R. v. Mersey Seafoods Ltd.

The accused in this case was a corporation that operated various factory fishing vessels. The accused was charged with offences under the Nova Scotia Occupational Health and Safety Act (“OHSA”). The charges were dismissed in the lower courts on grounds that the safety and operation of vessels was within the exclusive jurisdiction of the Federal Government and the OHSA was inapplicable. On appeal to the Nova Scotia Court of Appeal, the Court first considered whether, and had little difficulty in concluding that, the pith and substance of the OHSA was within a head of power granted to the provinces. The Court next considered whether the OHSA infringed Parliament’s constitutional powers in relation to navigation and shipping. The Court referred to and relied extensively on the Supreme Court of Canada’s decisions in Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3, 2007 SCC 22 and British Columbia (Attorney General) v. Lafarge Canada Inc., [2007] 2 S.C.R. 86, 2007 SCC 23. The Court noted that under the revised test established in those cases a provincial statute will only attract federal interjurisdictional immunity when the statute “impairs” (rather than merely “affects”) either (1) the “core”of a federal competence or (2) a vital or essential part of a federal undertaking. The Court held that any impact of the OHSA on navigation and shipping was merely incidental. The Court therefore held that the interjurisdictional immunity doctrine did not apply to oust the application of the OHSA. The Court next considered the paramountcy doctrine and noted that for the doctrine to apply there must be both federal and provincial laws and that it must be impossible to comply with both laws or that to apply the provincial law would frustrate the federal law. The Court found that the only applicable federal law was the Canada Shipping Act but held that there was no “operational conflict” between the OHSA and the Canada Shipping Act and the OHSA did not frustrate the purpose of the Canada Shipping Act. Accordingly, the Court confirmed that the OHSA applied to vessels operated by the accused.