Personal Injury and Maritime Law
Commentaries are intended as an introduction or overview of the topic. The commentaries for some topics are more detailed than others but none of them should be taken as a complete and full recitation of the law applicable to the topic.
Is the Injured Person's Claim Governed by Part 4 of the MLA?
For cases involving personal injury or fatalities to persons on board a ship or caused by a ship, the first step is to determine whether the injured person is a "passenger" within the meaning of Part 4 of the Marine Liability Act. If the injured person is carried under a contract of carriage (either domestic or international) they are a "passenger" within the meaning of Part 4. If the injured person is carried on a ship that is being operated for a commercial or public purpose, they are also a "passenger" within the meaning of Part 4. On the other hand, if the injured person is carried on a ship used for pleasure purposes and not under a contract of carriage, they are not a "passenger" within the meaning of Part 4.
If the injured person is a "passenger" within the meaning of Part 4 of the Marine Liability Act, then the liability regime in Part 4 (and the commentary under the section "Carriage of Passengers") applies.
If the injured person is not a "passenger" within the meaning of Part 4 of the Marine Liability Act, then the general common law of negligence applies.
Limitation Period - non Passengers
If personal injury results from a collision between two ships the limitation period is two years as set out in s. 23(1) of the Marine Liability Act.
If the claim is for personal injury not caused in a collision between two ships and not to a passenger (and not a claim by a dependant), the limitation period is three years as set out in s. 140 of the Marine Liability Act.
Limitation of Liability - Non Passengers
Claims for personal injury or fatalities are subject to the limitations of liability set out in Part 3 of the Marine Liability Act. These limits are addressed in the section entitled "Limitation of Liability" and the actual limits depend on the size of the ship. For ships less than 300 tons (which will be most pleasure craft), the limit is C$1,000,000. The limitation can only be broken if the plaintiff proves that the loss resulted from the personal act or omission of the defendant “committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result”. This is a very strict test and the author is not aware of any case where the test has been met. In fact, the Supreme Court of Canada described it as "a virtually unbreakable limit" in Peracomo Inc. v. Telus Communications Co., 2014 SCC 29.
Dependants Claims/Derivative Actions
Claims by dependants of an injured or deceased person are governed by Part 1 of the Marine Liability Act which gives dependants the right to bring a claim against the wrongdoer in circumstances where the injured or deceased person could have brought a claim. "Dependant" is defined in section 4 and includes spouse, common law spouse, children, grandchildren, grandparents and brothers and sisters.
The damages recoverable by a dependant include loss of care, guidance and companionship (s.6(3)(a)) as well as the actual value of the loss of past and future financial support.
A claim by a dependant is subject to a two year limitation period pursuant to s. 14 of the Marine Liability Act and is also subject to limitation of liability.
The database contains 27 case summaries relating to Personal Injury and Maritime Law. 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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Maritime liability - Rafting - S. 140 MLA - Adventure Tourism
Jean Riley v. New Wave Expeditions Inc., 2019 QCCS 3697
Précis: The Quebec Superior Court could not strike a claim arising from a river rafting excursion where the underlying facts, which determined the applicable limitation period, were disputed.
Facts: This was a motion by the defendant to strike the plaintiff's claim. The plaintiff was injured during a rafting trip on 11 June 2015 and claimed damages from the defendant organizer of the trip for same by commencing an action on 8 June 2018. The defendant argued that the claim was time barred by s. 23 of the Marine Liability Act which provisioned a two year limitation period beginning on when the injury arose. The plaintiff argued that s. 23 does not apply as this claim was one of adventure tourism as prescribed by s. 37.1 of the MLA and therefore the three year time limitation period under s. 140 governed the claim.
Decision: Defendant's motion dismissed.
Held: To strike a claim under Quebec's Civil Code, the law can be disputed but the underlying facts of the claim cannot. The Quebec Superior Court examined the wording of s.23 of the MLA and found that section pertained to "vessels in a collision situation". The Court noted however that the plaintiff disputed that this was a "vessel collision" situation, which meant there was as dispute as to the underlying facts. Whether this was a "vessel collision claim" or not was a factual determination which could only be made by the trial judge . Therefore the Court could not strike the defendant's claim.
Mooring Line - Houseboats - Beaching stake - Standard of Care - Mooring Rope
Oddy v. Waterway Partnership Equities Inc., 2019 BCCA 185
Précis: The British Columbia Court of Appeal dismissed an appeal against a finding by the trial judge that the owner of a houseboat met the standard of care in connection with injuries caused by a snapped mooring stake and rope.
Facts: The appellant appealed a decision dismissing her negligence action against the respondents’ houseboat company after she suffered injuries caused by a snapped mooring rope and stake which anchored the houseboat she was on. The issue was whether the respondents were negligent in the selection of the mooring rope for use to moor houseboats. The appellant argued that under Article 3 of the Athens Convention the respondents were presumed negligent, that the trial judge did not apply the test for remoteness of damage, and that the judge made palpable and overriding errors of fact.
Decision: Appeal dismissed.
Held: The Court of Appeal agreed with the trial judge’s finding as a fact that the respondents satisfied the standard of care. The respondents’ reliance on a reputable, third-party supplier of the mooring rope was reasonable. The Court of Appeal also held that there was no evidence to show the respondents knew or ought to have known the rope was unsuitable for its purpose. The Court of Appeal further agreed with the trial judge that there was no duty on the respondents to consult an engineer or other marine specialist with respect to the rope before using it to moor houseboats. On those holdings, the Court of Appeal did not find it necessary to comment on the application of the Marine Liability Act or the remoteness of damage arguments.
Excess and Other Insurance Clauses - Contribution -
TD General Insurance Company v. Intact Insurance Company, 2019 ONCA 5
Précis: The Ontario Court of Appeal found that two insurers, both having identical "other insurance clauses", each had to share the cost of the injured party's claim.
Facts: The passenger of an Aluma boat was injured when the boat struck the shoreline. The passenger sued both the operator of the boat as well as its owner. The operator was not the owner of the boat but had the owner's permission to operate. The operator was covered by a TD insurance policy taken out by the owner of the boat that covered him since he was operating the boat with the owner's permission. The operator was also covered by his own home insurance policy, through Intact. Both policies had identical "other insurance clauses" that considered the policy excess if another insurance applied to a loss or claim. TD appealed the trial judge's dismissal of TD's application that both insurance companies would share equally in the defence.
Held: Appeal allowed.
Reasons: The Ontario Court of Appeal found that the trial judge erred in applying the "Minnesota Approach" factors, an approach expressly rejected by the Supreme Court of Canada in Family Insurance Corp. v. Lombard. The Ontario Court of Appeal found that there was overlapping coverage, and that the two limiting "other insurance clauses" in each policy were irreconcilable. Following Family Insurance, the appeal court found that two insurers must share the burden equally under a coordinate obligation to make good on a loss.
Personal Injury - Pleasure Craft Rentals - Liability of Owner for inadequate mooring line
Oddy v. Waterway Partnership Equities Inc., 2017 BCSC 1879
Précis: The British Columbia Supreme Court dismissed an action against the owner of a rented houseboat for personal injuries suffered by a renter when a mooring stake broke loose under strain and hit the plaintiff.
Facts: The defendant was engaged in the business of houseboat rentals on Shuswap Lake, British Columbia. The plaintiff and her party rented one of the defendant’s houseboats for a 5-day period. The plaintiff’s party was instructed by the defendant to moor the houseboat at night by driving its bow onto the beach and then by attaching mooring lines from either side of the stern of the houseboat to “beaching stakes” driven deep into the beach. Each mooring line was to be at about a 45-degree angle away from the sides of the vessel. On the first night the houseboat was moored as instructed but the following morning it was discovered that port mooring line had become loose. The plaintiff approached the helm of the vessel intending to start the engines to reposition the vessel. Suddenly, the starboard beaching stake pulled loose and, due to the tension on the line, catapulted towards the vessel. The beaching stake shattered the wind screen and struck the plaintiff on her left side causing significant injuries. The plaintiff sued the defendant in negligence.
Decision: Action dismissed.
Held: The plaintiff alleges that the defendant failed to take reasonable care to equip the vessel with the appropriate mooring line. More specifically, the plaintiff says that the line was too elastic. However, the line in issue was a double braided nylon line that is widely used for mooring lines and has been used by the defendant without incident since 2010. The defendant purchased the line from a reputable dealer and there is no evidence the defendant knew or ought to have known the line was not suitable for the purpose. The defendant did not breach the duty of care owed to the plaintiff. Additionally, even if there had been a breach of duty, the damages were not reasonably foreseeable and are therefore too remote.
Personal Injury - Small Vessel Collision – Evidence - Effect of Guilty Plea in Criminal Proceedings – Adverse Inference
Banford v. Mitchelson, 2016 SKQB 328
Précis: The operator of a vessel involved in a collision is not precluded from denying liability where his guilty plea was entered for economic reasons. He was nevertheless found liable.
Facts:The plaintiff was a passenger in a small pleasure craft. She suffered personal injuries when a second pleasure craft collided with the boat in which she was riding. The collision occurred at night. The operator of the second boat was charged with dangerous operation of a vessel and pleaded guilty to the charge. In his defence to this civil action, the operator of the second boat denied he was involved in the collision.
Decision:Judgment for the plaintiff.
Held:The defendant has testified that he pleaded guilty to the criminal charge to avoid having to take additional time off work to defend the charge. In these circumstances, the defendant’s guilty plea is not determinative of civil liability. Nevertheless, based on the testimony of the witnesses, it is more likely than not that the defendant was the operator of the second boat and is liable for the injuries suffered by the plaintiff. The defendant’s failure to call his spouse, who was with him in his boat on the night of the accident, as a witness justifies the drawing of an adverse inference.
Personal Injury - Mary Carter Agreement - Effect on Joint Liability
Cormack v. Chalmers, 2015 ONSC 5564
Précis: The court held a "Mary Carter" type settlement agreement with one defendant, who was entitled to limit his liability, did not change the liability of the other defendant to several from joint.
Facts:The plaintiff was badly injured when she was struck by a motor vessel while swimming. The plaintiff commenced proceedings in the Ontario Superior Court against the first defendant, the owner/operator of the vessel that struck her and also against the second defendant, the owner of the residence where she was staying at the time as a guest. The plaintiff alleged the second defendant had failed to warn her of the dangers of swimming off his dock. The plaintiff also alleged that the defendants were jointly liable for her injuries pursuant to the provisions of the Negligence Act of Ontario. Subsequently, the first defendant commenced limitation proceedings in the Federal Court pursuant to the provisions of the Marine Liability Act. The plaintiff and second defendant were parties to the limitation proceeding and consented to a judgement declaring that the first defendant’s liability was limited to $1 million. The plaintiff and first defendant also entered into a settlement agreement to the effect that the first defendant’s liability to the plaintiff was limited to $1 million and that the plaintiff would indemnify and hold the first defendant harmless in the event he was called upon to pay more than this amount. The second defendant was not a party to the settlement agreement and later brought this application to strike those parts of the Statement of Claim pleading that the liability of the defendants was “joint”.
Decision: Motion Dismissed.
Held: The second defendant argues that the hold harmless provision in the settlement agreement has the legal effect of nullifying the joint liability of the defendants under the Negligence Act and renders him severally liable only. This is not the effect of the agreement as the liability of the first defendant is capped at $1 million with or without the settlement agreement. Whether a settlement agreement has the effect of changing a defendant’s liability to one of several from joint and several depends on the language of the agreement in question. This case is analogous to a situation where one of several defendants enjoys legal immunity or limitation of liability and, in such circumstances, the remaining defendants are not protected from joint liability.
Joint and Several Liabililty - Workers Compensation
Ryan Estate v. Canada, 2015 NLTD 90
Précis: A joint and several tortfeasor was held to be liable for 100% of the plaintiffs’ damages even though the other tortfeasors were protected by Workers' compensation legislation and any claims for contribution and indemnity might also be barred by such legislation.
Facts: The plaintiffs were the estates of two crew members of a fishing vessel, the “Ryan’s Commander”, that capsized and was lost at sea on 19 September 2004. The plaintiffs commenced proceedings against the builder and designer of the vessel alleging negligence in the design and construction of the vessel and against Transport Canada alleging negligence in the inspection of the vessel. The builder and designer challenged the right of the plaintiffs to bring any proceedings against them on the grounds that the action was barred by the Workplace Health, Safety and Compensation Act (“WHSA”) of Newfoundland. On 2 August 2013 the Supreme Court of Canada ruled in favour of the builder and designer and held that the plaintiffs’ action as against them was in fact barred by the WHSA. As a consequence, the plaintiffs discontinued the action as against the builder and designer leaving only the Government of Canada as a defendant. Canada then brought this application on a point of law for a determination of whether its liability to the plaintiffs, if any, was joint and several. More specifically, Canada requested a holding that it could only be liable to the extent that it was actually at fault.
Decision: Application dismissed.
Held: It is not disputed that Canada is a concurrent tortfeasor and that concurrent tortfeasors are subject to joint and several liability. This means that a plaintiff may recover the full amount of damages from any one tortfeasor even though that tortfeasor may be only partially responsible for the damage. Section 3 of the Contributory Negligence Act of Newfoundland and s. 17 of the federal Marine Liability Act both impose joint and several liability when there is more than one tortfeasor and both permit tortfeasors to claim contribution and indemnity as amongst themselves. Canada submits that the discontinued defendants can never be liable to the plaintiffs because of the application of the WHSA and that it can make no claim for contribution and indemnity. Further, Canada says the “historic trade-off” imposed by the WHSA will be disrupted if joint and several liability is imposed because the plaintiffs will have double recovery. This court accepts that there is a possibility of double compensation and of circumventing the “historic trade-off”, however, as said by the Supreme Court of Canada in Parkland (County) No. 31 v Stetar,  2 SCR 884, 1974 CanLii 198, a plaintiff is entitled to recover the full amount of the damages against only one of several tortfeasors even if that tortfeasor has no right of contribution from the others. Clear statutory language would be required to render joint and several liability not applicable and such language is not present in the WHSA. This is in contrast to the workers’ compensation legislation in some of the other provinces which specifically address the issues presented here and provide that the remaining tortfeasor can be held liable only for that portion of the loss or damage caused by its own fault or negligence.
Personal Injury - Gangway Accident - Liability of Terminal – Damages – Wage Loss – Employability of Plaintiff - Failure to Mitigate – Refusing Treatment
Ranjbar v. Islamic Republic of Iran Shipping Lines, 2014 BCSC 1983
Précis: A crew member was injured on an automatic gangway and the terminal was found liable for not properly warning users of the dangers inherent in such an automatic gangway.The plaintiff, however, failed to mitigate damages.
Facts: The plaintiff, a ship’s cook, fell from a gangway while boarding a vessel at a terminal in the Port of Prince Rupert and fractured his right femur. The gangway was owned and operated by the terminal. It was an unmanned automatic lifting gangway that moved up and down and side to side as the position of the ship shifted. A horn would sound before movement of the gangway was initiated and posted signage warned that the gangway should be cleared immediately when the horn sounded. The plaintiff was thrown from the gangway onto the deck of the ship when it raised automatically. The plaintiff had heard the horn sound but did not understand its purpose. He had not seen the posted signs and would not have understood them in any event as he had a very limited knowledge of the English language. The plaintiff commenced these proceedings against the owner of the vessel and against the terminal. The defendants each alleged that the other was responsible and that the plaintiff was contributorily negligent. Damages were agreed except for past and future wage loss and it was alleged the plaintiff failed to mitigate.
Decision: The terminal is 100% liable for non-pecuniary damages which are reduced by 15% for failure to mitigate.
Held: The terminal owed a duty to persons using the gangway to take reasonable care that the gangway was safe from an unusual danger of which the terminal was aware. An unusual danger is one that is not usually found in the place concerned and depends on the class of persons involved. A danger that is usual for one class of persons may be unusual for another class. Prior safe use is a factor to be taken into account in assessing whether something constitutes an unusual danger and whether reasonable care was taken but is not determinative. Where an occupier knows of an unusual danger it must warn users of the danger but a warning is only adequate if it provides sufficient detail about the danger such that the users understand the full danger and how to act to avoid it. Here the gangway posed an unusual danger even though it had been used for 24 years without a mishap. Adequate steps were not taken by the terminal to notify users of the danger. The signs were inadequate and confusing especially for persons who could not read and understand English, a foreseeable issue at a terminal. The terminal could easily have taken other measures to warn users. The failure to adequately warn the plaintiff of the danger was the cause of the plaintiff’s fall and injuries and the terminal is liable.
The ship owner also owed a duty to the plaintiff and other crew members to take reasonable care for their safety. If the ship owner knows of a dangerous condition it should ensure the condition is addressed and made safe. In this case, the ship owner was not aware of the danger posed by the automatic gangway and is therefore not liable.
The plaintiff was not contributorily negligent. He was not aware of the risk and could not have been reasonably aware of the danger posed by the gangway. In the circumstances, he took reasonable precautions for his own safety.
The plaintiff is entitled to non-pecuniary damages in the agreed amount of $95,000. The plaintiff also claimed $100,000 for past wage loss during the four years between the accident and trial and $300,000 for loss of future earning capacity. However, the plaintiff elected to remain in Canada following the accident but he lacked motivation to learn English and was not competitively employable, regardless of the injury. It is extremely unlikely the plaintiff could obtain employment in Canada even if the injury had not occurred. In these circumstances, no award is made for past wage loss or loss of future earning capacity.
A plaintiff has an obligation to take all reasonable measures to reduce his damages, including undergoing surgery to alleviate or cure injuries. The defendant has the burden of showing the plaintiff has failed to mitigate his damages, including to prove that the plaintiff acted unreasonably in avoiding the recommended treatment and the extent to which the plaintiff’s damages would have been reduced if he had acted reasonably. Here, the plaintiff has unreasonably refused recommended surgery and physiotherapy which would have reduced his pain and discomfort and increased mobility and function. Accordingly, damages are reduced by 15% for failure to mitigate.
Personal Injury - Dependants' Claims - Applicable Limitation Period - Bereavement Claim under Alberta Statute
Toney v. Canada, 2014 ABQB 585
Précis: The Alberta Court of Queen's Bench struck a claim for personal injuries that was made out of time and questioned whether "grief" claims allowed under the provincial act could be made in an incident governed by maritime law.
Facts: This proceeding arose out of a boating accident on an Alberta lake in which a five year old child died. The accident occurred on 27 September 2008 and was witnessed by the plaintiffs, the parents and siblings of the deceased child. The plaintiffs alleged Canada (the Royal Canadian Mounted Police) and Alberta (the Alberta Fish & Wildlife Department) were negligent in mounting and carrying out search and rescue operations. The plaintiffs’ claim was originally filed in the Federal Court against both Canada and Alberta but was dismissed as against Alberta on 18 December 2013 on the grounds that the Federal Court was without jurisdiction (reported at 2013 FCA 217). The remaining claim in the Federal Court against Canada was stayed on 23 October 2013 at Canada’s request pursuant to s. 50.1 of the Federal Courts Act. This permitted the plaintiff to commence these proceedings in the Alberta Court of Queen’s Bench against Canada (otherwise such a claim had to be brought exclusively in the Federal Court) and also permitted Canada to file third party proceedings against Alberta. The plaintiff commenced these proceedings on 20 November 2013, more than five years after the accident. The defendants brought this application to strike the plaintiffs’ claim on the grounds that the claim was statute barred. The defendants argued that the applicable limitation period was two years from the date of death pursuant to s. 14(2) of the Marine Liability Act which governs claims by dependants. The plaintiffs, on the other hand, argued that their claims were not dependants’ relief claims but claims for their own personal suffering. The plaintiffs further argued that any limitation period should not commence before June 2011 when an inquiry was held and they learned the details of the accident and the defendants’ involvement. The Plaintiffs also claimed for “grief” under the Fatal Accidents Act of Alberta.
Decision: All claims are struck with the exception of the claims for personal injuries as against Canada.
Held: A reading of the pleadings discloses the plaintiffs’ claims include nervous shock, post-traumatic stress and depression. Such claims are compensable personal injuries under Canadian maritime law, are not derivative claims and are not restricted in any way by s. 6 of the Marine Liability Act. The limitation period applicable to such claims is either the two year period in the Athens Convention, if the plaintiffs were passengers, or the three year period set out in s. 140 of the Marine Liability Act. In respect of the personal injury claims against Canada, s. 50.1 of the Federal Courts Act deems the date of commencement of the claim to be the date the original claim was filed in the Federal Court. That date was 26 September 2011, a date within three years of the accident. Since it is not plain and obvious the plaintiffs were passengers subject to the two year limitation period in the Athens Convention, the plaintiffs’ claims for personal injuries as against Canada should not be struck. However, in respect of the personal injury claims against Alberta, the deeming provision in s. 50.1 of the Federal Courts Act is not applicable. The date of commencement of the action against Alberta was more than five years after the accident, well past the three year limitation period in s. 140 of the Marine Liability Act. The plaintiffs’ argument that they did not discover the details underlying the cause of the accident until the inquiry in June 2011 is not accepted and the discoverability principle has no application. The personal injury claims against Alberta are out of time.
With respect to the claim for “grief” under the Fatal Accidents Act of Alberta, it is questionable whether such a claim can be made on constitutional grounds but this need not be decided as the limitation period applicable would be the two year period in the provincial Limitations Act. That limitation period expired on 28 September 2010.
Comment: Although the court correctly identified that there was a constitutional issue with respect to the “grief” claim advanced under the Fatal Accidents Act of Alberta, the determination that the provincial Limitations Act would apply to the “grief” claim is questionable. It has been repeatedly held that provincial limitation statutes do not apply to maritime matters.
Pleasure Craft Accident – Personal Injury – Applicable Limitation Period – Date From Which s.140 MLA Limitation Period Runs - Application of Provincial Laws
G.B. v. L. Bo, 2014 QCCS 18
Précis: The Quebec Superior Court held, in respect of an event that occurred before s. 140 of the Marine Liability Act was enacted, that the three year limitation period under that section commenced to run on the date s.140 came into force.
Facts: The plaintiff was injured on 4 July 2008 while surf skiing behind his own boat which was being driven by the first defendant. At the time, the plaintiff and first defendant were living together. On 13 June 2012, almost four years after the accident, and one year after the couple separated, the plaintiff commenced these proceedings against the first defendant and against the plaintiff’s own insurance broker, the second defendant. The defendants brought these motions to dismiss the proceedings on the grounds, inter alia, that the limitation period had expired.
Decision: Motions dismissed.
Held: The issue of the applicable law governing limitation periods in a case such as this is a difficult one. In Frugoli v Services aeriens des Cantons de l’Est inc., 2009 QCCA 1246, the Quebec Court of Appeal affirmed that the two year limitation period in s. 14(1) of the Marine Liability Act applied to a claim by dependants of two passengers who were drowned when their boat capsized on a lake in Northern Quebec. On the basis of this case, it is concluded that Canadian maritime law governs the limitation period in the present case. However, as this is neither a claim by dependants nor an accident arising out of a collision between two vessels, ss. 14 and 23 of the Marine Liability Act have no application. The relevant section would be s. 140 which provides a period of three years “after the day on which the cause of action arises”. But, s. 140 was not enacted until 23 June 2009 and became law on 21 September 2009. Therefore, there was no limitation period in effect during the period from the date of the accident, 4 July 2008 to 21 September 2009. The three year period under s. 140 did not begin to run until 21 September 2009 and did not expire until 21 September 2012. This action was therefore commenced within the limitation period.
Comment: The approach adopted by the Quebec Superior Court in this case is different from what is arguably the more traditional approach as discussed in St. Jean v Cheung, 2008 ONCA 815, a decision by the Ontario Court of Appeal. The more traditional analysis distinguishes between retroactive and retrospective statutes. If the new limitation provision extinguishes an existing claim, it is retroactive and will not apply. However, if the new provision merely abridges (or extends) the time left to bring a claim, it is retrospective and will apply. If this approach had been followed in this case, s. 140, which came into force on 21 September 2009, should have been given retrospective effect since it did not extinguish the claim on its coming into force but merely created a new three year limitation period expiring on 4 July 2011. As the plaintiff did not commence proceedings by 4 July 2011, the claim was out of time.
Personal Injury - Trials - Bifurcation
Woodbury v. Woodbury, 2013 ONSC 7736
Précis: The court severed the liability issues from damages issues in a personal injury action.
The plaintiff was injured while being towed on an inner tube behind a boat operated by the first defendant when the inner tube and plaintiff collided with a boat operated by the second defendant. The second defendant brought this motion for an order severing the issues of liability from the other issues in the action arguing that the liability issues were relatively simple in comparison to the damages issues which were complex. The plaintiff opposed the motion arguing that severance would result in additional delay and expense.
Decision: Motion granted.
Held: The power to bifurcate proceedings is narrow and should only be ordered in the interest of justice and in exceptional cases. This is one of those rare and exceptional cases. The liability issue is discreet and straightforward. In contrast, the damages issues are complex as the plaintiff’s injuries are very severe. If the second defendant is successful on the liability issue, there will be a significant savings in time and expense.
Canadian Maritime Law - Application of Provincial Statutes - Workers Compensation
Marine Services International Ltd. v. Ryan Estate, 2011 NLCA 42 2013 SCC 44
Précis: The Supreme Court of Canada held that the bar to litigation in a workers compensation statute was constitutionally valid and applicable to fatal injuries involving crew of a vessel. In so doing the Supreme Court has clarified the constitutional analysis required when dealing with Canadian maritime law and expanded the opportunities for provincial statutes to apply to maritime law matters.
This was a judicial review of a decision of the Workplace Health, Safety and Compensation Commission of Newfoundland. The issue was whether the Workplace Health, Safety and Compensation Act (“WHSA”) of Newfoundland prohibited an action under s. 6(2) of the Marine Liability Act (“MLA”) by the estates and dependents of two crew members who lost their lives when their fishing vessel sank. It was undisputed that the deceased crew members had been “workers” under the WHSA and that the defendants were “employers” under the WHSA. At first instance, the trial Judge noted that questions of liability in a marine context “clearly and obviously fall within federal jurisdiction” and said that the issue was whether the statutory bar in the WHSA was “merely casual or incidental” such that it would not give rise to the doctrine of interjurisdictional immunity. The trial Judge noted that the interjurisdictional immunity doctrine would be invoked where a provincial statute intrudes on the “core” of a federal power to the extent that it “impairs” that power. The trial Judge further said “there can be no greater level of impairment of the power to sue than to bar the exercise of that power” and held that the WHSA must be read down so as not to apply. Although this was sufficient to dispose of the case, the trial Judge also considered the paramountcy doctrine and held that it was also applicable.
On appeal, the Newfoundland Court of Appeal upheld the judgement of the trial Judge but with one dissent. The majority began its analysis by applying the pith and substance doctrine and had no difficulty finding that the WHSA was valid provincial legislation. It then considered the interjurisdictional immunity doctrine noting that this involved answering two questions: (i) does the provincial law trench on the core of a federal power and (ii) is the provincial law’s effect on the federal power sufficiently serious (i.e. does it impair and not merely affect the federal power). Relying heavily upon the Supreme Court of Canada’s decision in Ordon v Grail,  3 SCR 437, the majority held that the doctrine of interjurisdictional immunity applied and the statute should be read down. The majority also considered and applied the paramountcy doctrine holding that “if a maritime claimant wishes to avail of the right to sue, he or she will be precluded from doing so. He or she cannot comply with the federal law without violating the provincial law. The two provisions cannot, in an operative sense, co-exist.” The dissenting Justice would have held: that the WHSA was in pith and substance a no fault insurance scheme and not maritime negligence law; that there was no operational conflict under the paramountcy doctrine as the federal law did not compel claimants to make claims; and the interjurisdictional immunity doctrine did not apply because the core of the federal power was not engaged. A further appeal was launched to the Supreme Court of Canada.
The issues addressed by the Supreme Court were:
(1) Does the WHSA apply to the facts?
(2) Is the WHSA constitutionally inapplicable by reason of interjurisdictional immunity or inoperative by reason of paramountcy?
Decision: Appeal allowed. The bar to actions in the WHSA applies.
(1) The WHSA and the similar schemes in other provinces, as well as the federal Government Employees Compensation Act and Merchant Seamen Compensation Act, establish a no-fault compensation scheme for workplace related injuries that are distinct from and do not interact with any tort regimes. Disregarding the constitutional issues, the first question is whether the WHSA applies to the facts. The statutory bar in the WHSA benefits not only the “employer” of the injured employee but any employer that contributes to the scheme so long as the injury occurred in the course of employment and “occurred . . . in the conduct of the operations usual in or incidental to the industry carried on by the employer”. There is no dispute the deaths arose in the course of employment. The Commission found that the deaths “occurred . . . in the conduct of the operations usual in or incidental to the industry carried on by the employer” and their decision is entitled to deference. Therefore, absent the constitutional issues, the statutory bar in the WHSA applies.
(2) The first step in the resolution of the constitutional issue is an analysis of the “pith and substance” of the impugned legislation. This is an inquiry into the true nature of the law in question for the purpose of identifying the “matter” to which it essentially relates. Two aspects of the law are analyzed: the purpose of the enacting body and the legal effect of the provision. In this case, the constitutional validity of the WHSA is not challenged and a full pith and substance is not required.
Interjurisdictional immunity protects the “basic, minimum and unassailable content” or core of federal jurisdiction under ss. 91 and 92 of the Constitution Act, 1867. A broad application of the doctrine is inconsistent with a flexible and pragmatic approach to federalism. The doctrine is of limited application and should be reserved for situations already covered by precedent. There is prior precedent favouring its application to the subject matter of this appeal, namely, the decision in Ordon v Grail where it was held that maritime negligence law is part of the core of the federal power over “Navigation and Shipping”. Like Ordon v Grail the present appeal involves the application of a provincial law to a maritime negligence action. The test to trigger the application of the interjurisdictional immunity doctrine is two pronged. The first step is to determine if the provincial law trenches on the protected core of a federal competence. If it does, the second step is to determine if the effect is sufficiently serious to invoke the doctrine. The impugned legislation must “impair” the core rather than merely affect it. “Impair” implies adverse consequences, a significant and serious intrusion.
Maritime negligence law is indeed at the core of the federal power over navigation and shipping, as stated in Ordon v Grail. The WHSA precludes the dependants of the deceased crew members from bringing proceedings under the MLA and does, therefore trench on the core of the federal power over navigation and shipping. The first prong of the test is therefore met. However, the effect of the intrusion is not sufficiently serious to satisfy the second branch of the test. Although Ordon v Grail held that interjurisdictional immunity applied, that decision predated the jurisprudence that set out the two step test and established the necessary levels of impairment. The level of intrusion of the WHSA is not significant or serious when one considers the breadth of the federal power over navigation and shipping, the absence of an impact on the uniformity of Canadian maritime law and the historical application of workers compensation schemes in the marine context.
The paramountcy doctrine applies where there is inconsistency between a valid federal enactment and an otherwise valid provincial enactment. Where there is such conflict, the federal enactment prevails and the provincial enactment is inoperative to the extent of the incompatibility. Paramountcy does not apply to an inconsistency between the common law and a valid enactment. The inconsistency required to invoke the paramountcy doctrine can be of two types. The first is an actual operational conflict in the sense that one enactment says “yes” and the other “no”. The second form of conflict is when the provincial enactment frustrates the purpose of the federal enactment but the standard is high. The fact that Parliament has legislated in respect of a subject does not lead to a presumption that Parliament intended to rule out any possible provincial action in respect of that subject. The federal statute should be interpreted, if possible, so as not to interfere with the provincial statute. The purpose of s. 6(2) of the MLA, which provides dependants with a right of action where the deceased had such an action, was to fill a gap in maritime tort law identified in Ordon v Grail. Section 6, when properly interpreted, accommodates the bar to actions in the WHSA. The words of s. 6 are permissive, “may”, which suggests there are situations where dependants may not bring a claim, such as where the action is barred by a workers compensation scheme. The deceased crew members would have had no cause of action because of the operation of the WHSA and, therefore, their dependants also have no cause of action. On this reading, there is no conflict between the statutes.
Two additional factors demonstrate that the MLA and workers compensation schemes do not conflict. First, an interpretation of the MLA that does not conflict with the WHSA ensures consistency with the federal workers compensation schemes in the Government Employees Compensation Act and the Merchant Seamen Compensation Act. Under these schemes, covered employees and their dependants cannot bring a claim under the MLA. If it was to be concluded that s. 6(2) of the MLA did not accommodate the bar to claims, it would equally be that s. 6(2) does not accommodate the statutory bars in the Government Employees Compensation Act and the Merchant Seamen Compensation Act. This would be contrary to the presumption that parliament does not enact related statutes that are inconsistent. Second, the WHSA and MLA are distinct in purpose and nature. The WHSA is a comprehensive no-fault insurance benefits scheme that removes compensation for workplace injury from the tort system of which the MLA is a part. The WHSA does not frustrate the purpose of the MLA which was to expand the range of claimants who could start an action in maritime negligence law. The WHSA merely provides for a different regime of compensation that is distinct and separate from tort.
Comment: This is a very important decision but one which was not unexpected given the decisions of the Supreme Court of Canada in Canadian Western Bank v Alberta,  2 S.C.R. 3, British Columbia (Attorney General) v Lafarge Canada Inc.,  2 S.C.R. 86, Quebec v Canadian Owners and Pilots Association, 2010 SCC 39, and Tessier Ltee. v Quebec, 2012 SCC 23. The effect of this decision will undoubtedly be to seriously circumscribe the precedential value of Ordon v Grail and to increase the circumstances where provincial statutes will apply to maritime matters. The tests applied by the court are the same as those adopted in the decisions following Canadian Western Bank. However, the comment that the paramountcy doctrine does not apply where there is a conflict between common law and a provincial enactment is of particular interest. This is so because much of Canadian maritime law is common law that is continued by s. 42 of the Federal Courts Act. Until now it was an open question as to whether the maritime common law continued by s. 42 might be invoked under the paramountcy doctrine. This now seems unlikely.
Tubing Accident - Summary Judgment -Liability
Woodbury v. Hamilton, 2012 ONSC 4817
The plaintiff was injured when riding in a tube being pulled behind a vessel operated by the first defendant. The tube crashed into a boat being operated by the second defendant. At the time of the incident the second defendant also had a tube at the immediate stern of the vessel upon which three children were sitting and waiting for a ride. The first defendant failed to deliver a statement of defence. The second defendant brought this motion for summary judgment on the grounds that there was no evidence of any negligence on his part.
Decision: Motion dismissed.
Held: There was some evidence to support a finding the second defendant was negligent in either moving his boat towards the centre of the bay or in failing to notice the other boat earlier. This is not a case in which a motion Judge can fully appreciate the evidence and make the findings necessary to render summary judgment.
Fatal Injury - Damages
McDonald v. The "Queen of the North", 2009 BCSC 1129
This was an application under the B.C. Infants Act for court approval of a settlement reached with the plaintiffs, the two surviving children of one of the passengers who died as a result of the sinking of the “Queen of the North” on 22 March 2006. The Court assessed the headings of loss of love, guidance and affection, past loss of financial support, loss of future financial support and loss of inheritance and approved the settlement as entirely fair and advantageous to the infants. The total amount of the settlement approved was $200,000.
Fatal Accident - Limitation Periods - Application of Provincial Statutes
Frugoli v. Services Aériens des cantons de L'Est inc., 2009 QCCA 1246
This was an action by dependents of two persons who were presumed drowned when the boat they were in capsized. The boat had been chartered and operated by the defendant. The issue was whether the limitation period was the three year period prescribed in the Quebec Civil Code, the two year period prescribed by s. 14(2) of the Marine Liability Act (MLA”) or the two year period as prescribed by Art. 16(2) of the Athens Convention as enacted by the MLA. Due to a mistake by plaintiff’s counsel, the action was commenced more than two years after the accident but less than three years. The Trial Judge reviewed the various authorities and held without much difficulty that the claim should be subject to federal maritime law and not the Quebec Civil Code. The Trial Judge next considered whether it was the two year period in the MLA or the two year period in the Athens Convention that applied and whether the period could be extended. The issue was relevant because Art. 16(3) of the Athens Convention provides that “the law of the court seized of the case shall govern the grounds of suspension or interruption” of the limitation period. The Trial Judge held that the “law of the court seized of the case” meant Canadian maritime law. The Trial Judge then thoroughly reviewed the authorities and ultimately held that there was no discretionary power to extend the limitation period under maritime law except with respect to a collision action governed by s. 23 of the MLA. Finally, the Judge was of the view that in any event an error of counsel was not sufficient grounds for interruption or suspension of the limitation period in the circumstances. On appeal, the Quebec Court of Appeal held that it was “perfectly clear” the matter was governed by Canadian maritime law, that the provincial legislature had no jurisdiction and that the provincial limitation statute had no application. The Court of Appeal next addressed the issue of whether the court had a discretion to extend or suspend the two year limitation period in the MLA and agreed with the Trial Judge that the express inclusion of the discretionary remedy in s. 23 of the MLA dealing with collisions implied, as a matter of statutory interpretation, that there was no discretion for other limitation sections of the MLA. Although this was sufficient to dispose of the appeal, the Court of Appeal went on to consider whether there was inherent jurisdiction to extend the limitation period and held that there was not.
Personal Injury - Duty of Care of Boat Rental Company – Damages
Wozniak v. Alexander, 2008 ABQB 430
The Plaintiff was seriously injured while tubing when her foot was nearly severed by the propeller of the towing boat operated by one Defendant. The operator admitted liability but alleged liability should be shared with the company from whom the boat was rented. The Court held, first, that a duty of care was owed by the rental company. In fact, this seems to not have been seriously contested. The Court then found that the rental company had breached this duty by not taking adequate steps to determine the experience level of those who would be operating the vessel and by not giving adequate instruction. In particular, none of the vessel’s occupants were instructed on towing procedures or how to “kill” the engine and when that should be done. With respect to causation, the Court recognized the “but for” test was the appropriate test and held that “but for” the inexperience of the operator and the lack of proper instruction, this accident would have been avoided. The Court then apportioned liability equally between the operator and boat rental company. The Court awarded: general damages for loss of pleasure and enjoyment of life at $120,000; cost of future care and housekeeping at $40,000; and loss of earning capacity at $50,000.
Capsize - Fatal Injury - Dependents Claims - Damage Assessment
Wilcox v. The Miss Megan, 2008 FC 506
This was a case in which the Defendant admitted liability for a fatal injury when a fishing vessel capsized. The deceased drowned. Claims were made under the provisions of the Marine Liability Act by the deceased’s widow, three adult children and brothers and sisters. The first issue was whether the brothers and sisters could make a claim under the MLA. The Prothonotary held that they were clearly entitled by s. 4(c) of the Act. The Prothonotary next considered the pecuniary damages. The Prothonotary rejected the Defendant’s argument that a deduction should be made for successful mitigation by the widow holding that a widow had no obligation to mitigate. The Prothonotary also said that the appropriate means of accounting for personal expenditures by the deceased in a two income household was to use the “cross-dependency method” (which applies a dependency rate to family income as opposed to personal income). The Prothonotary next considered whether two of the dependents were entitled to damages for loss of valuable services provided by the deceased and held that they were. Finally, the Prothonotary considered damages for loss of care, guidance and companionship. The Prothonotary noted that the MLA provided no guidance as to how these damages should be calculated and further noted that the provinces seemed to have taken two distinct approaches; a conventional award or an award based on assessment of the evidence on a case by cases basis. The Prothonotary held that legislation in Ontario bore the closest resemblance to the MLA and adopted the Ontario case by case approach. In assessing actual damages the Prothonotary consulted the Ontario cases for guidance. The Prothonotary awarded the widow and a disabled daughter $75,000 each for loss of care, guidance and companionship. The other two children were awarded $25,000 each. The siblings were each awarded $15,000. The Defendant appealed the order of the Prothonotary but the Appeal Judge upheld the decision in its entirety.
Capsize - Fatal Injury - Criminal Negligence
R. v. Broadwith, 2007 BCSC 1910
The accused was the Captain of a houseboat that capsized resulting in the death of a passenger. He was charged with criminal negligence causing death. Although the Court accepted the evidence of the Crown’s expert that the house boat was overloaded and was destined to capsize because of this, the Court held that the Crown had failed to prove the Captain’s conduct amounted to criminal negligence. One of the critical findings leading to the acquittal was that the Captain was not aware there were an excessive number of passengers on board. The sinking occurred because two passengers pushed the boat away from the dock before the Captain had given his safety speech and before he could count the number of passengers onboard.
Constitutional Law - Occupiers Liability Act - Personal Injury on Wharf
Jackson v. Fisheries and Oceans Canada, 2006 BCSC 1492
This case concerned the constitutional applicability of the Occupiers Liability Act of British Columbia to a slip and fall that occurred while the Plaintiff was walking down a ramp from the shore to a wharf administered by Fisheries and Oceans Canada. The Defendants argued that the Occupiers Liability Act had no application as the matter was to be governed by Canadian Maritime Law. The Judge considered the decision of the Supreme Court of Canada in Ordon v Grail,  3 SCR 437 but held that a provincial statute could incidentally affect matters coming within the exclusive jurisdiction of Parliament. The Judge noted that the Defendants needed to show that the subject matter of the Plaintiff's claim “is so integrally connected to maritime matters as to be legitimate Canadian Maritime law within federal competence” and held that they had failed to do this. It is noteworthy that the Judge considered the case of Peters v ABC Boat Charters,  B.C.J. No. 2345, where it was held that the Occupiers Liability Act applied to a slip and fall on board a ship, and was asked to not follow it on the grounds that it had been implicitly overruled by Ordon v Grail. The trial Judge held, however, that Peters v ABC Boat Charters was still good law.
Personal Injury – Fishing Lodge – Defect – Failure to Warn – Limitation
Cuppen v. Queen Charlotte Lodge Ltd. et al, 2006 BCCA 443
The Plaintiff was a guest at the Defendant's fishing lodge. He was provided with a fishing boat by the Defendant and was injured while operating the boat. The trial Judge found that the boat veered suddenly and dramatically through no fault on the part of the Plaintiff. The Plaintiff was thrown against the starboard side of the boat and suffered a serious break to his right femur. The trial Judge found that the accident was caused by a defect in the boat but was not able to determine the particular defect and was therefore not able to conclude that the Defendant was negligent in equipping the boat with a defective steering system. The trial Judge further found, however, that a number of complaints had been made to the Defendant about the steering systems by previous guests and held that the Defendant was liable for failing to properly warn the Plaintiff about possible problems with the steering and for failing to take steps to address the complaints. A further issue in the case was whether the applicable limitation of liability was that contained in Part 3 of the Marine Liability Act (Limitation of Liability for Maritime Claims) or Part 4 of the Marine Liability Act (Carriage of Passengers). The trial Judge held that the limitation in Part 4 only applied where there was a contract of carriage and that in this case there was no such contract, the Defendant having merely provided the Plaintiff with a boat to fish. Accordingly, the applicable limitation was $1 million as provided in Part 3 of the Marine Liability Act. In result, the Plaintiff was awarded damages of an amount in excess of $300,000. An appeal by the Defendant to the Court of Appeal for British Columbia was dismissed on the grounds that the arguments on appeal related primarily to questions of fact.