SUPREME COURT OF CANADA MARINE SERVICES INTERNATIONAL LIMITED

Transcription

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: supreme@factum.ca 2005 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: peter.southey@justice.gc.ca christine.mohr@justice.gc.ca 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: christopher.rupar@justice.gc.ca 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: peter@goodlandoflaherty.com Counsel for Appellants Patricia J. Wilson Osler, Hoskin & Harcourt LLP Suite Albert Street Ottawa, Ontario K1R 7Y6 Tel.: Fax: pwilson@osler.com Agent for Appellants

3 - 3 - Corwin Mills, Q.C. Mills Pittman PLC Inc. Suite Manitoba Drive Clarenville, Newfoundland & Labrador A5A 1K2 Tel.: Fax: cmills@mhplawfirm.com 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: cbauman@sgmlaw.com 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: jmartin@wrmmlaw.com 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: henry.brown@gowlings.com 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: henry.brown@gowlings.com 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: rhouston@burkerobertson.com 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, [1998] 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, [1966] S.C.R. 767 ( Bell 1966 ), at , Appellants Authorities, tab 5; Comm. de la santé & de la sécurité du travail (Qué) v. Bell Can., [1988] 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.