contributory negligence and limitation periods for such claims. 3. The Appellants have unsuccessfully argued in two lower courts that provincial legislation extinguishes the right of action conferred by Parliament under subsection 6(2) of the Marine Liability Act when the defendant is an employer pursuant to Newfoundland s Workers Health and Safety Compensation Act. They assert that pursuant to this provincial legislation, the dependants of the two fishers who died when their boat capsized are only entitled to receive
9 - 2 - Statement of Facts workers compensation benefits and that the statutory bar in section 44 of the WHSCA extinguishes their federal dependants right of action arising under the Marine Liability Act. The lower courts dismissed these arguments recognizing that the provincial legislation cannot constitutionally achieve this. Neither the text of the impugned provisions nor their history indicates that Parliament intended to incorporate the provincial statutory bar into its Marine Liability Act. 4. The constitutional limits to provincial workers compensation schemes have only a narrow effect on their operation. All common law claims arising from a workplace accident, other than marine liability claims can be extinguished by the provincial workers compensation statutes. However, only Parliament can limit marine liability claims. B. BACKGROUND FACTS i. The Ryan s Commander 5. The adjudicative facts in this case are not in dispute. It is agreed that Joseph and David Ryan lost their lives on September 19, 2004 when their fishing vessel, the Ryan s Commander, capsized during a storm in the North Atlantic, on their voyage home. They were forced to abandon ship in heavy seas off Cape Bonavista, and drowned, after their life raft also capsized in the turbulent waters In September 2006, the families of the Ryan brothers and their estates ( plaintiffs or other respondents ) brought an action seeking damages against Universal Marine Limited, Marine Services International Limited and David Porter (the builder, designer and architect of the boat, respectively), who they allege were negligent and/or were in breach of contract in the design and construction of the Ryan s Commander. The action also seeks damages against the Attorney General of Canada on behalf of Transport Canada and the Department of National Defence. The claims asserts, inter alia, that Transport officials negligently inspected the vessel 1 Reasons for Judgment of the Supreme Court of Newfoundland and Labrador Court of Appeal dated June 15, 2011, Green, C.J.N.L., Rowe and Welsh JJ.A. ( Court of Appeal Reasons ), per Green and Rowe, JJ.A. ( Majority Reasons ), paras. 8-9, Appellants Record, tab 3(c), p. 63.
10 - 3 - Statement of Facts and failed to conduct necessary stability testing, and that Defence officials were negligent in the conduct of the rescue effort. 2 The action against Canada will proceed regardless of the outcome of this appeal. 7. The dependants of the Ryan brothers also applied for and are in receipt of compensation pursuant to Newfoundland and Labrador s Workplace Health and Safety and Compensation Act ( WHSCA ). 3 Payments are being made by the Workplace Health and Safety Compensation Commission ( Commission ) pursuant to an arrangement that is contingent upon whether they are ultimately successful in their action On March 27, 2007, the Appellants and Universal Marine Limited brought an application pursuant to s. 46 of the WHSCA, for a determination that the claims brought by the plaintiffs are prohibited by the statutory bar contained in s. 44 of that Act. 9. The evidence put before the Internal Review Specialist on the s. 46 application included the pleadings in the action, records confirming that certain defendants were employers under the WHSCA, and records verifying the registered owners of the Ryan s Commander. No additional evidence was put before either the Newfoundland and Labrador Trial Division or the Court of Appeal. 10. Reference to the affidavit evidence submitted to this Court in support of the Appellants application for leave to appeal, in the Appellants factum 5 or the facta of any intervener on this appeal is therefore improper Majority Reasons, para. 10; Appellants Record, tab 3(c), p. 63. See also Further Further Amended Statement of Claim, dated April 13, 2007, paras , Appellants Record, tab 3(c), pp Workplace Health, Safety and Compensation Act, R.S.N.L. ch. W-11, as am. Majority Reasons, para. 12, Appellants Record, tab 3(c), p. 63. Appellants Factum, para. 10.
11 - 4 - Statement of Facts ii. Proceedings below (a) Decision of the Commission s Internal Review Specialist 11. The initial decision maker on the application under s. 46 was an Internal Review Specialist employed by the Commission. He found the accident occurred while the Ryan brothers were in the course of their employment and that the question was one of compensation arising out of and in the course of employment, such that provincial legislation applied. He further found that it was the provincial law relating to compensation benefits and services for an injured worker or their dependants that must apply. Consequently he held that the doctrines of interjurisdictional immunity and paramountcy had no application to this case Having found the plaintiffs to be dependants and personal representatives, Universal Marine Limited, Marine Services International Limited and Transport Canada to be employers, and David Porter to be a worker, within the meaning of the WHSCA, he concluded that s. 44 of the WHSCA bars the plaintiffs action against all Defendants. 7 (b) Decision of Hall J. 13. The plaintiffs then brought an application for judicial review of this decision before the Supreme Court of Newfoundland and Labrador Trial Division. Although it was thought that the federal Crown (as represented by the Attorney General of Canada) was to be considered an employer under the Act on the original application, the parties agreed in this court that in fact the Crown was not an employer for purposes of the WHSCA, and the judicial review proceeded on that basis Certificate of the Workplace, Health, Safety and Compensation Commission Internal Review Specialist, dated July 2, 2008, Appellants Record, tab 2(c), pp. 3-5; Reasons for Decision of the Workplace, Health, Safety and Compensation Commission Internal Review Specialist, dated July 2, 2008, pp.15-18, Appellants Record, tab 3(a), p. 27. Ibid., Appellants Record, tab 3(a), pp Reasons for Decision of Justice Robert M. Hall of the Supreme Court of Newfoundland and Labrador Trial Division, July 28, 2009, ( Trial Reasons ), para. 1(v), Appellants Record, tab 3(b), p. 37.
12 - 5 - Statement of Facts 14. Hall J. quashed the decision of the Internal Review Specialist. 9 Although the statutory interpretation argument advanced by the Appellants before this Court was not specifically raised, Hall J. determined that Parliament s Marine Liability Act (the MLA ) 10 and Newfoundland s WHSCA could not work side by side, as the totality of the WHSCA, and the statutory bar in s. 44 in particular clearly does impair the right of injured parties to bring a civil action under the MLA In determining the constitutional limits of the WHSCA, Hall J. made the following findings: (a) determinations of questions of liability in a marine context clearly and obviously fall within the exclusive federal jurisdictions of Navigation and Shipping under ss. 91(10) of the Constitution Act, 1867; 12 (b) the core or essential features of federal laws related to navigation and shipping must have uniformity; 13 (c) the pith and substance of the workers compensation legislation is an insurance scheme; 14 (d) the statutory bar in the WHSCA impairs the federal power to sue, and consequently, the doctrine of interjurisdictional immunity applies such that s. 44 must be read down so that it does not have the effect of barring any action which the plaintiffs may be entitled to bring under the MLA; 15 and Order of Justice Robert M. Hall of the Supreme Court of Newfoundland and Labrador Trial Division, September 29, 2009, Appellants Record, tab 2(b), pp Marine Liability Act, S.C. 2001, c. 6, as am. Trial Reasons, para. 29, Appellants Record, p. 54. Trial Reasons, para. 30, Appellants Record, p. 55. Trial Reasons, para. 31, Appellants Record, p. 55. Trial Reasons, para. 32, Appellants Record, p. 55. Trial Reasons, para. 32, Appellants Record, pp
13 - 6 - Statement of Facts (e) because it is impossible for the plaintiffs to comply with both the WHSCA and the MLA the paramountcy doctrine also applies. As such, s. 44 of the WHSCA cannot operate to extinguish any cause of action arising for the plaintiffs by virtue of the MLA or related federal legislation. 16 (c) Decision of the Newfoundland and Labrador Court of Appeal 16. On appeal to the Court of Appeal, Green C.J.N.L. and Rowe J.A. upheld the decision of Hall J. Welsh J.A. dissented. 17. The majority began its constitutional analysis by noting that: The problem in this case results from the fact that the federal and provincial levels of government have chosen to operate two fundamentally different legal regimes dealing with compensation for injury and death, and these two regimes appear to overlap in their application to claims arising out of workplace injuries in marine environment After reviewing the nature of the two legal regimes, the majority found that there is a potential clash between these regimes as to how a worker or his or her dependants may pursue a claim for compensation in respect of injury or death in a workplace accident. 18 This is because the Appellants assert that s. 44 operates to bar, not only the right to sue under provincial tort law, but also the right to sue under federal maritime negligence law. 19 The majority concluded that the two alternative methods of asserting claims for compensation for injuries or death in a maritime context a claim under the WHSCA or a claim under maritime negligence law could not be reconciled Trial Reasons, para. 34, Appellants Record, p. 56. Majority Reasons, para. 50, Appellants Record, p. 73. Majority Reasons, para. 61, Appellants Record, p. 75. Majority Reasons, para. 61, Appellants Record, p. 75. Majority Reasons, para. 62, Appellants Record, p. 76.
14 - 7 - Statement of Facts 19. The majority first noted that provincial workers compensation legislation is valid provincial legislation even if it purports to extend benefits to provincial residents who are injured while working in a maritime environment. 21 Green C.J.N.L. and Rowe J.A. agreed with the trial judge that the pith and substance of the WHSCA is an insurance scheme After an extensive review of the proper approach to applying the doctrines of interjurisdictional immunity and paramountcy, the majority made the following findings: (a) the application of the doctrine of interjurisdictional immunity in the context of ss. 91(10) has been dealt with by precedent. 23 This Court in Ordon Estate determined that navigation and shipping encompasses Canadian maritime law, which is a uniform body of law, and which includes maritime negligence law; 24 (b) the vast majority of principles applicable to determining who may seek compensation for death and injury caused by negligence in a maritime context are not dealt with by statute, with s. 6 of the MLA representing one of a few piecemeal matters that Parliament has addressed by statute; 25 (c) the issue of alleged failure to comply with safety standards of design, construction, and inspection of a boat, leading to death and injury, clearly engages the application of maritime negligence law; 26 (d) s. 44 purports to take away the right of a worker to sue and thus, to close the gateway into the federal system of maritime negligence law, including the totality Majority Reasons, para. 66, Appellants Record, p. 76. Majority Reasons, para. 67, Appellants Record, p. 77. Majority Reasons, para. 90, Book of Authorities of the Respondent, Attorney General of Canada ( AGC Authorities ), tab 1. Majority Reasons, para. 89, AGC Authorities, tab 1. Majority Reasons, para. 90, AGC Authorities, tab 1. Majority Reasons, para. 92, Appellants Record, p. 82.
15 - 8 - Statement of Facts of legal principles upon which the dependants of a worker can seek compensation for death and injury resulting from the sinking of a vessel at the sea; 27 (e) the subject matter is therefore integrally connected with maritime matters so as to engage legitimate Canadian maritime law; 28 (f) as s. 44 purports to alter rules within the exclusive competence of Parliament, it trenches on the protected core of federal competence over navigation and shipping, 29 and purports to eliminate completely reliance on maritime negligence law to obtain compensation for death or injury arising from workplace accidents in a maritime context, it seriously impairs the core of navigation and shipping and thus must be read down While acknowledging that this finding may subvert the underlying purpose of the workers compensation scheme, the majority noted that the issue only arises because the province has chosen to employ an absolute bar that, if operative, eliminates the right to sue under Canadian maritime law, rather than making the removal of the right to sue contingent on the claimant electing not to make a claim under the provincial scheme With respect to the paramountcy doctrine, the majority first found that there was a clear conflict between ss. 6(2) which confers a right to sue on dependants of a deceased person, and s. 44 which removes the right of workers and dependants to sue in relation to workplace accidents. 32 Because of the lack of any election provision, the two provisions cannot co-exist. 33 On the second question, they found that s. 44 frustrates the purpose of ss. 6(2) which is to allow dependants of a deceased person access to the federal maritime tort regime to the same extent Majority Reasons, para. 92, Appellants Record, p. 82. Majority Reasons, para. 92, Appellants Record, p. 82. Majority Reasons, paras , Appellants Record, p. 85. Majority Reasons, paras , Appellants Record, pp Majority Reasons, para. 102, Appellants Record, p. 86. Majority Reasons, paras , Appellants Record, p. 87. Majority Reasons, para. 106, Appellants Record, p. 87.
16 - 9 - Statement of Facts that the deceased would have had if he or she had not died. 34 If s. 44 operated to strip dependants of a cause of action in damages that is expressly authorized, this would turn paramountcy on its head and give primacy to the provincial law In dissent, Welsh J. distinguished Ordon v. Grail by finding that the WHSCA does not fall within the scope of maritime negligence law. 36 She relied upon the principle of cooperative federalism to support an interpretation of the MLA that would result in authority for dependants of a deceased person to take an action in court unless, in the circumstances, an action to recover damages is not available for a statutory reason. In her view, the circumstances in this case include the operation of s. 44 of the WHSCA to limit the cause of action Welsh J. further found that s. 44 does not frustrate the purpose of the federal legislation, as it is only permissive, and because there are still circumstances in which the right may be exercised. 38 With respect to interjurisdictional immunity, she found that the WHSCA does not engage issues of negligence, is not applicable to those who are not participants in the scheme, and does not engage the need for uniformity which may arise as a result of interjurisdictional concerns. As such, she concluded that it does not trench on the core of federal jurisdiction over navigation and shipping. 39 iii. Legislative Provisions at issue 25. Subsections 6(1) and (2) of the MLA grant a statutory right of action to the dependants of a person who is injured or dies by the fault or negligence of others in a maritime context Majority Reasons, para. 107, Appellants Record, p. 87. Majority Reasons, para. 107, Appellants Record, pp Reasons of Welsh J., ( Dissenting Reasons ), para. 153, Appellants Record, p Dissenting Reasons, para. 160, Appellants Record, p Dissenting Reasons, para. 162, Appellants Record, p Dissenting Reasons, para. 176, Appellants Record, p. 111.
17 Statement of Facts Damages for personal injury 6. (1) If a person is injured by the fault or neglect of another under circumstances that entitle the person to recover damages, the dependants of the injured person may maintain an action in a court of competent jurisdiction for their loss resulting from the injury against the person from whom the injured person is entitled to recover. Damages for death (2) If a person dies by the fault or neglect of another under circumstances that would have entitled the person, if not deceased, to recover damages, the dependants of the deceased person may maintain an action in a court of competent jurisdiction for their loss resulting from the death against the person from whom the deceased person would have been entitled to recover. Responsabilité pour dommagesintérêts : blessures 6. (1) Lorsqu une personne subit une blessure par suite de la faute ou de la négligence d autrui dans des circonstances lui donnant le droit de réclamer des dommages-intérêts, les personnes à sa charge peuvent saisir le tribunal compétent d une telle réclamation. Responsabilité pour dommages-intérêts : décès (2) Lorsqu une personne décède par suite de la faute ou de la négligence d autrui dans des circonstances qui, si le décès n en était pas résulté, lui auraient donné le droit de réclamer des dommages-intérêts, les personnes à sa charge peuvent saisir le tribunal compétent d une telle réclamation. 26. Section 44 of the WHSCA provides: Compensation instead of action 44. (1) The right to compensation provided by this Act is instead of rights and rights of action, statutory or otherwise, to which a worker or his or her dependants are entitled against an employer or a worker because of an injury in respect of which compensation is payable or which arises in the course of the worker's employment. (2) A worker, his or her personal representative, his or her dependants or the employer of the worker has no right of action in respect of an injury against an employer or against a worker of that employer unless the injury occurred otherwise than in the conduct of the operations usual in or incidental to the industry carried on by the employer. (3) An action does not lie for the recovery of compensation under this Act and claims for compensation shall be determined by the commission.
18 Points in Issue PART II POINTS IN ISSUE 27. The Court stated the constitutional questions to be determined in this appeal as follows: 1. Is s. 44 of the Workplace Health, Safety and Compensation Act, R.S.N.L c. W-11, constitutionally inoperative in respect of federal maritime negligence claims made pursuant to s. 6 of the Marine Liability Act, S.C. 2001, c. 6, by reason of the doctrine of federal paramountcy? 2. Is s. 44 of the Workplace Health, Safety and Compensation Act, R.S.N.L c. W-11, constitutionally inapplicable to federal maritime negligence claims made pursuant to s. 6 of the Marine Liability Act, S.C. 2001, c. 6, by reason of the doctrine of interjurisdictional immunity? 28. In addition, the appeal raises the issue of whether, as a matter of statutory interpretation, s. 6 of the MLA can be read so as not to conflict with s. 44 of the WHSCA
19 Argument PART III ARGUMENT A. STANDARD OF REVIEW 29. The Attorney General agrees that the standard of review on each of the points in issue is correctness. B. STATUTORY INTERPRETATION 30. Section 6 of the MLA creates a federal cause of action which is intended to be adjudicated and wholly determined in accordance with Canadian maritime law, to the exclusion of provincial law. 40 Both in this Court and in the court below, the Appellants have urged an interpretation of ss. 6(2) that they assert would eliminate the obvious conflict that arises between that provision and s. 44 of the WHSCA. The straightforward application of statutory interpretation principles to ss. 6(2) indicates that the conflict is irreconcilable. To conclude otherwise would be to accept the proposition that provincial law may, by its own force, limit the application of federal law absent any evidence that Parliament intended this be so. i. Constitutional Overview 31. The Appellants statutory interpretation argument can only be properly considered within the constitutional framework of the division of legislative powers. Existing jurisprudence establishes a sometimes complicated jurisdictional web. Relevant aspects of the following summary will be further elaborated within the Attorney General s response to the constitutional questions in Parts C and D below. 32. Under ss. 92(13) of the Constitution Act, 1867, Canada s provinces have exclusive legislative jurisdiction over property and civil rights. Legislative jurisdiction over civil rights 40 Marine Liability Act, supra, s. 6; Federal Courts Act, R.S.C. 1985, c.f-7, as am., s. 2; Ordon Estate v. Grail,  3 S.C.R. 437 ( Ordon Estate ), Appellants Authorities, tab 11.
20 Argument generally includes jurisdiction to enact insurance schemes which provide for the compensation of workers who are injured or die in workplace accidents In the specific instance of workers who work on water (generally fishers and seamen), jurisprudence since 1919 has found valid provincial legislation providing for workplace injury compensation to such workers. From 1922, specific jurisprudence relating to provincial workers compensation has also recognized the constitutional limits of such schemes if their provisions conflict with valid laws enacted by Parliament, the federally enacted law prevails Parliament has legislative jurisdiction to enact workers compensation schemes for federal undertakings including lines of ships connecting provinces, or carrying out international shipping under ss. 92(10) or 91(10) of the Constitution Act, Parliament has that same legislative jurisdiction in relation to federal employees. 44 Parliament also has exclusive legislative jurisdiction over the regulation of the labour relations and occupational health and safety of federal undertakings and federal employees. 45 Legislative jurisdiction over preventative regulation that serves to ensure occupational health and safety in workers compensation schemes (as opposed to compensatory aspects of workers compensation schemes) for federal undertakings is within the exclusive legislative jurisdiction of Parliament Parliament has exclusive legislative jurisdiction over navigation and shipping under ss. 91(10) of the Constitution Act, This exclusive jurisdiction is relevant in several ways in this matter. First and foremost, all law relating to marine liability, including causes of action that Canadian Pacific Railway Co. v. Workman s Compensation Board (1919), 48 D.L.R. 218, para. 30, Appellants Authorities, tab 2; Commission du Salaire Minimum v. Bell Telephone Company of Canada,  S.C.R. 767 ( Bell 1966 ), at , Appellants Authorities, tab 5; Comm. de la santé & de la sécurité du travail (Qué) v. Bell Can.,  1 S.C.R. 749 ( Bell 1988 ), paras , Appellants Authorities, tab 4. See paras. 78 to 84 below. Constitution Act, 1867, ss. 91(10), 92(10). See for example: Merchant Seamen Compensation Act, R.S.C. 1985, c. M-6, as am. ( MSCA ), Appellants Authorities, tab 20. Constitution Act, 1867, ss. 91(8). See for example: Government Employees Compensation Act, R.S.C. 1985, c.g-5, as am., ( GECA ), Appellants Authorities, tab 18; Bell 1988, supra, paras. 20, 21, Appellants Authorities, tab 4. Bell 1988, supra, paras. 20, 21, Appellants Authorities, tab 4. Bell 1988, supra, para. 20, Appellants Authorities, tab 4.
Province of Alberta LIMITATIONS ACT Revised Statutes of Alberta 2000 Current as of December 17, 2014 Office Consolidation Published by Alberta Queen s Printer Alberta Queen s Printer 5 th Floor, Park Plaza
THE CIVILIAN ORIGINS OF CANADIAN MARITIME LAW NOTES BY THE HONOURABLE MR. JUSTICE SEAN J. HARRINGTON FEDERAL COURT OF CANADA University of Southampton Institute of Maritime Law 22 nd October 2008 I. RELEVANCE
JURISDICTION OF FEDERAL COURTS Federal Crown Proceedings (Remarks by Hon. B. L. Strayer) The Future/Solutions A. Tort (extracontractual civil liability) and Contract Actions by and against the Crown The
BERMUDA 1951 : 39 LAW REFORM (LIABILITY IN TORT) ACT 1951 ARRANGEMENT OF SECTIONS 1 Interpretation 2 Savings 3 Apportionment of liability where contributory negligence 4 Defence of common employment abolished
Noteworthy Decision Summary Decision: WCAT-2005-01542 Panel: Herb Morton Decision Date: March 29, 2005 Jurisdiction of Board to Determine Employee Status - Federal Government Employees Compensation Act
CHAPTER 16 THIRD PARTY / OUT-OF-PROVINCE CLAIMS #110.00 INTRODUCTION A worker who suffers injury or disease as a result of employment may be entitled to compensation from sources other than the Workers
South Australia LAW REFORM (CONTRIBUTORY NEGLIGENCE AND APPORTIONMENT OF LIABILITY) ACT 2001 An Act to reform the law relating to contributory negligence and the apportionment of liability; to amend the
CHAPTER 310 THE LAW REFORM (FATAL ACCIDENTS AND MISCELLANEOUS PROVISIONS) ACT [PRINCIPAL LEGISLATION] ARRANGEMENT OF SECTIONS Section Title 1. Short title and application. 2. Interpretation. PART I PRELIMINARY
SUPREME COURT OF CANADA CITATION: Martin v. Alberta (Workers Compensation Board), 2014 SCC 25 DATE: 20140328 DOCKET: 35052 BETWEEN: Douglas Martin Appellant and Workers Compensation Board of Alberta, Appeals
CITATION: CANADA (ATTORNEY GENERAL) V. CANADIAN MERCHANT SERVICE GUILD, 2009 FC 344,  2 F.C.R. 282 T-1200-08 Attorney General of Canada (Applicant) v. Canadian Merchant Service Guild (Respondent)
S.116 Of The Courts of Justice Act Can Defendants Impose A Structured Settlement on the Plaintiff? Robert Roth Historically, at common law, a plaintiff was not obliged to accept a structured settlement,
WORKERS COMPENSATION REPORTER Decision of the Appeal Division Number: 93-1185 Date: August 19, 1993 Panel: Thomas Kemsley, Connie Munro, P. Michael O Brien Subject: Medical Malpractice Action (No. 2) Introduction
DISCUSSION PAPER 1. TITLE Status of Treatment Injuries 2. ISSUE For the purposes of this discussion paper, a treatment injury is a subsequent injury that arises as a direct consequence of treatment for
SUPREME COURT OF NOVA SCOTIA Citation: Webber v. Boutilier, 2016 NSSC 5 Date: 20160105 Docket: Hfx No. 241129 Registry: Halifax Between: Cindy June Webber v. Plaintiff Arthur Boutilier and Dartmouth Central
NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL Applicant: [Applicant] Respondents: [Respondent], The Workers Compensation Board of Nova Scotia and The Government of Canada (Fisheries and Oceans Canada)
Quantifying Loss of Consortium Chesley F. Crosbie, Q.C. Jessica A. Dellow Ches Crosbie Barristers 169 Water Street, 4 th Floor St. John s, NL A1C 1B1 (709) 579-4000 www.chescrosbie.com firstname.lastname@example.org
Third Parties (Rights against Insurers) Act 2010 CHAPTER 10 CONTENTS Transfer of rights to third parties 1 Rights against insurer of insolvent person etc 2 Establishing liability in England and Wales and
October 2012 tax bulletin SCC resolves interaction between garnishment and bankruptcy provisions introduction Earlier this year in Toronto-Dominion Bank v Canada 1 ("TD"), the Supreme Court of Canada (the
LABOUR PROGRAM If you have an accident What to do and how to do it LT-058-03-05 This publication is available in multiple formats (large print, audio cassette, braille and diskette) in English and French.
WikiLeaks Document Release February 2, 2009 Congressional Research Service Report RS20519 ASBESTOS COMPENSATION ACT OF 2000 Henry Cohen, American Law Division Updated April 13, 2000 Abstract. This report
Introduction Page to the Appellant s PDF Factum: Note: When you bind your factum, all pages (except for the cover and index) starting with your chronology, should always be on the left-hand side. The righthand
Legislative Review of Workers Compensation Review of Section 38 (Benefits), Workers Compensation Act Discussion Paper May 2015 Discussion Paper May 2015 Published by: Province of New Brunswick P.O. Box
IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Merlo v. Canada (Attorney General), 2013 BCSC 1136 Date: 20130625 Docket: S122255 Registry: Vancouver Between: Brought under the Class Proceedings Act,
WCAT Decision Number: WCAT-2015-02919 WCAT Decision Date: September 23, 2015 Panel: Joanne Kembel, Vice Chair Introduction  This is a referral to the chair of the (WCAT) under section 251 of the Workers
Financial Services Commission of Ontario Commission des services financiers de l Ontario BETWEEN: ALANA BRAY Applicant and ING INSURANCE COMPANY OF CANADA Insurer DECISION ON A PRELIMINARY ISSUE Before:
IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF ALBERTA) SCC File No. 36460 BETWEEN: The Information and Privacy Commissioner of Alberta - and - The Board of Governors of the University
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Safe Auto Insurance Company, : Appellant : : v. : No. 2247 C.D. 2004 : Argued: February 28, 2005 School District of Philadelphia, : Pride Coleman and Helena Coleman
LIMITATION OF CERTAIN ACTIONS ACT CHAPTER 7:09 Act 36 of 1997 Amended by 2 of 2000 Current Authorised Pages Pages Authorised (inclusive) by L.R.O. 1 18.. L.R.O. 2 Chap. 7:09 Limitation of Certain Actions
Fatal Accidents and Personal Injuries CAP. 160 1 LAWS OF BRUNEI Section CHAPTER 160 FATAL ACCIDENTS AND PERSONAL INJURIES ARRANGEMENT OF SECTIONS PART I PRELIMINARY 1. Citation 2. Application PART II FATAL
CHBA Briefing Note on Liability in the Residential Building Industry Introduction Objectives The objective of this report is to present some recent developments in Canada on the topic of liability in the
PLEASE NOTE This document, prepared by the Legislative Counsel Office, is an office consolidation of this Act, current to April 1, 2015. It is intended for information and reference purposes only. This
Province of Alberta MOTOR VEHICLE ACCIDENT CLAIMS ACT Revised Statutes of Alberta 2000 Chapter M-22 Current as of April 1, 2015 Office Consolidation Published by Alberta Queen s Printer Alberta Queen s
In the Court of Appeal of Alberta Citation: Dickson v. Poon Estate, 1982 ABCA 112 Between: Matthew C. Dickson, Diana Davidson and the City of Edmonton - and - Johnny Poon, executor of the estate of Joseph
IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Between: And Richard v. British Columbia, 2014 BCSC 1290 William Joseph Richard and W.H.M. Date: 20140714 Docket: S024338 Registry: Vancouver Plaintiffs
Bill 34 The New Limitation Act: Significant Changes and Transition Issues Explained A Presentation for CLE Employment Law Conference 2013 Pan Pacific Hotel Vancouver, BC May 9, 2013 Carman J. Overholt,
HISTORY OF THE CRIMINAL LAW IN NEWFOUNDLAND AND LABRADOR Now it is a terrible business to mark a man out for the vengeance of men. But it is a thing to which a man can grow accustomed, as he can to other
DISCUSSION PAPER EXECUTIVE SUMMARY 1. TITLE Interest on Compensation 2. ISSUE At issue is a review of the policy for when workers are entitled to the payment of interest on compensation benefits. 3. OVERVIEW
December 23, 1996 COMPENSATION AND THE DEATH OF A WORKER A BRIEFING PAPER ISSUE This briefing paper concerns Section 17 of the Workers Compensation Act and associated provisions in Sections 18, 19, and
AMENDED IN ASSEMBLY APRIL 14, 2015 california legislature 2015 16 regular session ASSEMBLY BILL No. 597 Introduced by Assembly Member Cooley February 24, 2015 An act to amend Sections 36 and 877 of, and
Assessing Damages Under Section 151Z: An Interaction of Schemes Andrew Parker Barrister Henry Parkes Chambers Ty Hickey Barrister State Chambers 1 Calculating damages under s 151Z(2) of the Workers Compensation
CITATION: Allstate Insurance Company of Canada v. Motor Vehicle Accident Claims Fund, 2007 ONCA 61 DATE: 20070131 DOCKET: C45063 COURT OF APPEAL FOR ONTARIO LASKIN, SIMMONS, GILLESE and MacFARLAND JJ.A.
New South Wales Motor Accidents Compensation Amendment (Claims and Dispute Contents Page 1 Name of Act 2 2 Commencement 2 3 Amendment of Motor Accidents Compensation Act 1999 No 41 2 4 Amendment of other
IN THE SUPREME COURT OF BRITISH COLUMBIA No. L021060 Vancouver Registry Between: And: DOROTHY YOUNG SHELL CANADA LIMITED Brought under the Class Proceedings Act, R.S.B.C. 1996, c. 50 Plaintiff Defendant
Date: August 29, 2012 File No.: 2008/101 SASKATCHEWAN OFFICE OF THE INFORMATION AND PRIVACY COMMISSIONER INVESTIGATION REPORT F-2012 003 Saskatchewan Workers Compensation Board Summary: The Commissioner
July 2015 New Limitation of Actions Act Q&A p. 1-10 Transition Rules p. 11 Table of Concordance p. 12 1 Questions and Answers For the Questions and Answers For the New Limitation of Actions Act While the
BY-LAW 6 May 1, 2007 Amended: June 28, 2007 February 21, 2008 September 24, 2009 November 24, 2011 September 27, 2012 April 25, 2013 October 24, 2013 October 29, 2015 December 10, 2015 (editorial changes)
Insurance Journal November 12, 2013 Volume 1, Issue 6 Editor Keoni Norgren Damages in Secondary Market Class Actions An Insurer Friendly Decision from the Ontario Bench In this Issue Case Comment: Stroszyn
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 15 FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 25th day of February, 2003, are as follows: BY KIMBALL, J.: 2002-C - 1634 RONALD J.
The Confluence of Insolvency and Maritime Law in Canada: Navigating Troubled Waters By Kieran E. Siddall, Shelley Chapelski & Jason Kostyniuk Bull, Housser & Tupper LLP Vancouver, Canada When claims arise
ST VINCENT AND THE GRENADINES IN THE HIGH COURT OF JUSTICE CIVIL SUIT NO.138 OF 1994 BETWEEN: ALFRED JACKSON As Administrator of the Estate of ENNIS JACKSON Plaintiff and Appearances: Mr Arthur Williams
BETWEEN: SHEILA WOODS, and Docket: 2008-518(IT)G Appellant, HER MAJESTY THE QUEEN, Respondent. Appeal heard on February 10, 2010, at Ottawa, Canada. Before: The Honourable Justice Patrick Boyle Appearances:
UNDERSTANDING THE WORKERS COMPENSATION SYSTEM ADVANTAGES AND DISADVANTAGES Presented By: Sonia Lanteigne and Michael McGovern Legal Counsel, WorkSafeNB October 8, 2015 TODAY S AGENDA History of workers
Have Pension Class Actions Altered Traditional Trust Cost Rules? A Recent Trend. By Craig A.B. Ferris* April 17, 2009 This paper was originally published in The Canadian Class Action Review Volume 5, No.
****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal
LED COWIJ QP APPEALS 2013 MAR 19 IN THE COURT OF APPEALS OF THE STATE OF WASHIN AN 8: 39 DIVISION II B ROBERT LONG, deceased, and AILEEN LONG, Petitioner /Beneficiary, No. 43187-4 II - Appellant, V. WASHINGTON
April, 2010 Gardiner Roberts LLP Scotia Plaza 40 King St. West Suite 3100 Toronto, ON M5H 3Y2 Tel: 416-865-6600 Fax: 416-865-6636 www.gardiner-roberts.com This article was prepared by William O Hara and
ETHICAL SCENARIO #3 I. FACT PATTERN A Saskatchewan law firm ( SK Firm LLP ) acts on behalf of an out of province (e.g. national) corporation (the Corporation ). SK Firm LLP s role has been solely to file
MAINE SUPREME JUDICIAL COURT Decision: 2009 ME 92 Docket: WCB-08-663 Argued: May 20, 2009 Decided: August 18, 2009 Reporter of Decisions Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, SILVER, MEAD,
doing business in Canada 102 p Bankruptcy and Restructuring 1. Legislation and Court System The Canadian bankruptcy and insolvency regime is divided between the federal and provincial levels of government
PERSONAL INJURIES AND DEATHS IN SOUTH AFRICA This Guide explains national law when seafarers are injured or killed in a port in South Africa or on a South African flagged ship. This document is not intended
STATE OF MICHIGAN COURT OF APPEALS CALVERT BAIL BOND AGENCY, LLC, Plaintiff-Appellant, FOR PUBLICATION March 10, 2016 9:00 a.m. v No. 324824 St. Clair Circuit Court COUNTY OF ST. CLAIR, LC No. 13-002205-CZ
401-815 Hornby Street V6Z 2E6 CANADA Telephone (604) 681-2866 Facsimile (604) 681-4260 Email: email@example.com Internet: www.admiraltylaw.com SUMMARY Curriculum Vitae Christopher J. Giaschi Christopher
Court File No.: ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: MICHAEL MOSEY Plaintiff - and - HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (ONTARIO MINISTRY OF LABOUR) Defendant STATEMENT OF CLAIM TO THE
SUPREME COURT OF MISSOURI en banc Robert E. Fast, M.D., et al., Appellants, vs. No. SC89734 F. James Marston, M.D., Respondent. APPEAL FROM THE CIRCUIT COURT OF BUCHANAN COUNTY Honorable Weldon C. Judah,
August 2013 Labour & Employment Law Section Understanding How Termination and Severance Pay will be Offset Against Disability Benefits** Hugh R. Scher and Caroline Schulz The relationship between disability
Proposed Amendments to the Fatal Accidents Act Discussion Paper Prepared by the Department of Justice Contents About the proposed Amendments to the Fatal Accident Act... 3 Background and Purpose... 4 Proposed
REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG CASE NO: 13/33469 (1) REPORTABLE: YES / NO (2) OF INTEREST TO OTHER JUDGES: YES/NO (3) REVISED... DATE...
SUPREME COURT OF CANADA CITATION: Fundy Settlement v. Canada, 2012 SCC 14 DATE: 20120412 DOCKET: 34056, 34057 BETWEEN: St. Michael Trust Corp., as Trustee of the Fundy Settlement Appellant and Her Majesty
IN THE SUPREME COURT OF MISSISSIPPI NO. 94-IA-00905-SCT MISSISSIPPI TRANSPORTATION COMMISSION v. MILDRED JENKINS AND MOBILE MEDICAL AMBULANCE SERVICE, INC. DATE OF JUDGMENT: 09/01/94 TRIAL JUDGE: COURT
PLEASE NOTE: Legislative Information cannot perform research, provide legal advice, or interpret Maine law. For legal assistance, please contact a qualified attorney. Be it enacted by the People of the
Alerter 24 th July 2015 Supreme Court Judgment in Coventry and Ors v Lawrence and another  UKSC 50 The Supreme Court has handed down its Judgment in Coventry v Lawrence in which it considered the
Province of Alberta VICTIMS OF CRIME ACT Revised Statutes of Alberta 2000 Current as of November 1, 2013 Office Consolidation Published by Alberta Queen s Printer Alberta Queen s Printer 7 th Floor, Park
Law Office Searches: A Primer 1 by Ian R. Smith Fenton, Smith Barristers Toronto, Ontario Introduction This paper is intended for the lawyer who finds him- or herself in the following unpleasant situation:
IN THE SUPREME COURT OF BRITISH COLUMBIA No. ----- Vancouver Registry BETWEEN: THE BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION Plaintiff AND: THE ATTORNEY GENERAL OF CANADA Defendant Narne and address
[CH.71 1 CHAPTER 71 ARRANGEMENT OF SECTIONS SECTION 1. Short title. 2. Interpretation. 3. Action maintainable notwithstanding death of person injured. 4. Persons for whose benefit action may be brought.
california legislature 2015 16 regular session ASSEMBLY BILL No. 597 Introduced by Assembly Member Cooley February 24, 2015 An act to amend Sections 36 and 877 of, and to add Chapter 6 (commencing with
IN THE SUPREME COURT OF FLORIDA CASE NO. 67,398 NANCY C. VILDIBILL, as personal Representative of the Estate off Steven Allen Paul, deceased, Petitioner-Appellant, EDDIE JOHNSON, AAA COOPER TRANSPORTATION,
The Liability of Lessors and the Insurance Implications of Bill 35 The British Columbia Legislature recently took steps to cap the liability exposure of auto dealers and auto leasing companies. Included
AUTOMOBILE INSURANCE IN THE PROVINCE OF ONTARIO 159 AUTOMOBILE INSURANCE IN THE PROVINCE OF ONTARIO BY JOHN EDWARDS INTRODUCTION During 1936, 138 insurers reported automobile insurance premiums written
Title XLV TORTS Chapter 768 NEGLIGENCE View Entire Chapter 768.28 Waiver of sovereign immunity in tort actions; recovery limits; limitation on attorney fees; statute of limitations; exclusions; indemnification;