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Whitbread v. Walley, [1990] 3 S.C.R. 1273

 

John Joseph Blair Horn Whitbread                                                                                 Appellant

 

v.

 

Robert Norman Walley, Robert Greenwood

and John A. N. Horn      Respondents

 

and

 

The Attorney General of Canada, the

Attorney General for Ontario, the

Attorney General of Quebec and the

Attorney General of British Columbia                                                                            Interveners

 

indexed as:  whitbread v. walley

 

File No.:  21094.

 

1990: May 24; 1990:  December 20.

 

Present:  Dickson C.J.* and Lamer C.J.** and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and Cory JJ.

 

on appeal from the court of appeal for british columbia

 

    Constitutional law ‑‑ Division of powers ‑‑ Canadian maritime law ‑‑ Torts ‑‑ Injury resulting from pleasure craft striking rocks ‑‑ Accident occurring in tidal waters ‑‑ Scope of federal power over navigation and shipping ‑‑ Constitution Act, 1867, s. 91(10) .

 

    Maritime law ‑‑ Scope ‑‑ Torts ‑‑ Injury resulting from pleasure craft striking rocks ‑‑ Accident occurring in tidal waters ‑‑ Whether or not limitations as to liability under Canada Shipping Act  applicable ‑‑ Canada Shipping Act, R.S.C. 1970, c. S-9, ss. 647, 649.

 

    Appellant Whitbread sailed the Calrossie, a 32‑foot pleasure craft owned by the respondents Greenwood and Horn and registered as a "ship" under the Canada Shipping Act , from Coal Harbour, which is located in Vancouver Harbour, to Indian Arm, a body of water north of Vancouver.   On the way, Whitbread asked the respondent Walley to take over the helm, moved to a seat away from the controls and fell asleep.  While Walley was still at the controls, the Calrossie struck rocks in Indian Arm.  Whitbread suffered spinal injuries that resulted in quadriplegia.  He sued Walley and the other respondents in tort.  In defence, Walley denied negligence, pleaded contributory negligence, and applied for a declaration that he was entitled to limit his liability under ss. 647  and 649  of the Canada Shipping Act .  This application came before MacKinnon J., sitting in chambers, who ruled that ss. 647  and 649  did not, as a matter of statutory interpretation, apply to persons engaged in the operation of pleasure crafts.  The British Columbia Court of Appeal reversed this decision.  At issue here was whether these limitation provisions were beyond the powers of Parliament as set out in ss. 91(10)  and 92(13)  of the Constitution Act, 1867 .

 

    Held:  The appeal should be dismissed.

 

    Tortious liability in a maritime context is governed by a body of maritime law which lies within the exclusive legislative jurisdiction of Parliament.  Sections 647  and 649  of the Canada Shipping Act  are in pith and substance legislation in respect to Canadian maritime law as recognized by this Court and are accordingly intra vires Parliament.  This conclusion was in no way dependant on any application of the double aspect or necessarily incidental doctrines.

 

    Canadian maritime law extended to torts committed not only on the high seas or national waters but also to waters within the ebb and flow of the tide.  The waters where the Calrossie struck the rocks were presumably tidal and therefore respondent's tortious liability, if any, arose within the territorial domain of Canadian maritime law and the legislative jurisdiction of Parliament.

 

    Parliament's jurisdiction over maritime law is territorially co‑extensive with its jurisdiction in respect of navigable waterways.  It has been established that maritime law extends to torts committed in the course of land-based activities that are sufficiently connected with navigation or shipping.  It must also extend to the activities of those who directly engage in the activity of navigation on Canada's inland waterways.  The respondent's liability therefore would be a matter of federal, not provincial, law even if the accident had occurred in non‑tidal water.

 

    Parliament's jurisdiction over shipping and navigation under s. 91(10)  has been broadly interpreted.  It includes the legal principles applied by the Courts of Admiralty in respect to matters that arose within the territorial limits of its jurisdiction and those principles which the ordinary courts of common law applied to matters of a maritime nature in non‑tidal waters.  The view that all tortious liability (and other forms of liability that fall within the ambit of Canadian maritime law) that arises as a result of the use of navigable waterways falls within the scope of federal maritime law is also consistent with this Court's decision in Ontario (Attorney General) v. Pembina Exploration Canada Ltd., [1989] 1 S.C.R. 206.

 

    The nature of navigation and shipping activities as they are practised in Canada makes a uniform maritime law which encompasses navigable inland waterways a practical necessity.  Much of the navigational and shipping activity on Canada's inland waterways is closely connected with that which takes place within the traditional geographic sphere of maritime law.  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 as their vessels cross the point at which the water becomes or ceases to be tidal.  Such a geographic divide is completely meaningless from a division of powers perspective for it does not indicate any fundamental change in the use to which a waterway is put.  In this country, both tidal waters and inland navigable waterways are part of the same navigational network and should be subject to a uniform legal regime.

 

    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.  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 "collision regulations".  The federal government, which is empowered to enact and amend these regulations, must also have jurisdiction in respect of the tortious liability to which they are so closely related.  No challenge has been made to Parliament's power to enact collision regulations or to their application to vessels on inland waterways.  The tortious liability of the owners and operators of these vessels therefore should be regarded as a matter of maritime law that comes within the ambit of Parliament's jurisdiction in respect of navigation and shipping.

 

    Parliament's power to limit the liability of owners or operators of vessels is not limited to those engaged in commercial shipping.  The functional rationale of ss. 647  and 649  becomes irrelevant to a determination of their permissible constitutional scope once it is recognized that the constitutional basis of the impugned provisions is Parliament's jurisdiction in respect of the underlying tort.  Parliament, as a matter of practical necessity, must have jurisdiction in respect of the tortious liability of both commercial vessels and pleasure craft whether used on tidal or non‑tidal waterways.  Once Canadian waters are conceived of as a single navigational network, the activity of navigation is very akin to the activity of aeronautics and should lead to similar constitutional treatment.

 

Cases Cited

 

    Referred to:  Singbeil v. Hansen (1985), 19 D.L.R. (4th) 48;  Vancouver v. Rhodes, [1955] 1 D.L.R. 139;  British Columbia Telephone Co. v. Marpole Towing Ltd., [1971] S.C.R. 321;  Proprietary Articles Trade Association v. Attorney‑General for Canada, [1931] A.C. 310;  Montreal City v. Montreal Harbour Commissioners, [1926] A.C. 299;  Nisshin Kisen Kaisha Ltd. v. Canadian National Railway Co., [1981] 1 F.C. 293;  Munro v. National Capital Commission, [1966] S.C.R. 663; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641;  Union Colliery Co. of British Columbia v. Bryden, [1899] A.C. 580;  Attorney‑General for Alberta v. Attorney‑General for Canada (Alberta Bill of Rights Reference), [1947] A.C. 503;  Bank of Toronto v. Lambe (1887), 12 A.C. 575;  Tropwood A.G. v. Sivaco Wire & Nail Co., [1979] 2 S.C.R. 157; Triglav v. Terrasses Jewellers Inc., [1983] 1 S.C.R. 283; ITO-‑International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752, on appeal from sub nom. Miida Electronics, Inc. v. Mitsui O.S.K. Lines Ltd., [1982] 1 F.C. 406;  Q.N.S. Paper Co. v. Chartwell Shipping Ltd., [1989] 2 S.C.R. 683;  Clark v. Canadian National Railway Co., [1988] 2 S.C.R. 680;  Quebec North Shore Paper Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054;  McNamara Construction (Western) Ltd. v. The Queen, [1977] 2 S.C.R 654;  De Lovio v. Boit (1815), 2 Gall. 398;  Mersey Docks and Harbour Board v. Turner (The "Zeta"), [1893] A.C. 468;  Domestic Converters Corp. v. Arctic Steamship Line, [1984] 1 F.C. 211;  Queddy River Driving Boom Co. v. Davidson (1883), 10 S.C.R. 222;  Reference re Industrial Relations and Disputes Act (the Stevedoring case), [1955] S.C.R. 529;  Ontario (Attorney General) v. Pembina Exploration Canada Ltd., [1989] 1 S.C.R. 206;  Shipman v. Phinn (1914), 19 D.L.R. 305; Smith v. Fecampois, [1929] 2 D.L.R. 925; Horne v. Krezan, Shamlock and Young (1955), 14 W.W.R. 625; Pile Foundations Ltd. v. Selkirk Silica Co. and Perry (1967), 59 W.W.R. 622; Harvey v. Tarala (1977), 6 Sask. R. 74;  In re Provincial Fisheries (1895), 26 S.C.R. 444;  Attorney-General for Canada v. Attorneys-General for Ontario, Quebec and Nova Scotia, [1898] A.C. 700;  Attorney-General for British Columbia v. Attorney-General for Canada, [1914] A.C. 153; Booth v. Lowery (1917), 54 S.C.R. 421;  The "Lionel" v. The "Manchester Merchant", [1970] S.C.R. 538;  Stein v. The "Kathy K", [1976] 2 S.C.R. 802;  Horsley v. MacLaren, [1972] S.C.R. 441; Coldwell‑Horsfall v. West Country Yacht Charters, Ltd. (The Annie Hay), [1968] 1 Lloyd's Rep. 141; Walithy Charters Ltd. v. Doig (1979), 15 B.C.L.R. 45;  The Alastor, [1981] 1 Lloyd's Rep. 581; Chamberland v. Fleming (1984), 12 D.L.R. (4th) 688;  Johannesson v. Municipality of West St. Paul, [1952] 1 S.C.R. 292;  Attorney-General for Ontario v. Canada Temperance Federation, [1946] A.C. 193;  In re Regulation and Control of Aeronautics in Canada (The Aeronautics Reference), [1932] A.C. 54;  Jorgenson v. North Vancouver Magistrates (1959), 28 W.W.R. 265.

 

Statutes and Regulations Cited

 

Canada Shipping Act, R.S.C. 1970, c. S‑9, ss. 1, 8, 109(1), (3), 436, 466, 647, 648, 649.

 

Canadian Bill of Rights, R.S.C. 1970, App. III, s. 1(b).

 

Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 15 .

 

Constitution Act, 1867, ss. 91(2) , (10) , 92(13) , 101 .

 

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 22.

 

Railway Act, R.S.C. 1970, c. R‑2, s. 342(1).

 

Authors Cited

 

Black's Law Dictionary, 5th ed.  St. Paul, Minn.: West Publishing Co., 1979, "navigate", "navigation".

 

Fernandes, Rui M.  Boating Law of Canada.  Toronto: Carswells, 1989.

 

Gaskell, N. J. J., C. Debattista and R. J. Swatton, Chorley & Giles' Shipping Law.  London: Pitman, 1987.

 

Hogg, Peter W.  Constitutional Law of Canada, 2nd ed.  Toronto: Carswells, 1985.

 

La Forest, Gerard V. and Associates.  Water Law in Canada:  the Atlantic Provinces.  Ottawa: Information Canada, 1973.

 

Maxwell, Sir Peter Benson.  Maxwell on the Interpretation of Statutes, 12th ed.  By P. St. J. Langan.  London:  Sweet & Maxwell, 1969.

 

Odgers, Sir Charles Edwin.  Odgers' Construction of Deeds and Statutes, 5th ed.  By Gerald Dworkin.  London:  Sweet & Maxwell, 1967.

 

    APPEAL from a judgment of the British Columbia Court of Appeal (1988), 26 B.C.L.R. (2d) 203, 51 D.L.R. (4th) 509, [1988] 5 W.W.R. 313, allowing an appeal from a judgment of MacKinnon J. sitting in chambers (1987), 19 B.C.L.R. (2d) 120, 45 D.L.R. (4th) 729.  Appeal dismissed.

 

    A. Ross and G. Nelson, for the appellant.

 

    W. S. Berardino, Q.C., and B. McLeod, for the respondents.

 

    E. R. Sojonky, Q.C., and Danielle Dion for the intervener the Attorney General of Canada.

 

    L. Price and R. Ratcliffe, for the intervener the Attorney General for Ontario.

 

    Jean Bouchard and Françoise Saint‑Martin, for the intervener the Attorney General of Quebec.

 

    E. R. A. Edwards, Q.C., and  F. A. V. Falzon, for the intervener the Attorney General of British Columbia.

 

//La Forest J.//

 

    The judgment of the Court was delivered by

 

    La Forest J. -- This appeal concerns the constitutionality of ss. 647 and 649 of the Canada Shipping Act, R.S.C. 1970, c. S-9 (now ss. 575  and 577 , R.S.C., 1985, c. S-9 ), in their application to an action for damages brought by a person who suffers personal injury or loss of property as a result of the operation of a pleasure craft.  Section 647  limits the liability of all ship owners to 3,100 gold francs per ton of the ship's tonnage for loss of life, personal injury and damage to property which occurs without his "actual fault or privity", and s. 649  extends this limitation of liability to, among others, "any person acting in the capacity of master or member of the crew of a ship and to any servant of the owner".  The question before this Court is whether these limitation provisions, when invoked by the owner, master or crew member of a boat designed and used for pleasure rather than commercial shipping, are beyond the powers of Parliament as set out in s. 91  of the Constitution Act, 1867 .  The prior question, whether ss. 647  and 649  apply to pleasure craft as a matter of statutory interpretation, though raised in the courts below, was not argued in this Court.  I would in passing note that if it had, I would have answered in the affirmative for the reasons given by McLachlin J.A., as she then was, in the Court of Appeal.

 

    In the courts below, counsel for the appellant plaintiff argued that ss. 647 and 649 violated the Canadian Charter of Rights and Freedoms .  More specifically, he maintained that ss. 647  and 649  restricted the rights guaranteed in ss. 7  and 15  of the Charter  and that this restriction was not a reasonable limit which could, pursuant to s. 1  of the Charter , "be demonstrably justified in a free and democratic society".  In the Court of Appeal of British Columbia, it was further argued that ss. 647  and 649  violated s. 1(b) of the Canadian Bill of Rights, R.S.C. 1970, App. III.  Both these arguments were also made before this Court, but were disposed of from the bench, Dickson C.J. advising counsel for the respondents that the Court would only hear him on the division of powers questions.  These reasons for judgment will be similarly circumscribed.

 

Facts

 

    The facts of this appeal are straightforward.  On March 27, 1983, the appellant Whitbread took a 32 foot pleasure craft called the Calrossie, owned by the respondents Greenwood and Horn and registered as a "ship" under the Canada Shipping Act , from its moorings at Coal Harbour, which is located in what is called Inner Vancouver Harbour.  He set out for Wigwam Inn, located at the north end of Indian Arm, a body of water connected to Burrard Inlet and hence, just north of the City of Vancouver.  On the way, Whitbread asked one of his passengers, the respondent Walley, to take over the helm.  He then moved to a seat away from the controls and fell to sleep.

 

    While Walley was still at the controls, the Calrossie struck rocks close to the eastern shore of Indian Arm.  Whitbread suffered spinal injuries that resulted in quadriplegia.  He sued Walley and the other respondents in tort.  In defence, Walley denied negligence, pleaded contributory negligence, and applied for a declaration that he was entitled to limit his liability under ss. 647  and 649  of the Canada Shipping Act  to approximately $103,000 based on the statutory formula and the value of the gold franc at the time of the trial.  This application came before MacKinnon J., sitting in chambers, who ruled (on November 12, 1987) that ss. 647  and 649  did not, as a matter of statutory interpretation, apply to persons engaged in the operation of pleasure crafts.  In a decision issued on May 12, 1988, the Court of Appeal of British Columbia reversed this decision.  It held that the Calrossie came within the definition of "ship" in s. 1  of the Canada Shipping Act  and, further, that ss. 647  and 649  was legislation in respect of "navigation and shipping" and so within Parliament's jurisdiction under s. 91(10)  of the Constitution Act, 1867 .  The appellant Whitbread was granted leave to appeal to this Court on February 2, 1989.

 

Judgments in the Courts Below

 

Supreme Court of British Columbia (1987), 19 B.C.L.R. (2d) 120

 

    Two motions were brought before A. G. MacKinnon J.  One was brought by the owners of the Calrossie for a declaration that the Canada Shipping Act  and the regulations made thereunder were, "to the extent that they purport to limit the liability of the owners, valid and of full force and effect".  The other was brought by the defendant Walley "for a declaration that his liability is limited by the provisions of the Canada Shipping Act ".  After setting out the relevant parts of ss. 647 and 649 of the Act and disposing of appellant Whitbread's argument that those sections violated ss. 7  and 15  of the Charter , MacKinnon J. considered whether they fell within the legislative competence of Parliament.  Parliament, he observed, clearly had the power, under s. 91(10)  of the Constitution Act, 1867 , to enact legislation of the character of ss. 647  and 649 .  In doing so, he made it plain that he took it to be self-evident that these sections were legislation in respect of "navigation and shipping".  However, he was equally certain that the claim of Whitbread was one that fell within "property and civil rights" and, hence, provincial jurisdiction under s. 92(13) .  It followed that the case was one in which there was an "apparent conflict of jurisdiction".

 

    In resolving this conflict, MacKinnon J. largely accepted Whitbread's argument that ss. 647  and 649  were only within Parliament's power to regulate navigation and shipping in so far as they applied to commercial shipping.  Relying on the statement made by Lambert J.A. in Singbeil v. Hansen (1985), 19 D.L.R. (4th) 48 (B.C.C.A.), at p. 60, to the effect that an understanding of the historical origins of the Canada Shipping Act  "must illuminate any consideration of the constitutionality of its provisions", MacKinnon J. concluded, on the basis of quotations from the cases of Vancouver v. Rhodes, [1955] 1 D.L.R. 139 (S.C.B.C.), and British Columbia Telephone Co. v. Marpole Towing Ltd., [1971] S.C.R. 321, that the purpose of the Canada Shipping Act  in general, and ss. 647  and 649  in particular, was the encouragement of maritime shipping and commerce.  While such a purpose might require a limitation on the potential liability of the owners and masters of commercial vessels, it did not require the conferral of such protection on the owners and masters of pleasure vessels.  This meant (at p. 132) that "Parliament did not intend that ss. 647  and 649  would have application to owners and masters of pleasure vessels such as the Calrossie".  MacKinnon J.'s confidence in this conclusion was not shaken by the fact that s. 2 of the Act defined ship as a "vessel used in navigation and not propelled by oars".  Given the purpose of the Act, it had to be assumed, when the Act was first enacted, that boats "not propelled by oars" meant vessels used as pleasure craft.

 

    On the basis of the foregoing analysis, MacKinnon J. disposed of the applications before him by stating, at p. 132:

 

    Following the approach of my brother Gibbs in Rockcliffe v. A.G. Can., [1986] B.C.W.L.D. 2793, B.C.S.C., Victoria No. 853022, 3rd June 1986 (not yet reported), and Lambert J.A. in Singbeil v. Hansen, supra, there will be no declaration as to the invalidity of ss. 647  and 649 .  They are within the competence of Parliament.  I am therefore disposed to "read down" the sections to exclude limitation of liability in respect of non-commercial ships used exclusively for pleasure and, in particular, the Calrossie.

 

Court of Appeal of British Columbia (1988), 26  B.C.L.R. (2d) 203

 

    The reasons for judgment of a unanimous Court of Appeal were written by McLachlin J.A. (Carrothers and Wallace JJ.A. concurring).  She commenced her discussion with the question whether s. 647  applied, as a matter of construction, to "non-commercial vessels used purely for pleasure".  She concluded that it did.  Referring to the very broad definition given the word "ship" in s. 2 of the Act, she expressed the view, at p. 209, that "Parliament having clearly manifested its intention that the Act shall apply by an unambiguous definition, there is no room for reading down the statute based on speculation as to the purpose of the provision in question".  Citing Maxwell on the Interpretation of Statutes (12th ed. 1969), at pp. 28-29, and Odgers' Construction of Deeds and Statutes (5th ed. 1967), at p. 241, she observed, at p. 209, that the "intention or purpose of Parliament must derive from the words used in the statute" and that where "these are plain and unambiguous, the court may not circumvent the plain meaning by reference to supposed legislative intent".  As further support for her view on the scope of s. 647  (and by extension s. 649 ), McLachlin J.A. noted that pleasure yachts were expressly exempted from particular sections of the Act:  ss. 8, 109(1) and (3), 436 and 466.  She also cited a number of cases in which ss. 647  and 649 , or their English counterparts, have been applied to pleasure vessels.

 

    McLachlin J.A. then quickly disposed of the question whether, on the facts, the respondent Walley was entitled to rely on s. 649 .  She noted that s. 649  limits the liability of "any person acting in the capacity of master or member of the crew of a ship" and concluded that Walley was in fact acting in the capacity of master at the time of the accident in which the appellant Whitbread was injured.

 

    McLachlin J.A. then turned, at p. 210, to the central question of whether Parliament had the power under s. 91  of the Constitution Act, 1867 , "to legislate with respect to limitation of liability for accidents involving pleasure craft".  After noting the powers of the provinces in respect of property and civil rights (s. 92(13) ) and of Parliament in respect of trade and commerce (s. 91(2) ), she expressed the view that the focus of inquiry was the jurisdiction of Parliament, under s. 91(10) , to legislate in respect of navigation and shipping.  Citing Proprietary Articles Trade Association v. Attorney-General for Canada, [1931] A.C. 310 (P.C.), she noted that if the impugned provisions were in "pith and substance" legislation in respect to navigation and shipping, it was irrelevant that they also affected property and civil rights.  She then observed, on the basis of Montreal City v. Montreal Harbour Commissioners, [1926] A.C. 299 (P.C.), that s. 91(10)  has been broadly interpreted.  Applying the Black's Law Dictionary (5th ed. 1979) definition of "navigate" ("To journey by water; to go in a vessel; to sail or manage a vessel; to use the waters as a highway for commerce or communication; to ply"), and the same dictionary's definition of "navigation" ("The act or science or the business of traversing the sea or other navigable waters in ships or vessels"), McLachlin J.A. concluded, at p. 211, that the "use of the Calrossie in Indian Arm clearly constituted navigation".  Quoting from the case of Nisshin Kisen Kaisha Ltd. v. Canadian National Railway Co., [1981] 1 F.C. 293 (T.D.), where Addy J. had held, at p. 303, that "sections 647  and 648  of the Canada Shipping Act  deal squarely with acts, omissions, liabilities and procedures directly related to the subject-matter of navigation and shipping", she further concluded that limitation of the liability of those who use or own vessels such as the Calrossie is a matter directly related to navigation.

 

    Before turning to appellant Whitbread's Charter  arguments, McLachlin J.A. gave five reasons for rejecting the argument which had found favour with the trial judge, namely, that the words "navigation and shipping" should be read as applying only to commercial navigation and shipping.  These reasons were:  (1) acceptance of the argument required the reading of the word "commercial" into s. 91(10) ; (2) the argument ignored the broad ambit of the word "navigation" and focused exclusively on the word "shipping"; (3) it ran counter to the principle that the federal power under s. 91(10)  must be broadly interpreted; (4) it ran counter to the numerous cases in which it has been held that the federal power in respect of navigation and shipping does in fact extend to pleasure craft; and (5) it would mean that the jurisdiction conferred by s. 91(10)  was simply a part of that conferred by s. 91(2) .

 

Issues Before this Court

 

    The argument before this Court was conducted on the basis of six constitutional questions, stated by Dickson C.J. on June 16, 1989.  Five of these dealt with the appellant's challenge of ss. 647  and 649  on the grounds of ss. 7  and 15  of the Charter  and s. 1(b) of the Canadian Bill of Rights.  As explained earlier, the appellant's arguments were dismissed from the Bench.  The only remaining question, then, is the jurisdictional one, which was stated by Dickson C.J. in the following terms:

 

With reference to s. 91(10)  of the Constitution Act, 1867 , are ss. 647 and 649 of the Canada Shipping Act, R.S.C. 1970, c. S-9, as amended, constitutionally valid and constitutionally applicable to this action?

 

    By way of clarification, I would add that constitutional validity and constitutional applicability are not distinct questions.  Sections 647 and 649 will be held to be constitutionally valid if they are in pith and substance legislation in relation to a matter that comes within the jurisdiction conferred by s. 91(10)  or, alternatively (if it is in fact an alternative grounds of validity), if they are found to be "necessarily incidental", "ancillary" or "integral" to the legislative scheme (the Canada Shipping Act ) that is admittedly within s. 91(10) .  The question whether ss. 647  and 649  are "constitutionally applicable to this action" only arises if it becomes apparent that they are within federal competence when applied to certain types of suits, such as those arising in the context of commercial shipping, but beyond federal competence if applied to suits arising, as here, from the operation of pleasure craft.  The question will then be whether the impugned provisions should be "read down" in accordance with a presumption of constitutional validity.

 

The Constitutionality of ss. 647  and 649  of the Canada Shipping Act 

 

    The first question to arise is that of the "pith and substance" of ss. 647 and 649.  If sections 647 and 649 are found to be legislation that is in pith and substance in relation to matters within Parliament's exclusive jurisdiction over navigation and shipping, the inquiry is at an end, for it would then be immaterial that they also affect matters of property and civil rights; see Proprietary Articles Trade Association v. Attorney-General for Canada, supra, at pp. 326-27; Munro v. National Capital Commission, [1966] S.C.R. 663, at p. 671; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641, at p. 667.

 

    The phrase "pith and substance" appears to have been first used by Lord Watson in the case of Union Colliery Co. of British Columbia v. Bryden, [1899] A.C. 580, at p. 587, (see Attorney-General for Alberta v. Attorney-General for Canada (Alberta Bill of Rights Reference), [1947] A.C. 503, at p. 518, per Viscount Simon), although the earlier case of Bank of Toronto v. Lambe (1887), 12 A.C. 575, is sometimes cited as exemplary of the idea that it embodies: see Hogg, Constitutional Law of Canada (2nd ed. 1985), at p. 328.  There is, of course, no magic in the phrase.  It simply signifies what has long been recognized as the first step in division of powers analysis, that the "matter" of the impugned law must be identified.  In this respect, the idea conveyed by the phrase "pith and substance" can be expressed in many different ways.  It can be described as the "constitutional value represented by the challenged legislation", as "an abstract of the statute's content", and as "the true meaning of the challenged legislation" or the "leading feature" or "true nature and character" of the impugned law; see Hogg, op. cit., at p. 313.  Whatever the phrase used, the idea remains the same:  division of powers analysis commences with an identification of "the dominant or most important characteristic of the challenged law".  See Hogg, at p. 313.

 

    For counsel for the appellant, the pith and substance of ss. 647 and 649 is virtually self-evident.  He simply observed that the impugned provisions limit recovery of damages in actions for personal injury or damage to property and concluded that they are therefore, in "pith and substance", legislation in relation to the "rights and liabilities of individuals involved in tortious conduct".  It is taken to be self-evident that this brings them within the compass of provincial jurisdiction in respect of property and civil rights.  On this view, ss. 647 and 649 are said to be prima facie invalid, and the question becomes whether they are ancillary, integral or necessarily incidental to the legislative scheme of which they are a part, a scheme which is acknowledged to be within Parliament's legislative competence.

 

    Counsel for the respondent adopted the same starting point.  He acknowledged that, in one aspect, ss. 647 and 649 are in pith and substance legislation concerned with civil liability, a matter normally within the legislative jurisdiction of the provinces.  He goes on, however, to argue that they are in another aspect legislation concerned with matters within Parliament's exclusive jurisdiction over navigation and shipping, namely, the encouragement of shipping and the prevention and aftermath of marine collisions.  He sought to support this argument by pointing out that limitation provisions have historically played an important role in encouraging investment in shipping and by suggesting that ss. 647 and 649 should not be construed in isolation, as they were by counsel for the appellant, but together with the rest of Part XIV of the Canada Shipping Act  (which is headed NAVIGATION-‑COLLISIONS‑-LIMITATION OF LIABILITY), and those provisions of the Act that deal with wrecks and salvages, inquiries into shipping casualties, causes of action for fatal injuries sustained in marine accidents and the construction and safety features of vessels.  This reference to the legislative context of ss. 647  and 649  is said to demonstrate "that the provisions reflect Parliament's power to legislate comprehensively with regard to navigational safety and the consequences of shipping and boating accidents".

 

    The common point of departure for both arguments, then, is the assumption that the tortious liability that is limited by ss. 647 and 649 is one that arises under provincial law, that is, the ordinary law of negligence.  I have found it especially curious that the respondent should be willing to conduct the appeal on the basis of such an assumption, for it seems to me to run directly counter to a series of this Court's recent decisions.  As was pointed out in the factum of the Attorney General of Canada, this Court has, in the cases of Tropwood A.G. v. Sivaco Wire & Nail Co., [1979] 2 S.C.R. 157; Triglav v. Terrasses Jewellers Inc., [1983] 1 S.C.R. 283; ITO-‑International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752, and Q.N.S. Paper Co. v. Chartwell Shipping Ltd., [1989] 2 S.C.R. 683, outlined the contours of a uniform body of federal maritime law, i.e., a body of substantive law applicable to maritime and admiralty matters that is subject to the exclusive legislative jurisdiction of Parliament.  The following statement of McIntyre J., at p. 779, on behalf of the majority in ITO clearly demonstrates the relevance of this line of authority for the present appeal:

 

    It is my view, as set out above, that Canadian maritime law is a body of federal law encompassing the common law principles of tort, contract and bailment.  I am also of the opinion that Canadian maritime law is uniform throughout Canada, a view also expressed by Le Dain J. in the Court of Appeal who applied the common law principles of bailment to resolve Miida's claim against ITO.  Canadian maritime law is that body of law defined in s. 2  of the Federal Court Act .  That law was the maritime law of England as it has been incorporated into Canadian law and it is not the law of any province of Canada.  [Emphasis added.]

 

    In my view, the underlined portions of this statement of general principle, which I also had occasion to quote at p. 694 of my reasons in Chartwell, make it perfectly clear that tortious liability which arises in a maritime context is governed by a body of maritime law within the exclusive legislative jurisdiction of Parliament.  This, by itself, is a sufficient basis on which to dismiss the present appeal.  For as counsel for the appellant points out, if a right of action comes within provincial legislative jurisdiction, so too must a limitation of that right.  The same reasoning must surely apply in respect of rights of action that come within the legislative jurisdiction of the federal government.  This seems to me to follow from this Court's decision in Clark v. Canadian National Railway Co., [1988] 2 S.C.R. 680, at pp. 709-10.

 

    To put this conclusion in terms of the pith and substance of ss. 647 and 649, I think the decisions of this Court in the cases enumerated above, and especially its decisions in ITO and Chartwell, leave no room for any other conclusion than that the impugned provisions are in pith and substance legislation in respect to the body of uniform federal law that is compendiously referred to as Canadian maritime law.  It follows that they are intra vires Parliament, and that this conclusion is in no way dependant on any application of the double aspect or necessarily incidental doctrines.

 

    This conclusion is in my view so inescapable that it may be useful to consider why the parties failed to address the line of cases enumerated above.  The most obvious explanation is that those cases, unlike the one at bar, did not directly concern a dispute as to the division of legislative powers between the federal and provincial governments.  Instead, they concerned the content and scope of the Federal Court's jurisdiction in respect of maritime and admiralty matters.  But that does not mean that they are irrelevant to a determination of the scope of Parliament's legislative jurisdiction over navigation and shipping.  On the contrary, it must be remembered that the inquiry as to the validity and scope of the jurisdiction over maritime and admiralty matters granted to the Federal Court by s. 22 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, has been conducted, in accordance with this Court's decisions in Quebec North Shore Paper Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054, and McNamara Construction (Western) Ltd. v. The Queen, [1977] 2 S.C.R 654, with reference to s. 101 of what is now the Constitution Act, 1867 .  That provision provides for the establishment by Parliament of a "General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada".  As pointed out by Laskin C.J. in Quebec North Shore Paper Co. and McNamara (at pp. 1065-66 and p. 658 respectively), these words mean that a grant of jurisdiction to the Federal Court (or to any other court created under s. 101 ) will only be valid and effective if some "applicable and existing federal law" is necessary to its exercise.  Put the other way round, s. 101  requires that any jurisdiction granted to the Federal Court be supported or nourished by an existing body of law that is subject to Parliament's legislative jurisdiction.

 

    In the case of the Federal Court's jurisdiction over maritime and admiralty matters, that body of law is referred to in s. 22  of the Federal Court Act  as "Canadian maritime law".  As already explained, this Court has ruled that such a body of law does exist.  It has also found that it is federal law that comes within Parliament's power to legislate in respect of navigation and shipping under s. 91(10)  of the Constitution Act, 1867 : see ITO, at p. 777.  It follows that an inquiry as to the scope and substantive content of the Federal Court's jurisdiction over Canadian maritime law is simultaneously an inquiry as to the scope and content of an important aspect of Parliament's exclusive jurisdiction over navigation and shipping.  More particularly, it follows that this Court's determination in ITO that Canadian maritime law encompasses the law of torts when applied in respect to admiralty matters is, on the above reasoning, determinative of the constitutional validity of ss. 647  and 649  of the Canada Shipping Act ; see ITO, at pp. 776 and 779.

 

    The failure of the parties to deal with ITO and associated cases may also have been caused by an assumption that Canadian maritime law does not encompass tortious liability arising from accidents that occur on a body of water such as Indian Arm, which is within the province of British Columbia, rather than on the high or Canadian seas.  Such an assumption would be erroneous, however.  This Court made it clear in ITO, at p. 779, that Canadian maritime law was "the maritime law of England as it has been incorporated into Canadian law", and it is in turn clear that the maritime law of England was not limited to torts committed on the British or high seas but extended to torts committed within the ebb and flow of the tide; see De Lovio v. Boit (1815), 2 Gall. 398 (U.S. Circuit Ct., Mass.); Mersey Docks and Harbour Board v. Turner (The "Zeta"), [1893] A.C. 468, at pp. 481 et seq., and Domestic Converters Corp. v. Arctic Steamship Line, [1984] 1 F.C. 211, per Le Dain J.  As Indian Arm is presumably a body of water within the ebb and flow of the tide, it follows that the tortious liability of the respondent, if any such liability is found to exist, arises within the territorial domain of Canadian maritime law and the legislative jurisdiction of Parliament.

 

    I should point out that even if Indian Arm was non-tidal water, this would not mean that the respondent's liability was a matter of provincial rather than federal law.  It is of course true that in ITO, McIntyre J. said, at p. 771, that "`Canadian maritime law' includes all that body of law which was administered in England by the High Court on its Admiralty side in 1934", and it is also true that he went on to say at p. 771, that, "English maritime law as of 1934 . . . was at its broadest confined to torts committed within the ebb and flow of the tide".  But it is surely more important that, at p. 774, he went on to say:

 

    I would agree that the historical jurisdiction of the Admiralty courts is significant in determining whether a particular claim is a maritime matter within the definition of Canadian maritime law in s. 2  of the Federal Court Act .  I do not go so far, however, as to restrict the definition of maritime and admiralty matters only to those claims which fit within such historical limits.  An historical approach may serve to enlighten, but it must not be permitted to confine.  In my view the second part of the s. 2  definition of Canadian maritime law was adopted for the purpose of assuring that Canadian maritime law would include an unlimited jurisdiction in relation to maritime and admiralty matters.  As such, it constitutes a statutory recognition of Canadian maritime law as a body of federal law dealing with all claims in respect of admiralty and maritime matters.  Those matters are not to be considered as having been frozen by The Admiralty Act, 1934.  On the contrary, the words "maritime" and "admiralty" should be interpreted within the modern context of commerce and shipping.

 

    These remarks were a direct response to the view expressed by  Le Dain J. in Domestic Converters, at p. 244, to the effect that it "would be against the whole tradition of admiralty jurisdiction with respect to maritime torts to hold that a tort or delict committed on land is a maritime matter".  They were in this respect consistent with the evolution of Le Dain J.'s own thinking on these matters, as he made it clear when ITO was in the Federal Court of Appeal where he retracted the view on the jurisdictional question he had expressed in Domestic Converters: see Miida Electronics, Inc. v. Mitsui O.S.K. Lines Ltd., [1982] 1 F.C. 406, at pp. 416-18.  More importantly, McIntyre J.'s remarks were essential to his conclusion that ITO's failure to properly secure the warehouse in which a shipment of calculators were stored after being unloaded at the Port of Montreal was a tort which sounded in Canadian maritime law.  If the maritime law jurisdiction of the Federal Court and thus of Parliament can extend to torts committed in the course of land-based activities that are sufficiently connected with navigation or shipping, it must surely extend to the activities of those who, like the respondent, directly engage in the activity of navigation on Canada's inland waterways.

 

    The foregoing suggests that Parliament's jurisdiction over maritime law should be viewed as territorially co-extensive with its jurisdiction in respect of navigable waterways.  This is consistent with McIntyre J.'s view in ITO, at p. 774, that "the ambit of Canadian maritime law is limited only by the constitutional division of powers in the Constitution Act, 1867 ", for as it has often been stated, Parliament's jurisdiction under s. 91(10)  is to be broadly interpreted: see Queddy River Driving Boom Co. v. Davidson (1883), 10 S.C.R. 222, at p. 232, per Ritchie C.J.; Montreal City v. Montreal Harbour Commissioners, supra, at pp. 312-13; Reference re Industrial Relations and Disputes Act (the Stevedoring case), [1955] S.C.R. 529, at p. 535 per Kerwin C.J., at p. 541 per Taschereau J., at p. 548 per Rand J., at p. 559 per Kellock J., at p. 591 per Abbott J.; and Triglav v. Terrasses Jewellers Inc., supra, at p. 289 per Chouinard J.  It would also be consistent with my comments in Chartwell, speaking on this point for the Court, to the effect that the amalgam that was incorporated into this country as maritime law consisted of the legal principles which the Court of Admiralty applied in respect to matters that arose within the territorial limits of its jurisdiction, as well as those which the ordinary courts of common law applied to matters which, although of a maritime nature, arose beyond the ebb and flow of the tide; see pp. 695-96.  Finally, the proposition that all tortious liability (and other forms of liability that fall within the ambit of Canadian maritime law) that arises as a result of the use of navigable waterways falls within the scope of federal maritime law is supported by the unanimous decision of this Court in Ontario (Attorney General) v. Pembina Exploration Canada Ltd., [1989] 1 S.C.R. 206.  There, the question was as to whether a provincially created small claims court had jurisdiction with respect to a claim for damages sustained by a ship's fishing nets that had become entangled with an unmarked gas well in Lake Erie, a provincial inland waterway.  Speaking for the Court, I ventured to express the view, at p. 212, that I had no doubt that the incident fell under the "broad purview of admiralty law".  While this assessment was technically obiter, it accorded with a number of lower court authorities, all of which dealt with the question of whether provincial superior courts had any jurisdiction in respect of accidents on inland waterways, and all of which approached that question on the basis that any such jurisdiction would be concurrent with that of the federal Exchequer Court: see Shipman v. Phinn (1914), 19 D.L.R. 305 (Ont. S.C.); Smith v. Fecampois, [1929] 2 D.L.R. 925 (N.S.S.C.); Horne v. Krezan, Shamlock and Young (1955), 14 W.W.R. 625 (Alta. S.C.); Pile Foundations Ltd. v. Selkirk Silica Co. and Perry (1967), 59 W.W.R. 622 (Man. Q.B. Ch.); Harvey v. Tarala (1977), 6 Sask. R. 74 (Q.B.).  That view would only be tenable if the liability arising from such accidents was a matter of federal maritime or admiralty law.

 

    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; see inter alia, In re Provincial Fisheries (1895), 26 S.C.R. 444; see also my book, Water Law in Canada: the Atlantic Provinces (1973), at pp. 178-79, where the jurisprudence is summarized.  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; see Attorney-General for Canada v. Attorneys-General for Ontario, Quebec and Nova Scotia, [1898] A.C. 700; Attorney-General for British Columbia v. Attorney-General for Canada, [1914] A.C. 153; Booth v. Lowery (1917), 54 S.C.R. 421.  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"; see Fernandes, Boating Law of Canada (1989), at pp. 61-105; Gaskell, Debattista and Swatton, Chorley & Giles' Shipping Law (1987), at p. 365 and at pp. 369-374; and, for example, the decisions of this Court in The "Lionel" v. The "Manchester Merchant", [1970] S.C.R. 538, and in Stein v. The "Kathy K", [1976] 2 S.C.R. 802.  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.  So far as I am aware, Parliament's power to enact collision regulations has never been challenged; nor, as far as I can tell, has it ever been contended that these regulations do not apply to vessels on inland waterways.  They are in fact routinely applied to determine the tortious liability of such vessels; see the cases cited in Fernandes, op. cit., at pp. 61-105.  It follows that the tortious liability of the owners and operators of these vessels should be regarded as a matter of maritime law that comes within the ambit of Parliament's jurisdiction in respect of navigation and shipping.

 

    The relevance of these observations to the present appeal is that they demonstrate that the subsidiary argument of counsel for the appellant, to the effect that if ss. 647  and 649  are not entirely invalid, they are invalid to the extent that they apply to liability arising from the operation of pleasure craft such as the Calrossie, cannot be sustained.  This argument is based on the assumption that ss. 647  and 649  are within Parliament's jurisdiction over navigation and shipping solely because of the role these activities have historically played in encouraging investment in the merchant marine.  But once it is recognized that the constitutional basis of the impugned provisions is Parliament's jurisdiction in respect of the underlying tort, their functional rationale becomes irrelevant to a determination of their permissible constitutional scope.  And I think it is clear that Parliament must, as a matter of practical necessity, have jurisdiction in respect of the tortious liability of pleasure craft as well as that of commercial vessels.  It may be the case that pleasure craft and commercial vessels will to some degree operate in different geographic spheres, the former predominating on many bodies of inland water and the latter predominating on waterways that come within the traditional domain of maritime law.  But it follows from what I have said above as to the commercial use of inland waterways that the two types of vessels will in many circumstances share what I described as the "same navigational network".  This is the case not only because commercial vessels regularly ply the inland waterways but also because the phrase "pleasure craft" encompasses everything from the small motor boat to large ocean-going yachts.  What I have said above as to the connection between tortious liability for negligent navigation and the navigational rules of the road comprised in the collision regulations would be just as applicable to the meeting of a pleasure craft and a commercial ship as it would be to the meeting of two commercial ships.  In my view it follows that the tortious liability of pleasure craft for negligent navigation must be regarded as within the purview of Canadian maritime law and federal legislative jurisdiction.  This conclusion is supported by modern texts on boating and maritime law, which make no distinction between pleasure craft and commercial ships in discussing either liability for collisions or its limitation; see Fernandes, op. cit., at pp. 61-105, at pp. 113-17 and at pp. 119-61, and Gaskell, Debattista and Swatton, op. cit., at pp. 365-92 and at p. 397.  It is also supported by a number of decisions in which ss. 647  and 649 , or their English counterparts, have been routinely applied, apparently without objection, to accidents involving pleasure craft; see Horsley v. MacLaren, [1972] S.C.R. 441; Coldwell-Horsfall v. West Country Yacht Charters Ltd. (The Annie Hay), [1968] 1 Lloyd's Rep. 141 (Adm. Div.); Walithy Charters Ltd. v. Doig (1979), 15 B.C.L.R. 45 (S.C.);  The Alastor, [1981] 1 Lloyd's Rep. 581 (C.A.); and Chamberland v. Fleming (1984), 12 D.L.R. (4th) 688 (Alta. Q.B.).

 

    The inclusion of pleasure craft within the ambit of maritime law gains further support, by way of analogy, from the jurisprudence on the federal government's jurisdiction over aeronautics.  Once Canadian waters are conceived of as a single navigational network, it becomes clear that the activity of navigation is very akin to the activity of aeronautics, and it seems to me that the factual similarity should lead to similar constitutional treatment.  In Johannesson v. Municipality West St. Paul, [1952] 1 S.C.R 292, this Court ruled that aeronautics was a distinct legislative matter that came within Parliament's power to make laws for the "peace, order and good government of Canada".  This was because it was a matter that went "beyond local or provincial concern or interests and must from its inherent nature be the concern of the Dominion as a whole".  As such, it satisfied the test espoused in  Attorney-General for Ontario v. Canada Temperance Federation, [1946] A.C. 193, at p. 205.  As pointed out by Professor Hogg, dicta in both Johannesson and the earlier Privy Council decision of In re Regulation and Control of Aeronautics in Canada (The Aeronautics Reference), [1932] A.C. 54, suggested that federal jurisdiction over aeronautics extended to intraprovincial as well as interprovincial aeronautics, and the Court of Appeal for British Columbia quickly ruled to this effect; see Jorgenson v. North Vancouver Magistrates (1959), 28 W.W.R. 265, and Hogg, op. cit., at p. 496.  Professor Hogg goes on to suggest that "the most plausible reason for subjecting local airlines to the same regime as the interprovincial and international airlines is the fact that both kinds of carriers share the same airspace and ground facilities, so that their operations are necessarily closely integrated"; op. cit., at p. 496.

 

    In my view, this interpretation of the jurisprudence on federal aeronautics jurisdiction is directly applicable to the case at bar and the question it raises as to the scope of Parliament's jurisdiction over maritime law.  What Professor Hogg says of local airlines and interprovincial and international airlines can, with appropriate modifications, equally be said of pleasure craft and commercial ships -‑ they share the same waterways and (in many cases) the same port facilities "so that their operations are necessarily closely integrated".  This integration points to the need for a uniform regulatory and legal regime in the case of navigation and shipping as much as it does in the case of aeronautics.  It points, in other words, to the need for a broad reading of the relevant head of federal jurisdiction.  I would think that if this need can be accommodated in respect of aeronautics, which comes within Parliament's narrowly interpreted power to legislate for the "peace order and good government" of Canada, it can surely be accommodated in respect of the activities that come within Parliament's jurisdiction over navigation and shipping since, as I pointed out earlier, that head of power has always been broadly interpreted.

 

    The foregoing is a sufficient basis upon which to find ss. 647  and 649  of the Canada Shipping Act  to be intra vires Parliament's jurisdiction over navigation and shipping.  Whatever tortious liability may be imposed on the respondent as a result of the grounding of the Calrossie arises under federal maritime law, and not the ordinary and generally applicable law of negligence.  It follows that it is a tortious liability that Parliament can validly limit.

 

    I would add that I do not regard this conclusion as in any way inconsistent with this Court's decision in Clark v. Canadian National Railway Co.  As counsel for the appellant points out, the Court there ruled that s. 342(1) of the Railway Act, R.S.C. 1970, c. R-2, which provided for a two-year prescription period in respect of "[a]ll actions or suits for indemnity for any damages or injury sustained by reason of the construction or operation of the railway", was ultra vires.  It is significant, however, that the Court qualified this ruling by cautioning, at p. 710, that different "considerations arise with reference to limitation periods enacted under other heads of federal power".  It is also significant that the Court framed the issue in Clark in terms of whether the section was valid in so far as it purported to apply to an action for damages for personal injury arising under provincial law: see p. 695.  As I have explained at some length, the tortious liability that the respondent seeks to limit by invoking ss. 647  and 649  of the Canada Shipping Act  is not one that (assuming it is found to arise at all) arises "under provincial law".  Instead, it arises under the uniform body of federal law called "Canadian maritime law".  Little more need be said to show that Clark and the present case are completely distinguishable.  There is in Parliament's jurisdiction over railways (and other federal works and undertakings) nothing even remotely comparable to the body of maritime law that is a central feature of its jurisdiction over navigation and shipping.  The tortious liability of those who own and operate railways, unlike that of those engaged in navigation and shipping generally, falls to be determined according to the ordinary and generally applicable law of negligence -- that is, according to "provincial law".

 

    It is worth noting that this juridical difference accords with an important difference in the degree to which boating or shipping and railways pose a threat to the safety of the broader community.  The negligent conduct of those involved in navigation and shipping, or of those involved in navigation only, will usually pose a threat only to those who are also involved in those activities.  In contrast, negligence in the operation of railways will often jeopardize the personal safety and property of those who live in the communities through which railway lines cross or who use highways intersected by railway lines, a fact the Court recognized in Clark, at p. 709, by characterizing s. 342(1) of the Railway Act as an "attempt to reframe for the benefit of railway undertakings the general legal environment of property and civil rights in which these undertakings function in common with other individuals and enterprises".  This means that, while there is much sense and even justice in the maintenance of a separate regime of tort law for those who engage in navigation or navigation and shipping, such a regime would, in the case of railways, make little sense and be productive of great injustice, as the case of Clark itself amply demonstrates.  These considerations put ss. 647  and 649  of the Canada Shipping Act  and what was s. 342(1) of the Railway Act on totally different footings.

 

Disposition

 

    I would dismiss the appeal with costs.

 

    Appeal dismissed with costs.

 

    Solicitors for the appellant:  Edwards, Kenny & Bray, Vancouver.

 

    Solicitors for the respondents:  Russell & DuMoulin, Vancouver.

 

    Solicitor for the intervener the Attorney General of Canada:  The Attorney General of Canada, Ottawa.

 

    Solicitor for the intervener the Attorney General for Ontario:  Richard F. Chaloner, Toronto.

 

    Solicitor for the intervener the Attorney General of Quebec:  The Attorney General of Quebec, Ste. Foy.

 

    Solicitor for the intervener the Attorney General of British Columbia:  The Attorney General of British Columbia, Victoria.

 



     *    Chief Justice at the time of hearing.

    **    Chief Justice at the time of judgment.

 

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