Constitutional Issues/Canadian Maritime Law
The cases under this topic consider the division of powers between the federal and provincial governments under the Constitution Act in relation to maritime matters. Such issues normally arise where a provincial law of general application purports to apply to a fact situation with a marine component or where a provincial law provides a different remedy than Canadian maritime law. (It should be noted that constitutional issues can arise in cases concerning the Admiralty jurisdiction of the Federal Court and, for this reason, cases digested under the topic Admiralty Jurisdiction may also be relevant and should be consulted.)
The analytical framework to be used in a division of powers analysis has changed significantly over the years and, in particular, since 2007. Prior to 2007, in division of powers disputes, the constitutional doctrine of interjurisdictional immunity was frequently applied to render provincial statutes inapplicable to matters within federal legislative jurisdiction. In Canadian Western Bank v. Alberta, 2007 SCC 22 (a non-marine case) and British Columbia (Attorney General) v. Lafarge Canada Inc., 2007 SCC 23, the Supreme Court of Canada was extremely critical of the interjurisdictional immunity doctrine finding that it unfairly favoured parliament over the provincial legislatures, created uncertainty and was not compatible with "flexible federalism". To rectify these perceived inequities, the Supreme Court modified the analytical framework to be used in division of powers disputes. The currently applicable analytical framework is as follows:
1. Pith and Substance: The first step is to analyze the pith and substance of the impugned legislation. This involves an inquiry into the true nature of the law in question to identify the "matter" to which it essentially relates. Two aspects of the law must be considered; the purpose of the enacting legislature in adopting it and the legal effect of the law. If the pith and substance analysis leads to the conclusion that the law is in relation to a matter coming within the legislative jurisdiction of the enacting body under the Constitution Act, then it is valid and the potential application of the interjurisdictional immunity and paramountcy doctrines must be considered. If the pith and substance analysis leads to the conclusion that the law is invalid, that is the end of the matter.
2. After the pith and substance analysis, the court should generally proceed to a consideration of the doctrine of paramountcy before interjurisdictional immunity. The potential application of the interjurisdictional immunity doctrine should generally be considered only where there is prior case law favouring its application to the subject matter at hand. The doctrine is of limited application and should generally be reserved for situations already covered by precedent.
3.Paramountcy: Paramountcy involves an inconsistency between the provincial enactment and the federal enactment. Where a provincial statute is inconsistent with a federal statute, the provincial law is inoperative to the extent of the inconsistency. The inconsistency can be actual conflict in operation such as where one statute says "yes" and the other "no". Inconsistency can also arise when the provincial statute has the effect of frustrating the purpose of the federal statute. The standard for frustration of purpose is high. A provincial statute will not be found to frustrate the purpose of a federal statute merely because it restricts a permissive federal statute.
4. Interjurisdictional Immunity: Prior to 2007, the interjurisdictional immunity doctrine was invoked whenever a provincial law "affects" a vital or essential part of a federal power or undertaking. The so-called "affects" test was modified in Canadian Western Bank v. Alberta and British Columbia (Attorney General) v. Lafarge Canada Inc. such that the doctrine now only applies when the provincial law "impairs", without necessarily sterilizing or paralyzing, the “basic, minimum and unassailable content” or “core” of the federal legislative power in question. "Impairs" implies that there must be adverse consequences. The "core" of a federal legislative power means “the minimum content necessary to make the federal power effective for the purpose for which it was conferred”.
The new analytical framework developed for division of powers disputes would appear to make it more likely that provincial laws of general application will apply to matters that are otherwise governed by Canadian maritime law. Recent examples include: R. v. Mersey Seafoods Ltd.,2008 NSCA 67 (occupational health and safety legislation); Jim Pattison Ent. v. Workers’ Compensation Board, 2011 BCCA 3 (occupational health and safety legislation); and, Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44 (workers’ compensation legislation). However, there are also many recent cases where provincial laws were held not to be applicable, including, British Columbia (Attorney General) v. Lafarge Canada Inc., Chalets St-Adolphe inc. v. St-Adolphe d’Howard (Municipalit de), 2011 QCCA 1491 and West Kelowna (District) v. Newcombe, 2015 BCCA 5, all of which concerned municipal by-laws.
For further background and a historical review of the important cases in this area please see the below papers but take note that the papers are not current and this area continues to develop.
- Confused Seas: The Application of Provincial Laws to Maritime Matters – 2011
- A Reformulation of the Inter jurisdictional Immunity Doctrine – 2007
- Constitutional Implications of Ordon v Grail and Expanding Definition of Canadian Maritime Law -2000