Torts - Case Summaries
The database contains 9 case summaries relating to Torts . The summaries are sorted in reverse date order with 20 summaries per page. If there are more than 20 summaries, use the navigation links at the bottom of the page.
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Torts - Collision Between Two Fishing Vessels - Whether Engaged in Fishing
Hogan v. Buote, 2012 PESC 10
The issue in this case was the apportionment of liability for a collision involving two fishing vessels. One vessel, under the command of Hogan, was in the process of laying lobster traps in a northerly direction while the other vessel, under the command of Buote, was proceeding westerly. Buote argued the collision was Hogan’s fault as Buote had the right of way pursuant to Rule 15 of the Collision Regulations. Hogan, on the other hand, said he had the right of way as he was a vessel engaged in fishing pursuant to Rule 3. The Court held that Hogan, although laying traps, was not restricted in his ability to manoeuvre and therefore Rule 3 did not apply. The Court ultimately found Hogan was 75% at fault and Buote 25% at fault.
Torts/ Constitutional - Bar to Litigation in Nfld. Workplace, Health, Safety and Compensation Legislation constitutionally inoperative and inapplicable to estate of deceased fish harvesters
Newfoundland v. Ryan Estate, 2009 NLTD 120 2011 NLCA 42
In this case, the Newfoundland Trial Division (2009 NLTD 120) held that the statutory bar to litigation in the Nfld. Workplace Health, Safety and Compensation Act (WHSCA) is unconstitutional.
Ryan Estate v. Universal Marine (Ryan's Commander) involved a claim by the estates of two crew members of the fishing vessel Ryan's Commander that capsized off of the coast of Nfld. in 2004. After commencing civil actions for damages, an internal review specialist of the Work Health and Safety Commission ruled that there was a statutory bar to litigation because both the deceased and the defendants were workers and the deaths occurred in the course of employment. Upon judicial review, the Trial Division ruled that the statutory bar to litigation in the WHSCA must be read down under the interjurisdictional immunity doctrine because it impairs the federal power to sue for damages under the Marine Liability Act. In doing so, the court noted that the provincial WHSCA legislation was in pith and substance an insurance scheme.
The court also held that the provincial legislation could not be upheld under the paramountcy doctrine.
Editor's note: An article explaining the interjurisdictional immunity doctrine can be found on the Admiraltylaw.com website here
This decision was upheld on appeal (2011 NLCA 42) with a dissent.
Judicial Review - jurisdiction of Superior Court - whether action in contract and tort a collateral attack on jurisdiction of Federal court
Torts - whether action in tort and contract a collateral attack on jurisdiction of court - No duty on Minister to explain enforceability of contract
Contracts - whether action in tort and contract a collateral attack on jurisdiction of court - Not Enforceable if fettering Discretion
Andrews v. Canada (A.G.), 2009 NLCA 70
This case involved a superior court action by a group of snow crab fish harvesters who alleged that they had a contract with the Minister of Fisheries whereby they gave up their historic right to a proportionate share of a relatively large increase in the total allowable catch of snow crab in the 1990's in exchange for a promise from the Minister of Fisheries that he or she would maintain their traditional catch levels at the 1988-93 levels unless conservation required an overall reduction in the total allowable catch below 1993 levels. As a result of alleged failures of the Minister to honour this commitment in 2000 and thereafter, this group commenced a superior court action alleging breach of contract or alternatively negligence. They claimed damages in excess of $23,000,000.
In an application by the Crown to strike the statement of claim, one of the main issues that arose was the whether or not the superior court had jurisdiction. The Crown argued that the action was a collateral attack on the exclusive jurisdiction of the Federal Court to hear matters of judicial review under section 18 of the Federal Court Act. The plaintiffs argued that there was concurrent jurisdiction under s. 17 of the Federal Court Act and s. 21(1) of the Crown Liability Act. The Applications Judge (2008 NLTD 145 link]), after reviewing a number of authorities including Genge v. Canada (A.G.), 2007 NLCA 60, stated that since judicial review is not a pre-requisite for an action in contract or tort (see Genge para. 40), a court must determine the true nature of the application. In doing so, the court distinguished a number of cases cited by the plaintiffs, such as Keeping v. Canada (A.G.), 2003 NLCA 21, as cases not involving the exercise of ministerial discretion. Since no contractual right to quota could exist until the Minister exercised his or her discretion each year to approve a quota, the true nature of the action was an attack on the Minister's discretionary power (para. 42 trial level decision). Similarly, no negligence in entering into an agreement could be established that was independent of the Minister's exercise of discretion to approve quota. In characterizing the action as a matter of judicial review outside the jurisdiction of the superior court, the court concluded that "[w]here the allegations are fundamentally tied to the decision-making authority of the Minister, there is no room for an action in tort or contract because the impugned action was not independent from the exercise of ministerial authority" (para. 43). As result, the Applications Judge held the statement of claim did no disclose a reasonable cause of action and declined jurisdiction and refused to grant a stay pending a superior court action.
Upon appeal to the Court of Appeal, the decision of the Applications Court was upheld with Wells, J.A. dissenting and with partially different reasons being provided by Barry, J.A. and Welsh, J.A..
Both majority decisions agreed upon the law to be applied as summarized by Welsh, J.A: as follows:
To summarize, the above decisions support several conclusions. First, where, pursuant to legislation, a minister is authorized to exercise discretion in the public interest, that discretion may not be constrained for future use or fettered either directly or indirectly, unless the legislation otherwise provides. Indirect fettering includes exposing the minister or government to liability for damages or payment of compensation for failure to exercise the discretion in a particular way. Despite the apparent harshness of the result, an agreement, implied undertaking or representation having the effect of fettering the minister’s authority is unenforceable and damages are not available. Nonetheless, the minister must act in good faith, not arbitrarily, and must not base his or her decision on considerations irrelevant or extraneous to the statutory purpose. Finally, while damages are not available, a claim for unjust enrichment may be permitted. (para. 83)
However, the two majority judgements varied somewhat on their application of the law to the facts. Welsh J.A. applied the law similarly to that of the Applications Judge by holding that a "claim for damages for failure to exercise the discretion in a particular manner amounts to an improper indirect fettering of the Minister's discretion. . . . The same analysis applies and the same conclusion follows whether the claim is made in contract or tort . . ." (para. 84).
Barry J.A. agreed with Welsh's analysis of the contract claim, but with respect to the tort claim, he added that the pleadings did not set out any duty owed by the Minister to the Applicants. The Applicants must "be taken to know the law and , specifically, the rule against fettering ministerial discretion. Given that knowledge, how can this Court say the Minister owed any duty to explain the limitations on the enforceability of any commitment regarding quotas? In my opinion, no such duty existed." (para. 98).
The dissenting reasons are set out at paragraphs 1 to 58 of the judgement.
Editor's note: Although it did not likely affect the outcome of the decision, all three judges in reviewing the jurisprudence on judicial review of discretionary decisions appear to have overlooked the fact that the requirement of the decision maker to act in good faith, not arbitrarily, and to base his or her decision on considerations irrelevant or extraneous to the statutory purpose are in addition to the needs to meet the requirements of natural justice. In this regard see the editorial comments at the end of the Arsenault digest (link).
(Attorney General) v. Telezone Inc, 2010 SCC 62
Editor's postscript: Since this case was decided, the Supreme Court of Canada released Canada (Attorney General) v. Telezone Inc, 2010 SCC 62, which over-ruled the Genge Canada decision and stated that "where a plaintiff's pleading alleges the elements of a private cause of action, I think the provincial superior court should not in general decline jurisdiction on the basis that the claim looks like a case that could be pursued on judicial review" (para. 76). However, the provincial superior courts and the Federal Court do have the residual discretion to stay a damage claim if, in its essential character it is a claim for judicial review with only a thin pretence of a private wrong (para. 78).
Torts - Calculation of loss of Income for Fish Harvester injured in Motor vehicle accident
Erickson v. Bowie, 2007 BCSC 1465
This case involved a 50 year old fish harvester who suffered injuries in a motor vehicle accident that prevented him from returning to work on a fishing vessel. In assessing his claim for both past and future loss of income, the court ruled that the claimant was not limited by his past earnings and made an award based upon the assumption that, but for the accident he would have purchased a black cod licence with his brother and earned income from that licence.
Torts - Economic Loss - Negligence of Fishing Licence Broker
D.C.T.B. Enterprises v. Original Fishboat Trader, 2006 BCSC 1939
This case involved a series of transactions in 2001 and 2002 where a fishing licence broker acted as agent with respect to the sale of halibut quota for a number of vendors. After the fact, the vendors claimed that the broker was negligent in allowing the 10 per cent Pacific Halibut Management Association ("PHMA") quota associated with their licences to also be transferred to the purchasers.
In dismissing the case against the broker, the court ruled as follows:
My impression is at that the parties approached . . . [the] broker because of her ability to match purchasers with sellers. While she did draft the listing agreements and purchase and sale agreements, I see nothing to suggest that the vendors were relying on any particular professional expertise that they thought she possessed.
I would add that the confusion under which the vendors laboured was primarily a result of confusing information provided to them by the PHMA in its newsletters. [She] did not receive those newsletters and had no way of knowing what information or misinformation they contained.
Torts - Economic Loss caused by underwater pipeline
Sable Offshore Energy Inc. v. Bingley, 2003 NSSC 20
This case involved an action by a lobster fisherman against the builder of an underwater pipeline for loss of income due to a decrease in his lobster catch alleged to have been caused by construction activities while laying an the pipeline. At the conclusion of a Small Claims hearing, a Small Claims court adjudicator awarded damages to the fisherman on the following basis:
I find on the balance of probabilities that the decrease in the catch rate in the sub-areas of Mr. Bingley was due to construction of the pipeline. The precise manner in which the construction of the pipeline impacted on the fishery is not known. However I find the conclusion inescapable given Mr. Bingley’s fishing history and detailed data that the construction of the pipeline and the ancillary activities did, in fact, negatively impact on his catch. (para. 4).
Upon appeal, the Nova Scotia Supreme Court found that the Small Claims adjudicator erred in law by determining causation before he or she determined that the defendant had committed a negligent act. In particular, the adjudicator failed to address the difficult issue of whether or not such a loss of income claim could be established for economic loss as opposed to physical harm. Accordingly the matter was remitted back to the Small Claims court before a different adjudicator for a rehearing.
Tort - Liability of Crown for improper storage of seized items
144096 Canada (USA) v. Canada (Attorney General) ,  O.J. No. 5014
Note: Although not a fisheries case, this case could be applicable to a case involving failure to maintain a fishboat that has been seized by the Department of Fisheries.
Practice – Torts - Limitation of Liability – Calculation of damages for net damage claim – consequently economic loss – unjust enrichment – punitive damages
Capilano Fishing Ltd. v. Qualicum Producer (The), 2001 BCCA 244
This was a net damage case involving a claim for damages incurred by a vessel when its net was fouled by another vessel during a very short opening in the 1997 herring seine fishery. The issues raised by this case included the following:
1)Recovery for contractual relational economic loss;
2)Limitation of Liability;
3)Restitution for unjust enrichment with an accounting of profits earned by the defendants;
5)Quantification of damages.
At the trial level, Warren J. applied the former provisions of the s. 574 of the Canada Shipping Act to allow the defendants to limit their liability to approximately $40,000 dollars.
Although damages were limited to $40,000, the trial court also addressed the issue of how damages should be quantified.
With respect to unjust enrichment, the trial judge applied the reasons of Lowry J. in the “Cape Flattery” (1 December 1997) Vancouver C953623 (B.C.S.C.) to reject this claim. With respect of quantification of the loss of fish, the court based its award upon the daily average of the vessels fishing in the area. In doing so, the court said “[f]rom time immemorial fish have been among the more elusive of prey. The only certain catch is the one stored on board.”
The trial court also rejected the claim for punitive damages.
With respect to contractual relation economic loss, the trial court followed the decision of Lowry J. in the “Cape Flattery” to allow the claim of members of a fishing pool who had an interest in the catch of the plaintiff vessel. However, it rejected the claim of a fish processor, which had supplied a licence to the plaintiff vessel at a discounted rate in exchange for the right to purchase its catch.
Upon appeal, the decision was varied as set out below.
With respect to limitation of liability, the court reversed the trial court and prevented the defendants from limiting their liability. In doing so, it adopted the following quote from Lowry J. in Savage Fisher (The) v. Prosperity (The) (2000) 78 B.C.L.R. (1124) (B.C.S.C.):
I would have considered that the owner or the charterer of a vessel that participates in a shotgun herring opening must be privy to damage to the property of others its vessel may cause. I say that because of the nature of the activity. As indicated at the outset, large trawlers are operated in a high stakes competition for fish which forces them to maneuver (sic) at speed in close proximity. Masters are encouraged to catch as much herring as they can in what is most often a very short period of time. . . It is an activity where an owner’s instruction to exercise caution, end even to put safety first, must for all practical purposes be lost in the priority of making a large catch. As I said at the outset, it is a most unusual kind of maritime adventure – one that compels masters to sacrifice good seamanship for profit as happened in this case. [para. 51]
. . . I have difficulty seeing on what basis an owner or charterer that engages its vessel in that activity could meet the standard of care required to be permitted the privilege of limiting its liability. [para. 52]
With respect to quantification of damages, instead of basing it award on the daily average as did the trial court, the court made a larger award based upon ½ of the amount caught by the offending vessel. In doing so, the court considered the maxim omnia praesumuntur contra spoliatorem (all things presumed against a wrongdoer) as well as the fact that “[f]rom time immemorial fish have been among the more elusive of prey. The only certain catch is the one stored on board” (para. 36).
With respect to the claim of a fish processor for the value of a herring licence given to the claimants at a discounted price in exchange for a promise by the claimants to sell their catch to the fish processor, the court was unable to find any evidence to support the claim, as the processor had led no evidence regarding its profits. The court also cautioned that it did “not wish to be taken as holding that such a claim for economic loss would lie” (para. 50).
With respect to the claim based on unjust enrichment, the court said “actions for negligence in the operation of vessels are actions for compensation for losses caused. There is no need to complicate such actions with notions of unjust enrichment” (para. 49). Similiarly, with respect to the claim for punitive damages the court said, “it is not for this Court to introduce into maritime law a concept which is unknown to it” (para. 49).
In rem actions - whether or not allegations of conspiracy and misappropriation of a ground fish quota amounts to a maritime tort -
Bornstein Seafoods Canada Ltd. v. Hutcheon , 1997 CanLII 5852
This case involves a claim by a fishing processor that the two defendants to the action conspired to transfer ground fish quota from one defendant to another, when the defendants knew the quota had been previously purchased by the plaintiff. When the action was commenced, the plaintiff arrested one of the defendant's vessels (upon which the quota had allegedly been fished) and obtained an ex parte injunction which enjoined the defendants from transferring or otherwise dealing with the ground fish quota. One of the defendants, brought on an application to set aside both the injunction and the arrest.
With respect to the injunction, the court applied the law as set out in RJR MacDonald Inc. v. Canada (A.G.)  1 S.C.R. 311. With respect to the issue of irreparable harm, the court found that since the plaintiffs operations would only be "disrupted" and since tracing would not be "impossible", there was no irreparable harm. Regarding the issue of balance of convenience, the court ruled that since the continuation of the injunction would cause the defendant to "become insolvent in the near future", the balance of convenience did not favour a continuation of the injunction. Consequently, the injunction was set aside.
With respect to the warrant of arrest, the plaintiffs argued that their claim amounted to a maritime tort which formed part of Canadian Maritime Law by virtue of section 22(2)(d) of the Federal Court Act. The court rejected the plaintiff's argument and concluded that the court had no in rem jurisdiction. Consequently it set aside the arrest of the vessel.
This case also contains some interesting comments regarding the role of the court in attempting to salvage warrants of arrests, when possible.
Counsel for the applicant: David F. McEwen
Counsel for the plaintiff: Gary Wharton