Client Update: The “historic trade-off” prevails

The Supreme Court of Canada has now released the much anticipated decision in the case of Marine Services International Ltd. v Ryan Estate, 2013 SCC 44. In doing so, the high court has signaled, at least in the area of workplace compensation, a deference to provincial laws which is atypical in its maritime law decisions.

At issue was the interplay between a provincial workers’ compensation regime and the federal Marine Liability Act, the latter of which permits without qualification a private cause of action in any case in which a claim for injury or death is governed by the principles of Canadian maritime law.

This issue engaged the constitutional doctrines of Federal Paramountcy and Interjurisdictional Immunity. Put most simply, those doctrines provide that a federal statute or authority must prevail in the face of a provincial statute that either:

a. conflicts with an existing federal statute (here, the Marine Liability
Act
); or

b. impairs a constitutionally guaranteed sphere of federal authority (here, the federal power over navigation and shipping).

The facts of the case are simple, yet tragic. Two men were killed when their vessel capsized while returning from a fishing expedition off the coast of Newfoundland and Labrador. Their spouses and dependants obtained compensation from the provincial workers’ compensation regime. Thereafter, they commenced a civil claim against certain parties and asserted negligent design and construction of the fishing vessel. They also asserted that Transport Canada had negligently failed in its inspection of the vessel. These civil claims were brought pursuant to the federal Marine Liability Act.

A determination was then sought from the Newfoundland and Labrador Workplace Health, Safety and Compensation Commission as to whether the civil claims were statute-barred by virtue of the “historic trade-off” as confirmed by section 44 of the Newfoundland and Labrador Workplace Health, Safety and Compensation Act (“WHSCA”). The WHSCA states that workers give up their right of civil action for workplace injuries in favour of no-fault compensation. In other words, it was argued that the federal statute does not permit or maintain a parallel cause of action in relation to workplace injuries.

The Newfoundland and Labrador Workplace Health, Safety and Compensation Commission agreed that the civil action was statute-barred and therefore could not proceed. This decision was overturned by both the Supreme Court of Newfoundland and Labrador and a majority of the Court of Appeal. The lone dissenting voice at the Court of Appeal would have restored the Commission’s decision.

At the Supreme Court of Canada, the Commission’s original decision was unanimously restored. This means that the “historic trade-off” prevails and the civil claim cannot proceed under the Marine Liability Act.

In reaching this conclusion, the high court had to manoeuvre around its own past precedent. A prior decision seemed to suggest a federal priority in response to any interference by a provincial statute with the federal power to regulate claims of maritime negligence. In response, the court noted that we now have a more modern appreciation of the type of deference to provincial authority that is required by a flexible and co-operative commitment to the balance of powers between federal Parliament and the provincial legislatures.

With this in mind, the court concluded that although the “historic trade-off” does entrench upon the federal power over claims of maritime negligence, it does not “impair” the federal power to the level of constitutional concern.

This is because:

The intrusion of s. 44 is not significant or serious when one considers the breadth of the federal power over navigation and shipping, the absence of an impact on the uniformity of Canadian maritime law and the historical application of workers’ compensation schemes in the maritime context. For these reasons, s. 44 of the WHSCA does not impair the federal power over navigation and shipping.

The Supreme Court concluded that, properly interpreted, there is no actual conflict between the two statutes in any event. In the court’s view, the provincial statute “provides for a different regime for compensation that is distinct and separate from tort.”

The analysis provided by the Supreme Court is relatively short and conclusory in comparison to that previously given in decisions engaging these complicated doctrines of constitutional law. The most that can be said is that this decision signals respect for and a confirmation of the “historic trade-off” embedded in provincial workers’ compensation statutes despite federal statute law generally governing navigation and shipping that does not expressly provide for it.

At least in the context of workers’ compensation, this means that employers can rest easier with the knowledge that the “historic trade-off” will prevail to a considerable extent, even where a federal statute would seem to permit a parallel cause of action. Put differently, our constitutional framework should ensure that employers of seafarers will not be “twice vexed” for workplace injuries.

The full reasons of the Supreme Court of Canada can be read here.

The foregoing is intended for general information only and is not intended as legal advice. If you have any questions, visit our Labour and Employment Group or Marine Group. For more on our firm see www.stewartmckelvey.com.

SHARE

Archive

Search Archive


Domaines de pratique :
Name:
More results...

 
 

The New Brunswick Labour and Employment Board affirms longstanding practice against piecemeal certification of bargaining units

July 8, 2019

Bryan Mills and John Morse On May 21, 2019, the New Brunswick Labour and Employment Board (”Board”) dismissed an application by the New Brunswick Union of Public and Private Employees (“Union”) seeking certification as bargaining…

Read More

Carbon pricing: Ontario Court of Appeal delivers constitutional endorsement

July 5, 2019

Jonathan Coady and Justin Milne The Ontario Court of Appeal has found that the Greenhouse Gas Pollution Pricing Act¹ is valid federal legislation.² The Act implements national minimum pricing standards to reduce greenhouse gas (“GHG”) emissions.…

Read More

A Charter right to testamentary freedom? The NSSC decision in Lawen Estate

July 2, 2019

Richard Niedermayer, TEP, Jennifer Taylor and Bhreagh Ross, summer student There is a right to testamentary freedom under section 7 of the Charter, according to a recent decision of the Nova Scotia Supreme Court. In…

Read More

Hydro-Quebec now subject to annual energy cap, but not a monthly cap, under much-disputed 1969 power contract: Churchill Falls (Labrador) Corp. v Hydro-Quebec, 2019 QCCA 1072

June 24, 2019

John Samms Introduction Much ink has been spilled on the controversial 1969 power contract between Hydro-Quebec and CFLCo (the contract) and last week the Quebec Court of Appeal added to the pile with its decision…

Read More

Final cannabis edibles, topicals and extracts regulations released

June 17, 2019

Kevin Landry On June 14, 2019, Health Canada announced the release of the final version of amendments to the Cannabis Regulations, which will permit for the production and sale of edibles, extracts and topicals. The…

Read More

Trademark changes

June 17, 2019

Daniela Bassan and Divya Subramanian The Canadian Trade-marks Act will be amended effective June 17, 2019. As a result, the Act will undergo a complete overhaul on various aspects of trademark prosecution, registration, and enforcement.…

Read More

Discovery: Atlantic Education & the Law – issue 04

June 12, 2019

We are pleased to present the fourth issue of Discovery, our very own legal publication targeted to educational institutions in Atlantic Canada. While springtime for universities and colleges signal the culmination of classes, new graduates…

Read More

How employers can protect themselves with respect to social media

May 29, 2019

Grant Machum and Richard Jordan   In an earlier article, we considered an employer’s options when an employee departs and takes with them the social media contacts they have obtained during the course of their…

Read More

Canada’s Digital Charter – a principled foundation for a digital future?

May 28, 2019

Matthew Jacobs and Daniel Roth (summer student)   “… we cannot be a Blockbuster government serving a Netflix society.” – The Hon. Minister Navdeep Bains paraphrasing the Hon. Scott Brison (May 2019, at the Empire…

Read More

New reporting requirements for beneficial ownership of federal corporations coming this June

May 24, 2019

Tauna Staniland, Andrea Shakespeare, Kimberly Bungay and Alycia Novacefski The federal government has introduced new record keeping requirements for private, federally formed corporations governed by the Canada Business Corporations Act (“CBCA”). The amendments to the…

Read More

Search Archive


Domaines de pratique :
Name:
More results...