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This Week at the SCC (02/08/2013)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in This Week at the SCC
Brandon Kain

The Supreme Court of Canada released two decisions this week of interest to Canadian businesses and professions.

The first, Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44, involved the constitutional relationship between provincial workers compensation legislation and the federal jurisdiction over navigation and shipping.  As my colleague Byron Shaw discussed in a previous post, the respondents in Marine Services were the estates of two fisherman who died at sea after their boat capsized.  They applied for and obtained compensation under the Newfoundland and Labrador Workplace Health, Safety and Compensation Act (the “WHSCA”). While s. 44 of the WHSCA creates a statutory bar to civil proceedings where a party has obtained compensation under the statute, the respondents also brought a negligence action against the appellants (the manufacturer and architect of the capsized ship, and the federal government for inspecting it) under s. 6(2) of the federal Maritime Liability Act (the “MLA”).  The respondents had successfully argued in the Court of Appeal below that  s. 44 did not bar their claim, since it was inapplicable and inoperative based on the constitutional doctrines of interjurisdictional immunity and federal legislative paramountcy.  However, the Supreme Court overturned this ruling.  In addition to finding that the appellants could rely upon s. 44 of the WHSCA depsite the fact that they did not have a “direct employment relationship” with the deceased at the time of their deaths, the Court held that s. 44 was both constitutionally applicable and operative.

The Marine Services decision continues the Supreme Court’s narrow approach to the interjurisdictional immunity doctrine taken in Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3.  The Court held that s. 44 of the WHSCA did not engage the doctrine since, despite trenching on the core of the federal power over navigation and shipping, it did not rise to the level of “impairing” that power.  In arriving at this conclusion, the Court distinguished its prior decision in Ordon Estate v. Grail, [1998] 3 S.C.R. 437 - where it had held that interjurisdictional immunity applies when a provincial statute of general application has the effect of indirectly regulating a maritime negligence law issue – on the ground that it was decided prior to Canadian Western Bank.

As to the paramountcy doctrine, the Court confirmed that a “high standard” must be met where a party seeks to invoke the doctrine based on a purpose conflict rather than an operational one.  Interestingly, the Court also clarified that “federal paramountcy only applies where there is an inconsistency between two valid legislative enactments - one federal and one provincial. It does not apply to an inconsistency between the common law and a valid provincial legislative enactment”. (para. 78)  While Beetz J. had suggested in obiter in Bisaillon v. Keable, [1983] 2 S.C.R. 60 that the paramountcy doctrine could apply to conflicts between federal common law and provincial statute law, the Court in Marine Services noted that “we are aware of no case in which the doctrine was applied to common law”. (para. 67)  However, the Court did not directly deal with whether paramountcy can apply where a federal statute is inconsistent with a provincial rule of common law.  Such conflicts have given rise to a signficant body of case law in the United States, where courts have frequently held that state tort laws may be “pre-empted” where they conflict with federal enactments (see, most recently, Mutual Pharmaceutical Co. Inc. v. Bartlett, 133 S. Ct. 2466 (2013)).

The second decision of interest is Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43.  The Court in this case held that the inherent jurisdiction of superior courts to appoint amici curiae does not include the power to fix their rates of compensation and order the provinces to pay.  Such a jurisdiction may only be exercised where it flows from a constitutional challenge or a statutory provision.  The Court’s reasons are noteworthy for the limits they impose upon the inherent jurisdiction of superior courts.  According to the Court, “[t]he scope of a superior court’s inherent power, or of powers possessed by statutory courts by necessary implication, must respect the constitutional roles and institutional capacities of the legislature, the executive and the judiciary”, and are therefore “limited by the separation of powers that exists among the various players in our constitutional order and by the particular institutional capacities that have evolved from that separation”. (paras. 5 and 26)

The McCarthy Tétrault Opinions Group consists of members of the firm’s litigation department whose practices focus on written advocacy and the provision of strategic advice and opinions in the context of complex business disputes and transactions.  The members of the Opinions Group are Anthony Alexander, Martin Boodman, Brandon Kain, Hovsep Afarian and Kirsten Thompson.