August 14, 2013 - The Supreme Court of Canada ("SCC")
has decided that the provincial workers' compensation regimes
are constitutionally valid with respect to maritime workplace
injuries and neither an injured maritime worker, nor his
estate may sue an employer who is subject to the workers'
As reported in our ALERT of April 5, 2012, the issue of whether
provincial workers' compensation regimes apply to maritime
workplace injuries was to be decided by the Supreme Court of Canada
in the case known as the "RYAN'S COMMANDER".
In the "RYAN'S COMMANDER", the estates of the two
Ryan brothers commenced action against the designer and builder of
the "RYAN'S COMMANDER", as well as the Attorney
General of Canada, alleging negligence in the inspection of the
vessel by Transport Canada after the vessel and the Ryan brothers
were lost at sea while fishing. The Newfoundland Workplace Health,
Safety and Compensation Commission determined that the Ryan
brothers were employees for the purposes of the provincial
Workplace Health, Safety and Compensation Act (WHSCA), and
as such, their dependents were barred by the WHSCA from
suing for damages. Their only recourse was compensation under the
However, both the Newfoundland Trial Court and Court of
Appeal held that the provincial statute impinged upon
Parliament's jurisdiction over navigation and shipping, and was
therefore constitutionally invalid. It also found that s. 6(2) of
the Federal Marine Liability Act (MLA), which allows the
estate of a deceased to sue in tort to recover damages, conflicted
with the bar in the WHSCA against suing and that the
Federal statute prevailed insofar as maritime workplaces were
The SCC was asked 1)whether the federal power over navigation
and shipping made the claims by the Ryan Estates immune from the
application of the prohibition against suit found in the provincial
WHSCA and 2) if right to sue granted by the Federal
MLA was paramount to the WHSCA such that the
WHSCA did not apply to deaths at a maritime workplace.
The SCC held that while the WHSCA did trench on a
protected core area of federal jurisdiction (navigation and
shipping), it did not do so in a serious enough manner. The
prohibition against employees and their dependents from suing
employers did not sufficiently impair Parliament's jurisdiction
over navigation and shipping so as to render the prohibition
unconstitutional when the injury or death occurred at a maritime
workplace. There was no immunity from the WHSCA.
That conclusion is somewhat surprising, as it is difficult to
imagine how a provincial statute which strips away statutory and
common law rights to sue is not a serious impairment of federal
jurisdiction particularly when the SCC has previously held that
maritime negligence causing injury and death is a core element of
navigation and shipping.
In maritime negligence law, a person's right to sue for
damages when suffering an injury is based on common law principles,
and if he dies, the right of his estate and dependents to sue is a
statutory provision found in the MLA.
The Court further found that there is no conflict between the
MLA and the WHSCA. It held that s. 6(2) of the
MLA, which provides that a dependant may bring a claim
"under circumstances that would have entitled the person, if
not deceased, to recover damages", did not conflict with the
WHSCA provision barring such an action, because if the
deceased had not died but had just suffered an injury, he would not
be entitled to bring an action pursuant to his common law right
because of the WHSCA. The death of the deceased did not
change the situation so as to permit a statutory right to sue to
proceed where a common law right could not.
Most interestingly, the Court held that principle of federal
paramountcy does not apply when the constitutional conflict is
between federal maritime common law and a provincial statute. The
Court decision suggests that provincial statutes may affect and
overrule federal common law so long as they do not
seriously impair Parliament's jurisdiction
with respect to navigation and shipping.
As a great deal of maritime law is based upon common law
principles it remains to be seen how that reasoning will be applied
in future cases.
In short, the situation with respect to compensation for claims
for injured maritime workers has not changed from the way it has
operated in Canada for many decades. However, the SCC's reasons
appear to support the Court's continued retreat from the
concept that maritime matters are exclusively governed by federal
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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