A 2011 case involving wrongful death compensation for deceased
fisheries workers in Atlantic Canada revealed an interesting
conflict in governing legislation that should be noted by the
maritime industry. As a result, widows and estates of deceased
fishers in Newfoundland and Labrador have been held entitled to sue
for damages resulting from their husbands' deaths at sea,
despite a provincial workers' compensation statute prohibiting
such lawsuits by beneficiaries of compensation under that
In Newfoundland (Workplace Health, Safety & Compensation
Commission) v. Ryan Estate, two Newfoundland brothers were
killed when their jointly-owned fishing vessel capsized off Cape
Bonavista in 2004. Their estates and widows sued the designer and
builder of the vessel for negligence and breach of contract. They
also sued the Attorney General of Canada for alleged negligence by
federal steamship inspectors, notably in testing the boat's
stability. The families of the deceased also obtained compensation
from the Workplace Health, Safety and Compensation Commission of
the province under an arrangement contingent upon whether they were
ultimately successful in their lawsuits.
Initially, an internal review specialist with the Commission
decided that their action against the defendants was barred by s.
44 of Newfoundland's Workplace Health, Safety and
Compensation Act (the WHSCA). However the Supreme Court of
Newfoundland and Labrador, Trial Division, later reversed that
ruling, resulting in an appeal to the provincial Court of Appeal
launched by the Commission, the designer and the builder of the
vessel, as well as the federal Attorney General.
The SCC found that the WHSCA was a no-fault insurance scheme,
entitling injured workers to be paid from a fund to which employers
were required to contribute, and providing benefits in substitution
for damages obtainable in tort litigation. Removing their right to
sue was a "trade off" for the respondents'
eligibility for benefits under that no-fault scheme. As such, the
WHSCA was definitely within the powers of the province under
subsect. 92(13) of the Constitution Act, 1867, even if it
had incidental effects on matters falling under exclusive federal
legislative jurisdiction. But while provincial legislation could
affect federal jurisdiction, it could not impair a "core"
element of that jurisdiction in a serious manner. In this case,
maritime negligence law was that core element, with its exclusive
federal jurisdiction over "navigation and shipping" under
subsect. 91(10) of the Constitution Act, 1867.
S. 44 of the WHSCA impaired a core component of federal
jurisdiction over navigation and shipping in this case because it
eliminated reliance on maritime negligence law to obtain
compensation for the death or injury of Newfoundland and Labrador
fishers arising from workplace accidents occurring in a maritime
In addition, s. 44 of the WHSCA also ran afoul of Canadian
constitutional law because its application was incompatible with
the federally-enacted right of the dependents of the maritime
workers to sue for damages in tort under subsect. 6(2) of the
Marine Liability Act. Thus, compliance with the federal
law was impossible without violating provincial law, and the two
provisions could not co-exist. Further, it was found that s. 44
frustrated the purpose of subsect. 6(2), which was to allow
dependents of a deceased person access to the federal maritime tort
regime to the same extent that the deceased would have had if he or
she had not died.
Accordingly, the federal statute took precedence over the
incompatible provincial provision. The plaintiffs could therefore
continue their damage action.
Interestingly, in the United States, the Fifth and Ninth
Circuits have also given precedence to the "general maritime
law", allowing maritime workers to claim damages in tort for
negligence in U.S. federal district courts despite workers'
compensation legislation of individual U.S. states barring such
claims by WC beneficiaries. The Eleventh Circuit has taken the
opposite position, however. For a very recent discussion of this
issue in the U.S., see Morrow v. Marinemax, where the
District Court for the District of New Jersey, in the Third
Circuit, absent any controlling precedent on the point in its own
Circuit, opted to follow the Fifth and Ninth Circuits in giving
priority to maritime law rights of suit in tort over incompatible
prohibitions of New Jersey's workers' compen-sation statute
barring such litigation.
SIGNIFICANCE OF DECISION
This is the first appellate decision to interpret subsection 43(2) of Canada’s Marine Liability Act, which makes the Hague-Visby Rules apply compulsorily to certain contracts of carriage by water between places in Canada.
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