Ordon Estate v. Grail, 1998 CanLII 771 (SCC), [1998] 3 SCR 437

Christopher Hogarth, Murray Hogarth

and Diana Ruth Hogarth Appellants

and

Josephine Perry and John Haller Appellants

v.

John Emmett Hall, Frances Norma Hall, Susan Frances Hall,

E. Bruce Hall, John Peter Hall by his Committee Maureen Hall,

Maureen Hall as Executrix of the Estate of Yvonne Louise Carroll,

Maureen Hall in her personal capacity, Martha Isabel Hall,

Thomas James Hall, David Robert Hall, Richard Lawrence

Carroll, Marie Helena Carroll, John Gregory Carroll,

Margaret Jane Carroll, Marie Suzanne Carroll,

Joan Shelagh Carroll and Laing Douglas Carroll Respondents

and

Ontario Holidays Corporation

carrying on business as The Edenvale Inn Respondent

and between

Christopher Hogarth, Murray Hogarth

and Diana Ruth Hogarth Appellants

and

The Edenvale Inn or Edenvale and Ontario Holidays

Corporation carrying on business as

The Edenvale Inn or Edenvale Appellants

v.

Josephine Perry Respondent

and between

Christopher Hogarth, Murray Hogarth

and Diana Ruth Hogarth Appellants

and

Ontario Holidays Corporation carrying on business

as The Edenvale Inn Appellant

and

Josephine Perry and John Haller Appellants

v.

Joanne Maude Perry, William George Perry, William

Harold Perry, Janet Ellen MacPhee, Ian Forbes Perry,

Susan Joanne Perry, Leslie Carol Perry, Tara Colleen Boyle,

Lindsay Patrick Perry, Roberta Joanne Perry, an infant,

by her Litigation Guardian Joanne Maude Perry

and Josephine Perry, in her capacity as Administratrix of

the Estate of Grant Kevin Perry Respondents

and between

Larry Grail Appellant

v.

Deborah Ordon, the Executrix of the Estate of Bernard

Myron Ordon and the said Deborah Ordon, personally,

Jeffrey Michael Ordon, a Minor, by his Litigation Guardian

Deborah Ordon, Stephanie Ordon, a Minor, by her

Litigation Guardian Deborah Ordon, and Bessie Ordon Respondents

and

The Attorney General of Quebec Intervener

Indexed as: Ordon Estate v. Grail

File No.: 25702.

1998: June 22; 1998: November 26.

Present: L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major and Bastarache JJ.

on appeal from the court of appeal for ontario

Maritime law -- Negligence actions -- Negligence actions brought following two boating accidents which resulted in deaths and serious injuries -- Actions including claims for loss of guidance, care and companionship -- Whether provincial legislation constitutionally applicable to maritime negligence claims -- Canada Shipping Act, R.S.C., 1985, c. S-9, s. 646 -- Family Law Act, R.S.O. 1990, c. F.3, s. 61(2)(e) – Trustee Act, R.S.O. 1990, c. T.23, s. 38(1) -- Negligence Act, R.S.O. 1990, c. N.1.

Courts -- Jurisdiction -- Maritime negligence claims -- Negligence actions brought in provincial superior court following two boating accidents which resulted in deaths and serious injuries -- Whether Federal Court, Trial Division has exclusive jurisdiction over in personam maritime fatal accident claims by dependants -- Canada Shipping Act, R.S.C., 1985, c. S-9, s. 646 -- Federal Court Act, R.S.C., 1985, c. F-7, s. 22.

Limitation of actions -- Maritime negligence claims -- Negligence actions brought following two boating accidents which resulted in deaths and serious injuries -- Whether applicable limitation period for bringing dependant’s fatal accident claim under s. 646 of Canada Shipping Act is one-year period or two-year period -- Canada Shipping Act, R.S.C., 1985, c. S-9, ss. 572(1), 649.

These appeals and cross-appeals arise out of four negligence actions in relation to two boating accidents which occurred on navigable waters within Ontario. In the first accident, which occurred on Lake Erie, Bernard Ordon drowned after a pleasure boat owned and operated by Larry Grail sank. His widow brought claims for damages pursuant to the Trustee Act and the Family Law Act. Her Family Law Act claim included a claim for compensation for loss of guidance, care and companionship under s. 61(2)(e). The deceased's two children and his mother made similar claims under the Family Law Act. Before trial, Grail brought a motion for an order striking out several paragraphs of the plaintiffs’ statement of claim on the basis that they disclosed no reasonable cause of action. The plaintiffs brought a cross-motion for an order amending certain paragraphs nunc pro tunc so as to allow them to plead their action under the Canada Shipping Act. Both the motion and the cross-motion were granted. Grail was granted leave to appeal the motions judge's decision to permit the plaintiffs to amend their statement of claim, in part on the basis that the motions judge’s order permitting the action to proceed in the Ontario Court (General Division) under the Canada Shipping Act may have usurped exclusive Federal Court, Trial Division jurisdiction over maritime wrongful death claims under that Act. The plaintiffs cross-appealed the order striking portions of their statement of claim.

Four other maritime negligence actions were subsequently joined together into a special case to be heard in the first instance by the Court of Appeal. The special case was heard at the same time as the appeal in the Lake Erie action. Three of the special case actions related to a boating collision which occurred on Lake Joseph and resulted in deaths and serious injuries. All of the defendants in those actions took the position that the Ontario Family Law Act, Trustee Act, and the contributory negligence provisions of the Negligence Act do not form part of Canadian maritime law, and that all of the plaintiffs’ claims should have been brought pursuant to the Canada Shipping Act. With respect to the wrongful death claims, the defendants took the position that the claims were statute-barred by the one-year limitation period contained in s. 649 of the Canada Shipping Act. They also maintained that maritime wrongful death claims cannot be brought in the Ontario Court (General Division) in light of the exclusive jurisdiction granted to the Federal Court, Trial Division over such matters by s. 646 of the Canada Shipping Act. The fourth action is not at issue here. The Court of Appeal concluded that the Ontario Court (General Division) was properly vested with jurisdiction over the claims. It held that a maritime negligence claim by the estate of the deceased may properly be brought under s. 38(1) of the Trustee Act. It also held that the contributory negligence provisions of the Negligence Act were applicable to maritime negligence actions. It found that a claim for loss of guidance, care and companionship may be brought under the Canada Shipping Act, even if the word “damages” in s. 647 did not originally refer to damages for this variety of non‑pecuniary loss. It similarly held that dependants of a person injured but not killed in a boating accident could recover damages for loss of guidance, care and companionship, although such a claim is not provided for in the Act. It decided that siblings may not bring a dependants’ fatal accident claim. Finally, the Court of Appeal held that a one-year limitation period applied to the action, but that the circumstances justified a discretionary extension of the limitation period.

Held: The appeals and cross-appeals should be dismissed.

The Ontario Court (General Division) shares concurrent jurisdiction with the Federal Court, Trial Division over maritime fatal accident claims by dependants under s. 646 of the Canada Shipping Act. In light of the inherent general jurisdiction of the provincial superior courts, Parliament must use express statutory language where it intends to assign jurisdiction to the Federal Court. In particular, the complete ouster of jurisdiction from the provincial superior courts in favour of vesting exclusive jurisdiction in a statutory court requires clear and explicit statutory wording to this effect. In accordance with the inherent jurisdiction of the superior courts, it has long been held that the provincial superior courts have jurisdiction over matters involving maritime law, including negligence actions resulting from collisions or other accidents involving vessels on inland waters. The Federal Court Act confirms the jurisdiction of the provincial superior courts over matters involving Canadian maritime law, by recognizing the Federal Court, Trial Division’s concurrent jurisdiction over such matters. Part XIV of the Canada Shipping Act sets out a statutory regime whereby dependants of a person killed in a maritime accident may bring a claim, either in personam or in rem, for relief. Under s. 646, the dependants of the deceased may maintain an action for damages in the Admiralty Court, which is defined in s. 2 as the Federal Court. When Parliament intended the Federal Court to have exclusive jurisdiction to adjudicate a particular matter in the Canada Shipping Act, it set this intention out in clear language in the Act. By contrast, s. 646 makes no express reference to exclusivity of jurisdiction in the Admiralty Court. Rather, the focus of s. 646 appears to be remedial -- its purpose was to extend an already existing remedy to allow for claims in rem, and not to restrict that remedy by confining jurisdiction to a specific court. The lack of any express language in s. 646 of the Canada Shipping Act excluding superior court jurisdiction, or vesting sole jurisdiction in the Admiralty Court, is sufficient by itself to justify interpreting s. 646 as conferring on the Admiralty Court only concurrent jurisdiction over fatal accident claims by dependants.

“Canadian maritime law” as defined in s. 2 of the Federal Court Act is a comprehensive body of federal law dealing with all claims in respect of maritime and admiralty matters. The scope of Canadian maritime law is not limited by the scope of English admiralty law at the time of its adoption into Canadian law in 1934. Rather, the word “maritime” is to be interpreted within the modern context of commerce and shipping, and the ambit of Canadian maritime law should be considered limited only by the constitutional division of powers in the Constitution Act, 1867. Canadian maritime law is uniform throughout Canada, and it is not the law of any province of Canada. All of its principles constitute federal law and not an incidental application of provincial law. The nature of navigation and shipping activities as they are practised in Canada makes a uniform maritime law a practical necessity. Much of maritime law is the product of international conventions, and the legal rights and obligations of those engaged in navigation and shipping should not arbitrarily change according to jurisdiction. The need for legal uniformity is particularly pressing in the area of tortious liability for collisions and other accidents that occur in the course of navigation. In those instances where Parliament has not passed legislation dealing with a maritime matter, the inherited non-statutory principles embodied in Canadian maritime law as developed by Canadian courts remain applicable, and resort should be had to these principles before considering whether to apply provincial law to resolve an issue in a maritime action. Canadian maritime law is not static or frozen. The general principles established by this Court with respect to judicial reform of the common law apply with some modifications to the reform of Canadian maritime law, allowing development in the law where the appropriate criteria are met.

The determination of whether a provincial statute is constitutionally applicable in the context of a maritime negligence law action occurs according to a four-part test. First, prior to engaging in constitutional analysis, a court must determine whether the subject matter affected by the statute falls within the exclusive federal competence over navigation and shipping. If it does, the second step is to determine whether a counterpart to the statutory provision upon which the party seeks to rely is present within existing Canadian maritime law. If no such counterpart exists, the third step involves the court in determining whether or not it is appropriate for Canadian non-statutory maritime law to be altered in accordance with the principles for judicial reform of the law developed by this Court. When applying these principles in the maritime law context, a court should be careful to ensure that it considers not only the social, moral and economic fabric of Canadian society, but also the fabric of the broader international community of maritime states, including the desirability of achieving uniformity between jurisdictions in maritime law matters. Similarly, in evaluating whether a change in Canadian maritime law would have complex ramifications, a court must consider not only the ramifications within Canada, but also the effects of the change upon Canada’s treaty obligations and international relations, as well as upon the state of international maritime law. Fourth, if judicial reform of the law is inappropriate, the court must determine whether the particular provincial statutory provision is constitutionally applicable. A provincial statute of general application will be inapplicable in a maritime negligence law context where this application would have the effect of regulating indirectly federal maritime negligence law, whether by supplementing existing rules of maritime negligence law in such a manner that the provincial law effectively alters rules within the exclusive competence of Parliament to amend, or otherwise. The inapplicability of provincial law in the context of a maritime negligence action stems from an application of the doctrine of interjurisdictional immunity. Maritime negligence law is part of the unassailable core of Parliament’s exclusive jurisdiction over navigation and shipping. In the context of an action arising from a collision between boats or some other accident, maritime negligence law encompasses the range of possible claimants, the scope of available damages, and the availability of a regime of apportionment of liability according to fault. A provincial statute of general application dealing with such matters within the scope of the province’s legitimate powers cannot apply to a maritime law negligence action, and must be read down to achieve this end. The attribution to Parliament of exclusive legislative jurisdiction over navigation and shipping stems in large part from the national and international dimensions of maritime law, and the corresponding requirement for uniformity in maritime law principles. If matters of maritime law were regulated by the various provincial legislatures, this would drastically confuse the day-to-day reality of navigation and shipping in Canadian waters, and would make it impossible for Canada as a country to abide by its international treaty obligations relating to maritime matters. Moreover, unlike most other areas of exclusive federal jurisdiction, maritime law has historically been a specialized area of law, adjudicated within separate courts through the application of principles and rules of law which do not derive solely from traditional common law and statutory sources. The multiplicity of legal sources, including international sources, which nourish Canadian maritime law render it a body of law in which uniformity is especially appropriate. The interference of provincial statutes with core areas of Canadian maritime law, such as the law of maritime negligence, would interfere with its historical roots and with its appropriately unique character.

Section 647(2) of the Canada Shipping Act, which provides for the awarding of damages in relation to a dependant’s fatal accident claim, is silent as to the nature of the compensable loss. Historically, damages in relation to fatal accidents were restricted to compensation for pecuniary loss only, with damages for lost guidance, care and companionship considered to be non-pecuniary in nature and therefore not recoverable. The Canada Shipping Act is also silent as to whether damages may be awarded to a dependant of a person injured but not killed in a boating accident. At common law, a person injured in a boating accident can sue for damages for his or her own injuries, but the dependants of the injured person are generally permitted to recover only in limited circumstances. The common law rules barring recovery in both instances should be judicially reformed to allow claims for damages for loss of guidance, care and companionship and to allow such claims to be brought by dependants of a person injured but not killed in a boating accident. Contemporary conceptions of loss include the idea that it is truly a harm for a dependant to lose the guidance, care and companionship of a spouse, parent or child. Changing the definition of “damages” within the context of maritime accident claims is required to keep non-statutory maritime law in step with modern understandings of fairness and justice, as well as with the dynamic and evolving fabric of our society. Given the finding that dependants’ claims for loss of guidance, care and companionship may be brought under Canadian maritime law without resort to provincial statutes, it is unnecessary to address the constitutional applicability of Part V of the Family Law Act to a maritime law claim for loss of guidance, care and companionship.

Dependants’ fatal accident claims are a creature of statute. In the maritime context, s. 645 of the Canada Shipping Act sets out the list of eligible plaintiffs in clear terms, and the list does not include siblings. While it may be desirable for Parliament to expand the list of eligible dependants, it would be inappropriate for the courts to undertake this task unilaterally by reforming non-statutory maritime law in order to supplement the statutory provision. The class of eligible plaintiffs with respect to dependants’ personal injury claims is not prescribed by statute, but rather derives from the common law. It should be defined in the same manner as the class of dependants in fatal accident cases is defined in s. 645 of the Canada Shipping Act. Since the determination of the eligible class of plaintiffs with respect to maritime negligence actions is clearly an issue of maritime negligence law falling within the core of Parliament’s exclusive competence over navigation and shipping, Part V of the Family Law Act is constitutionally inapplicable to allow for the bringing of dependants’ claims by siblings, whether involving a fatal accident or personal injury.

It is appropriate for this Court to reform Canadian maritime law to allow a claim by an executor brought in the name of the deceased with respect to an action which the deceased could have brought had he or she lived. The anachronism and unfairness of applying the actio personalis moritur cum persona rule in maritime negligence actions is well illustrated by the fact that all common law jurisdictions in Canada have enacted legislation abolishing the rule, and now permit recovery by estates of deceased persons. Accordingly, the constitutional applicability of the Trustee Act to allow for such claims in the instant appeals need not be determined.

A general regime of apportionment of liability according to fault, with joint and several liability among tortfeasors and contribution between tortfeasors, applies in Canadian maritime negligence actions. Accordingly, it is not necessary to consider the constitutional applicability of the Negligence Act in these appeals.

The dependants’ fatal accident claims as well as all other claims in the three Lake Joseph actions are subject to the two-year limitation period set out in s. 572(1) of the Canada Shipping Act and are therefore not statute-barred. Section 572 is contained in Part IX of the Act, which deals with collisions between vessels. While in Part XIV, which deals with dependants’ fatal accident claims, s. 649 provides for a one-year limitation period, Part XIV does not constitute a cohesive whole or a complete code with respect to dependants’ fatal accident claims. The plaintiffs’ fatal accident claims fall within the clear wording of s. 572(1). Moreover, statutory provisions creating a limitation period must be strictly construed in favour of the plaintiff. The ambiguity created by the existence of two distinct limitation periods in the Canada Shipping Act should thus be resolved by allowing the plaintiffs in the Lake Joseph actions to rely upon the longer period provided for in s. 572(1). Strongly buttressing the appropriateness of applying this general principle of strict construction of limitations statutes is the fact that applying the one-year limitation period in s. 649 to all fatal accident claims stemming from boating collisions would place Canada in breach of its international treaty obligations.

Cases Cited

Not followed: Canadian National Steamships Co. v. Watson, 1938 183 (SCC), [1939] S.C.R. 11; Stein v. The Ship “Kathy K”, 1975 146 (SCC), [1976] 2 S.C.R. 802; applied: Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., 1997 307 (SCC), [1997] 3 S.C.R. 1210; referred to: ITO‑‑International Terminal Operators Ltd. v. Miida Electronics Inc., 1986 91 (SCC), [1986] 1 S.C.R. 752; Whitbread v. Walley, 1990 33 (SCC), [1990] 3 S.C.R. 1273; Q.N.S. Paper Co. v. Chartwell Shipping Ltd., 1989 35 (SCC), [1989] 2 S.C.R. 683; Basarsky v. Quinlan, 1971 5 (SCC), [1972] S.C.R. 380; Miron v. Trudel, 1995 97 (SCC), [1995] 2 S.C.R. 418; Valin v. Langlois (1879), 1879 29 (SCC), 3 S.C.R. 1; Ontario (Attorney General) v. Pembina Exploration Canada Ltd., 1989 112 (SCC), [1989] 1 S.C.R. 206; Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 818 (SCC), [1998] 1 S.C.R. 626; R. v. Thomas Fuller Construction Co. (1958) Ltd., 1979 187 (SCC), [1980] 1 S.C.R. 695; Peacock v. Bell (1677), 1 Wms. Saund. 73, 85 E.R. 84; Albon v. Pyke (1842), 4 Man. & G. 421, 134 E.R. 172; Board v. Board, 1919 546 (UK JCPC), [1919] A.C. 956; Re Minister of Social Welfare and Rehabilitation and Dube (1963), 1963 402 (SK CA), 39 D.L.R. (2d) 302; Shipman v. Phinn (1914), 1914 513 (ON SC), 31 O.L.R. 113, aff’d (1914), 1914 502 (ON CA), 32 O.L.R. 329; Pile Foundations Ltd. v. Selkirk Silica Co. (1967), 1967 796 (MB QB), 59 W.W.R. 622; Heath v. Kane (1975), 1975 763 (ON CA), 10 O.R. (2d) 716; Harvey v. Tarala (1977), 1979 2358 (SK QB), 6 Sask. R. 74; Seward v. The “Vera Cruz” (1884), 10 App. Cas. 59; The Caliph, [1912] P. 213; The Ship Catala v. Dagsland, 1928 786 (CA EXC), [1928] Ex. C.R. 83; Rogers v. S.S. Baron Carnegie, 1941 285 (CA EXC), [1943] Ex. C.R. 163; Monk Corp. v. Island Fertilizers Ltd., 1991 95 (SCC), [1991] 1 S.C.R. 779; Porto Seguro Companhia De Seguros Gerais v. Belcan S.A., 1997 308 (SCC), [1997] 3 S.C.R. 1278; Watkins v. Olafson, 1989 36 (SCC), [1989] 2 S.C.R. 750; R. v. Salituro, 1991 17 (SCC), [1991] 3 S.C.R. 654; John Deere Plow Co. v. Wharton, 1914 603 (UK JCPC), [1915] A.C. 330; Attorney-General for Manitoba v. Attorney-General for Canada, 1928 513 (UK JCPC), [1929] A.C. 260; Commission du salaire minimum v. Bell Telephone Co. of Canada, 1966 1 (SCC), [1966] S.C.R. 767; Registrar of Motor Vehicles v. Canadian American Transfer Ltd., 1972 13 (SCC), [1972] S.C.R. 811; Dick v. The Queen, 1985 80 (SCC), [1985] 2 S.C.R. 309; Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), 1988 81 (SCC), [1988] 1 S.C.R. 749; Commission de transport de la Communauté urbaine de Québec v. Canada (National Battlefields Commission), 1990 87 (SCC), [1990] 2 S.C.R. 838; Delgamuukw v. British Columbia, 1997 302 (SCC), [1997] 3 S.C.R. 1010; Blake v. Midland Railway Co. (1852), 18 Q.B. 93, 118 E.R. 35; Mason v. Peters (1982), 1982 1969 (ON CA), 39 O.R. (2d) 27; Baker v. Bolton (1808), 1 Camp. 493, 170 E.R. 1033; Admiralty Commissioners v. S.S. Amerika, [1917] A.C. 38; St. Lawrence & Ottawa Railway Co. v. Lett (1885), 1885 7 (SCC), 11 S.C.R. 422; Vana v. Tosta, 1967 21 (SCC), [1968] S.C.R. 71; Walpole v. Canadian Northern Railway Co., 1922 610 (UK JCPC), [1923] A.C. 113; Toronto Transportation Commission v. The King, 1949 35 (SCC), [1949] S.C.R. 510; Gartland Steamship Co. v. The Queen, 1960 55 (SCC), [1960] S.C.R. 315; Fraser River Harbour Commission v. The “Hiro Maru”, [1974] F.C. 490; The Alnwick, [1965] 2 All E.R. 569; Berardinelli v. Ontario Housing Corp., 1978 42 (SCC), [1979] 1 S.C.R. 275.

Statutes and Regulations Cited

Act to amend the Canada Shipping Act, 1934, S.C. 1948, c. 35.

Act to amend the Federal Court Act, the Crown Liability Act, the Supreme Court Act and other Acts in consequence thereof, S.C. 1990, c. 8.

Act respecting compensation to the Families of Persons killed by Accident, and in duels, C.S.C. 1859, c. 78.

Admiralty Act, 1934, S.C. 1934, c. 31.

Canada Shipping Act, R.S.C., 1985, c. S-9, ss. 2 “Admiralty Court”, 209(2), 453, Part IX, 571, 572(1), (3), 573, 580(1) [repl. 1998, c. 6, s. 2], Part XIV, 645, 646, 647, 649, 650.

Canada Shipping Act, 1934, S.C. 1934, c. 44, Part XII, s. 647.

Civil Code of Lower Canada, arts. 596, 607.

Civil Code of Québec, S.Q. 1991, c. 64, art. 625.

Constitution Act, 1867, ss. 91(10), 92, 101, 129.

Family Law Act, R.S.O. 1990, c. F.3, Part V, s. 61(1), (2)(e).

Fatal Accidents Act, R.S.A. 1980, c. F-5, s. 8(2) [rep. & sub. 1994, c. 16, s. 5].

Fatal Accidents Act, R.S.M. 1987, c. F50, s. 3(4).

Fatal Accidents Act, R.S.N.B. 1973, c. F-7, s. 3(4) [ad. 1986, c. 36, s. 1].

Fatal Accidents Act, R.S.P.E.I. 1988, c. F-5, s. 6(3)(c) [ad. 1992, c. 24, s. 1].

Fatal Accidents Act, S.O. 1911, c. 33, s. 11.

Fatal Accidents Act, 1846 (U.K.), 9 & 10 Vict., c. 93 (Lord Campbell’s Act).

Fatal Accidents Act, 1864 (U.K.), 27 & 28 Vict., c. 95.

Fatal Accidents (Damages) Act, 1908 (U.K.), 8 Edw. 7, c. 7.

Fatal Injuries Act, R.S.N.S. 1989, c. 163, s. 5(2)(d).

Federal Court Act, R.S.C., 1985, c. F-7, ss. 2 “Canadian maritime law”, 17(1) [rep. & sub. 1990, c. 8, s. 3], 22(1), (2)(d), (g).

International Convention for the Unification of certain Rules of Law with respect to Collisions between Vessels, B.T.S. 1913 No. 4, art. 7.

Law Reform (Miscellaneous Provisions) Act, 1934 (U.K.), 24 & 25 Geo. 5, c. 41, s. 1(1).

Maritime Conventions Act, 1911 (U.K.), 1 & 2 Geo. 5, c. 57, ss. 5, 8.

Maritime Conventions Act, 1914, S.C. 1914, c. 13, preamble, ss. 6, 9.

Negligence Act, R.S.O. 1990, c. N.1.

Occupiers’ Liability Act, R.S.O. 1990, c. O.2.

Rules of Civil Procedure, O. Reg. 560/84, r. 21.01(1)(a).

Trustee Act, R.S.O. 1990, c. T.23, s. 38(1).

Authors Cited

Canada. House of Commons Debates, 4th Sess., 20th Parl., vol. IV, May 17, 1948, at p. 3994.

Cooper-Stephenson, Ken. Personal Injury Damages in Canada, 2nd ed. Scarborough, Ont.: Carswell, 1996.

Côté, Pierre-André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville, Que.: Yvon Blais, 1991.

Driedger on the Construction of Statutes, 3rd ed. By Ruth Sullivan. Toronto: Butterworths, 1994.

Feldthusen, Bruce. Economic Negligence: The Recovery of Pure Economic Loss, 3rd ed. Scarborough, Ont.: Carswell, 1994.

Hogg, Peter W. Constitutional Law of Canada, vol. 1, loose-leaf ed. Scarborough, Ont.: Carswell, 1992 (updated 1997, release 2).

Quebec Civil Law: An Introduction to Quebec Private Law. Under the general editorship of John E. C. Brierley and Roderick A. Macdonald. Toronto: Emond Montgomery, 1993.

Waddams, S. M. The Law of Damages, loose-leaf ed. Toronto: Canada Law Book, 1991 (updated December 1997, release 6).

APPEALS and CROSS-APPEALS from a judgment of the Ontario Court of Appeal (1996), 1996 3060 (ON CA), 30 O.R. (3d) 643, 140 D.L.R. (4th) 52, 94 O.A.C. 241, [1996] O.J. No. 3659 (QL), affirming a decision of the Ontario Court (General Division) granting leave to file an amended statement of claim and determining a special case. Appeals and cross-appeals dismissed.

Mark Edwards, for the appellants Christopher Hogarth et al.

Rui M. Fernandes, for the appellants Josephine Perry et al.

Eric R. Murray, Q.C., and Robin K. Basu, for the respondents John Emmett Hall et al.

Peter A. Daley and M. Jasmine Sweatman, for Ontario Holidays Corporation.

Brendan O’Brien, Q.C., and Ismail Barmania, for the respondent Josephine Perry.

Mark J. Freiman and Geoff R. Hall, for the Perry Estate respondents.

Frederick W. Knight, Q.C., and Jean Leslie Marentette, for the appellant Larry Grail.

Nigel H. Frawley and William M. Sharpe, for the respondents Deborah Ordon et al.

Alain Gingras, for the intervener.

The judgment of the Court was delivered by

//Iacobucci and Major JJ.//

1 Iacobucci and Major JJ. -- These appeals and cross-appeals arise out of four negligence actions that were commenced in the Ontario Court (General Division) in relation to two boating accidents which occurred on navigable waters within Ontario. The first action arose out of a boating accident that occurred on Lake Erie on July 1, 1990. Bernard Ordon drowned after a pleasure boat owned and operated by Larry Grail sank. The other three actions relate to a boating collision which occurred on Lake Joseph, near Port Carling, Ontario, on September 2, 1990, resulting in the death of two occupants of the boat that was hit and in serious injury to the other two occupants. The appeals and cross-appeals raise several important issues of maritime law.

2 As a preliminary jurisdictional matter, the Court is asked to determine whether the adjudication of maritime fatal accident claims brought by dependants of the deceased is a matter within the exclusive jurisdiction of the Federal Court, Trial Division, or whether jurisdiction over such claims is shared between that court and the provincial superior courts.

3 The central question in these appeals and cross-appeals concerns the constitutional applicability of provincial statutes of general application to maritime negligence claims. Five constitutional questions have been stated for the Court’s consideration. Each question concerns the constitutionality and, more importantly, constitutional applicability of a provincial or (in one instance) pre-Confederation statute in relation to a negligence claim arising from a boating accident. The general question which this Court is called upon to answer is whether and how the provisions of a provincial statute may function to determine legal issues which arise incidentally as part of a negligence claim otherwise entirely governed by federal maritime law.

4 Related to the constitutional questions are various subsidiary questions regarding the eligibility of specific categories of negligence claimants in a maritime law action, and the availability of damages in the context of such an action for loss of guidance, care and companionship. These questions in turn raise issues regarding the appropriate scope of judicial reform of Canadian maritime law.

5 Finally, three of the appeals raise the issue of the applicable limitation period for fatal accident claims by dependants of a person killed in a boating collision.

I. Facts

A. Ordon et al. v. Grail (the “Lake Erie action”)

6 Following Bernard Ordon’s drowning on July 1, 1990, his widow Deborah Ordon made claims against Larry Grail, the owner and operator of the boat. She brought claims both in her capacity as the deceased's executrix and in her personal capacity, for damages pursuant to s. 38(1) of the Trustee Act, R.S.O. 1990, c. T.23, and s. 61 of the Family Law Act, R.S.O. 1990, c. F.3, respectively. Her Family Law Act claim included claims for lost income and support, lost services, out-of-pocket expenses, personal trauma and nervous shock caused by her husband's death, as well as a claim for compensation for loss of guidance, care and companionship under s. 61(2)(e) of the Family Law Act. The deceased's two children and his mother made similar claims pursuant to the Family Law Act, including claims for loss of guidance, care and companionship under s. 61(2)(e). The corporation of which Ordon was owner, president, and manager also brought a claim against Grail, although that claim has since been abandoned. The action was commenced on March 19, 1991, less than one year after the accident.

7 Before trial, Grail brought a motion in the Ontario Court (General Division) requesting determination of several questions of law prior to trial under Rule 21.01(1)(a) of the Rules of Civil Procedure, O. Reg. 560/84, and consequent to that, an order striking out several paragraphs of the plaintiffs’ Statement of Claim (including the paragraphs pleading the Family Law Act) on the basis that they disclosed no reasonable cause of action. The plaintiffs brought a cross-motion for an order amending certain paragraphs of the Statement of Claim nunc pro tunc so as to allow them to plead their action under the Canada Shipping Act, R.S.C., 1985, c. S-9. McMahon J. granted both the motion and the cross-motion.

8 Grail then sought and was granted leave to appeal the motions judge's decision to permit the plaintiffs to amend their Statement of Claim. Leave was granted in part on the basis that the motions judge’s order permitting the action to proceed in the Ontario Court (General Division) under the Canada Shipping Act may have usurped exclusive Federal Court (Trial Division) jurisdiction over maritime wrongful death claims under that Act. The plaintiffs cross-appealed the order striking portions of their Statement of Claim.

9 Subsequently, by order of Dubin C.J.O., four other maritime negligence actions were joined together into a special case to be heard in the first instance by the Court of Appeal for Ontario. These four actions as well as the Lake Erie action were heard together by the Court of Appeal.

B. Joanne Perry et al. v. Hogarth et al. --- Hall et al. v Hogarth et al. --- Josephine Perry v. Hogarth et al. (the “Lake Joseph actions”)

10 Three of the special case actions related to a boating collision which occurred on Lake Joseph, near Port Carling, Ontario, on September 2, 1990. The plaintiffs in these three Lake Joseph actions alleged that a “Charger” motorboat owned by Diana Hogarth and operated by her son Christopher Hogarth collided with a “Starcraft” motorboat owned by John Haller and operated by his daughter Josephine Perry. Also in the Starcraft boat with Josephine Perry were her husband Grant Perry as well as Peter Hall and his wife Louise Carroll. No one else was in the Charger boat with Christopher Hogarth. As a result of the collision, Grant Perry and Louise Carroll were killed. Peter Hall suffered serious and permanent brain injuries. Josephine Perry suffered serious personal injuries.

11 Following the accident, three actions were brought against Diana Hogarth, her husband Murray Hogarth, their son Christopher Hogarth, Pioneer Petroleums Inc. (the Hogarth family company), the Edenvale Inn (the bar where it is alleged Christopher Hogarth became intoxicated shortly prior to the accident) and Ontario Holidays Corporation, the owner of the bar. John Haller and Josephine Perry were also named as defendants in two of the actions. In the third action, Josephine Perry was the plaintiff. On consent, the actions against Pioneer Petroleums Inc. have since been discontinued.

12 The first Lake Joseph action, Joanne Perry et al. v. Hogarth et al., was commenced on March 11, 1992. The action was brought by the parents, brothers, sisters and infant daughter of Grant Perry for loss of guidance, care and companionship and for pecuniary losses. The siblings of Grant Perry claimed damages under the Family Law Act. The parents and daughter of Grant Perry claimed damages under the Family Law Act or, alternatively, through the administratrix of Grant Perry’s estate under the Canada Shipping Act. As well, the estate of Grant Perry by his administratrix claimed expenses arising from his death under the Trustee Act or alternatively under the Canada Shipping Act.

13 The second Lake Joseph action, Hall et al. v. Hogarth et al., was commenced on June 1, 1992 in relation to the death of Louise Carroll and the injuries sustained by Peter Hall. The action was brought by the parents, brothers and sisters of both Peter Hall and Louise Carroll under the Family Law Act or alternatively under the Canada Shipping Act for loss of guidance, care and companionship and for pecuniary losses. The estate of Louise Carroll, by her executrix, claimed expenses arising from her death under the Trustee Act. In addition, Peter Hall brought a claim for pecuniary losses relating to his injuries and for loss of guidance, care and companionship as a result of his wife's death under the Family Law Act or alternatively under the Canada Shipping Act.

14 The third Lake Joseph action, Josephine Perry v. Hogarth et al., was commenced on August 31, 1992. Josephine Perry claimed damages under the Family Law Act or alternatively under the Canada Shipping Act for her own injuries including shock, as well as damages for loss of guidance, care and companionship and pecuniary losses resulting from the death of her husband, Grant Perry.

15 All of the defendants in the first two Lake Joseph actions pleaded contributory negligence on the part of Josephine Perry as operator of the boat that was struck and on the part of John Haller, Peter Hall, and the deceased Louise Carroll. Josephine Perry pleaded contributory negligence on the part of her co-defendants and on the part of Peter Hall and Louise Carroll. The defendant Ontario Holidays Corporation also pleaded contributory negligence on the part of the three Hogarth defendants.

16 All of the defendants in the Lake Joseph actions took the position that the Ontario Family Law Act, Trustee Act, and the contributory negligence provisions of the Negligence Act, R.S.O. 1990, c. N.1, do not form part of Canadian maritime law, and that all of the plaintiffs’ claims should have been brought pursuant to the Canada Shipping Act. As a consequence, it was pleaded that none of the claims made pursuant to these provincial statutes disclosed a reasonable cause of action or defence. With respect to the wrongful death claims brought by the dependants of Grant Perry and Louise Carroll, the defendants took the position that the claims were statute-barred by the one-year limitation period contained in s. 649 of the Canada Shipping Act. Further, the defendants took the position that maritime wrongful death claims cannot be brought in the Ontario Court (General Division) in light of the exclusive jurisdiction granted to the Federal Court, Trial Division over such matters by s. 646 of the Canada Shipping Act.

C. Van Duser et al. v. Knolmayer et al. (the “Lac Seul action”)

17 The fourth action making up the special case that was heard by the Court of Appeal along with the Lake Erie action was an action in relation to a boating accident on Lac Seul on June 25, 1992 which resulted in the drowning of one of the occupants of the boat. Leave to appeal to this Court in the Lac Seul action was not sought, and consequently nothing more need be said about that action.

II. Relevant Constitutional and Statutory Provisions

18 Constitution Act, 1867

91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,--

92. Navigation and Shipping.

Federal Court Act, R.S.C., 1985, c. F-7

2. In this Act,

“Canadian maritime law” means the law that was administered by the Exchequer Court of Canada on its Admiralty side by virtue of the Admiralty Act, chapter A-1 of the Revised Statutes of Canada, 1970, or any other statute, or that would have been so administered if that Court had had, on its Admiralty side, unlimited jurisdiction in relation to maritime and admiralty matters, as that law has been altered by this Act or any other Act of Parliament;

22. (1) The Trial Division has concurrent original jurisdiction, between subject and subject as well as otherwise, in all cases in which a claim for relief is made or a remedy is sought under or by virtue of Canadian maritime law or any other law of Canada relating to any matter coming within the class of subject of navigation and shipping, except to the extent that jurisdiction has been otherwise specially assigned.

(2) Without limiting the generality of subsection (1), it is hereby declared for greater certainty that the Trial Division has jurisdiction with respect to any one or more of the following:

(d) any claim for damage or for loss of life or personal injury caused by a ship either in collision or otherwise;

(g) any claim for loss of life or personal injury occurring in connection with the operation of a ship including, without restricting the generality of the foregoing, any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or of the wrongful act, neglect or default of the owners, charterers or persons in possession or control of a ship or of the master or crew thereof or of any other person for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or control of the ship are responsible, being an act, neglect or default in the management of the ship, in the loading, carriage or discharge of goods on, in or from the ship or in the embarkation, carriage or disembarkation of persons on, in or from the ship;

Canada Shipping Act, R.S.C., 1985, c. S-9

2. In this Act,

“Admiralty Court” means the Federal Court;

209. . . .

(2) Subject to this Part, no other court in Canada has jurisdiction to hear or determine any action, suit or proceeding instituted by or on behalf of any seaman or apprentice for the recovery of wages in any amount.

453. Disputes respecting salvage, whether of life or property, shall be heard and determined by and before the receiver of wrecks or the Admiralty Court, as provided for respectively by this Part, and not otherwise.

PART IX

NAVIGATION -- COLLISIONS -- LIMITATION OF LIABILITY

Provisions respecting Collisions, etc.

572. (1) No action is maintainable to enforce any claim or lien against a vessel or its owners in respect of any damage or loss to another vessel, its cargo or freight, or any property on board that vessel, or for damages for loss of life or personal injuries suffered by any person on board that vessel, caused by the fault of the former vessel, whether that vessel is wholly or partly at fault, unless proceedings therein are commenced within two years from the date when the damage or loss or injury was caused.

(3) Any court having jurisdiction to deal with an action to which this section relates may, in accordance with the rules of court, extend any period described in subsection (1) or (2) to such extent and on such conditions as it thinks fit, and shall, if satisfied that there has not during such period been any reasonable opportunity of arresting the defendant vessel within the jurisdiction of the court, or within the territorial waters of the country to which the plaintiff’s ship belongs or in which the plaintiff resides or has his principal place of business, extend any period to an extent sufficient to give that reasonable opportunity.

573. Sections 565 to 572 apply in respect of a vessel to any persons other than the owners responsible for the fault of the vessel as though the expression “owners” included those persons, and in any case where, by virtue of any charter or demise, or for any other reason, the owners are not responsible for the navigation and management of the vessel, those sections shall be read as though for references to the owners there were substituted references to the charterers or other persons for the time being so responsible.

574. (1) The Admiralty Court has exclusive jurisdiction with respect to any matter in relation to the constitution and distribution of a limitation fund pursuant to Articles 11 to 13 of the Convention.

PART XIV

FATAL ACCIDENTS

645. In this Part,

“child” includes a son, daughter, grandson, grand-daughter, stepson, stepdaughter, adopted child and a person to whom a deceased person stood in loco parentis;

“dependants” means the wife, husband, parents and children of a deceased person;

“parent” includes a father, mother, grandfather, grandmother, stepfather, stepmother, a person who adopted a child, and a person who stood in loco parentis to a deceased person.

646. Where the death of a person has been caused by a wrongful act, neglect or default that, if death had not ensued, would have entitled the person injured to maintain an action in the Admiralty Court and recover damages in respect thereof, the dependants of the deceased may, notwithstanding his death, and although the death was caused under circumstances amounting in law to culpable homicide, maintain an action for damages in the Admiralty Court against the same defendants against whom the deceased would have been entitled to maintain an action in the Admiralty Court in respect of the wrongful act, neglect or default if death had not ensued.

647. Not more than one action lies for and in respect of the same subject-matter of complaint, and every action shall be commenced not later than twelve months after the death of a deceased.

648. (1) A plaintiff in an action shall, in his statement of claim, set forth the persons for whom and on whose behalf the action is brought.

(2) There shall be filed with the statement of claim an affidavit by the plaintiff in which he shall state that to the best of his knowledge, information and belief the persons on whose behalf the action is brought as set forth in the statement of claim are the only persons entitled or who claim to be entitled to the benefit thereof.

(3) The Admiralty Court or a judge thereof, if of opinion that there is a sufficient reason for doing so, may dispense with the filing of the affidavit.

Family Law Act, R.S.O. 1990, c. F.3

61.--(1) If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction.

(2) The damages recoverable in a claim under subsection (1) may include,

(e) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred.

Trustee Act, R.S.O. 1990, c. T.23

38.--(1) Except in cases of libel and slander, the executor or administrator of any deceased person may maintain an action for all torts or injuries to the person or to the property of the deceased in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do, and the damages when recovered shall form part of the personal estate of the deceased but if death results from such injuries no damages shall be allowed for the death or for the loss of the expectation of life, but this proviso is not in derogation of any rights conferred by Part V of the Family Law Act.

International Convention for the Unification of certain Rules of Law with respect to Collisions between Vessels, B.T.S. 1913 No. 4:

Article 7.

Actions for the recovery of damages [resulting from a collision] are barred after an interval of two years from the date of the casualty.

The High Contracting Parties reserve to themselves the right to provide, by legislation in their respective countries, that the said periods shall be extended in cases where it has not been possible to arrest the defendant vessel in the territorial waters of the State in which the plaintiff has his domicile or principal place of business.

III. Judicial History

A. Ontario Court (General Division) (Ordon et al. v. Grail)

19 The motions judge in the Ordon et al. v. Grail action was asked to determine three preliminary points of law, only one of which is relevant to this appeal, namely, whether a plaintiff who alleges the negligent operation of a vessel may assert a claim for damages under the Family Law Act, i.e., under a provincial statute.

20 McMahon J. reviewed two decisions of this Court which he believed to be determinative of the issue: ITO--International Terminal Operators Ltd. v. Miida Electronics Inc., 1986 91 (SCC), [1986] 1 S.C.R. 752, and Whitbread v. Walley, 1990 33 (SCC), [1990] 3 S.C.R. 1273. He found that these cases established that tortious liability for conduct arising in a maritime context is governed exclusively by Canadian maritime law, which is federal law that is uniform across Canada. He concluded that the Family Law Act therefore had no application to the immediate cause of action, and ordered that the portions of the Statement of Claim pleading the Family Law Act be struck out. McMahon J. granted the plaintiffs’ cross-motion to amend the Statement of Claim nunc pro tunc in order to plead their claims under the Canada Shipping Act.

B. Court of Appeal for Ontario

(1) Order of Dubin C.J.O.

21 On November 10, 1994, Dubin C.J.O. joined the three Lake Joseph actions and the Lac Seul action into a special case to be heard at first instance by the Court of Appeal for Ontario. Ten questions were stated for the court’s consideration. The special case was heard at the same time as the appeal in the Lake Erie action. In addition to the issues with respect to the applicability of the Family Law Act and the jurisdiction of Ontario Court (General Division) which were raised by the Lake Erie action, the special case dealt with the following issues: (1) the applicability of the Act respecting compensation to the Families of Persons killed by Accident, and in duels, C.S.C. 1859, c. 78, and of the English Fatal Accidents Acts, 1846 to 1908 to a maritime fatal accident claim; (2) the relevant limitation period with respect to a maritime fatal accident claim by a dependant; (3) the ability of dependants of a person injured but not killed in a maritime accident to bring an action for damages; (4) the ability of siblings of a person killed or injured in a maritime accident to bring a dependant’s claim for damages; (5) the effect of contributory negligence upon a negligence claim in the maritime context; (6) the applicability of the Ontario Trustee Act to a maritime fatal accident claim; and (7) the applicability of the Ontario Occupiers’ Liability Act, R.S.O. 1990, c. O.2 to a maritime fatal accident claim.

22 The Court of Appeal rendered a per curiam judgment in relation to the Lake Erie action and the stated case on October 22, 1996.

(2) Judgment of the Court of Appeal for Ontario (1996), 1996 3060 (ON CA), 30 O.R. (3d) 643

23 The court dealt first with the jurisdictional issue of whether Part XIV of the Canada Shipping Act assigns exclusive jurisdiction over maritime fatal accident claims by dependants to the Federal Court, Trial Division. The court noted that the provincial superior courts have long exercised jurisdiction over maritime negligence actions relating to collisions on inland waters. Referring to other sections of the Canada Shipping Act which explicitly assign exclusive jurisdiction to the Federal Court over specific matters, the Court concluded that where Parliament intended the Federal Court to have exclusive jurisdiction, it said so in clear words. The Court found nothing in Part XIV of the Act that expressly or impliedly excluded provincial superior court jurisdiction over fatal accident claims by dependants, and therefore concluded that the Ontario Court (General Division) was properly vested with jurisdiction over the claims.

24 Next, in order to deal with the questions regarding the applicability of provincial and British statutes to the various actions, the Court turned to consider more broadly the content of Canadian maritime law. Three decisions of this Court were considered on this point: ITO, supra, Whitbread, supra, and Q.N.S. Paper Co. v. Chartwell Shipping Ltd., 1989 35 (SCC), [1989] 2 S.C.R. 683. The general principles drawn from these three cases by the Court of Appeal were the following: Canadian maritime law as defined in s. 2 of the Federal Court Act, R.S.C., 1985, c. F-7, should be understood within the modern context of commerce and shipping, and its content should not be considered frozen by The Admiralty Act, 1934, S.C. 1934, c. 31. It is the maritime law of England as it has been incorporated into Canadian law. It is a body of federal law that is uniform throughout Canada, and it is not the law of any province of Canada. In particular, Canadian maritime law governs all tortious liability arising in a maritime context, whether the impugned conduct occurred in a major shipping lane or on an inland lake. Finally, the Court of Appeal read this Court’s decision in ITO, supra, as stating that a court adjudicating a maritime law matter may apply provincial law which is incidentally necessary to resolve the issues presented by the parties.

25 With respect to the application of provincial law to the maritime law actions on appeal, the Court of Appeal noted that this Court has applied provincial legislation to maritime accidents in the past, notably in Stein v. The Ship “Kathy K”, 1975 146 (SCC), [1976] 2 S.C.R. 802. The Court of Appeal concluded that this Court in ITO, Whitbread and Chartwell had not overruled its earlier decision in Stein. The Court of Appeal stated as a guiding principle that when considering whether a particular provincial law should be applied to a maritime accident claim, a court should determine whether the provincial law would encroach upon or destroy the uniformity of federal maritime law so as to frustrate the exclusive, uniform federal jurisdiction relating to navigation and shipping. The court proceeded to apply this principle in considering the applicability of each provincial statute at issue in the appeals.

26 Family Law Act: The Court of Appeal found that Parliament has already defined the class of persons who may recover in a maritime wrongful death claim in Part XIV of the Canada Shipping Act, such that to apply the Family Law Act to supplement this class would conflict with federal maritime law.

27 An Act respecting compensation to the Families of Persons killed by Accident, and in duels and the English Fatal Accidents Acts, 1846 to 1908: The Court of Appeal found that any claims formerly available under these statutes for maritime wrongful death have been displaced by the provisions of Part XIV of the Canada Shipping Act. In addition, the court found that none of these statutes provided any benefit that was not already provided by Part XIV.

28 Trustee Act: The court noted that, whereas the Canada Shipping Act does not provide that the estate of the deceased can bring a claim for damages arising after an accident but prior to death, s. 38(1) of the Trustee Act expressly provides for such recovery. Applying the principles it had earlier set out, the court found that the Trustee Act, like the Contributory Negligence Act in the Stein case, could be called upon to fill the gap. The court concluded that applying the Trustee Act in this way would not compromise the fundamental principles of Canadian maritime law or the uniformity of that law.

29 Occupiers’ Liability Act: The Court of Appeal found that there was no gap in federal maritime law which the Occupiers’ Liability Act could be called upon to fill, in the sense that the liability of a defendant occupier of a boat can be determined by reference to basic principles of negligence law in their maritime context. The Court of Appeal concluded that the Occupiers’ Liability Act cannot be applied to an accident which occurred on a body of inland water.

30 Negligence Act: On the authority of Stein, supra, the Court of Appeal concluded that the contributory negligence provisions of the Negligence Act may be applied to apportion liability.

31 Following its consideration of the applicability of the various provincial statutes, the Court of Appeal dealt with the classes of plaintiffs eligible to bring claims and the types of losses for which they could recover.

32 The court found that, although a claim for loss of guidance, care and companionship cannot be brought under the Family Law Act (in light of the foregoing analysis), such a claim may be brought under the Canada Shipping Act. The Court held that, even if the word “damages” in s. 647 of the Canada Shipping Act did not originally refer to damages for this variety of non-pecuniary loss, Canadian maritime law is not frozen or static, and should develop to allow for such a claim in conformity with contemporary concepts of loss resulting from wrongful death.

33 The court similarly held that dependants of a person injured but not killed in a boating accident could recover damages for loss of guidance, care and companionship. The court found that, although such a claim is not provided for in the Canada Shipping Act, it would be anomalous to provide for such recovery in fatal accident cases but not in cases of personal injury, particularly cases of serious personal injury such as that suffered by Peter Hall in the Lake Joseph accident. The court accordingly allowed for the claim as part of the “continued appropriate growth of Canadian maritime law” (pp. 674-75).

34 With respect to eligible claimants, the Court of Appeal noted that those who may make a claim for wrongful death in the maritime context are specifically listed in the definition of "dependants" in s. 645 of the Canada Shipping Act. That definition lists the wife, husband, parents and children of the deceased, but not siblings or common law spouses. Since the Canada Shipping Act is the controlling legislation, the court found that siblings are not permitted to assert a claim. However, in accordance with the decision of this Court in Miron v. Trudel, 1995 97 (SCC), [1995] 2 S.C.R. 418, the Court of Appeal held that it was necessary to interpret the words “husband” and “wife” in s. 645 of the Canada Shipping Act as including common law spouses, in order to comply with constitutional equality requirements.

35 The final issue considered by the Court of Appeal was the applicable limitation period in relation to the Lake Joseph claims. The issue was stated as whether only the one-year limitation period specified in s. 649 of the Canada Shipping Act could apply to the dependants’ claims, or whether resort could be had to the two-year limitation period in s. 572(1) of the Act, or alternatively whether the court had jurisdiction to extend, and should extend, the limitation period in some other manner. The Court of Appeal held that where a dependant of a person killed in a boating accident brings a claim, that claim must be brought under Part XIV of the Canada Shipping Act, such that the limitation period in that Part must apply, notwithstanding the existence of a distinct and longer limitation period in s. 572(1) which expressly applies to collisions between boats resulting in loss of life. On the other hand, the dependants’ claims relating to the injuries of Peter Hall were found to be governed by the two-year limitation period under s. 572(1).

36 Having found that the dependants’ fatal accident claims were statute-barred, the court was of the opinion that to deny the plaintiffs their recourse under the circumstances would be extremely unfair and would result in a gross injustice. Relying upon the decision of this Court in Basarsky v. Quinlan, 1971 5 (SCC), [1972] S.C.R. 380, the Court of Appeal found that special circumstances existed which justified a discretionary extension of the limitation period. It found these special circumstances in the fact that, at the time the Lake Joseph actions were commenced, it was generally thought that maritime wrongful death claims by dependants could be brought pursuant to provincial legislation, which in this case provided a longer limitation period. The court also noted that the defendants in this case were aware of the nature of the claims against them and would suffer no prejudice as a result of the exercise of the court’s discretion.

C. Supreme Court of Canada

37 Defendants in the three Lake Joseph actions and the Lake Erie action applied for and were granted leave to appeal to this Court. Several plaintiffs also applied for and were granted leave to cross-appeal. On March 16, 1998, Iacobucci J. stated five constitutional questions for consideration by this Court in relation to the appeals and cross-appeals:

1. Whether the provisions of Part V of the Family Law Act, R.S.O. 1990, c. F.3, in whole or in part, allowing claims for loss of guidance, companionship and other losses, are constitutionally inapplicable to losses arising from a personal injury suffered by another arising out of the alleged negligent operation or ownership of a vessel on inland waters in Ontario, and/or ultra vires insofar as they purport to govern losses or damages arising out of a boating accident.

2. Whether the provisions of the Act respecting compensation to the Families of Persons killed by Accident, and in duels, C.S.C. 1859, c. 78, are constitutionally inapplicable in whole or in part to an action based on alleged negligent operation or ownership of a vessel on inland waters in Ontario resulting in a fatality, and/or ultra vires insofar as they purport to govern losses or damages arising out of a boating accident.

3. Whether the provisions of s. 38(1) of the Trustee Act, R.S.O. 1990, c. T.23, are constitutionally inapplicable in whole or in part to an action based on alleged negligent operation or ownership of a vessel on inland waters in Ontario resulting in a fatality, and/or ultra vires insofar as they purport to govern losses or damages arising out of a boating accident.

4. Whether the provisions of the Negligence Act, R.S.O. 1990, c. N.1, allowing the apportionment of liability in accordance with fault, are constitutionally inapplicable in whole or in part to an action based on the alleged negligent operation or ownership of a vessel on inland waters in Ontario resulting in personal injury or death, and/or ultra vires insofar as they purport to govern losses or damages arising out of a boating accident.

5. Whether the provisions of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2, allowing claims for damages are constitutionally inapplicable in whole or in part in an action based on alleged negligent operation or ownership of a vessel on inland waters in Ontario resulting in a fatality, and/or ultra vires insofar as they purport to govern losses or damages arising out of a boating accident.

38 The issue of the applicability of the Occupiers’ Liability Act was raised only by the litigants in the Lac Seul action. As leave to appeal to this Court was not sought in the Lac Seul action, the issue is moot, and accordingly these reasons do not address constitutional question No. 5.

IV. Issues

39 The issues in this appeal are the following:

A. Jurisdiction

(1) Does the Ontario Court (General Division) have jurisdiction under Part XIV of the Canada Shipping Act to entertain an in personam fatal accident claim by a dependant of the deceased arising from the alleged negligent operation or ownership of a vessel on navigable waters within Ontario?

B. Applicability of Provincial Statutes to a Maritime Law Claim

(2) Are the provisions of Part V of the Ontario Family Law Act constitutionally inapplicable and/or ultra vires insofar as they purport to govern damages for personal injury arising out of a boating accident?

(3) Is the Act respecting compensation to the Families of Persons killed by Accident, and in duels constitutionally inapplicable and/or ultra vires insofar as it purports to govern losses or damages arising out of a boating accident?

(4) Is s. 38(1) of the Ontario Trustee Act constitutionally inapplicable and/or ultra vires insofar as it purports to govern losses or damages arising out of a boating accident?

(5) Are the contributory negligence provisions of the Ontario Negligence Act constitutionally inapplicable and/or ultra vires insofar as they purport to govern losses or damages arising out of a boating accident?

C. Limitation Period

(6) What limitation period applies to the three Lake Joseph actions?

V. Terminology

40 Only some of the original defendants in these four actions have sought leave to appeal to this Court, and accordingly some defendants are appellants and some are respondents to the appeals brought by the other defendants. However, the defendants’ submissions, whether made as appellant or respondent, tend to support one another and to be opposed to those of the plaintiff-respondents. In the interests of clarity and brevity, we shall use in these reasons the terms “plaintiffs” and “defendants” to refer to the original plaintiffs and defendants, whether they are appellants or respondents before this Court.

VI. Analysis

A. Jurisdiction

41 The defendants submit that s. 646 of the Canada Shipping Act assigns exclusive jurisdiction to the Federal Court, Trial Division to entertain in personam fatal accident claims by dependants of a deceased arising from the alleged negligent operation or ownership of a vessel on inland waters in Ontario. They argue that the Ontario Court (General Division) is therefore without jurisdiction to hear such claims, and that the claims by the dependants of the deceased in these appeals were brought in the wrong court.

42 At the outset, it is important to identify the precise type of claim with respect to which the jurisdiction of the Ontario Court (General Division) is disputed. None of the parties in these appeals disputes the jurisdiction of a provincial superior court to hear claims for personal injury (whether by the injured party or, assuming such a claim may be brought, by his or her dependants) arising out of a boating accident. It is only claims by dependants of a person killed in a boating accident which are at issue. As well, none of the parties disputes that, if it is found that the estate of a person killed in a boating accident is entitled to maintain an action to pursue the claims of the deceased him- or herself, the provincial superior courts possess jurisdiction to entertain the action. Finally, it is relevant to note (although it is not determinative of the issue of jurisdiction) that all of the claims at issue in these appeals have been brought in personam (i.e., against the owners and those allegedly responsible for the operation of the boat) and not in rem (i.e., against the boat itself). The issue presented for this Court’s consideration is, therefore, specifically, whether the Ontario Court (General Division) has jurisdiction to entertain an in personam fatal accident claim by a dependant of the deceased arising out of a boating accident which occurred on navigable waters within Ontario, or whether such jurisdiction has been ousted by s. 646 of the Canada Shipping Act.

43 We agree with the Court of Appeal for Ontario that s. 646 of the Canada Shipping Act does not assign exclusive jurisdiction over dependants’ maritime fatal accident claims to the Federal Court, Trial Division. Rather, the Federal Court, Trial Division and the provincial superior courts have concurrent jurisdiction over such claims. We arrived at this conclusion for many reasons. They include a consideration of the intended meaning and purpose of s. 646 of the Canada Shipping Act in light of the history of maritime fatal accident claims in Canadian law, the wording of s. 646, its statutory context, previous jurisprudence, and policy considerations regarding the jurisdiction of the Federal Court.

(1) The Jurisdiction of Provincial Superior Courts

44 It is well settled, and the defendants do not dispute, that as a general rule provincial superior courts have plenary and inherent jurisdiction to hear and decide all cases that come before them, regardless of whether the law applicable to a particular case is provincial, federal or constitutional: Valin v. Langlois (1879), 1879 29 (SCC), 3 S.C.R. 1, at pp. 19-20; Ontario (Attorney General) v. Pembina Exploration Canada Ltd., 1989 112 (SCC), [1989] 1 S.C.R. 206, at p. 217; Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 818 (SCC), [1998] 1 S.C.R. 626, at paras. 26-32.

45 This general rule is subject to important exceptions. In particular with reference to these appeals, Parliament may, within constitutional limits, derogate from the jurisdiction of the provincial courts by conferring jurisdiction upon federal courts constituted by statute pursuant to s. 101 of the Constitution Act, 1867. This exception was acknowledged by Pigeon J., writing for the majority of the Court in R. v. Thomas Fuller Construction Co. (1958) Ltd., 1979 187 (SCC), [1980] 1 S.C.R. 695, at p. 713, where he stated:

It must be considered that the basic principle governing the Canadian system of judicature is the jurisdiction of the superior courts of the provinces in all matters federal and provincial. The federal Parliament is empowered to derogate from this principle by establishing additional courts only for the better administration of the laws of Canada. [Emphasis added.]

46 As a statutory court, the Federal Court of Canada has no jurisdiction except that assigned to it by statute. In light of the inherent general jurisdiction of the provincial superior courts, Parliament must use express statutory language where it intends to assign jurisdiction to the Federal Court. In particular, it is well established that the complete ouster of jurisdiction from the provincial superior courts in favour of vesting exclusive jurisdiction in a statutory court (rather than simply concurrent jurisdiction with the superior courts) requires clear and explicit statutory wording to this effect. This latter principle finds early expression in the judgment in Peacock v. Bell (1677), 1 Wms. Saund. 73, 85 E.R. 84, at pp. 87-88:

And the rule for jurisdiction is, that nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly alleged.

This basic principle continues to be applied up to the present day: see Albon v. Pyke (1842), 4 Man. & G. 421, 134 E.R. 172, at p. 174; Board v. Board, 1919 546 (UK JCPC), [1919] A.C. 956 (P.C.), at pp. 962-63; Re Minister of Social Welfare and Rehabilitation and Dube (1963), 1963 402 (SK CA), 39 D.L.R. (2d) 302 (Sask. C.A.), at p. 307; Canada (Human Rights Commission) v. Canadian Liberty Net, supra, at paras. 29-32; P.-A. Côté, The Interpretation of Legislation in Canada (2nd ed. 1991), at pp. 417-20.

(2) The Concurrent Jurisdiction of Provincial Superior Courts and the Federal Court, Trial Division with Respect to Maritime Matters

47 In accordance with the inherent jurisdiction of the superior courts, it has long been held that the provincial superior courts have jurisdiction over matters involving maritime law, including negligence actions resulting from collisions or other accidents involving vessels on inland waters: Shipman v. Phinn (1914), 1914 513 (ON SC), 31 O.L.R. 113 (H.C.), aff’d (1914), 1914 502 (ON CA), 32 O.L.R. 329 (C.A.); Pile Foundations Ltd. v. Selkirk Silica Co. (1967), 1967 796 (MB QB), 59 W.W.R. 622 (Man. Q.B.); Heath v. Kane (1975), 1975 763 (ON CA), 10 O.R. (2d) 716 (C.A.); Harvey v. Tarala (1977), 1979 2358 (SK QB), 6 Sask. R. 74 (Q.B.); Ontario (Attorney General) v. Pembina Exploration Canada Ltd., supra.

48 The Federal Court Act confirms the jurisdiction of the provincial superior courts over matters involving Canadian maritime law, by recognizing (in s. 22 of the Act) the Federal Court, Trial Division’s concurrent jurisdiction over such matters. Section 22 of the Federal Court Act states in relevant part:

22. (1) The Trial Division has concurrent original jurisdiction, between subject and subject as well as otherwise, in all cases in which a claim for relief is made or a remedy is sought under or by virtue of Canadian maritime law or any other law of Canada relating to any matter coming within the class of subject of navigation and shipping, except to the extent that jurisdiction has been otherwise specially assigned.

(2) Without limiting the generality of subsection (1), it is hereby declared for greater certainty that the Trial Division has jurisdiction with respect to any one or more of the following:

(d) any claim for damage or for loss of life or personal injury caused by a ship either in collision or otherwise;

(g) any claim for loss of life or personal injury occurring in connection with the operation of a ship including, without restricting the generality of the foregoing, any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or of the wrongful act, neglect or default of the owners, charterers or persons in possession or control of a ship or of the master or crew thereof or of any other person for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or control of the ship are responsible, being an act, neglect or default in the management of the ship, in the loading, carriage or discharge of goods on, in or from the ship or in the embarkation, carriage or disembarkation of persons on, in or from the ship; [Emphasis added.]

49 The defendants do not contest the general proposition that the Federal Court, Trial Division shares concurrent jurisdiction over maritime matters with the provincial superior courts. Rather, they submit that jurisdiction to adjudicate a specific variety of maritime matter, namely in personam fatal accident claims brought by dependants of the deceased, has, in the language of s. 22(1) of the Federal Court Act, “been otherwise specially assigned” by statute. They argue that s. 646 of the Canada Shipping Act specially assigns jurisdiction over such claims to the Federal Court, Trial Division, to the exclusion of the provincial superior courts.

(3) The Defendants’ Position

50 The defendants’ argument in favour of exclusive jurisdiction in the Federal Court, Trial Division may be summarized as follows: (a) Part XIV of the Canada Shipping Act is the only basis at law whereby dependants of a person killed in a maritime accident may seek relief; (b) s. 646 of the Canada Shipping Act specifies an exclusive forum for such claims by providing that a dependant may “maintain an action for damages in the Admiralty Court”; and (c) the “Admiralty Court” is defined in s. 2 of the Canada Shipping Act as the Federal Court. The jurisdiction argument is most elaborately advanced by the appellant Grail who, in support of his interpretation of s. 646 of the Canada Shipping Act, relies upon the wording of ss. 646 and 650 of the Act, the judgment of this Court in Stein, supra, as well as Hansard and other sources with respect to the original legislative purpose underlying what is now s. 646. Throughout his submissions on this issue, the appellant Grail also emphasizes what he perceives (wrongly in our view) as a distinction between the Federal Court’s jurisdiction over maritime accidents involving a collision and its jurisdiction over accidents not involving a collision.

(4) The History of Fatal Accident Claims Under Canadian Maritime Law

51 The history of maritime fatal accident claims in the United Kingdom and Canada was thoroughly reviewed by the Court of Appeal for Ontario in the judgment below. A review of this history is of assistance in determining the intended effect of Part XIV of the Canada Shipping Act. A brief summary of that history follows here.

52 Prior to the enactment of the Fatal Accidents Act, 1846 (U.K.), 9 & 10 Vict., c. 93 (“Lord Campbell’s Act”), all claims which might have been brought by a person killed by the wrongful act or omission of another (whether in the maritime context or otherwise) died with the victim, in accordance with the common law maxim actio personalis moritur cum persona. Lord Campbell’s Act remedied this gap in the law by creating a statutory right in dependants of the deceased to bring an action against the person whose wrongful act or omission had caused the death.

53 In Seward v. The “Vera Cruz” (1884), 10 App. Cas. 59, however, the House of Lords limited the applicability of Lord Campbell’s Act in the maritime context. The Lords held that a dependant was entitled to bring only an action in personam against the person or persons at fault, and was precluded from bringing an action in rem against the ship itself. The effect of this ruling was that any meaningful recourse by a dependant for wrongful death caused by a foreign ship was largely precluded, given the difficulty involved in bringing the owners and crew of a foreign ship before British courts.

54 To remedy this deficiency, the British Parliament enacted s. 5 of the Maritime Conventions Act, 1911 (U.K.), 1 & 2 Geo. 5, c. 57, which provided:

5. Any enactment which confers on any court Admiralty jurisdiction in respect of damage shall have effect as though references to such damage included references to damages for loss of life or personal injury, and accordingly proceedings in respect of such damages may be brought in rem or in personam.

Following this enactment, admiralty courts in the United Kingdom assumed jurisdiction to hear in rem actions in fatal accident cases: see The Caliph, [1912] P. 213.

55 In Canada, Parliament adopted a virtually identical provision in s. 6 of the Maritime Conventions Act, 1914, S.C. 1914, c. 13. However, in The Ship Catala v. Dagsland, 1928 786 (CA EXC), [1928] Ex. C.R. 83, the Exchequer Court concluded that the governing rule with respect to in rem fatal accident claims was that established by the House of Lords in Seward v. The “Vera Cruz”, which the Exchequer Court found had not been affected by the enactment of the Maritime Conventions Act, 1914. Consequently, as a matter of Canadian law after 1928, a dependant of a person killed in a maritime accident did not have the right to bring an in rem claim against the ship responsible for the death: see Rogers v. S.S. Baron Carnegie, 1941 285 (CA EXC), [1943] Ex. C.R. 163. We note that the modern version of s. 6 of the Maritime Conventions Act, 1914 is now s. 571 of the Canada Shipping Act.

56 In 1948, Parliament passed the Act to amend the Canada Shipping Act, 1934, S.C. 1948, c. 35, which contained several amendments to the Canada Shipping Act, including the introduction of what is now Part XIV dealing with fatal accidents. In moving second reading of the amending legislation in the House of Commons, the Minister of Transport introduced the new fatal accidents provisions in the following terms (House of Commons Debates, 4th Sess., 20th Parl., vol. IV, May 17, 1948, at p. 3994):

Then I come to the next part with which the bill deals, and that has to do with fatal accidents. It is a new part altogether. It is introduced under the heading “Fatal Accidents.” At present there is no provision in the act that entitles the dependents of deceased persons killed as a result of an injury caused by a ship to take proceedings in rem against the ship. A seaman can always go into the admiralty court and sue the ship or elect to take compensation under the provincial workmen’s compensation acts or under the dominion act which was passed recently in this House of Commons. But heretofore the dependents have not had the right to take action against the ship, what is called an action in rem. This new section will entitle the dependents of a deceased seaman to institute such an action, or to elect to take compensation, whichever is the higher or whichever they prefer. It has been held that the exchequer court on its admiralty side has no jurisdiction to entertain an action in rem in respect of fatal accidents; and the provisions of this part are intended to remedy this defect in the law and to enable dependents of deceased persons to take proceedings in the court of admiralty in any case where the deceased person would have had the right to maintain an action if death had not ensued. The provisions and terms of this new part are very similar to those contained in the fatal accidents acts of the provinces, particularly the act in Ontario.

57 We agree with the Court of Appeal for Ontario that the above passage summarizes the effect of the enactment of what is now Part XIV of the Canada Shipping Act with respect to in rem actions by dependants. The Court of Appeal noted that this review of the history of Part XIV of the Act, and of s. 646 in particular, does not yield an answer to the specific question as to whether s. 646 was intended by Parliament to oust the jurisdiction of the superior courts over fatal accident claims by dependants. However, in our view, the history underlying the enactment of Part XIV, including especially the lack of an indication that Part XIV was designed in any way to restrict the remedies already available to aggrieved dependants, does assist a court in determining that s. 646 does not assign exclusive jurisdiction. In addition, the wording of s. 646, which is admittedly unclear, uses permissive language regarding Federal Court jurisdiction and in this respect is consistent with the historical purpose of adding in rem actions to the Federal Court and not exclusively assigning that jurisdiction to the Federal Court. Given the remedial purpose of Part XIV of the Canada Shipping Act, the defendants’ submission that the new provisions ousted the jurisdiction of the superior courts to try maritime fatal accident claims (to the clear detriment of claimants) is somewhat illogical.

(5) Section 646 of the Canada Shipping Act and its Statutory Context

58 The current Part XIV (ss. 645 to 653) of the Canada Shipping Act, then, sets out a statutory regime whereby dependants of a person killed in a maritime accident may bring a claim, either in personam or in rem, for relief. Section 646 of the Act reads as follows:

646. Where the death of a person has been caused by a wrongful act, neglect or default that, if death had not ensued, would have entitled the person injured to maintain an action in the Admiralty Court and recover damages in respect thereof, the dependants of the deceased may, notwithstanding his death, and although the death was caused under circumstances amounting in law to culpable homicide, maintain an action for damages in the Admiralty Court against the same defendants against whom the deceased would have been entitled to maintain an action in the Admiralty Court in respect of the wrongful act, neglect or default if death had not ensued. [Emphasis added.]

As stated, s. 2 of the Canada Shipping Act defines “Admiralty Court” as “Federal Court”. Section 650 of the Act, which sets out certain procedural requirements for bringing a fatal accident claim, reads:

650. (1) A plaintiff in an action shall, in his statement of claim, set forth the persons for whom and on whose behalf the action is brought.

(2) There shall be filed with the statement of claim an affidavit by the plaintiff in which he shall state that to the best of his knowledge, information and belief the persons on whose behalf the action is brought as set forth in the statement of claim are the only persons entitled or who claim to be entitled to the benefit thereof.

(3) The Admiralty Court or a judge thereof, if of opinion that there is a sufficient reason for doing so, may dispense with the filing of the affidavit. [Emphasis added.]

59 The wording of Part XIV of the Canada Shipping Act leaves something to be desired. While s. 646 does not expressly exclude the jurisdiction of the provincial superior courts, the provision does appear to confer jurisdiction, and in so doing refers only to the Admiralty Court. Further, s. 650 of the Act confers a dispensing power only on “[t]he Admiralty Court or a judge thereof”. While on its face, the wording of these provisions lends a certain logic to the defendants’ proposition that only the Federal Court has jurisdiction to entertain maritime fatal accident claims by dependants, Parliament’s omission to acknowledge the jurisdiction of the provincial superior courts over dependants’ fatal accident claims in ss. 646 and 650 falls short of evincing an intention either to create a new cause of action with exclusive jurisdiction in the Federal Court, or to oust completely the jurisdiction of the superior courts over an existing cause of action in favour of the Federal Court.

60 As noted by the Court of Appeal below, when Parliament intended the Federal Court to have exclusive jurisdiction to adjudicate a particular matter in the Canada Shipping Act, it set this intention out in clear language in the Act. For example, ss. 209(2) and 453, as well as the newly enacted s. 580(1) (see S.C. 1998, c. 6, s. 2), state:

209. . . .

(2) Subject to this Part, no other court in Canada [referring to the Admiralty Court] has jurisdiction to hear or determine any action, suit or proceeding instituted by or on behalf of any seaman or apprentice for the recovery of wages in any amount.

453. Disputes respecting salvage, whether of life or property, shall be heard and determined by and before the receiver of wrecks or the Admiralty Court, as provided for respectively by this Part, and not otherwise.

454. (1) The Admiralty Court has exclusive jurisdiction with respect to any matter in relation to the constitution and distribution of a limitation fund pursuant to Articles 11 to 13 of the Convention.

By contrast, s. 646 makes no express reference to exclusivity of jurisdiction in the Admiralty Court. Rather, the focus of s. 646 appears to be, and this is borne out by the above examination of the history of the provision, remedial -- its purpose was to extend an already existing remedy to allow for claims in rem, and not to restrict that remedy by confining jurisdiction to a specific court. In our opinion, if it was intended that s. 646 should grant exclusive jurisdiction to the Admiralty Court in maritime fatal accident claims, language similar to that in ss. 209(2), 453 and 580(1) would have been used.

61 The lack of any express language in s. 646 of the Canada Shipping Act excluding superior court jurisdiction, or vesting sole jurisdiction in the Admiralty Court, is sufficient by itself to justify interpreting s. 646 as conferring on the Admiralty Court only concurrent jurisdiction over fatal accident claims by dependants. This finding accords with the basic principle of statutory construction that a statute should not be interpreted as abrogating the inherent jurisdiction of the superior courts unless it employs clear language to this effect: Peacock v. Bell, supra; Board v. Board, supra; Re Minister of Social Welfare and Rehabilitation and Dube, supra; Canada (Human Rights Commission) v. Canadian Liberty Net, supra.

62 Some support for this approach to the interpretation of jurisdictional provisions relating to the Federal Court is provided by recent amendments to the Federal Court Act with respect to proceedings against the Crown. Prior to 1992, s. 17(1) of the Federal Court Act assigned exclusive jurisdiction to the Federal Court, Trial Division in all cases in which relief was claimed against the federal Crown. The exclusion of provincial superior court jurisdiction had the undesirable result that civil claims against both the federal government and another party (private persons, corporations, or other governments) could not be dealt with by a single court. Instead, costly and burdensome parallel proceedings had to be launched in both the Federal Court, Trial Division and the relevant provincial court. With the passage of the Act to amend the Federal Court Act, the Crown Liability Act, the Supreme Court Act and other Acts in consequence thereof, S.C. 1990, c. 8, which came into force on February 1, 1992, s. 17(1) of the Federal Court Act was amended so that it now assigns the Federal Court, Trial Division only concurrent jurisdiction over civil claims against the federal Crown. We are of the view that it accords with Parliament’s general objective of avoiding unnecessary parallel proceedings to apply an interpretive principle which has the same beneficial effect. Parliament must be assumed not to have intended to impair or defeat the remedies it has made available to maritime fatal accident claimants by imposing costly and useless procedural hurdles to the bringing of an action. We can think of no reason as a matter of policy or principle to confine jurisdiction over maritime fatal accident claims to the Federal Court alone. This ground of appeal therefore fails.

63 Before moving on to consider the remaining grounds of appeal, three issues should be briefly addressed. First, the appellant Grail relies upon the decision of this Court in Stein, supra, in support of his submission that s. 646 of the Canada Shipping Act should be interpreted as assigning exclusive jurisdiction to the Federal Court. In particular, he relies upon the following passage from the judgment of Ritchie J., writing for the Court (at pp. 820-21):

As I said at the outset, the present action is brought pursuant to s. 719 [now s. 646] of the Canada Shipping Act, which confines the appellants to the maintaining of an action for damages in the Admiralty Court, the jurisdiction of which is now vested in the Federal Court of Canada and, as I have indicated, includes jurisdiction with respect to “any claim for damage or for loss of life or personal injury caused by a ship either in collision or otherwise”. (See Federal Court Act, supra, s. 22(2)).

The issue of whether the provincial superior courts have jurisdiction to entertain a maritime fatal accident claim was not before the Court in the Stein case, as the action was brought in the Federal Court, Trial Division. We do not interpret the comments of Ritchie J., read in context, as asserting the exclusive jurisdiction of the Federal Court over such matters. In any event, we do not agree that s. 646 assigns exclusive jurisdiction to the Federal Court.

64 Second, we consider it appropriate to address briefly the appellant Grail’s submission that fatal accident claims by dependants are subject to different statutory regimes within the Canada Shipping Act depending upon whether or not the accident involved a collision between ships. The Canada Shipping Act contains numerous provisions dealing with fatal accident claims. Most of these provisions are contained in Part XIV of the Act. Several others are contained in Part IX of the Act, dealing with collisions, whose focus is primarily upon apportionment of liability, limitation periods, and the reporting of collisions. Where a fatal accident claim does not stem from a collision between vessels, of course, the collisions provisions of the Act will not come into play. Where a claim does relate to a collision, the relevant provisions of Part IX must be read in conjunction with Part XIV and, as is discussed below, with other sources of Canadian maritime law, as interrelated components of a single larger regime dealing with maritime fatal accidents. We will return to a discussion of the interplay between Parts IX and XIV of the Canada Shipping Act later on in these reasons, when discussing the relevant limitation period with respect to the three Lake Joseph actions.

65 Third, several of the parties have asked this Court, in the event that s. 646 of the Canada Shipping Act is found to confer exclusive jurisdiction upon the Federal Court, to decide whether the Ontario Court (General Division) nonetheless has jurisdiction to grant them relief under any of the following three potential sources of maritime law: (1) the Act respecting compensation to the Families of Persons killed by Accident, and in duels; (2) the English Fatal Accidents Acts, 1846 to 1908; or (3) non-statutory principles of Canadian maritime law. In light of our finding that s. 646 does not establish an exception to the concurrent jurisdiction of the Ontario Court (General Division) over maritime law claims under the Canada Shipping Act, it is not necessary to answer this jurisdictional question.

B. Applicability of Provincial Statutes to a Maritime Law Claim

(1) Nature of the Constitutional Issue

66 The constitutional issue raised by the present appeals is whether a validly enacted provincial statute of general application may be applied to deal with incidental aspects of a maritime negligence claim that is otherwise governed entirely by federal maritime law. The issue has never been directly addressed by this Court in constitutional form.

67 The issue arises because the plaintiffs in these actions wish to have the advantage of certain causes of action created by the Ontario Family Law Act and Trustee Act, and of the contributory negligence provisions of the Ontario Negligence Act. The Canada Shipping Act does not expressly provide for dependants’ fatal accident claims by siblings of the deceased, for damage claims by the deceased’s executor in the name of the deceased, for claims for loss of guidance, care and companionship, or for a general regime of apportionment according to fault. The provincial statutes do. The plaintiffs submit that the application of these provincial statutes to permit such claims is merely incidental to the maritime law character of the actions themselves, which are otherwise governed by the common law of negligence as embodied in federal maritime law.

68 This Court’s recent maritime law jurisprudence makes clear that Canadian maritime law is a body of federal law, uniform across the country, within which there is no room for the application of provincial statutes. What the case law does not explicitly address, however, is whether and when it is contrary to the division of powers as set out in the Constitution Act, 1867 for provincial statutes of general application to apply on their own terms as provincial law within a factual context which is otherwise governed by federal maritime law. The plaintiffs in these appeals submit that, although provincial statutes are not usually applicable to resolve maritime matters, they should nevertheless be applied as incidentally necessary to fill gaps which may exist in federal maritime negligence law. The defendants, for their part, submit that provincial statutes can have no incidental application to any matter within the scope of Parliament’s exclusive jurisdiction over maritime law (i.e., navigation and shipping) under s. 91(10) of the Constitution Act, 1867.

69 Counsel for the plaintiffs rely in particular upon two cases in which provincial statutes of general application have been applied by this Court in a maritime negligence law context. In Canadian National Steamships Co. v. Watson, 1938 183 (SCC), [1939] S.C.R. 11, a crew member of a ship owned by the appellant company successfully brought an action in negligence against the company following an accident at sea in which he suffered personal injury. At issue in the appeal to this Court was, inter alia, whether the trial judge had applied the wrong law of negligence in awarding damages to the seaman. The majority judgment of the Court on this point was delivered by Duff C.J., whose reasons read in relevant part, at pp. 15-16:

In this Court the appellants contended that the field of jurisprudence concerned with the responsibility of ship owners for the negligent acts of the ship’s officers in the management of the ship is within the exclusive jurisdiction of the Dominion Parliament in respect of Navigation and Shipping and, there being no Dominion legislation dealing with the matter, the common law applies and British Columbia legislation is irrelevant. I am unable to agree with this view. It is inconsistent with the judgment in Workmen’s Compensation Board v. Canadian Pacific Railway Co. [1919 411 (UK JCPC), [1920] A.C. 184].

In the absence of Dominion or Imperial legislation on the subject or of some special rule of law relating to navigation and shipping prevailing at the date of Confederation, the general rules of the law of British Columbia applicable to the responsibility of masters for the acts of their servants govern the liability of shipowners to whom such rules apply.

70 Similarly, in Stein, supra, an action was brought by the widow and executors (on behalf of dependants) of Charles Stein, a crew member on a small sailboat who died when the boat collided with a barge near Vancouver. The trial judge found that the crew of the sailboat was contributorily negligent, and apportioned liability on the basis of 75 percent to the barge and 25 percent to the sailboat. The Federal Court of Appeal overturned the trial judgment. On appeal to this Court, the trial judgment was restored. Ritchie J., speaking for the Court, gave the following reasons at p. 823 in addressing the issue of contributory negligence:

The old common law defence of contributory negligence has never been recognized in collision cases in admiralty law, and the rule as to equal division adopted in the Admiralty Court appears to have applied only to damage to a vessel or its cargo. Furthermore, the collision occurred . . . at a point within the inland waters of that Province and I can see no reason why a claim under s. 22(d) of the Federal Court Act should not be governed in that Court by the substantive law of the Province concerning division of fault. I am accordingly of opinion that the provisions of the Contributory Negligence Act of British Columbia, R.S.B.C. 1960, c. 74, s. 2, apply to this collision and that the liability to make good the damage sustained by reason of the death of Charles Stein should be in proportion to the degree in which each vessel was at fault.

It thus appears that, at least until 1976, it was assumed by this Court that provincial statutes could be invoked to determine important issues arising incidentally as part of a maritime negligence claim.

71 Subsequent to the decision in Stein, a reorientation has occurred in this Court’s maritime law jurisprudence, beginning most notably with the decision in ITO, supra, followed by Chartwell, supra, Whitbread, supra, Monk Corp. v. Island Fertilizers Ltd., 1991 95 (SCC), [1991] 1 S.C.R. 779, Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., 1997 307 (SCC), [1997] 3 S.C.R. 1210, and Porto Seguro Companhia De Seguros Gerais v. Belcan S.A., 1997 308 (SCC), [1997] 3 S.C.R. 1278. These cases establish a number of basic principles and themes regarding the sources and content of Canadian maritime law, the role of provincial law in relation thereto, and the scope for gradual change and development in maritime law. These general principles and themes, insofar as they are relevant to the instant appeals, may be summarized as follows:

1. “Canadian maritime law” as defined in s. 2 of the Federal Court Act is a comprehensive body of federal law dealing with all claims in respect of maritime and admiralty matters. The scope of Canadian maritime law is not limited by the scope of English admiralty law at the time of its adoption into Canadian law in 1934. Rather, the word “maritime” is to be interpreted within the modern context of commerce and shipping, and the ambit of Canadian maritime law should be considered limited only by the constitutional division of powers in the Constitution Act, 1867. The test for determining whether a subject matter under consideration is within maritime law requires a finding that the subject matter is so integrally connected to maritime matters as to be legitimate Canadian maritime law within federal competence: ITO, supra, at p. 774; Monk Corp., supra, at p. 795.

2. Canadian maritime law is uniform throughout Canada, and it is not the law of any province of Canada. All of its principles constitute federal law and not an incidental application of provincial law: ITO, supra, at pp. 779, 782; Chartwell, supra, at p. 696.

3. The substantive content of Canadian maritime law is to be determined by reference to its heritage. It includes, but is not limited to, the body of law administered in England by the High Court on its Admiralty side in 1934, as that body of law has been amended by the Canadian Parliament and as it has developed by judicial precedent to date: ITO, supra, at pp. 771, 776; Chartwell, supra, at pp. 695-96.

4. English admiralty law as incorporated into Canadian law in 1934 was an amalgam of principles deriving in large part from both the common law and the civilian tradition. It was composed of both the specialized rules and principles of admiralty, and the rules and principles adopted from the common law and applied in admiralty cases. Although most of Canadian maritime law with respect to issues of tort, contract, agency and bailment is founded upon the English common law, there are issues specific to maritime law where reference may fruitfully be made to the experience of other countries and specifically, because of the genesis of admiralty jurisdiction, to civilian experience: ITO, supra, at p. 776; Chartwell, supra, at pp. 695-97.

5. The nature of navigation and shipping activities as they are practised in Canada makes a uniform maritime law a practical necessity. Much of maritime law is the product of international conventions, and the legal rights and obligations of those engaged in navigation and shipping should not arbitrarily change according to jurisdiction. The need for legal uniformity is particularly pressing in the area of tortious liability for collisions and other accidents that occur in the course of navigation: Whitbread, supra, at pp. 1294-95; Bow Valley Husky, supra, at pp. 1259-60.

6. In those instances where Parliament has not passed legislation dealing with a maritime matter, the inherited non-statutory principles embodied in Canadian maritime law as developed by Canadian courts remain applicable, and resort should be had to these principles before considering whether to apply provincial law to resolve an issue in a maritime action: ITO, supra, at pp. 781-82; Bow Valley Husky, supra, at p. 1260.

7. Canadian maritime law is not static or frozen. The general principles established by this Court with respect to judicial reform of the law apply to the reform of Canadian maritime law, allowing development in the law where the appropriate criteria are met: ITO, supra, at p. 774; Bow Valley Husky, supra, at pp. 1261-68; Porto Seguro, supra, at pp. 1292-1300.

72 These appeals provide an appropriate occasion on which to resolve the issue of whether and when it is constitutionally permissible for provincial statutes to be applied in the context of a maritime law negligence claim. All of the relevant principles for this resolution have been stated in one form or another in the Court’s recent maritime law jurisprudence. We believe that it will prove useful for future cases if these principles are assembled and synthesized into a test that may be applied in any instance where a provincial statute is sought to be invoked as part of a maritime law negligence claim. The test has four steps.

(a) Step One: Identifying the Matter at Issue

73 The first step involves a determination of whether the specific subject matter at issue in a claim is within the exclusive federal legislative competence over navigation and shipping under s. 91(10) of the Constitution Act, 1867. Is the matter truly a matter of Canadian maritime negligence law? As stated by McIntyre J. in ITO, supra, at p. 774, and as restated by Iacobucci J. in Monk Corp., supra, at p. 795, it must be determined whether the facts of a particular case raise a maritime or admiralty matter, or rather a matter which is in pith and substance one of local concern involving property and civil rights or any other matter which is in essence within exclusive provincial jurisdiction under s. 92 of the Constitution Act, 1867. The test for making this determination is to ask whether the subject matter under consideration in the particular case is so integrally connected to maritime matters as to be legitimate Canadian maritime law within federal legislative competence. As is clear from this Court’s recent jurisprudence on the issue, the answer to this question is to be arrived at through an examination of the factual context of the claim.

(b) Step Two: Reviewing Maritime Law Sources

74 Once the court determines that the subject matter at issue is legitimately one of Canadian maritime negligence law, the second step involves a determination of whether it is necessary for the party who seeks to rely upon the provincial statute within the context of a maritime negligence claim to do so. That is, before engaging in what may well be an unnecessary constitutional analysis of the applicability of a provincial law, a court should consider whether a counterpart to the statutory provision upon which the party seeks to rely is present within Canadian maritime law itself. Such a counterpart could be a duplication of the provincial law within federal maritime law (e.g., a cause of action for dependants of a person killed), or it could be a provision or rule which deals with the same issue as the provincial provision but in a different manner (e.g., common law agency principles as contained in Canadian maritime law deal with agency issues in a manner different from the agency principles contained in the Civil Code of Québec, S.Q. 1991, c. 64). Of course, where Canadian maritime law deals differently with an issue addressed in the provincial statute sought to be relied upon, it may still be necessary to engage in a constitutional analysis if the party seeking to rely upon the provincial statute argues that the federal and provincial laws should operate simultaneously.

75 Whatever the case, it is important to canvass all of the relevant sources of Canadian maritime law when seeking to determine whether an issue has already been addressed. Canadian maritime law has sources which are both statutory and non-statutory, national and international, common law and civilian: Chartwell, supra, at pp. 695-97. As stated by McIntyre J. in ITO, supra, at p. 774, the scope and content of Canadian maritime law is defined in s. 2 of the Federal Court Act in a comprehensive manner, encompassing all claims in respect of maritime and admiralty matters. The sources of Canadian maritime law include, but are not limited to, the specialized rules and principles of admiralty, and the rules and principles adopted from the common law and applied in admiralty cases, as administered in England by the High Court on its Admiralty side in 1934 and as amended by the Canadian Parliament and developed by judicial precedent to date. The sources of Canadian maritime law have recently been interpreted by this Court on several occasions: see ITO, supra, Chartwell, supra, Whitbread, supra, Monk Corp., supra, Bow Valley Husky, supra, and Porto Seguro, supra. Litigants should investigate all sources of Canadian maritime law before seeking to rely upon a provincial statute in their place, and courts should be equally reluctant to move on to a determination of constitutional applicability without having resolved this preliminary issue.

(c) Step Three: Considering the Possibility of Reform

76 The third step, if existing sources of Canadian maritime law do not contain a counterpart to the provision sought to be relied upon, also takes place prior to engaging in constitutional analysis. A court must determine whether or not it is appropriate for Canadian non-statutory maritime law to be altered in accordance with the principles for judicial reform of the law as developed by this Court in Watkins v. Olafson, 1989 36 (SCC), [1989] 2 S.C.R. 750, and R. v. Salituro, 1991 17 (SCC), [1991] 3 S.C.R. 654, as well as in Bow Valley Husky, supra, and in the present case. The court should engage in this step of the analysis regardless of whether or not the possibility of judicial reform of existing maritime law is raised by the parties.

77 This form of pre-constitutional analysis was adopted and applied by McLachlin J., speaking for the Court on this issue, in Bow Valley Husky, supra. In that case, the plaintiffs sought to rely upon the Newfoundland Contributory Negligence Act, R.S.N. 1990, c. C-33, in the context of a maritime negligence action. They relied in support of their argument upon the decision of this Court in Stein, supra, in which as we have seen Ritchie J. for the Court permitted the plaintiffs in a maritime negligence action to rely upon the British Columbia Contributory Negligence Act. In denying the plaintiffs the right to rely upon the provincial statute in Bow Valley Husky, McLachlin J. gave the following reasons, at p. 1260:

The plaintiffs argue that this Court’s decision in Stein v. The Ship “Kathy K”, 1975 146 (SCC), [1976] 2 S.C.R. 802, provides that provincial laws can apply to maritime matters in the absence of federal law. Assuming this is so, it does not advance the plaintiffs’ case. On the view I take, there is no “gap” that would allow for the application of provincial law. While the federal government has not passed contributory negligence legislation for maritime torts, the common law principles embodied in Canadian maritime law remain applicable in the absence of federal legislation. The question is not whether there is federal maritime law on the issue, but what that law decrees.

McLachlin J. went on to conclude that Canadian maritime law incorporated the contributory negligence bar to recovery that was inherited as part of British maritime law. She then considered whether it was appropriate, in light of the test for judicial reform of the law as developed by this Court, to remove the bar and substitute a regime of apportionment according to fault, answering this question in the affirmative.

78 We note, with respect to the test for judicial reform of the law that was applied by McLachlin J. in Bow Valley Husky, supra, and again in Porto Seguro, supra, that the test as it has been thus far developed is a common law test with a national focus. In our view, this common law test must be adapted in accordance with the nature and sources of maritime law as an international body of law whenever courts consider whether to reform Canadian maritime law. The basic elements of the test for judicial reform of the common law were set out by Iacobucci J. for the Court in Salituro, supra, at p. 670:

Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared. Nonetheless, there are significant constraints on the power of the judiciary to change the law. As McLachlin J. indicated in Watkins, supra, in a constitutional democracy such as ours it is the legislature and not the courts which has the major responsibility for law reform; and for any changes to the law which may have complex ramifications, however necessary or desirable such changes may be, they should be left to the legislature. The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society.

79 When applying the above framework in the maritime law context, a court should be careful to ensure that it considers not only the social, moral and economic fabric of Canadian society, but also the fabric of the broader international community of maritime states, including the desirability of achieving uniformity between jurisdictions in maritime law matters. Similarly, in evaluating whether a change in Canadian maritime law would have complex ramifications, a court must consider not only the ramifications within Canada, but also the effects of the change upon Canada’s treaty obligations and international relations, as well as upon the state of international maritime law. It is essential that the test for judicial reform of Canadian maritime law accord with the sui generis nature of that body of law.

(d) Step Four: Constitutional Analysis

80 The fourth step, if it is required, consists of a constitutional analysis of whether a particular provincial statutory provision is applicable within the context of a maritime law claim. The applicability of provincial law should be evaluated only where the issue cannot be resolved on non-constitutional grounds as set out above.

81 As a general matter within the Canadian federal system, it is constitutionally permissible for a validly enacted provincial statute of general application to affect matters coming within the exclusive jurisdiction of Parliament. The principal question in any case involving exclusive federal jurisdiction is whether the provincial statute trenches, either in its entirety or in its application to specific factual contexts, upon a head of exclusive federal power. Where a provincial statute trenches upon exclusive federal power in its application to specific factual contexts, the statute must be read down so as not to apply to those situations. This principle of statutory interpretation is known perhaps most commonly as the doctrine of “interjurisdictional immunity”: see P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 1, at pp. 15-25 et seq. It is this doctrine which is relevant for present purposes. The doctrine has been discussed and applied in numerous decisions of the Judicial Committee of the Privy Council and of this Court: see, e.g., John Deere Plow Co. v. Wharton, 1914 603 (UK JCPC), [1915] A.C. 330; Attorney-General for Manitoba v. Attorney-General for Canada, 1928 513 (UK JCPC), [1929] A.C. 260; Commission du salaire minimum v. Bell Telephone Co. of Canada, 1966 1 (SCC), [1966] S.C.R. 767; Registrar of Motor Vehicles v. Canadian American Transfer Ltd., 1972 13 (SCC), [1972] S.C.R. 811; Dick v. The Queen, 1985 80 (SCC), [1985] 2 S.C.R. 309; Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), 1988 81 (SCC), [1988] 1 S.C.R. 749; Commission de transport de la Communauté urbaine de Québec v. Canada (National Battlefields Commission), 1990 87 (SCC), [1990] 2 S.C.R. 838; Delgamuukw v. British Columbia, 1997 302 (SCC), [1997] 3 S.C.R. 1010, at paras. 177-81.

82 In Bell Canada v. Quebec this Court had occasion to consider the constitutional applicability of a valid provincial statute of general application to a federal undertaking (Bell Canada). The case involved a pregnant employee of Bell Canada who expressed reservations about working on a computer terminal while pregnant. She applied for protective re-assignment under the relevant provisions of the Act respecting occupational health and safety, S.Q. 1979, c. 63. Bell Canada challenged the protective re-assignment application on the basis that the Quebec occupational health and safety statute did not apply to a federal undertaking.

83 Beetz J. delivered judgment for the Court in favour of Bell Canada’s claim. Beetz J. explained that each head of federal legislative power under the Constitution Act, 1867, possesses a basic, minimum, and unassailable content, which the provinces are not permitted to regulate indirectly through valid laws of general application. He found that, although the provincial legislatures generally have exclusive jurisdiction over labour relations and working conditions, Parliament is vested with exclusive jurisdiction over labour relations and working conditions when that jurisdiction is an integral part of its primary and exclusive jurisdiction over another class of subjects -- in this case, federal undertakings. This exclusive federal jurisdiction precludes the application to those undertakings of provincial statutes which have the effect of regulating an essential part of the management and operation of the undertakings. Beetz J. then went on to note at p. 762 that this ruling with respect to federal undertakings

appear[s] to constitute only one facet of a more general rule: works, such as federal railways, things, such as land reserved for Indians, and persons, such as Indians, who are within the special and exclusive jurisdiction of Parliament, are still subject to provincial statutes that are general in their application . . . provided however that the application of these provincial laws does not bear upon those subjects in what makes them specifically of federal jurisdiction. . . .

The principle that each head of federal power possesses an essential core which the provinces are not permitted to regulate indirectly was recently restated by Lamer C.J. in Delgamuukw, supra, at para. 181, in the context of the federal power over Indians and lands reserved for Indians. Speaking for the majority of the Court, Lamer C.J. stated that s. 91(24) of the Constitution Act, 1867, protects a “core of federal jurisdiction” over Indians and lands reserved for Indians even from provincial laws of general application, through the operation of the doctrine of interjurisdictional immunity.

84 This more general rule of constitutional inapplicability of provincial statutes is central to the determination of the constitutional questions at issue in these appeals. Maritime negligence law is a core element of Parliament’s jurisdiction over maritime law. The determination of the standard, elements, and terms of liability for negligence between vessels or those responsible for vessels has long been an essential aspect of maritime law, and the assignment of exclusive federal jurisdiction over navigation and shipping was undoubtedly intended to preclude provincial jurisdiction over maritime negligence law, among other maritime matters. As discussed below, there are strong reasons to desire uniformity in Canadian maritime negligence law. Moreover, the specialized rules and principles of admiralty law deal with negligence on the waters in a unique manner, focussing on concerns of “good seamanship” and other peculiarly maritime issues. Maritime negligence law may be understood, in the words of Beetz J. in Bell Canada v. Quebec, supra, at p. 762, as part of that which makes maritime law “specifically of federal jurisdiction”.

85 In our opinion, where the application of a provincial statute of general application would have the effect of regulating indirectly an issue of maritime negligence law, this is an intrusion upon the unassailable core of federal maritime law and as such is constitutionally impermissible. In particular, with respect to the instant appeals, it is constitutionally impermissible for the application of a provincial statute to have the effect of supplementing existing rules of federal maritime negligence law in such a manner that the provincial law effectively alters rules within the exclusive competence of Parliament or the courts to alter. In the context of an action arising from a collision between boats or some other accident, maritime negligence law encompasses the following issues, among others: the range of possible claimants, the scope of available damages, and the availability of a regime of apportionment of liability according to fault. A provincial statute of general application dealing with such matters within the scope of the province’s legitimate powers cannot apply to a maritime law negligence action, and must be read down to achieve this end.

86 The constitutional analysis in the present case is necessarily specifically focussed upon the issue of maritime negligence law. Similar principles are very likely applicable in relation to the applicability of provincial statutes in other maritime law contexts, although we do not consider it appropriate at this time, in the absence of a factual backdrop plainly raising the issue, to rule on the broader applicability of the test articulated here beyond the maritime negligence law context. At the same time, we do not wish to be understood as stating that no provincial law of general application will ever be applicable in any maritime context, whether involving maritime negligence law or not. Provincial statutes setting out rules of court, for example, would generally be applicable where a maritime negligence action is brought in the provincial superior court. Also, by way of example only, we make no comments regarding the applicability of provincial taxation statutes in maritime contexts. However, it will be relatively rare that a provincial statute upon which a party seeks to rely in a maritime law negligence action will not have the effect of regulating a core issue of maritime law.

87 A court that is called upon to evaluate the constitutional applicability of a provincial statute to a maritime negligence law action should apply the above framework to determine the issue. The question to be asked is: “Does the provincial statutory provision at issue have the effect of regulating indirectly an issue of maritime negligence law?”. If the provincial law has this effect, it should be read down so as not to apply outside of the scope of legitimate provincial power. If the law does not have this effect, it will likely be applicable as valid provincial law.

88 Before concluding on the articulation of this four-step test and moving on to apply the test to the provincial statutes at issue in this case, we feel that it is appropriate to comment briefly upon one of the reasons, peculiar to maritime law, why provincial statutes which would have the effect of altering, in this case, federal maritime negligence law cannot be interpreted as being applicable in the maritime context. The attribution to Parliament of exclusive legislative jurisdiction over navigation and shipping stems in large part, in our view, from the national and international dimensions of maritime law, and the corresponding requirement for uniformity in maritime law principles. If matters of maritime law were regulated by the various provincial legislatures, this would drastically confuse the day-to-day reality of navigation and shipping in Canadian waters, and would make it impossible for Canada as a country to abide by its international treaty obligations relating to maritime matters.

89 The importance of uniformity in maritime law, and the importance of exclusive federal jurisdiction to the preservation of that uniformity, was aptly explained by La Forest J., writing for the full Court in Whitbread, supra. The case involved an issue as to whether Parliament’s jurisdiction over maritime law included jurisdiction over accidents involving pleasure boats on inland waterways. In answering in the affirmative, La Forest J. stated, at pp. 1294-96:

Quite apart from judicial authority, the very nature of the activities of navigation and shipping, at least as they are practised in this country, makes a uniform maritime law which encompasses navigable inland waterways a practical necessity. Much of the navigational and shipping activity that takes place on Canada’s inland waterways is closely connected with that which takes place within the traditional geographic sphere of maritime law. This is most obviously the case when one looks to the Great Lakes and the St. Lawrence Seaway, which are to a very large degree an extension, or alternatively the beginning, of the shipping lanes by which this country does business with the world. But it is also apparent when one looks to the many smaller rivers and waterways that serve as ports of call for ocean going vessels and as the points of departure for some of Canada’s most important exports. This is undoubtedly one of the considerations that led the courts of British North America to rule that the public right of navigation, in contradistinction to the English position, extended to all navigable rivers regardless of whether or not they were within the ebb and flow of the tide.... It probably also explains why the Fathers of Confederation thought it necessary to assign the broad and general power over navigation and shipping to the central rather than the provincial governments, and why the courts quickly accepted that this power extended to the regulation of navigation on inland waterways, provided they were in fact navigable. . . . For it would be quite incredible, especially when one considers that much of maritime law is the product of international conventions, if the legal rights and obligations of those engaged in navigation and shipping arbitrarily changed as their vessels crossed the point at which the water ceased or, as the case may be, commenced to ebb and flow. Such a geographic divide is, from a division of powers perspective, completely meaningless, for it does not indicate any fundamental change in the use to which a waterway is put. In this country, inland navigable waterways and the seas that were traditionally recognized as the province of maritime law are part of the same navigational network, one which should, in my view, be subject to a uniform legal regime.

I think it obvious that this need for legal uniformity is particularly pressing in the area of tortious liability for collisions and other accidents that occur in the course of navigation. As is apparent from even a cursory glance at any standard text in shipping or maritime law, the existence and extent of such liability falls to be determined according to a standard of “good seamanship” which is in turn assessed by reference to navigational “rules of the road” that have long been codified as “collision regulations”. . . . It seems to me to be self-evident that the level of government that is empowered to enact and amend these navigational “rules of the road” must also have jurisdiction in respect of the tortious liability to which those rules are so closely related. [Emphasis added.]

90 A similar view regarding the importance of uniformity to Canadian maritime law was expressed by McLachlin J., writing for a unanimous Court on this point in Bow Valley Husky, supra, at pp. 1259-60:

Policy considerations support the conclusion that marine law governs the plaintiffs’ tort claim. Application of provincial laws to maritime torts would undercut the uniformity of maritime law. The plaintiff BVHB argues that uniformity is only necessary with respect to matters of navigation and shipping, such as navigational rules or items that are the subject of international conventions. I do not agree. There is nothing in the jurisprudence of this Court to suggest that the concept of uniformity should be so limited. This Court has stated that “Canadian maritime law”, not merely “Canadian maritime law related to navigation and shipping”, must be uniform. BVHB argues that uniformity can be achieved through the application of provincial contributory negligence legislation as all provinces have apportionment provisions in the statutes. However, there are important differences between the various provincial statutes. These differences might lead over time to non-uniformity and uncertainty. Difficulty might also arise as to what province’s law applies in some situations.

91 The Court of Appeal for Ontario in the judgment below reviewed some of the comments made by La Forest J. in Whitbread, supra, regarding the importance of uniformity in Canadian maritime law. The Court of Appeal found (at p. 663) that “La Forest J.’s rationale for a uniform body of federal maritime law is based on the need for consistency in resolving commercial navigation disputes”, and that La Forest J. “did not deal directly with those bodies of water that are for all practical purposes unconnected to commercial navigation”. With respect, we do not view the reasons in Whitbread regarding the fundamental value placed upon uniformity in Canadian maritime law as being contingent upon the coastal location of the accident which gave rise to that case. It would cause confusion and inject an arbitrariness into Canadian maritime law if courts could apply different principles of law depending upon whether a boat involved in an accident was engaged in commercial activities or was navigating a waterway with access to the sea. The importance of uniformity in maritime law is universal, and does not vary according to the coastal location of an individual case.

92 Moreover, unlike most other areas of exclusive federal jurisdiction, maritime law has historically been a specialized area of law, adjudicated within separate courts through the application of principles and rules of law which do not derive solely from traditional common law and statutory sources. The multiplicity of legal sources, including international sources, which nourish Canadian maritime law render it a body of law in which uniformity is especially appropriate. The interference of provincial statutes with core areas of Canadian maritime law, such as the law of maritime negligence, would interfere with its historical roots and with its appropriately unique character.

93 The conclusion which we draw from the above comments is that much of the raison d’être of the assignment to Parliament of exclusive jurisdiction over maritime matters is to ensure that Canadian maritime law in relation to core issues of fundamental international and interprovincial concern is uniform. This raison d’être, although not unique to the federal power over navigation and shipping (in the sense that other heads of power were assigned to the federal legislature out of concern for uniformity), is uniquely important under s. 91(10) because of the intrinsically multi-jurisdictional nature of maritime matters, particularly claims against vessels or those responsible for their operation. This concern for uniformity is one reason, among others, why the application of provincial statutes of general application to a maritime negligence claim cannot be permitted.

94 It follows from the foregoing discussion that this Court’s decision in Canadian National Steamships Co. v. Watson, supra, is no longer good law insofar as the decision deviates from the four-step test outlined herein and directs a court to apply provincial law in maritime matters without first evaluating the applicability of the provincial law from a constitutional standpoint. Similarly, the ruling in Stein, supra, with respect to the applicability of the British Columbia Contributory Negligence Act must be considered to have lost its precedential value.

95 It remains now to apply this four-step test to the constitutional questions which have been stated for this Court’s consideration in these appeals. We note that none of the parties disputes that all of the statutes which are the subject of the various constitutional questions are intra vires the legislature of Ontario insofar as they are laws of general application in the province. The sole issue with respect to each question is whether a statute is constitutionally inapplicable insofar as it purports to govern losses or damages arising out of a boating accident. Nor do any of the parties dispute that the subject matter at issue in these appeals -- maritime negligence law -- falls within exclusive federal jurisdiction under s. 91(10) of the Constitution Act, 1867. Accordingly, only the latter three steps of the four-step test will be addressed directly in the analysis which follows.

(2) Are the provisions of Part V of the Ontario Family Law Act constitutionally inapplicable and/or ultra vires insofar as they purport to govern damages for personal injury arising out of a boating accident?

96 Part V of the Family Law Act reads in relevant part as follows:

61.--(1) If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction.

(2) The damages recoverable in a claim under subsection (1) may include,

(e) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred.

97 The plaintiffs seek to rely upon Part V of the Family Law Act because it provides for three types of negligence claims which are not expressly provided for in the Canada Shipping Act, namely:

• a claim by a dependant for damages for loss of guidance, care and companionship arising out of a fatal accident;

• a claim by a dependant for damages (including damages for loss of guidance, care and companionship) arising out of an accident causing personal injury; and

• a dependant’s claim for damages by a sibling of the person killed or injured.

Although the constitutional question as stated refers only to the constitutional applicability of Part V of the Family Law Act in relation to damages for personal injury, the parties have raised the issue of its applicability in relation to fatal accident claims, and accordingly these reasons deal with both types of claims.

(a) Claims for Loss of Guidance, Care and Companionship

98 We must first consider whether there already exists within Canadian maritime law a cause of action which permits dependants of a person killed or injured in a boating accident to recover damages for the resulting loss of guidance, care and companionship. Beginning with fatal accident claims, s. 647(2) of the Canada Shipping Act, which provides for the awarding of damages in relation to a dependant’s fatal accident claim, is silent as to the nature of the compensable loss. Historically, it appears that damages in relation to fatal accidents under the original Lord Campbell’s Act were restricted to compensation for pecuniary loss only, with damages for lost guidance, care and companionship considered to be non-pecuniary in nature and therefore not recoverable: Blake v. Midland Railway Co. (1852), 18 Q.B. 93, 118 E.R. 35; Mason v. Peters (1982), 1982 1969 (ON CA), 39 O.R. (2d) 27 (C.A.). The plaintiffs in these actions have not referred us to any sources which indicate that damages for loss of guidance, care and companionship have ever been recoverable under Canadian maritime law. The general common law rule barring recovery of damages in relation to the death of a third party therefore continues to bar the plaintiffs’ fatal accident claims insofar as they seek damages for loss of guidance, care and companionship: Baker v. Bolton (1808), 1 Camp. 493, 170 E.R. 1033 (K.B.); Admiralty Commissioners v. S.S. Amerika, [1917] A.C. 38.

99 Just as the Canada Shipping Act is silent with respect to the nature of damages recoverable in the fatal accident context, it is altogether silent as to whether damages may be awarded to a dependant of a person injured but not killed in a boating accident. It appears that, at common law, a person injured in a boating accident can sue for damages for his or her own injuries, but the dependants of the injured person are generally permitted to recover only in limited circumstances, notably: (1) the actio per quod servitium amisit allows a spouse or parent to claim for the loss of the value of the injured person’s services; and (2) the actio per quod consortium amisit allows a husband (and also a wife in some jurisdictions) to claim for the loss of love, affection and sexual consortium: see B. Feldthusen, Economic Negligence (3rd ed. 1994), at pp. 246-50, 265; K. Cooper-Stephenson, Personal Injury Damages in Canada (2nd ed. 1996), at pp. 189-95 and 489-90.

100 That said, the next question, in accordance with the framework established in Bow Valley Husky, supra, and in this case, is whether the common law rules barring recovery in both instances should be judicially reformed to allow claims for damages for loss of guidance, care and companionship (and, in the case of dependants of a person injured but not killed in a boating accident, to allow such claims to be brought by a broader class of plaintiffs than is currently permitted under the actio per quod servitium amisit and actio per quod consortium amisit). We agree with the Court of Appeal for Ontario that they should.

101 The Court of Appeal acknowledged, correctly in our view, that contemporary conceptions of loss include the idea that it is truly a harm for a dependant to lose the guidance, care and companionship of a spouse, parent, child, etc. As noted by the Perry Estate respondents in their factum and in their oral argument, the majority of provinces in Canada have enacted within their fatal accident statutes provisions allowing for recovery of damages for loss of guidance, care and companionship caused by the death of the deceased: Fatal Accidents Act, R.S.A. 1980, c. F-5, s. 8(2), as am. by S.A. 1994, c. 16, s. 5; Fatal Accidents Act, R.S.M. 1987, c. F50, s. 3(4); Fatal Accidents Act, R.S.N.B. 1973, c. F-7, s. 3(4), added by S.N.B. 1986, c. 36, s. 1; Fatal Injuries Act, R.S.N.S. 1989, c. 163, s. 5(2)(d); Family Law Act, R.S.O. 1990, c. F.3, s. 61(2)(e); Fatal Accidents Act, R.S.P.E.I. 1988, c. F-5, s. 6(3)(c), added by S.P.E.I. 1992, c. 24, s. 1. Even where such damages are not expressly provided for, there is a strong tendency to include such damages within the rubric of pecuniary loss: St. Lawrence & Ottawa Railway Co. v. Lett (1885), 1885 7 (SCC), 11 S.C.R. 422; Vana v. Tosta, 1967 21 (SCC), [1968] S.C.R. 71; Cooper-Stephenson, supra, at pp. 697-98; S. M. Waddams, The Law of Damages (loose-leaf ed.), at pp. 6-17-6-20.

102 It is unfair to deny compensation to the plaintiff dependants in these actions based solely upon an anachronistic and historically contingent understanding of the harm they may have suffered. This is true both for the fatal accident claimants and for the personal injury claimants. In this light, we are of the view that changing the definition of “damages” within the context of maritime accident claims is required to keep non-statutory maritime law in step with modern understandings of fairness and justice, as well as with the “dynamic and evolving fabric of our society”: Salituro, supra, at p. 670. Moreover, the evidence presented by the Perry Estate respondents with respect to the prevalence of this enhanced understanding of recoverable damages supports a finding that the new definition has been “tried and tested” without unforeseeable or complex ramifications: Bow Valley Husky, supra, at p. 1265. None of the parties has provided this Court with evidence or commentary to support the opposite inference. There is also no reason to believe that allowing claims for damages for loss of guidance, care and companionship would interfere with Canada’s international treaty obligations, with its relations with other maritime nations, or with international maritime law. In short, the test for judicial reform of Canadian non-statutory maritime law is met. In so concluding, we note that a claim for damages for loss of guidance, care, and companionship as a result of another’s personal injury will succeed only where the claimant is able to establish, among the other elements of the claim, that the injury suffered was sufficiently serious that it is capable of producing a loss of guidance, care, and companionship.

103 Given our finding that dependants’ claims for loss of guidance, care and companionship may be brought under Canadian maritime law without resort to provincial statutes, it is unnecessary to address the constitutional applicability of Part V of the Family Law Act to a maritime law claim for loss of guidance, care and companionship.

(b) Eligible Dependants

104 There are three issues with respect to the eligibility of dependants to claim damages, namely (1) whether siblings qualify as “dependants” with respect to a fatal accident claim; (2) whether siblings qualify as “dependants” with respect to a personal injury claim; and (3) whether, in the case of a dependant’s claim arising from a personal injury, the class of dependants is limited to that allowed under the common law actio per quod servitium amisit and actio per quod consortium amisit.

105 Dependants’ fatal accident claims are a creature of statute, beginning with Lord Campbell’s Act and continuing in the maritime law context with the Canada Shipping Act. In the absence of a statutory enactment permitting the claims, the old common law bar to actions founded upon the death of a third party would apply: Baker v. Bolton, supra. As such, the class of eligible plaintiffs is to be found in the relevant statute and nowhere else. In the maritime context, s. 645 of the Canada Shipping Act sets out the list of eligible plaintiffs in clear terms:

645. In this Part,

“child” includes a son, daughter, grandson, grand-daughter, stepson, stepdaughter, adopted child and a person to whom a deceased person stood in loco parentis;

“dependants” means the wife, husband, parents and children of a deceased person;

“parent” includes a father, mother, grandfather, grandmother, stepfather, stepmother, a person who adopted a child, and a person who stood in loco parentis to a deceased person.

The list does not include siblings. The question is therefore whether it would be appropriate for the courts to reform non-statutory maritime law to allow for the bringing of a dependant’s fatal accident claim by a sibling.

106 We agree with the Court of Appeal for Ontario that, although it may be desirable for Parliament to expand the list of eligible dependants under s. 645 of the Canada Shipping Act, it would be inappropriate for the courts to undertake this task unilaterally by reforming non-statutory maritime law in order to supplement the statutory provision. Through the Canada Shipping Act, Parliament has spoken as to the class of eligible plaintiffs in the case of a fatal accident. For this Court to reform the law to expand the class would be to effect a legislative and not a judicial change in the law.

107 The class of eligible plaintiffs with respect to dependants’ personal injury claims is not prescribed by statute, but rather derives from the common law. However, it would be arbitrary for this Court to expand the class of eligible plaintiffs in personal injury cases to include siblings while keeping the class of eligible plaintiffs in fatal accident cases circumscribed by the limits established by Parliament in s. 645 of the Canada Shipping Act. None of the parties has suggested any reason to apply a different definition of “dependant” from that selected by Parliament, based solely upon the nature of the harm suffered by the victim. Accordingly, we do not consider it appropriate to reform non-statutory maritime law to permit dependants’ personal injury claims by siblings.

108 Alternatively, to the extent that there may be any question as to limits having been placed upon the class of eligible dependants in personal injury cases by the old common law actio per quod servitium amisit and actio per quod consortium amisit, we consider it appropriate at this time to define the class of dependants in personal injury cases in the same manner as the class of dependants in fatal accident cases is defined in s. 645 of the Canada Shipping Act. A “dependant” in the context of a personal injury dependant’s claim is a wife, husband, parent or child, as those terms are defined in s. 645 (including a person to whom the deceased person stood in loco parentis, as well as a person who stood in loco parentis to the deceased). Such dependants may make the same claims for damages as can dependants bringing fatal accident claims. We make this change in the law, if indeed it is a change, for the same reasons provided above in expanding the definition of “damages” to include damages for loss of guidance, care and companionship.

109 The final issue with respect to the Family Law Act, given that Canadian maritime law itself does not allow for dependants’ claims by siblings, is the constitutional applicability of Part V of the Family Law Act to allow for the bringing of such a claim, whether involving a fatal accident or personal injury. We find that in the circumstances as discussed above the provisions of the Family Law Act cannot apply. The determination of the eligible class of plaintiffs with respect to maritime negligence actions is clearly an issue of maritime negligence law falling within the core of Parliament’s exclusive competence over navigation and shipping. The application of the Family Law Act in this context would have the effect of altering existing rules of federal maritime negligence law, and as such would constitute an unjustified intrusion upon a matter outside the jurisdiction of the provincial legislature. This is not a situation in which a provincial statute regulates a matter which is entirely unregulated by federal law and which, it might be argued, does not fall within the core of the federal power. As such, s. 61(1) and (2)(e) of the Ontario Family Law Act must be read down so as not to apply to maritime negligence claims.

(3) Is the Act respecting compensation to the Families of Persons killed by Accident, and in duels constitutionally inapplicable and/or ultra vires insofar as it purports to govern losses or damages arising out of a boating accident?

110 It is unnecessary to answer this constitutional question, for the following reasons. First, most if not all of the plaintiffs’ submissions with respect to the applicability of the Act respecting compensation to the Families of Persons killed by Accident, and in duels were designed to address the possibility that this Court might find that the Federal Court, Trial Division has exclusive jurisdiction to try a dependant’s fatal accident claim under s. 646 of the Canada Shipping Act. Given our finding that the Ontario Court (General Division) shares concurrent jurisdiction over such claims, the relevance of any potential cause of action under the older statute decreases significantly, if not entirely.

111 Second, this Canadian version of Lord Campbell’s Act was repealed by the legislature of Ontario in 1911 and replaced by what ultimately became the Family Law Act: Fatal Accidents Act, S.O. 1911, c. 33, s. 11. Insofar as the constitutional applicability of the statute is relevant, therefore, it is only in its capacity as a federal statute. The parties have made detailed submissions regarding the possible federal status of the statute, with the plaintiffs arguing that the colonial statute became a federal statute, pursuant to s. 129 of the Constitution Act, 1867, insofar as it applied to matters within federal jurisdiction (such as navigation and shipping). We do not find it necessary to rule on the issue of whether it is federal law. We agree with the Court of Appeal for Ontario that, if it is federal law, the former colonial statute has been effectively replaced, even it has not been formally or impliedly repealed. The statute is currently irrelevant, in the sense that there is no provision contained in the Act respecting compensation to the Families of Persons killed by Accident, and in duels of which the plaintiffs do not already have the advantage pursuant to the provisions of the Canada Shipping Act.

112 Although it was not stated as a constitutional question, the parties have also made submissions before this Court regarding the status of the English Fatal Accidents Acts, 1846 to 1908 insofar as those Acts may have been incorporated as part of Canadian maritime law in 1934. As it is not necessary to do so, we will not discuss the issue of whether the English Acts are part of Canadian maritime law. The comments just made with respect to the Canada Shipping Act having replaced the relevant provisions of the Canadian Act apply with equal force to the provisions of the English Acts.

(4) Is s. 38(1) of the Ontario Trustee Act constitutionally inapplicable and/or ultra vires insofar as it purports to govern losses or damages arising out of a boating accident?

113 Subsection 38(1) of the Trustee Act provides for the bringing of a negligence claim by the executor of a deceased in the deceased’s name, in the following terms:

38.--(1) Except in cases of libel and slander, the executor or administrator of any deceased person may maintain an action for all torts or injuries to the person or to the property of the deceased in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do, and the damages when recovered shall form part of the personal estate of the deceased; but, if death results from such injuries, no damages shall be allowed for the death or for the loss of the expectation of life, but this proviso is not in derogation of any rights conferred by Part V of the Family Law Act. [Emphasis added.]

114 There is no counterpart to s. 38(1) in Canadian maritime law. In particular, s. 645 of the Canada Shipping Act, which describes the class of eligible plaintiffs for the purpose of a dependant’s fatal accident claim, is concerned only with dependants of the deceased and does not address itself to actions by the deceased’s estate itself. The common law rule that an action for damages does not survive the death of the plaintiff (actio personalis moritur cum persona) applies to bar claims brought by an executor in the name of the deceased: Walpole v. Canadian Northern Railway Co., 1922 610 (UK JCPC), [1923] A.C. 113 (P.C.), at p. 118. In view of this common law bar, which it described as a “gap” in Canadian maritime law, the Court of Appeal for Ontario concluded that s. 38(1) of the Trustee Act could be applied to permit claims by executors in maritime negligence actions, without “compromis[ing] the fundamental principles of Canadian maritime law or the uniformity of that law” (p. 670). With respect, we find that it was unnecessary for the Court of Appeal to decide upon the applicability of the Trustee Act in order to resolve the issue of whether the executors in the instant appeals are permitted to bring claims in the name of the deceased victims. The issue can be resolved by judicial reform of the common law bar against the survival of actions in the maritime context.

115 The anachronism and unfairness of applying the actio personalis moritur cum persona rule in maritime negligence actions is well illustrated by the fact that all common law jurisdictions in Canada have enacted legislation abolishing the rule, and now permit recovery by estates of deceased persons: Waddams, supra, at p. 12-1. The Civil Code of Québec (art. 625) and before it the Civil Code of Lower Canada (arts. 596, 607) have long permitted actions to be brought by (what is now known as) the liquidator of the deceased’s estate: see J. E. C. Brierley and R. A. Macdonald, eds., Quebec Civil Law (1993), at pp. 331 et seq. The common law rule was similarly abolished in the United Kingdom more than 60 years ago: Law Reform (Miscellaneous Provisions) Act, 1934 (U.K.), 24 & 25 Geo. 5, c. 41, s. 1(1). In the context of such widespread and longstanding legislative opposition to the rule, it is clear that reform of the rule in Canadian maritime law is necessary in order to achieve justice and to bring the law into harmony with changes in society: Salituro, supra.

116 Like the rejection of the principle in Baker v. Bolton, supra, with respect to damages for loss of guidance, care and companionship, the rejection of the actio personalis moritur cum persona rule has been tried and tested in other jurisdictions. Changing the rule to allow for executors’ claims under non-statutory maritime law will not have complex or unforeseeable consequences. Moreover, introducing survival of actions into Canadian maritime law will not disturb the uniformity of Canadian maritime law. To the contrary, on an international level, the reform will bring Canadian maritime law into harmony with what is already the dominant practice in both civilian and common law jurisdictions around the world. On a national level, the reform will bring maritime law into conformity with the general practice in all other jurisdictions within the country.

117 To conclude on this point, we would permit an executor or administrator to bring a claim in the deceased’s name for negligence to the person of the deceased in the same manner and with the same rights as the deceased would have been entitled to do, had he or she lived. We would not permit damages to be claimed for the death or the loss of expectation of life. In so permitting an executor or administrator to bring such a claim, we would also include within this change in the common law the related principles and procedures that are necessarily implied by or connected with executors’ or administrators’ claims for the proper enforcement of such claims.

(5) Are the contributory negligence provisions of the Ontario Negligence Act constitutionally inapplicable and/or ultra vires insofar as they purport to govern losses or damages arising out of a boating accident?

118 The Court of Appeal for Ontario, applying the principles articulated in Stein, supra, permitted the application of the Negligence Act in order to determine issues of contributory negligence in these actions. However, the Court of Appeal did not have the benefit of the judgment of this Court in Bow Valley Husky, supra, at the time it decided this issue. Bow Valley Husky makes it unnecessary to answer the constitutional question of whether the Negligence Act may apply. Prior to Bow Valley Husky, contributory negligence was a full defence to a maritime negligence claim, in accordance with the prevailing common law rule: Toronto Transportation Commission v. The King, 1949 35 (SCC), [1949] S.C.R. 510; Gartland Steamship Co. v. The Queen, 1960 55 (SCC), [1960] S.C.R. 315; Fraser River Harbour Commission v. The “Hiro Maru”, [1974] F.C. 490 (T.D.). Bow Valley Husky reformed maritime common law to allow for the apportionment of liability between defendants according to fault, as well as for joint and several liability and a right of contribution between defendants.

119 The principles established in Bow Valley Husky apply to the present actions. Any liability found should be apportioned in proportion to fault. In the absence of any indication that Parliament intended that liability should be other than joint and several, this should be the principle of liability. There shall be contribution between tortfeasors.

C. Limitation Period

120 In the three Lake Joseph actions, a final issue to be resolved is whether the fatal accident claims are statute-barred.

121 The defendants submit that the Court of Appeal for Ontario was correct in concluding that the applicable limitation period for bringing a dependant’s fatal accident claim under s. 646 of the Canada Shipping Act is the one-year period specified in s. 649 of the Act. However, they submit that the Court of Appeal erred in concluding that it possessed the inherent jurisdiction to extend a limitation period where special circumstances warrant it, and in concluding that special circumstances exist in the Lake Joseph actions which justified the extension of the one-year limitation period. The Lake Joseph plaintiffs, for their part, submit that there is another limitation period, contained in s. 572(1) of the Canada Shipping Act, which is equally applicable to these actions and which sets the limitation period at two years. They submit that the Court of Appeal was not required to address whether it had the inherent jurisdiction to extend the one-year limitation period because the claims are governed by the two-year period in s. 572(1). The dispute over which limitation period should apply is relevant because all three of the Lake Joseph actions were instituted more than one year but less than two years after the date of the accident.

122 Again, as for the issue of jurisdiction discussed at the start of these reasons, it is important to be clear from the outset regarding the specific claims which it is alleged are statute-barred. The Court of Appeal found, and we agree with their conclusion, that the claims by Peter Hall’s dependants in relation to his personal injury are subject to the two-year limitation period contained in s. 572(1) of the Canada Shipping Act and not the one-year period in s. 649. The defendants concede that this is the case, and contest only the issue of whether fatal accident claims brought pursuant to Part XIV of the Canada Shipping Act are subject to the two-year limitation period. The defendants also concede that Peter Hall’s and Josephine Perry’s claims for damages resulting from their own injuries (although not their claims for damages as dependants in relation to the death of their respective spouses) are subject to the two-year period in s. 572(1).

123 The primary source of the difficulty with respect to the applicable limitation period is the Canada Shipping Act itself, which provides two different limitation periods, each of which could apply to a dependant’s fatal accident claim arising out of a boating collision. In Part XIV of the Canada Shipping Act, which deals with dependants’ fatal accident claims, s. 649 provides as follows:

649. Not more than one action lies for and in respect of the same subject-matter of complaint, and every action shall be commenced not later than twelve months after the death of a deceased. [Emphasis added.]

By contrast, Part IX of the Canada Shipping Act, which deals with collisions between vessels (including collisions resulting in death), also contains a provision establishing

a limitation period. Section 572 reads in relevant part as follows:

572. (1) No action is maintainable to enforce any claim or lien against a vessel or its owners in respect of any damage or loss to another vessel, its cargo or freight, or any property on board that vessel, or for damages for loss of life or personal injuries suffered by any person on board that vessel, caused by the fault of the former vessel, whether that vessel is wholly or partly at fault, unless proceedings therein are commenced within two years from the date when the damage or loss or injury was caused. [Emphasis added.]

(3) Any court having jurisdiction to deal with an action to which this section relates may, in accordance with the rules of court, extend any period described in subsection (1) or (2) to such extent and on such conditions as it thinks fit, and shall, if satisfied that there has not during such period been any reasonable opportunity of arresting the defendant vessel within the jurisdiction of the court, or within the territorial waters of the country to which the plaintiff’s ship belongs or in which the plaintiff resides or has his principal place of business, extend any period to an extent sufficient to give that reasonable opportunity.

124 In holding that the applicable limitation period for dependants’ fatal accident claims is the one-year period dictated by s. 649, the Court of Appeal relied upon the proposition that the fatal accidents provisions of Part XIV of the Canada Shipping Act constitute a cohesive whole or a complete code, to which s. 572(1) can have no application. The court also relied upon what it perceived as the illogic of having a different limitation period apply depending upon whether or not a cause of action arises from a collision or from some other form of boating accident. With respect, we disagree with the Court of Appeal’s reasoning and conclusion on this point. We find that fatal accident claimants under s. 646 are able to benefit from the two-year limitation period prescribed by s. 572(1), in situations where death was caused as a result of a boating collision.

(1) Part XIV Is Not a Complete Code

125 As we have already discussed above in our reasons with respect to the jurisdiction of the Ontario Court (General Division), as well as regarding the many sources of Canadian maritime law, Part XIV of the Canada Shipping Act does not constitute a cohesive whole or a complete code with respect to dependants’ fatal accident claims. Rather, Part XIV must be read in conjunction with other provisions of the Canada Shipping Act, and with other sources of Canadian maritime law including international treaties to which Canada is a signatory which deal with fatal accident issues. Indeed, the argument that Part XIV is a complete code ignores the provisions in the Canada Shipping Act outside of Part XIV which refer to the bringing of an action for loss of life, and renders them meaningless. Parliament, in enacting what is now Part XIV without removing other references to loss of life claims elsewhere in the statute, must be assumed to have intended that the various provisions should co-exist and be interpreted in light of one another.

(2) The Logic and Policy of the Two-Year Limitation Period

126 Although it is difficult to discover a logic behind Parliament’s decision to prescribe two different limitation periods for the same type of claim without providing any further guidance, there does appear to be a logic and a policy underlying Parliament’s decision to extend the limitation period to two years for claims resulting from a collision.

127 In a collision situation, the plaintiff must identify the vessel at fault and those responsible for the navigation of that vessel. The vessel and its owners and operators may have left the jurisdiction and may be difficult to identify. If the claim is in rem, an opportunity must arise for the vessel to be arrested. All of these tasks necessarily require more time on the part of the plaintiff than is required in a non-collision case, where the defendants are far more likely to be present in the jurisdiction or at least identifiable. It is true that none of these factors may be relevant in practice with respect to inland boating collisions such as that which has given rise to the Lake Joseph actions. However, the relevance of these factors to Parliament’s decision to provide for a two-year limitation period in collision cases is clearly manifested in s. 572(3) of the Canada Shipping Act, which empowers a judge to extend the two-year period even further where he or she is satisfied that the plaintiff has not had a reasonable opportunity to arrest the defendant vessel. See also, regarding the purpose of extending the limitation period to two years, The Alnwick, [1965] 2 All E.R. 569 (C.A.), at pp. 572-73.

128 Beyond the logical argument for a longer limitation period in collision cases is a clear policy rationale for the enactment of what is now s. 572 of the Canada Shipping Act, namely, that Parliament in enacting and preserving the existence of s. 572 has sought to honour its international treaty obligations with respect to maritime collisions. A brief history of the section serves to illustrate Parliament’s intention in this regard.

129 Prior to 1910, aside from the common law of the sea, no rules existed in international law to deal with the consequences of collisions between vessels. On September 23, 1910, representatives of several maritime states of the world convened at Brussels and signed the International Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels, B.T.S. 1913 No. 4. Article 7 of the Convention reads in relevant part as follows:

Article 7.

Actions for the recovery of damages [resulting from a collision] are barred after an interval of two years from the date of the casualty.

The High Contracting Parties reserve to themselves the right to provide, by legislation in their respective countries, that the said periods shall be extended in cases where it has not been possible to arrest the defendant vessel in the territorial waters of the State in which the plaintiff has his domicile or principal place of business.

130 Great Britain was one of the signatories to the Brussels Convention and subsequently enacted the Maritime Conventions Act, 1911 to give it effect. Section 8 of that Act adopts the two-year limitation period for damages for loss of life or personal injuries that was specified in Article 7 of the Convention. Canada was not an original signatory, but adhered to the Convention effective October 28, 1914. The same year, the Maritime Conventions Act, 1914 was enacted for the express purpose (according to the preamble of the Act) of giving effect to the Brussels Convention in Canada. Section 9 of the Act provided for the same two-year limitation period as was specified in the English legislation, using identical language.

131 In 1934, Parliament enacted the Canada Shipping Act, 1934, S.C. 1934, c. 44. Part XII of that Act related to navigation, collisions and limitation of liability, and contained s. 647, which was identical in wording to s. 9 of the Maritime Conventions Act, 1914. Aside from some insignificant changes in the language of the section, this provision has remained in force and currently appears in Part IX of the Canada Shipping Act as s. 572(1). The two-year limitation period first specified in the Brussels Convention thus remains in effect, in accordance with Canada’s international obligations.

(3) The Clear Wording of s. 572(1)

132 In our opinion, the plaintiffs’ fatal accident claims fall within the clear wording of s. 572(1). They are actions against those who are responsible for a boating collision, claiming damages for loss of life suffered by persons on board the vessel that was collided with. There is nothing in the language of s. 572(1) to suggest that the plaintiffs’ claims are not covered by its words. The confusion stems only from the fact that their claims also fall within the clear wording of s. 649.

133 Some of the defendants suggested in oral argument that, although the wording of s. 572(1) may capture the fatal accident claims against some of the defendants, it does not capture the claims against all of them. In particular, counsel for Josephine Perry (in her capacity as defendant) and for John Haller submitted that s. 572(1) does not prescribe the applicable limitation period for the claims against these defendants, because they were not physically present in the vessel which was at fault in causing the collision, and s. 572(1) imposes its two-year limitation period only with respect to claims against persons who were actually in the vessel at fault.

134 We do not agree that this is what s. 572(1) says. Although s. 572(1) refers to an action being brought against “a vessel or its owners”, any ambiguity as to whether this includes an action against a contributory tortfeasor in another vessel is resolved by reference to s. 573 of the Canada Shipping Act. Section 573 states:

573. Sections 565 to 572 apply in respect of a vessel to any persons other than the owners responsible for the fault of the vessel as though the expression “owners” included those persons, and in any case where, by virtue of any charter or demise, or for any other reason, the owners are not responsible for the navigation and management of the vessel, those sections shall be read as though for references to the owners there were substituted references to the charterers or other persons for the time being so responsible. [Emphasis added.]

The limitation period prescribed in s. 572(1) thus applies to actions brought against any person responsible for the fault of the vessel. In our opinion, it is clear from the broad language used to describe the class of defendants who are subject to s. 572(1) that Parliament intended that the two-year limitation period apply to claims against all parties at fault in a collision, regardless of how they may have contributed to the ultimate accident. This intention accords with the apparent purpose and scope of the Brussels Convention. Further, it makes sense as a matter of policy and practice for all persons who are at fault in causing a collision to be subject to the same limitation period. The alternative approach would see portions of a plaintiff’s claim statute-barred based solely on the physical location of particular defendants at the time of the accident, rather than based on factors which are relevant to the plaintiff’s ability to bring the action within a particular period of time.

(4) Strict Construction of Limitations Statutes

135 The existence of two different limitation periods, each of which is applicable to dependants’ fatal accident claims, creates a contradiction or ambiguity in the Canada Shipping Act as to which limitation period should apply. Although, as has been discussed, there is an historical explanation for the enactment of each limitation period, there is no clear explanation for the presence of both limitation periods in the statute at the same time. Both apply to fatal accident claims by dependants. The only substantive distinction between the two limitation periods is that s. 572(1) applies only in the context of boating collisions, whereas s. 649 applies to any fatal accident claim brought by a dependant.

136 This Court has recognized that statutory provisions creating a limitation period must be strictly construed in favour of the plaintiff. The following statement by Estey J., writing for the majority of the Court in Berardinelli v. Ontario Housing Corp., 1978 42 (SCC), [1979] 1 S.C.R. 275, at p. 280, is instructive:

[A limitations provision] being a restrictive provision wherein the rights of action of the citizen are necessarily circumscribed by its terms, attracts a strict interpretation and any ambiguity found upon the application of the proper principles of statutory interpretation should be resolved in favour of the person whose right of action is being truncated.

Following this principle of statutory construction, the ambiguity created by the existence of two distinct limitation periods in the Canada Shipping Act should be resolved by allowing the plaintiffs in the Lake Joseph actions to rely upon the longer period provided for in s. 572(1). Parliament apparently intended that both limitation periods should co-exist. In the absence of any valid reason to justify applying a shorter limitation period which would have the effect of barring the plaintiffs’ claims, the plaintiffs should have the benefit of the more favourable limitation period.

137 Strongly buttressing the appropriateness of applying this general principle of strict construction of limitations statutes is the fact that applying the one-year limitation period in s. 649 to all fatal accident claims stemming from boating collisions would place Canada in breach of its international treaty obligations. Although international law is not binding upon Parliament or the provincial legislatures, a court must presume that legislation is intended to comply with Canada’s obligations under international instruments and as a member of the international community. In choosing among possible interpretations of a statute, the court should avoid interpretations that would put Canada in breach of such obligations: see Driedger on the Construction of Statutes (3rd ed. 1994), at p. 330.

138 In this case, applying the one-year limitation period contained in s. 649 would not place Canada in direct contravention of the Brussels Convention, because the Convention has application only to collisions involving sea-going vessels. However, Parliament has used language in s. 572(1) which makes the two-year limitation period applicable in all cases involving collisions. We see no reason, particularly in light of the discussion above regarding the fundamental importance of uniformity in maritime law, to read into the broad language of s. 572 an exception in cases of collisions on inland waters. The dependants’ fatal accident claims in the Lake Joseph actions are therefore subject to a two-year limitation period, and are not statute-barred.

139 Having found that the limitation period applicable to the Lake Joseph actions is the two-year period established by statute, it is not necessary to address the issue raised in the Court of Appeal judgment of whether the decision of this Court in Basarsky v. Quinlan, supra, may be applied to justify extending a statutory limitation period at the discretion of the court. It is also unnecessary to address the argument raised by the plaintiffs that the “discoverability principle” would apply on the facts of this case, to the effect that, given recent changes in the law regarding the applicability of provincial law in a maritime claim, the plaintiffs should be permitted to rely upon the one-year limitation period even though their claims were brought more than one year after the accident.

VII. Conclusions

140 The results of the foregoing analysis may be summarized as follows:

1. The Ontario Court (General Division) shares concurrent jurisdiction with the Federal Court (Trial Division) over maritime fatal accident claims by dependants under s. 646 of the Canada Shipping Act.

2. The determination of whether a provincial statute is constitutionally applicable in the context of a maritime negligence law action occurs according to a four-part test. First, prior to engaging in constitutional analysis, a court must determine whether the subject matter affected by the statute falls within the exclusive federal competence over navigation and shipping. If it does, the second step is to determine whether a counterpart to the statutory provision upon which the party seeks to rely is present within existing Canadian maritime law. If no such counterpart exists, the third step involves the court in determining whether or not it is appropriate for Canadian non-statutory maritime law to be altered in accordance with the principles for judicial reform of the law developed by this Court, as those principles have been adapted to the maritime law context in these reasons. Fourth, if judicial reform of the law is inappropriate, the court must determine whether the particular provincial statutory provision is constitutionally applicable. A provincial statute of general application will be inapplicable in a maritime negligence law context where this application would have the effect of regulating indirectly federal maritime negligence law, whether by supplementing existing rules of maritime negligence law in such a manner that the provincial law effectively alters rules within the exclusive competence of Parliament to amend, or otherwise.

3. It is appropriate for this Court to reform Canadian maritime law to allow the following negligence claims:

(a) a claim by a dependant for damages for loss of guidance, care and companionship arising out of a fatal accident;

(b) a claim by a dependant for damages (including damages for loss of guidance, care and companionship) arising out of an accident causing personal injury; and

(c) a claim by an executor brought in the name of the deceased with respect to an action which the deceased could have brought had he or she lived.

Accordingly, the constitutional applicability of the Family Law Act and the Trustee Act to allow for such claims in the instant appeals need not be determined.

4. It is not appropriate for this Court to reform Canadian maritime law to allow siblings of a person killed or injured in a boating accident to qualify as “dependants” for the purpose of a dependant’s claim for damages, nor is the Ontario Family Law Act constitutionally applicable to allow such claims to be brought.

5. It is appropriate for this Court to reform Canadian maritime law to define “dependants”, for the purpose of a dependant’s claim in relation to a person injured but not killed, in the same manner as that term is defined for the purpose of dependants’ fatal accident claims under s. 645 of the Canada Shipping Act, and to allow such dependants to make the same claims for damages as can dependants bringing fatal accident claims.

6. A general regime of apportionment of liability according to fault, with joint and several liability among tortfeasors and contribution between tortfeasors, applies in Canadian maritime negligence actions. Accordingly, it is not necessary to consider the constitutional applicability of the Negligence Act in these appeals.

7. The dependants’ fatal accident claims as well as all other claims in the three Lake Joseph actions are subject to the two-year limitation period set out in s. 572(1) of the Canada Shipping Act.

8. The constitutional applicability of the Act respecting compensation to the Families of Persons killed by Accident, and in duels, and of the English Fatal Accidents Acts, 1846 to 1908, need not be determined.

VIII. Disposition

141 In the result, the appeals and cross-appeals are dismissed with costs. We would answer the constitutional questions as follows:

1: Whether the provisions of Part V of the Family Law Act, R.S.O. 1990, c. F.3, in whole or in part, allowing claims for loss of guidance, companionship and other losses, are constitutionally inapplicable to losses arising from a personal injury suffered by another arising out of the alleged negligent operation or ownership of a vessel on inland waters in Ontario, and/or ultra vires insofar as they purport to govern losses or damages arising out of a boating accident.

Answer: In light of our finding that claims for loss of guidance, care and companionship may be brought under Canadian maritime law, it is not necessary to answer this question except with respect to the issue of whether a sibling may bring a dependant’s claim for damages. With respect to this latter issue, Part V of the Family Law Act is constitutionally inapplicable to a maritime negligence claim insofar as it permits the bringing of such a claim.

2: Whether the provisions of the Act respecting compensation to the Families of Persons killed by Accident, and in duels, C.S.C. 1859, c. 78, are constitutionally inapplicable in whole or in part to an action based on alleged negligent operation or ownership of a vessel on inland waters in Ontario resulting in a fatality, and/or ultra vires insofar as they purport to govern losses or damages arising out of a boating accident.

Answer: This constitutional question need not be answered. The Act respecting compensation to the Families of Persons killed by Accident, and in duels has been repealed as provincial law. Insofar as it may exist as federal law applicable to maritime matters, it provides no benefit to the plaintiffs that they do not already receive under contemporary sources of Canadian maritime law.

3: Whether the provisions of s. 38(1) of the Trustee Act, R.S.O. 1990, c. T.23, are constitutionally inapplicable in whole or in part to an action based on alleged negligent operation or ownership of a vessel on inland waters in Ontario resulting in a fatality, and/or ultra vires insofar as they purport to govern losses or damages arising out of a boating accident.

Answer: In light of our finding that claims by an executor brought in the name of the deceased may be brought under Canadian maritime law, it is not necessary to answer this question.

4: Whether the provisions of the Negligence Act, R.S.O. 1990, c. N.1, allowing the apportionment of liability in accordance with fault, are constitutionally inapplicable in whole or in part to an action based on the alleged negligent operation or ownership of a vessel on inland waters in Ontario resulting in personal injury or death, and/or ultra vires insofar as they purport to govern losses or damages arising out of a boating accident.

Answer: In light of our finding that Canadian maritime law incorporates a contributory negligence regime, it is not necessary to answer this question.

5: Whether the provisions of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2, allowing claims for damages are constitutionally inapplicable in whole or in part in an action based on alleged negligent operation or ownership of a vessel on inland waters in Ontario resulting in a fatality, and/or ultra vires insofar as they purport to govern losses or damages arising out of a boating accident.

Answer: The question is moot, given that it was raised in the Lac Seul action, which is not before the Court.

Appeals and cross-appeals dismissed with costs.

Solicitors for the appellants Christopher Hogarth et al.: Beard, Winter, Toronto.

Solicitors for the appellants Josephine Perry et al.: Fernandes Hearn Theall, Toronto.

Solicitors for the respondents John Emmett Hall et al.: Genest Murray Desbrisay Lamek, Toronto.

Solicitors for Ontario Holidays Corporation: Miller Thomson, Toronto.

Solicitors for the respondent Josephine Perry: Aylesworth, Thompson, Phelan, O’Brien, Toronto.

Solicitors for the Perry Estate respondents: McCarthy Tétrault, Toronto.

Solicitors for the appellant Larry Grail: Bartlet & Richardes, Windsor.

Solicitors for the respondents Deborah Ordon et al.: Meighen Demers, Toronto.

Solicitor for the intervener: Alain Gingras, Sainte-Foy.