A Commentary on Recent Legal Developments by the Opinions Group
of McCarthy Tétrault LLP
The Supreme Court of Canada released two decisions this week of
interest to Canadian businesses and professions.
The first, Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44, involved the constitutional
relationship between provincial workers compensation legislation
and the federal jurisdiction over navigation and
shipping. As my colleague Byron Shaw discussed
previous post, the respondents in Marine Services were the
estates of two fisherman who died at sea after their boat
capsized. They applied for and obtained compensation under
the Newfoundland and Labrador Workplace Health, Safety and
Compensation Act (the "WHSCA"). While s. 44 of the
WHSCA creates a statutory bar to civil proceedings where
a party has obtained compensation under the statute, the
respondents also brought a negligence action against the appellants
(the manufacturer and architect of the capsized ship, and
the federal government for inspecting it) under s. 6(2) of the
federal Maritime Liability Act (the "MLA").
The respondents had successfully argued in the Court of Appeal below that s. 44 did not
bar their claim, since it was inapplicable and inoperative based on
the constitutional doctrines of interjurisdictional immunity and
federal legislative paramountcy. However, the Supreme Court
overturned this ruling. In addition to finding that the
appellants could rely upon s. 44 of the WHSCA depsite the fact
that they did not have a "direct employment relationship"
with the deceased at the time of their deaths, the Court held that
s. 44 was both constitutionally applicable and operative.
The Marine Services decision continues the Supreme Court's
narrow approach to the interjurisdictional immunity doctrine taken
in Canadian Western Bank v. Alberta,  2 S.C.R. 3. The Court held that
s. 44 of the WHSCA did not engage the doctrine since, despite
trenching on the core of the federal power over navigation and
shipping, it did not rise to the level of "impairing"
that power. In arriving at this conclusion, the Court
distinguished its prior decision in Ordon Estate v. Grail,  3 S.C.R. 437 - where
it had held that interjurisdictional immunity applies when a
provincial statute of general application has the effect of
indirectly regulating a maritime negligence law issue – on
the ground that it was decided prior to Canadian Western Bank.
As to the paramountcy doctrine, the Court confirmed that a
"high standard" must be met where a party seeks
to invoke the doctrine based on a purpose conflict rather than an
operational one. Interestingly, the Court also clarified
that "federal paramountcy only applies where there is
an inconsistency between two valid legislative
enactments - one federal and one provincial. It does not
apply to an inconsistency between the common law and a valid
provincial legislative enactment". (para. 78) While
Beetz J. had suggested in obiter in Bisaillon v. Keable,  2 S.C.R. 60 that the paramountcy
doctrine could apply to conflicts between federal common law and
provincial statute law, the Court in Marine Services noted that
"we are aware of no case in which the doctrine was applied to
common law". (para. 67) However, the Court did not
directly deal with whether paramountcy can apply where
a federal statuteis inconsistent with a
provincial rule of common law. Such conflicts
have given rise to a signficant body of case law in the United
States, where courts have frequently held that state tort
laws may be "pre-empted" where they
conflict with federal enactments (see, most recently, Mutual
Pharmaceutical Co. Inc. v. Bartlett, 133 S. Ct. 2466 (2013)).
The second decision of interest is Ontario v. Criminal
Lawyers' Association of Ontario, 2013 SCC 43. The Court in this case held
that the inherent jurisdiction of superior courts to appoint amici
curiae does not include the power to fix their rates of
compensation and order the provinces to pay. Such a
jurisdiction may only be exercised where it flows from a
constitutional challenge or a statutory provision. The Court's
reasons are noteworthy for the limits they impose upon the inherent
jurisdiction of superior courts. According to the Court,
"[t]he scope of a superior court's inherent power, or of
powers possessed by statutory courts by necessary implication, must
respect the constitutional roles and institutional capacities of
the legislature, the executive and the judiciary", and are
therefore "limited by the separation of powers that exists
among the various players in our constitutional order and by the
particular institutional capacities that have evolved from that
separation". (paras. 5 and 26)
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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