The central issue in this case was whether and to what extent the British Columbia Occupational Health and Safety Regulation (“OHSR”) of the Workers Compensation Act applied to commercial fishing vessels. It was argued that the OHSR was constitutionally invalid or inapplicable on the grounds that the safety of ships and crew is a matter within the sole jurisdiction of Parliament under its navigation and shipping power or, alternatively, that fishing is a federal work or undertaking. At trial (reported at 2009 BCSC 88) the Trial Judge began by reviewing the history of occupational health and safety in British Columbia in relation to fishing and reviewed various federalprovincial agreements that had been entered into. The Trial Judge then turned to the constitutional issue beginning, predictably, with the recent Supreme Court of Canada decisions in Canadian Western Bank v. Alberta,  2 S.C.R. 3, 2007 SCC 22 and British Columbia
(Attorney General) v. Lafarge Canada Inc.,  2 S.C.R. 86, 2007 SCC 23. The Trial Judge noted that the doctrine of interjurisdictional immunity goes against the dominant tide of constitutional interpretation and should be applied with restraint. The Trial Judge further noted that the doctrine of interjurisdictional immunity does not apply except where the adverse impact of a law adopted by one level of government is such that the core competence of the other level of government (or the vital or essential part of an undertaking it duly constitutes) is placed in jeopardy. The Trial Judge then dealt with the pith and substance analysis and concluded that the pith and substance of the OHSR were the health and safety of workers which are matters within the legislative competence of the province. The Trial Judge then turned to the doctrine of paramountcy as there are many federal laws relating to the safety of ship and crew. The Trial Judge summarized the test as requiring the petitioners to establish either that: (a) it is impossible to comply with both laws; or (b) that to apply the provincial law would frustrate the purpose of the federal law. After reviewing the legislation, the Trial Judge concluded that there was considerable overlap and potential for confusion and that compliance with both regimes could be difficult and expensive, however, as it was not “impossible” to comply with both there was not operational incompatibility. The Trial Judge further found that the OHSR did not undermine the purpose of the federal statutes and therefore concluded that the doctrine of paramountcy was not operative. The Trial Judge then turned to the interjurisdictional immunity doctrine. The Trial Judge first considered whether fishing was afederal undertaking and held that it was not because the undertaking did not play any role in “connecting” British Columbia with any other province or country. The Trial Judge then considered whether the provincial law impaired or placed in jeopardy the core of federal competence over navigation and shipping and concluded that it did not.
Upon appeal, the British Columbia Court of Appeal began its analysis noting that the modern approach to Canadian federalism is “cooperative federalism”. It then turned to the pith and substance analysis and found the purpose and effect of the provincial legislation to be the
occupational health, safety and well-being of workers employed on fishing vessels, a matter of labour relations and, as such, coming within provincial jurisdiction over “property and civil rights”. The Court next considered whether the fishing operations at issue were a provincial or federal undertaking. The appellants argued that as the normal fishing activities of the concerned vessels were beyond the limits of the province their operations should be characterized as a federal undertaking. However, the Court found that the business of the appellants was exclusively intraprovincial and there was no operational connection to another jurisdiction. Accordingly, the Court held that the operational activities were a provincial and not a federal undertaking. Although not necessary, the Court did go on to consider the doctrines of interjurisdictional immunity and paramountcy but held that neither applied. The impugned provisions did not impair the core competence of federal jurisdiction over navigation and shipping and there was no evidence of operational conflict or frustration of the purpose of the federal legislation.