Ordon Estate v. Grail

Ordon Estate v. Grail
Collection
Supreme Court Judgments
Date
1998-11-26
Report
[1998] 3 SCR 437
Case number
25702
Judges
L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel
On appeal from
Ontario
Subjects
Action
Courts
Maritime law
Notes
SCC Case Information: 25702
Decision Content
Ordon Estate v. Grail, [1998] 3 S.C.R. 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, [1939] S.C.R. 11; Stein v. The Ship “Kathy K”, [1976] 2 S.C.R. 802; applied: Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210; referred to: ITO‑‑International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752; Whitbread v. Walley, [1990] 3 S.C.R. 1273; Q.N.S. Paper Co. v. Chartwell Shipping Ltd., [1989] 2 S.C.R. 683; Basarsky v. Quinlan, [1972] S.C.R. 380; Miron v. Trudel, [1995] 2 S.C.R. 418; Valin v. Langlois (1879), 3 S.C.R. 1; Ontario (Attorney General) v. Pembina Exploration Canada Ltd., [1989] 1 S.C.R. 206; Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626; R. v. Thomas Fuller Construction Co. (1958) Ltd., [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] A.C. 956; Re Minister of Social Welfare and Rehabilitation and Dube (1963), 39 D.L.R. (2d) 302; Shipman v. Phinn (1914), 31 O.L.R. 113, aff’d (1914), 32 O.L.R. 329; Pile Foundations Ltd. v. Selkirk Silica Co. (1967), 59 W.W.R. 622; Heath v. Kane (1975), 10 O.R. (2d) 716; Harvey v. Tarala (1977), 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] Ex. C.R. 83; Rogers v. S.S. Baron Carnegie, [1943] Ex. C.R. 163; Monk Corp. v. Island Fertilizers Ltd., [1991] 1 S.C.R. 779; Porto Seguro Companhia De Seguros Gerais v. Belcan S.A., [1997] 3 S.C.R. 1278; Watkins v. Olafson, [1989] 2 S.C.R. 750; R. v. Salituro, [1991] 3 S.C.R. 654; John Deere Plow Co. v. Wharton, [1915] A.C. 330; Attorney-General for Manitoba v. Attorney-General for Canada, [1929] A.C. 260; Commission du salaire minimum v. Bell Telephone Co. of Canada, [1966] S.C.R. 767; Registrar of Motor Vehicles v. Canadian American Transfer Ltd., [1972] S.C.R. 811; Dick v. The Queen, [1985] 2 S.C.R. 309; Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749; Commission de transport de la Communauté urbaine de Québec v. Canada (National Battlefields Commission), [1990] 2 S.C.R. 838; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; Blake v. Midland Railway Co. (1852), 18 Q.B. 93, 118 E.R. 35; Mason v. Peters (1982), 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), 11 S.C.R. 422; Vana v. Tosta, [1968] S.C.R. 71; Walpole v. Canadian Northern Railway Co., [1923] A.C. 113; Toronto Transportation Commission v. The King, [1949] S.C.R. 510; Gartland Steamship Co. v. The Queen, [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., [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), 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,--
. . .
10. 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