This case involved a challenge to the constitutional validity of occupational health and safety regulations relating to commercial fishing vessels enacted pursuant to the British Columbia Workers’ Compensation Act. It involved one vessel that fished primarily in waters outside the British Columbia jurisdiction, but within Canadian territorial waters as well as other vessels that fished more than half their time beyond the territorial jurisdiction of Canada. Based upon extensive evidence of overlapping regulations from both Transport Canada and Work Safe BC, the court relied primarily upon Canadian Western Bank v. Alberta, 2007 SCC 22 (digested herein) to uphold the validity of the provincial legislation. In declining to apply the paramountcy doctrine the trial court stated as follows:
Clearly there is considerable overlap and potential for confusion, as stated in the expert opinion evidence filed by the plaintiff. It is possible that compliance with both regimes will be difficult and expensive. However, it has not been shown that it is impossible to comply simultaneously with the CSA and its regulations and with the WCA and the OH&SR, properly interpreted, or that there are provisions of one law forbidding what the other law requires. This case is not like Lafarge, where it was impossible to comply simultaneously with both laws as the Supreme Court interpreted them. (para. 162)
The trial court did, however, state that if the Provincial legislation had imposed stability requirements, rather than simply require the provision of stability documents, it would have found an operational conflict so as to find the conflicting Provincial legislation inoperative pursuant to the paramountcy doctrine.
Similarly, with respect to the interjurisdictional immunity doctrine, the trial court followed R. v. Mersey Seafoods, 2007 NSSC 155 (digested herein) to find that the legislation did not impair "the core of federal competence over navigation and shipping" so as to be inapplicable. In doing so, it also found that the fishing companies that brought the court applications were not federal undertakings because their vessels did not "play any role in connecting British Columbia with any other country or province, or . . . provide shipping services to offshore destinations" or enter ports other than B.C. ports. Since they were not federal undertakings, it was not necessary for the court to determine whether the provincial regulations impaired a vital or essential part of a federal undertaking.
Editor’s note: In the context of deciding whether or not the fishing companies were federal undertakings or provincial undertakings, the court provided a good review of the jurisprudence regarding that application of provincial and federal labour laws to shipping. See also paper discussing this case [link].
This case was upheld on appeal (2011 BCCA 35).