Canadian maritime law

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Canadian maritime law is based on the field of "Navigation and Shipping" vested in the Parliament of Canada by virtue of s. 91(10) of the Constitution Act, 1867.

Scope of jurisdiction[edit]

Canada has adopted an expansive definition of its maritime law, which goes beyond traditional admiralty law. The original English admiralty jurisdiction was called "wet", as it concerned itself with things done at sea, including collisions, salvage and the work of mariners, and contracts and torts performed at sea. Canadian law has added "dry" jurisdiction to this field, which includes such matters as:

This list is not exhaustive of the subject matter.[1]

History[edit]

Canadian jurisdiction was originally consolidated in 1891, with subsequent expansions in 1934 following the passage of the Statute of Westminster 1931, and in 1971 with the extension to "dry" matters.[2]

The scope of Canada's jurisdiction was crystallized in 1971 in legislation creating the Federal Court of Canada:

2. ...“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;...

...

42. Canadian maritime law as it was immediately before June 1, 1971 continues subject to such changes therein as may be made by this Act or any other Act of Parliament.[3]

Canadian jurisprudence[edit]

This has been held by the Supreme Court of Canada, most recently in Ordon Estate v. Grail, to cover a very broad field:

This has had the effect of displacing many provincial statutes that were previously being used in maritime liability cases, and the implications are still being worked out.[5][6]

In the 2006 case of Isen v Simms, the Court endorsed a summary given by Décary JA on what does not fall within federal jurisdiction:

The scope of maritime law has been refined by the SCC in subsequent jurisprudence:

  • In 2012, in Tessier Ltée v. Quebec, it was declared that federal jurisdiction over shipping is not absolute, and must be construed in conjunction with the power to regulate works and undertakings, where the provinces are entitled to regulate transportation within their boundaries, while the federal government has jurisdiction over transportation that transcends provincial boundaries and connects the provinces with each other or with other countries.[8]
  • In 2013, in Marine Services International Ltd. v. Ryan Estate, Ordon's effect was restricted insofar as provincial jurisdiction may be affected by paramountcy and interjurisdictional immunity, as it was decided prior to the SCC's subsequent decisions on those fields in Canadian Western Bank and COPA.[9]

References[edit]

  1. ^ John G. O'Connor (2004-11-05). "Why the Full Extent of the Admiralty Jurisdiction of the Federal Courts has yet to be explored". Retrieved 2011-09-27. 
  2. ^ John G. O'Connor (2011-10-28). "Admiralty Jurisdiction and Canadian Maritime Law in the Federal Courts: The next forty years". Retrieved 2012-05-25. 
  3. ^ Federal Courts Act R.S.C., 1985, c. F-7
  4. ^ Ordon Estate v. Grail 1998 CanLII 771 at par. 71, [1998] 3 SCR. 437 (26 November 1998)
  5. ^ Christopher J. Giaschi (2000-10-03). "The Constitutional implications of Ordon v. Grail and the expanding definition of Canadian maritime law". Retrieved 2012-01-10. 
  6. ^ Christopher J. Giaschi (2011-04-16). "Confused seas: The application of provincial statutes to maritime matters". Retrieved 2012-09-25. 
  7. ^ Isen v Simms 2006 SCC 41 at par. 28, [2006] 2 SCR 349 (5 October 2006), endorsing Simms v Isen 2005 FCA 161 at par. 98, [2005] 4 FCR 563 (6 May 2005)
  8. ^ Tessier Ltée v. Quebec (Commission de la santé et de la sécurité du travail) 2012 SCC 23 at par. 24–25, [2012] 2 SCR 3 (17 May 2012)
  9. ^ Marine Services International Ltd. v. Ryan Estate 2013 SCC 44 (2 August 2013)

Relevant statutes[edit]

Further reading[edit]