The issue in this case was whether a municipal bylaw limiting the size and height of buildings applied to an oil-tank barge that had been converted to a two storey floating camp. The Defendant marina argued the bylaw was constitutionally invalid or inapplicable which turned, in part, on whether the floating camp was a ship. The marina had originally been given a temporary permit allowing it to use the floating camp as an office but the permit was conditional on the redevelopment of the marina. The redevelopment did not proceed and the marina was eventually asked to remove the floating camp. The evidence disclosed that the floating camp had electrical, water and telephone connections with the land. At first instance, the motions Judge held that the floating camp was not a ship (although he recognized that it might in the future be used as a ship) and held that the bylaw applied. The Judge held that the paramountcy doctrine did not invalidate the bylaw because there was no conflicting federal legislation. The Judge further held that the interjurisdictional immunity doctrine did not invalidate the bylaw because land-use control is not “absolutely indispensable or necessary” to federal jurisdiction over shipping and navigation. The bylaw incidentally affected the federal power over navigation and shipping but did not impair or paralyze the core of the federal power. In result, the bylaw was valid. The marina appealed.
On appeal to the British Columbia Court of Appeal, two separate sets of Reasons were given. The majority agreed with the motions Judge that the floating camp in its present configuration and use was not a ship or vessel or boat. In fact, the majority suggested that once it was converted from an oil-tank barge to a floating camp it was no longer designed to be used in navigation and no longer a ship. The majority then declined to consider the constitutional issues saying that because the floating camp was not a ship the constitutional issue did not arise. The minority did consider the constitutional issues and agreed with the motions Judge that the doctrine of paramountcy did not apply. The minority held that paramountcy requires a direct collision between federal and provincial legislation and there was no such collision in this case. The minority also agreed that the interjurisdictional immunity doctrine did not apply, noting that the key consideration in the case was the “use” to which the floating camp was put. If an object is being used as a ship, that use may engage the federal power over navigation. If an object is not being used as a ship, the federal power over navigation is not engaged.