Ordon (succession) v. Grail (1996), 30 O.R. (3d) 643 (C.A.)

  • Document:
  • Date: 2018

Executrix of the Estate of Ordon et al. v. Grail * Hall et al. v. Hogarth et al. *

Perry et al. v. Hogarth et al. *

Litigation Administrator of the Estate of Brandenburg v. Knolmayer et al.

[Indexed as: Ordon Estate v. Grail]

 

30 O.R. (3d) 643

[1996] O.J. No. 3659

Court File Nos. C19472, C21973, 289D/93,

92-CQ-21426, 92-CQ-25769, 92-CU-47573 and 93-CU-69258

Court of Appeal for Ontario,

McKinlay, Catzman and Osborne JJ.A.

October 22, 1996

* An appeal from the following judgment to the Supreme Court of Canada (L’Heureux-Dub, Gonthier, Cory, McLachlin, Iacobucci, Major and Bastarache JJ.) was dismissed with costs November 26, 1998. S.C.C. File No. 25702. S.C.C. Bulletin, 1998, p. 1812.

This information is noted at 40 O.R. (3d) 639. Full text of the SCC appeal is available at [1998] S.C.J. No. 84 in the SCJ database.

Courts — Jurisdiction — Provincial superior courts — Part XIV of Canada Shipping Act applying to both in rem and in personam actions for wrongful death in maritime context

— Provincial superior courts having jurisdiction to entertain such actions — Canada Shipping Act, R.S.C. 1985, c. S-9.

Damages — Wrongful death — Dependants’ claims — Provincial legislation may be applied in maritime context where gap exists

in federal maritime law and where application would not encroach on or destroy uniformity of federal maritime law

— Part XIV of Canada Shipping Act applying to both in rem and in personam actions for wrongful death in maritime context

— Provincial superior courts having jurisdiction to entertain such actions — Part XIV of Act allowing recovery for damages to dependants of persons killed so no action for wrongful death based on alleged negligent operation or ownership of vessel on inland waters in Ontario lying under Part V of Family Law Act

— “Damages to the dependants” in s. 647(2) of Canada

Shipping Act may include damages for loss of care, guidance and companionship — Class of possible claimants not including siblings of deceased — Canada Shipping Act, R.S.C. 1985, c. S- 9, ss. 645, 646, 647(2).

Maritime law — Provincial legislation — Provincial legislation may be applied in maritime context where gap exists in federal maritime law and where application would not encroach on or destroy uniformity of federal maritime law

— Part XIV of Canada Shipping Act applying to both in rem and in personam actions for wrongful death in maritime context

— Provincial superior courts having jurisdiction to entertain such actions — Canada Shipping Act, R.S.C. 1985, c. S-9.

Torts — Negligence — Contributory negligence — Provincial legislation may be applied in maritime context where gap exists in federal maritime law and where application would not encroach on or destroy uniformity of federal maritime law

— Ontario Negligence Act may be applied in action based on alleged negligent operation or ownership of vessel on inland waters in Ontario — Common law bar to recovery in event of contributory negligence not operating — Negligence Act, R.S.O. 1990, c. N.1.

Torts — Occupiers’ liability — Provincial legislation may be applied in maritime context where gap exists in federal maritime law and where application would not encroach on or destroy uniformity of federal maritime law — Claim for damages arising out of fatal accident involving vessels on inland waters in Ontario may not be asserted under Occupiers’ Liability Act — No gap in federal maritime law existing

— Basic principles of negligence law in maritime context can be resorted to to determine whether occupier liable for having provided deceased with unseaworthy boat — Occupiers’ Liability Act, R.S.O. 1990, c. O.2.

Wills and estates — Actions by trustee — Provincial legislation may be applied in maritime context where gap exists in federal maritime law and where application would not encroach on or destroy uniformity of federal maritime law

— Canada Shipping Act not addressing action established in s. 38 of Trustee Act — Trustee Act may be called upon to fill gap

— Canada Shipping Act, R.S.C. 1985, c. S-9 — Trustee Act, R.S.O. 1990, c. T.23, s. 38.

One appeal and four special case actions, all arising out of boating accidents on inland waters in Ontario, raised issues concerning the jurisdiction of the Ontario Court of Justice (General Division) over in personam actions arising from such accidents, the applicability of the Canada Shipping Act, and the applicability of provincial statutes to fatal accident and personal injury claims arising from boating accidents on provincial inland waters.

Held, the appeal was dismissed and the plaintiffs in the special case actions were entitled to declaratory relief.

Provincial statutes may be applied in a maritime law context where a gap exists in federal maritime law and where the application of provincial legislation would not encroach on or destroy the uniformity of federal maritime law.

Part XIV of the Canada Shipping Act applies to both in rem and in personam actions for wrongful death in a maritime context. Nothing in Part XIV expressly or impliedly excludes the jurisdiction of provincial superior courts to entertain such actions. Where Parliament intended the Federal Court to have exclusive jurisdiction over a particular matter in the Canada Shipping Act, it said so explicitly.

As Part XIV of the Canada Shipping Act allows recovery for damages to dependants of persons killed (as defined in the Part), there is no need to apply the Family Law Act to extend the class of persons who may recover. Parliament has seen fit to define that class, and any addition pursuant to provincial law would conflict with the provisions of the Canada Shipping Act. Accordingly, an action for wrongful death based on alleged negligent operation or ownership of a vessel on inland waters in Ontario does not lie under Part V of the Family Law Act.

Furthermore, there is no need to resort to the Act respecting compensation to the Families of Persons killed by Accident, and in duels, C.S.C. 1859, c. 78, or to the English Fatal Accident Acts, 1846-1908 in place of the Canada Shipping Act. Those statutes provided the basis for in personam claims in maritime wrongful death actions prior to the enactment of Part XIV of the Canada Shipping Act. In any case, they do not define dependants any more broadly than Part XIV of the Canada Shipping Act and they do not provide claims for guidance, care and companionship. Any claims formerly available under those statutes for maritime wrongful death have been displaced by the provisions of Part XIV.

Part XIV of the Canada Shipping Act does not provide that the estate of the deceased can bring a claim for damages arising from wrongful death. In contrast, s. 38(1) of the Trustee Act allows the personal representative of the deceased to bring an action on behalf of the estate. The Trustee Act may be called upon to fill the gap. Proceeding in this way will not compromise the fundamental principles of Canadian maritime law or the uniformity of that law.

A claim for damages arising out of a fatal boating accident on provincial inland waters may not be brought under the Occupiers’ Liability Act. There is no gap, as basic principles of negligence law, in the maritime context, can be resorted to to determine whether an occupier is liable for having provided the deceased with a boat which is said to be unseaworthy.

The Ontario Negligence Act may be applied in these actions, with the result that the common law bar to recovery in the event of contributory negligence will not operate.

Section 647(2) of the Canada Shipping Act is quite broad in its statement of the “damages” recoverable by dependants. “Damages to the dependant” may include compensation for the loss of care, guidance and companionship. However, the siblings of the deceased cannot assert a claim because they are not included in the statutory definition of “dependants” in s. 645 of the Canada Shipping Act. The terms “wife” and “husband” in s. 645 of the Canada Shipping Act should have the same meaning as that of “spouse” in s. 29 of the Family Law Act, so that common law husbands and wives may assert a claim.

It would be anomalous to provide for such recovery in fatal accidents but not in cases of personal injury. The continued appropriate growth of a Canadian maritime law allows for such claims in cases of personal injury. Only the same claimants as in fatal accident cases are entitled to recover.

Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Co. (1995), 130 Nfld. & P.E.I.R. 92, 126 D.L.R. (4th) 1, 405 A.P.R. 92, 21 B.L.R. (2d) 265 (Nfld. C.A.); Chartwell Shipping Ltd. v. Q.N.S. Paper Co., [1989] 2 S.C.R. 683, 26 Q.A.C. 81, 62 D.L.R. (4th) 36, 101 N.R. 1; ITO International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752, 28 D.L.R. (4th) 641, 68 N.R. 241, 34 B.L.R. 251 sub nom. Miida Electronics Inc. v. Mitsui O.S.K. Lines Ltd.; Miron v. Trudel, [1995] 2 S.C.R. 418, 124 D.L.R. (4th) 693, 181 N.R. 253, 29 C.R.R. (2d) 189, [1995] I.L.R. 1-3185, 10 M.V.R. (3d) 151, 13 R.F.L. (4th) 1, 23 O.R. (3d) 160n; Peters v. A.B.C. Boat Charters Ltd. (1992), 73 B.C.L.R. (2d) 389, 98 D.L.R. (4th) 316, [1993] 2 W.W.R. 390, 12 C.P.C. (3d) 179 (S.C.); Shulman v. McCallum (1993), 79 B.C.L.R. (2d) 393, 105 D.L.R. (4th) 327, [1993] 7 W.W.R. 567 (C.A.); Stein v. The “Kathy K”, [1976] 2 S.C.R. 802, 62 D.L.R. (3d) 1, 6 N.R. 359; Whitbread v. Walley, [1990] 3 S.C.R. 1273, 52 B.C.L.R. (2d) 187, 77 D.L.R. (4th) 25, 120 N.R. 109, [1991] 2 W.W.R. 195, consd

Other cases referred to

Baker v. Bolton (1808), 1 Camp. 493 (N.P.); Basarsky v. Quinlan, [1972] S.C.R. 380, 24 D.L.R. (3d) 720, [1972] 1 W.W.R. 303; “Caliph” (The), [1912] P. 213, 82 L.J.P. 27, 107 L.T. 274, 28 T.L.R. 597, 12 Asp. M.L.C. 224; “Catala” (The) v. Dagsland, [1928] Ex. C.R. 83, [1928] 3 D.L.R. 334; “Harrisburg” (The), 119 U.S. 199, 7 S.Ct. 140 (1886); Heath v. Kane (1975), 10 O.R. (2d) 716 (C.A.) [leave to appeal to S.C.C. refused 10 O.R. (2d) 716n]; LeVae Estate v. The “Giovanni Amendola” (1955), 1 D.L.R. (2d) 117 (Ex. Ct.); Mason v. Peters (1982), 39 O.R. (2d) 27, 139 D.L.R. (3d) 104, 22 C.C.L.T. 21 (C.A.); McNamara Construction (Western) Ltd. v. R., [1977] 2 S.C.R. 654, 75 D.L.R. (3d) 273, 13 N.R. 181; Monks v. The “Arctic Prowler” (1953), 32 M.P.R. 220 (Nfld. T.D.); Moragne v. States Marine Lines Inc., 398 U.S. 375, 90 S.Ct. 1772 (1970); Murphy v. Welsh, [1993] 2 S.C.R. 1069, 106 D.L.R. (4th) 404, 156 N.R. 263, 18 C.C.L.T. (2d) 101, 18 C.P.C. (3d) 137, 47 M.V.R. (2d) 1, 14 O.R. (3d) 799n sub nom. Stoddard v. Watson; Ontario (Attorney General) v. Pembina Exploration Canada Ltd., [1989] 1 S.C.R. 206, 33 O.A.C. 321, 57 D.L.R. (4th) 710, 92 N.R. 137 sub nom. William Siddall & Sons Fisheries v. Pembina Exploration Canada Ltd.; Palleschi v. Romita, [1988] O.J. No. 822 (Dist Ct.); Quebec North Shore Paper Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054, 9 N.R. 471; Rogers v. The “Baron Carnegie”, [1943] Ex. C.R. 163, [1944] 1 D.L.R. 9; Seward v. The “Vera Cruz” (1884), 10 App. Cas. 59, [1881-85] All E.R. Rep. 216, 54 L.J.P. 9, 52 L.T. 474, 49 P.J. 324, 33 W.R. 477, 1 T.L.R. 111, 5 Asp. M.L.C. 386 (H.L.); Shipman v. Phinn (1914), 31 O.L.R. 113, 19 D.L.R. 305 (H.C.J.), affd (1914), 32 O.L.R. 329, 20 D.L.R. 596 (C.A.); Sunrise Co. v. The “Lake Winnipeg”, [1991] 1 S.C.R. 3, 77 D.L.R. (4th) 701, 117 N.R. 364, 41 F.T.R. 318; Sutton v. Earles, 26 F.3d 903 (9th Cir., 1994); “Tungus” (The) v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503 (1959); Yamaha Motor Corp. U.S.A. v. Calhoun, 116 S.Ct. 619 (1996)

Statutes referred to

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

Admiralty Act, S.C. 1934, c. 31, s. 18 Admiralty Act, R.S.C. 1970, c. A-1, s. 18

Canada Shipping Act, 1934, S.C. 1934, c. 44 (am. S.C. 1948, c. 35), ss. 646

Canada Shipping Act, R.S.C. 1970, c. S-9, ss. 638, 639 — now R.S.C. 1985, c. S-9, ss. 565, 566

Canada Shipping Act, R.S.C. 1985, c. S-9, ss. 2, 209(2), 453, 565, 566, 571, 572, 575, 577, 645, 646, 647(2), 649

Canadian Charter of Rights and Freedoms, ss. 1, 15(1) Constitution Act, 1867, s. 91(10)

Contributory Negligence Act, R.S.B.C. 1960, c. 74 Family Compensation Act, R.S.B.C. 1979, c. 120

Family Law Act, R.S.O. 1990, c. F.3, ss. 29 “spouse”, 61

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

Federal Court Act, R.S.C. 1985, c. F-7, ss. 2(1), 22(1), (2)(g) Insurance Act, R.S.O. 1980, c. 218

Liquor Licence Act, R.S.O. 1990, c. L.19

Maritime Conventions Act, 1911, 1 & 2 Geo. 5, c. 57, s. 5

Maritime Conventions Act, 1914, S.C. 1914, c. 13, s. 6

Negligence Act, R.S.B.C. 1979, c. 298 Negligence Act, R.S.O. 1990, c. N.1

Occupiers Liability Act, R.S.B.C. 1979, c. 303 Occupiers’ Liability Act, R.S.O. 1990, c. O.2, s. 3(1) Trustee Act, R.S.O. 1990, c. T.23, s. 38(1)

Authorities referred to

House of Commons Debates (17 May 1948), p. 3994

Schoenbaum, Thomas J., Admiralty and Marine Law, para. 19-1, n.

43 (Practitioner’s ed. 1987 & Supp. 1992)

APPEAL from an order in one action granting the plaintiffs

leave nunc pro tunc to amend the statement of claim; statement of a special case in four other actions.

Frederick W. Knight, Q.C., and D. Stephen Jovanovic, for appellant, Larry Grail.

Nigel H. Frawley and William M. Sharpe, for respondents in Ordon Estate et al. v. Grail.

Eric R. Murray, Q.C., and Robin K. Basu, for plaintiffs in Hall et al. v. Hogarth et al.

Mark J. Freiman and Geoff Hall, for plaintiffs in Perry et

al. v. Hogarth et al.

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

Paul N. Richardson, for plaintiffs in Brandenburg Estate et al. v. Knolmayer et al.

Mark L.J. Edwards, for defendants, Christopher Hogarth, Murray Hogarth, Diana Ruth Hogarth and Pioneer Petroleums Inc.

Rui M. Fernandes, for defendants, Josephine Perry, John Haller, Lutz Knolmayer, Agnes Knolmayer and Onaway Lodge Ltd.

BY THE COURT: — These cases concern five actions that were commenced in the Ontario Court (General Division). One of the actions, Ordon v. Grail, is an appeal by the defendant (appellant), with leave, from part of the order of McMahon J. dated December 22, 1992 that granted leave to the plaintiffs (respondents) to amend their statement of claim. The plaintiffs have cross-appealed from that part of McMahon J.’s order striking certain portions of their statement of claim. The action arises from a boating accident on Lake Erie on July 1, 1990.

The remaining four actions were joined in a special case to be heard by this court, in accordance with the order of Dubin C.J.O. dated November 10, 1994. Three of the special case actions arise from a boating accident between two pleasure craft on Lake Joseph on September 2, 1990. Those actions are Hall et al. v. Hogarth et al., Perry v. Hogarth et al. and Perry et al. v. Hogarth et al. (the “Lake Joseph actions”). The fourth special case action, Van Duser et al. v. Knolmayer et al., arises from a boating accident on Lac Seul on June 25, 1992 (the “Lac Seul action”).

The appeal and the four special case actions raise issues concerning the jurisdiction of the Ontario Court of Justice (General Division) over in personam actions arising from boating accidents on provincial inland waters. They also raise issues about the applicability of the Canada Shipping Act, R.S.C. 1985, c. S-9 (sometimes the “Act”), and certain provincial statutes to fatal accident and personal injury claims arising from boating accidents on such waters. It is significant that the five actions are in personam and not in rem.

The stated questions in the special case are attached as Appendix “A” to these reasons [see p. 679 post].

The Actions

The Ordon et al. v. Grail action

The Ordon et al. v. Grail action arises 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 the defendant Grail sank. The action was commenced on March 19, 1991, less than one year after the accident. It advanced various claims arising from the accident. Not all are relevant to the issues before us. For present purposes, it will suffice to note that the deceased’s widow, Deborah Ordon, in her capacity as the deceased’s executrix and in her personal capacity as his widow, advanced claims for damages pursuant to what are now 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. Her Family Law Act claim included claims for pecuniary loss caused by her husband’s death, and compensation for loss of guidance, care and companionship. The deceased’s two minor children, Jeffrey and Stephanie Ordon, and his mother, Bessie Ordon, made similar claims pursuant to the Family Law Act.

Before trial, the defendant brought a motion for a determination of several questions of law and for an order striking out certain parts of the statement of claim on the basis that, inter alia, the Family Law Act did not apply to the plaintiffs’ causes of action in the maritime context. In response, the plaintiffs sought leave to amend their statement of claim on a nunc pro tunc basis to include a claim for damages for all plaintiffs under the Canada Shipping Act.

The motions judge, McMahon J., held that the Family Law Act did not apply to the maritime causes of action asserted by the plaintiffs. He thus struck all references to the Family Law Act as the basis for the plaintiffs’ claims.

The motions judge concluded that the plaintiffs’ claims could be validly brought under the Canada Shipping Act. He granted leave to the plaintiffs to amend their statement of claim on a nunc pro tunc basis to plead the relevant provisions of that Act. The effect of this nunc pro tunc order was that the defendant could not invoke the one-year limitation period in s. 649 of the Canada Shipping Act applying to actions involving fatalities in maritime matters.

On May 18, 1993, Zuber J. granted leave to the defendant to appeal certain parts of the motions judge’s decision to the Divisional Court. The appeal was transferred to this court by the order of Kennedy J. In granting leave to appeal, Zuber J. agreed with the motions judge that the Family Law Act did not apply to the action. He also said that s. 646 of the Canada Shipping Act, which permits a wrongful death action to be brought in maritime cases, appeared to assign exclusive jurisdiction to the Federal Court for such an action.

The only relevant questions in the Ordon et al. v. Grail appeal and cross-appeal which are not also raised in the special case are the following:

  1. If the motions judge was correct in concluding that the Ontario Court (General Division) has jurisdiction over the plaintiffs’ claims, did he err in concluding that, absent the citing of any particular statutory provision as the basis of their claims, the claims were validated pursuant to the unpleaded Canada Shipping Act?

  1. Did the motions judge err in granting the plaintiffs leave to amend their claim on a nunc pro tunc basis to plead the Canada Shipping Act?

  1. Is the plaintiffs’ claim under the Family Law Act incidentally necessary to their cause of action so as to make their reliance on that provincial legislation appropriate? The Lake Joseph actions

The plaintiffs in the three Lake Joseph actions allege that

on September 2, 1990 a Starcraft motorboat, owned by John Haller and operated by his daughter Josephine Perry, was struck by a Charger motorboat, owned by Diana Hogarth and operated by her son Christopher Hogarth. Josephine Perry’s husband, Grant Perry, was a passenger in the Starcraft, as were Peter Hall and his wife Louise Carroll. Christopher Hogarth was the only occupant of the Charger. As a result of the collision, Louise Carroll was killed instantly, Peter Hall suffered serious permanent brain injuries, Grant Perry was seriously injured and died four days after the accident, and Josephine Perry suffered serious personal injuries and shock.

The defendants in the three Lake Joseph actions are Christopher Hogarth, Diana Hogarth and her husband Murray Hogarth, as well as Josephine Perry, John Haller, the Edenvale Inn, the bar in Port Carling, Ontario, where it is alleged that Christopher Hogarth became intoxicated not long before the accident, and Ontario Holidays Corporation, the owner of the bar. The actions against the defendants are based on their alleged negligence and are founded on the common law, Canadian maritime law, the Canada Shipping Act, the Ontario Family Law Act, the Ontario Liquor Licence Act, R.S.O. 1990, c. L.19, and the Ontario Trustee Act.

The first Lake Joseph action, Hall et al. v. Hogarth et al., was commenced on June 1, 1992. It relates to the death of Louise Carroll and the injuries sustained by Peter Hall. The parents, brothers and sisters of both Peter Hall and the deceased Louise Carroll bring claims for damages for loss of guidance, care and companionship and pecuniary losses. The estate of Louise Carroll, by her executrix, claims damages arising from Louise Carroll’s death. Peter Hall also brings a claim for loss of guidance, care and companionship as a result of Louise Carroll’s death.

The second Lake Joseph action, Perry v. Hogarth et al., was commenced on August 31, 1992. It relates to the death of Grant Perry and the injuries sustained by Josephine Perry. Josephine Perry claims damages for her own injuries including shock. She also seeks damages for loss of guidance, care and companionship and pecuniary losses resulting from her husband’s death.

The third Lake Joseph action, Perry et al. v. Hogarth et al., was commenced on March 11, 1992. It also relates to Grant Perry’s death. The plaintiffs are the estate of Grant Perry, by his administratrix, and the deceased Grant Perry’s parents, brothers and sisters and infant daughter, Roberta Perry. The estate claims damages arising from his death. His relatives claim compensation for the loss of guidance, care and companionship, and pecuniary losses arising from his death.

In all three of the Lake Joseph actions, the Hogarth defendants plead contributory negligence on the part of Josephine Perry as operator of the boat that was struck, and on the part of all of the passengers in that boat. In the Hall et al. v. Hogarth et al. action, the defendants Josephine Perry and John Haller plead contributory negligence on the part of Peter Hall and Louise Carroll. The Hogarth defendants as well as Perry and Haller take the position that the Ontario Negligence Act, R.S.O. 1990, c. N.1, which provides for the apportionment of liability as between a negligent defendant and a contributorily negligent plaintiff, is not part of Canadian maritime law. They argue, therefore, that the common law rule governs, and contributory negligence on the part of any plaintiff constitutes a complete bar to recovery.

The defendants further submit that the Family Law Act does not form part of Canadian maritime law, with the result that none of the claims for compensation for loss of guidance, care and companionship and other losses arising from Peter Hall’s injuries and the deaths of Louise Carroll and Grant Perry can be made under the Family Law Act.

The defendants contend that all wrongful death claims in maritime matters must be brought under the fatal accident provisions in Part XIV of the Canada Shipping Act. They take the position, however, that all claims related to the deaths of Louise Carroll and Grant Perry are statute-barred because of the one-year limitation period contained in s. 649 of Part XIV of that Act, since all of the Lake Joseph actions were commenced more than one year after the dates of death.

They also take the position that claims under Part XIV of the Canada Shipping Act must be brought in the Federal Court and cannot be brought in the Ontario Court (General Division) which, the defendants contend, does not have concurrent jurisdiction with the Federal Court.

Lastly, the defendants submit that the claims brought on behalf of the Carroll and Perry estates under the Ontario Trustee Act are not maintainable because that Act does not form part of Canadian maritime law.

The Lake Joseph plaintiffs seek various declarations which would flow from responses favourable to them to the special case questions.

The Lac Seul action

On June 25, 1992 a motorboat operated by Jody Moore, in which Thomas Brandenburg was a passenger, pitched when its motor failed to disengage from a forward gear. This caused Moore and Brandenburg to be thrown into somewhat turbulent waters. The boat circled around them in increasingly wide circles with the result that they were unable to grab the boat, or return to it. It is alleged that Brandenburg drowned as a result of this incident. The motorboat was owned by the defendants Lutz and Agnes Knolmayer. They carried on business as Onaway Lodge.

The family of the deceased Thomas Brandenburg commenced an action for damages against Moore and the Knolmayers on June 17, 1993, that is, less than one year after the accident. In it, Mr. Brandenburg’s mother, his common-law wife and his children claim damages resulting from his death, pursuant to the Family Law Act. The deceased’s estate and his family also claim damages related to the expenses arising from his death. The plaintiffs allege negligence as the basis of their claim. They rely on the Family Law Act, the Canada Shipping Act, the Trustee Act, the Occupiers’ Liability Act, R.S.O. 1990, c. O.2, and the Negligence Act.

The defendants Moore and the Knolmayers take the same positions on all aspects of the claims against them as those taken by the defendants in the Lake Joseph actions. Unlike the Lake Joseph actions, this action was commenced within the one- year limitation period set out in s. 649 of the Canada Shipping Act.

The Lac Seul plaintiffs also seek declaratory relief. General Considerations

The actions in this case raise two somewhat related core questions. The first is whether the Ontario Court (General Division) has jurisdiction to hear the plaintiffs’ claims or, as the defendants contend, only the Federal Court of Canada has such jurisdiction. This issue requires consideration of the meaning and application of s. 646 of Part XIV of the Canada Shipping Act, on which the defendants rely to support their position that actions arising out of fatal boating accidents must be commenced in the Federal Court.

The second question concerns the content of Canadian maritime law and, in particular, whether the five actions, all of which involve “maritime matters”, may, subject to the circumstances of each case, be based on, or affected by, provincial legislation. Examples of such legislation include the Family Law Act, the Trustee Act, the Occupiers’ Liability Act and the Negligence Act.

The issue of the jurisdiction of the Ontario Court (General Division) is common to all five actions. The relevance of some of the questions posed in the special case depends on the resolution of this issue.

Because of the pervading significance of the jurisdiction issue, we will deal first with it and the related issue of the applicability of Part XIV of the Canada Shipping Act. We will then consider the content of Canadian maritime law in the light of the issues raised in all five actions.

Part XIV of the Canada Shipping Act

The basis of the defendants’ jurisdiction argument is Part

XIV of the Canada Shipping Act. They take the position that Part XIV provides the only legal basis for the assertion of claims of dependants arising out of fatal boating accidents, and that it confers jurisdiction to hear such claims on the Federal Court of Canada to the exclusion of provincial superior courts.

  1. Part XIV in its historical context

Before the mid-nineteenth century, when a person was injured by the wrongful act, neglect or default of another and subsequently died, the common law maxim actio personalis moritur cum persona applied. The injured party could not sue for the damages caused by the accident because he was dead, and no one else could maintain the action in his place: Baker v.

Bolton (1808), 1 Camp. 493 (N.P.). In the maritime context, sailors or passengers injured at sea by the negligence of a ship’s owner or operator could recover damages; but if they died, their action died with them, and their dependants had no claim against the tortfeasors.

In the United Kingdom, the common law was ameliorated by the Fatal Accidents Act, 1846, 9 & 10 Vict., c. 93 (Lord Campbell’s Act). It entitled the wife, husband, parent or child of the deceased to bring an action for damages against the person whose wrongful act, neglect or default caused the death. In a maritime context, however, in Seward v. The “Vera Cruz” (1884),

10 App. Cas. 59, [1881-85] All E.R. Rep. 216, the House of Lords held that the cause of action conferred by Lord Campbell’s Act was limited to actions in personam against the person or persons at fault; the Act did not provide for claims against the ship itself. The Admiralty Court thus lacked jurisdiction to hear in rem actions under that statute. Since it was very difficult to bring the owners and crew of a foreign ship before British courts, and since an action against the ship itself was precluded, any meaningful recourse for wrongful death caused by a foreign ship was virtually impossible. To remedy this deficiency, the British Parliament enacted s. 5 of the Maritime Conventions Act, 1911, 1 & 2 Geo. 5, c. 57, which provided:

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

This provision had the desired effect, and admiralty courts in the United Kingdom assumed jurisdiction to hear in rem actions in fatal accident cases: The “Caliph”, [1912] P. 213, 82 L.J.P. 27. In Canada, Parliament adopted a virtually identical provision in s. 6 of the Maritime Conventions Act, 1914, S.C. 1914, c. 13, which now appears, in almost the same language, in s. 571 of the Canada Shipping Act. However, in The “Catala” v.

Dagsland, [1928] Ex. C.R. 83, [1928] 3 D.L.R. 334, the Exchequer Court concluded that s. 6 was not sufficient to displace the House of Lords’ decision in Vera Cruz, and ruled that the Exchequer Court in Admiralty (now the Federal Court of Canada) did not have jurisdiction to hear in rem actions arising from fatal accidents. It appears from a reading of the reasons in the “Catala” case that the court did not consider the fact that the British Parliament had enacted s. 5 of the Maritime Conventions Act, 1911 specifically for the purpose of changing the law as decided in Vera Cruz, and that British courts had accepted s. 5 as having that effect. The court seems to have concluded that no change in the law was effected by the enactment of s. 6 of the Canadian Maritime Conventions Act, 1914.

The issue of the jurisdiction to hear in rem actions arising from fatal accidents was revisited in Canada in Rogers v. The “Baron Carnegie”, [1943] Ex. C.R. 163, [1944] 1 D.L.R. 9. Carroll D.J.A., who dismissed the action on other grounds, made an eloquent plea for reform at pp. 167-68:

May I, however, suggest that the law, as it now exists in Canada, cramps or limits the scope of Lord Campbell’s Act and kindred legislation in the various provinces by rendering it well nigh impossible for dependents of one fatally injured by

a ship to recover damages when the owners are foreign to the jurisdiction. The owners may be far beyond the limits of Canada and reaching them by writ in personam and obtaining a judgment is almost useless because of the difficulty of realizing on such judgment. In addition, the costs of such litigation is far beyond the financial capacity of people generally involved as plaintiffs.

May I, therefore, with the greatest deference, suggest that our law makers consider the advisability of amending the statute law so as to give Admiralty Courts jurisdiction to hear and determine actions in rem by dependents against any ship that has caused the death of their bread winner. That, I believe, was the intention in incorporating Section 6 in the Maritime Conventions Act, now Section 646 of the Shipping Act; but, unfortunately, that intention was not expressed in language sufficiently strong to override the existing law.

This was the background against which, in 1948, the Minister of Transport moved second reading of An Act to Amend the Canada Shipping Act, 1934 which contained various amendments to that Act, including what is now Part XIV, which dealt with fatal accidents. This new Part contained a provision — now s. 646 (not to be confused with the previous s. 646, which was the successor to s. 6 of the Maritime Conventions Act, 1914) — which was designed to overcome the in rem jurisdictional deficiency. The Minister’s explanation of the purpose of the new Part of the Act is recorded in the House of Commons Debates (17 May 1948, at p. 3994) in these words:

Then I come to the next part with which the bill deals, and that has to do with fatal accidents. It is a new part altogether. It is introduced under the heading “Fatal Accidents.” At present there is no provision in the act that entitles the dependents of deceased persons killed as a result of an injury caused by a ship to take proceedings in rem against the ship. A seaman can always go into the admiralty court and sue the ship or elect to take compensation under the provincial workmen’s compensation acts or under the dominion act which was passed recently in this House of Commons. But heretofore the dependents have not had

the right to take action against the ship, what is called an action in rem. This new section will entitle the dependents of a deceased seaman to institute such an action, or to elect to take compensation, whichever is the higher or whichever they prefer. It has been held that the exchequer court on its admiralty side has no jurisdiction to entertain an action in rem in respect of fatal accidents; and the provisions of this part are intended to remedy this defect in the law and to enable dependents of deceased persons to take proceedings in the court of admiralty in any case where the deceased person would have had the right to maintain an action if death had not ensued. The provisions and terms of this new part are very similar to those contained in the fatal accidents acts of the provinces, particularly the act in Ontario.

The amending statute (S.C. 1948, c. 35) came into force on June 30, 1948. Its effect was described by Walsh D.J.A. in Monks v. The “Arctic Prowler” (1953), 32 M.P.R. 220 (Nfld. T.D.), at pp. 221-22, in these terms:

Prior to the enactment of c. 35, 11-12 Geo. VI, by the Parliament of Canada in 1948 it was held that the Court of Admiralty in Canada did not have jurisdiction to entertain an action for damages by dependants of a person whose death resulted from personal injuries done by a ship. Counsel for the defendant cited in this connection The Ship Catala v.

Dagsland, [1928] Ex. C.R. 83, and Gladys Irene Rogers v. The Steamship Baron Carnegie, [1943] Ex. C.R. 163. In the Catala case the President of the Exchequer Court decided that s. 6 of The Canadian Maritime Conventions Act did not give the Admiralty Court jurisdiction in actions under, or in addition to, an Act similar to Lord Campbell’s Act and that decision was followed in the Baron Carnegie case in considering the effect of s. 646 of the Canada Shipping Act, 1934, which re- enacted s. 6 of the Maritime Conventions Act.

By s. 53 of c. 35 of the Statutes of Canada, 1948, Part XVII [now Part XIV] is added to the Canada Shipping Act, 1934, making provision by s. 721 [now s. 646] for the maintenance of an action for damages in the Court of Admiralty by the dependants of a person whose death had been

caused by such wrongful act, neglect or default as, if death had not ensued, would have entitled the person injured to maintain an action in the Court of Admiralty and recover damages. The jurisdiction of the Admiralty Court is thereby enlarged to include actions similar to those entertained by courts of the provinces under their legislation following the lines of Lord Campbell’s Act.

(Emphasis added)

In our view, this passage correctly summarizes the effect of the enactment of what is now Part XIV of the Act with respect to in rem actions. However, it does not address the defendants’ argument that Part XIV contains a comprehensive and exclusive code of the substantive law and procedure applicable to all fatal accidents occurring in a maritime context; nor does it address the issue of the jurisdiction of the Ontario Court (General Division) to hear matters such as those before us.

  1. Application of Part XIV

The historical antecedents of Part XIV indicate that it was never intended to be more than a specific remedial measure, designed to create jurisdiction and to set out procedure for the federal admiralty courts of this country to hear in rem actions arising out of fatal maritime accidents. The actions brought by the plaintiffs, in contrast, are all in personam actions. Two questions thus arise: first, whether Part XIV applies only to in rem actions or to both in rem and in personam actions; and, second, whether it encompasses exclusively all recovery available to survivors of those killed in maritime accidents.

The second question will be dealt with later in these reasons when we consider the application of specific provincial statutes in the maritime context.

In considering the first question, that is, whether Part XIV applies to both in rem and in personam actions, it is first necessary to look at the specific wording of s. 646, which reads:

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

There is no dispute that a person injured in a maritime accident can sue in Admiralty Court the ship, the owner of the ship, and persons causing the injury by negligent conduct.

Section 646 provides a cause of action to “dependants”, as defined in s. 645, of persons killed in maritime accidents. It does not in any way limit the application of Part XIV to actions in rem. The section is not ambiguous. What is ambiguous is the potential application of other provisions in the Act which appear to apply to recovery for wrongful death. The two most obvious of these provisions are ss. 571 and 572. Section

571 is the successor to s. 6 of the Maritime Conventions Act, 1914, and has been discussed earlier in these reasons. Section 572(1) provides a limitation period of two years for commencing actions against a ship or its owners, but only in a collision context.

Since Part XIV was enacted to solve the problem caused by the decision in the “Catala” case, it has been argued that it applies only to actions in rem, which are not involved in the cases before us. If in personam actions were intended to be included in Part XIV, one would have thought that the other provisions in the Act relating to recovery for wrongful death would have been either repealed or amended to ensure consistency with Part XIV. This was not done. However, in spite of the difficulty in comprehending other provisions in the Act in the light of Part XIV, it is our view that the clear wording of s. 646 compels an interpretation that includes both in rem and in personam actions.

  1. The jurisdiction of the provincial superior courts

It has long been held that the superior courts of this province have jurisdiction to entertain actions for damages for negligence resulting in collisions on inland waters: Shipman v. Phinn (1914), 31 O.L.R. 113, 19 D.L.R. 305 (H.C.J.), affirmed

(1914), 32 O.L.R. 329, 20 D.L.R. 596 (C.A.); Ontario

(Attorney General) v. Pembina Exploration Canada Ltd., [1989] 1 S.C.R. 206 at p. 216, 57 D.L.R. (4th) 710.

The defendants submit, however, that the introduction of Part XIV of the Canada Shipping Act in 1948 created exclusive jurisdiction in what is now the Federal Court of Canada to hear maritime fatal accident claims. Indeed, in his reasons granting leave to appeal to the Divisional Court (Ordon v. Grail, a judgment of the Ontario Court (General Division), released May 18, 1993, [1993], O.J. 1357 at para. 10), Zuber J. expressed his view that:

. . . absent s. 646, there is no cause of action for wrongful death in Maritime matters. Further s. 646 which provides the remedy appears to assign jurisdiction to the Federal Court alone and therefore it may be said that there is no concurrent jurisdiction in this court.

With respect, we disagree on both counts. If there was “no cause of action for wrongful death in Maritime matters” before the enactment of s. 646, then ss. 571 and 572(1), along with other provisions in the Act, were meaningless. We will deal with this issue later in these reasons when we deal with the application of Lord Campbell’s Act to the matters before us.

With respect to jurisdiction, we see nothing in Part XIV that expressly or impliedly excludes provincial jurisdiction to entertain such actions. “Admiralty Court” is defined in s. 2 to mean the Federal Court. Where Parliament intended that court to have exclusive jurisdiction over a particular matter in the Canada Shipping Act, it said so explicitly. For example, ss.

209(2) and 453 state:

209(2) Subject to this Part, no other court in Canada [referring to the Admiralty Court] has jurisdiction to

hear or determine any action, suit or proceeding instituted by or on behalf of any seaman or apprentice for the recovery of wages in any amount.

. . . . .

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

(Emphasis added)

The admiralty jurisdiction of the Federal Court is found in

s. 22 of the Federal Court Act, R.S.C. 1985, c. F-7:

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

Section 646 of the Act does not specifically assign such jurisdiction to the Federal Court alone. Nothing in the language of the section purports to oust the jurisdiction of provincial superior courts to entertain such actions. Indeed, there is authority from this court to the contrary. In Heath v. Kane (1975), 10 O.R. (2d) 716 (C.A.), in concluding that the county courts of this province lacked jurisdiction to hear actions arising from a collision between pleasure craft in navigable inland waters, Lacourcire J.A., speaking for the court, noted, at pp. 718-19:

The question of the jurisdiction of the High Court of Ontario in admiralty matters was considered in Shipman v. Phinn (1914), 31 O.L.R. 113, 19 D.L.R. 305, an action for

damages from a collision between two ships in Ontario inland waters. It was decided that the High Court, as a superior Court, has inherited the admiralty jurisdiction of the superior Courts at Westminster as of December 5, 1859. This jurisdiction has never been expressly removed and the applicable principle is stated in Peacock v. Bell and Kendal (1667), 1 Wms. Saund. 73 at p. 74, 85 E.R. 84, as follows:

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

. . . . .

Section 22 of the Federal Court Act has specifically provided concurrent original jurisdiction in the trial division of the Federal Court “in all cases in which a claim for relief is made or a remedy is sought under or by virtue of Canadian maritime law or any other law of Canada relating to any matter coming within the class of subject of navigation and shipping . . .”. This has been judicially interpreted to mean that an admiralty action can be brought either in the Federal Court or in the superior Court of a Province: Pile Foundations Ltd. v. Selkirk Silica Co. Ltd. and Perry (1967), 59 W.W.R. 622 (Man. Q.B.).

We therefore reject the submission that the jurisdiction of the Ontario Court (General Division) to entertain these actions is excluded by Part XIV of the Act.

The Content of Canadian Maritime Law

In order to deal with questions about the application of British and provincial law to these actions, it is necessary to consider the content of Canadian maritime law.

Section 2(1) of the Federal Court Act defines Canadian maritime law as:

2(1) . . . the law that was administered by the Exchequer

Court of Canada on its Admiralty side by virtue of the Admiralty Act . . . 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 . . .

The Supreme Court has considered the content of Canadian maritime law in three important cases: ITO International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752, 28

D.L.R. (4th) 641; Chartwell Shipping Ltd. v. Q.N.S. Paper Co., [1989] 2 S.C.R. 683, 62 D.L.R. (4th) 36; and Whitbread v. Walley, [1990] 3 S.C.R. 1273, 77 D.L.R. (4th) 25.

The issue in ITO was whether the Federal Court of Canada had jurisdiction to determine a claim for damages arising from the alleged negligence of ITO, a stevedore company, in storing calculators that had been shipped via a marine carrier to the port of Montreal. The court was required to decide if the three requirements for finding jurisdiction in the Federal Court, as established by the Supreme Court in Quebec North Shore Paper Co.

v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054, 9 N.R. 471, and McNamara Construction (Western) Ltd. v. R., [1977] 2 S.C.R. 654, 75 D.L.R. (3d) 273, were satisfied. These requirements are noted at p. 766 of the ITO reasons. The major concern was whether the second requirement was established, namely that there be “an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction”. In ITO, the existing body of federal law said to nourish the grant of jurisdiction to the Federal Court was Canadian maritime law.

McIntyre J., writing for the majority, held that the definition of Canadian maritime law contained in s. 2 of the Federal Court Act can be separated into two parts. He said that Canadian maritime law is the law that (a) was administered by the Exchequer Court of Canada on its admiralty side by virtue of the Admiralty Act or any other statute; or (b) would have been so administered if that court had had on its admiralty side unlimited jurisdiction in relation to marine and admiralty matters.

Section 18 of the Admiralty Act in both S.C. 1934, c. 31, and R.S.C. 1970, c. A-1, does not prescribe the substantive law that the Exchequer Court (now the Federal Court) is to apply. Section 18 describes the jurisdiction of the Exchequer Court in part in these terms.

18(1) The jurisdiction of the Court on its Admiralty side extends to and shall be exercised in respect of all navigable waters, tidal and non-tidal, whether naturally navigable or artificially made so, and although such waters are within the body of a county or other judicial district, and, generally, such jurisdiction shall, subject to this Act, be over the like places, persons, matters and things as the Admiralty jurisdiction now possessed by the High Court of Justice in England, whether existing by virtue of any statute or otherwise, and be exercised by the Court in like manner and to as full an extent as by such High Court.

McIntyre J. observed in ITO at p. 771 that the effect of this provision was to adopt English admiralty jurisdiction and law as it existed in 1934 as part of Canadian law. He wrote at p. 771, “English maritime law as of 1934

. . . was at its broadest confined to torts committed within the ebb and flow of the tide”. Thus, in ITO the first branch of Canadian maritime law did not nourish the grant of jurisdiction to the Federal Court because the tort occurred on land not within the ebb and flow of the tide.

Having dealt with the first branch of Canadian maritime law as defined in s. 2 of the Federal Court Act, McIntyre J. turned to the second branch. He wrote at p. 773:

At its height, the jurisdiction of the Court of Admiralty in England with respect to tort extended only to torts on the high seas, the British seas, and in ports within the ebb and flow of the tide.

He held at p. 774, however, that what is a maritime matter should not be confined “to those claims which fit within such historical limits”. He concluded at p. 774 that:

. . . 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 maritime and admiralty 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.

In considering whether the work performed by the stevedore company, ITO, should be considered a maritime matter, McIntyre J. concluded at p. 775 that cargo handling within a port area “is sufficiently linked to the contract of carriage by sea to constitute a maritime matter within the ambit of Canadian maritime law, as defined in s. 2 of the Federal Court Act”. Accordingly, he found that the second requirement for a finding of jurisdiction in the Federal Court was established.

It is significant that in ITO McIntyre J. considered the issue of the incidental application of provincial law by the Federal Court in a maritime matter. He held at p. 777 that “[o]nce it has been determined that a matter is governed by constitutionally valid federal law . . . then the relevant legal unit is Canada and not a particular province”. He expanded upon this at p. 779 where he wrote:

. . . 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 . . . 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)

Although McIntyre J. defined Canadian maritime law as federal, not provincial, law he went on to state at pp. 781-82:

Where a case is in “pith and substance” within the court’s statutory jurisdiction the Federal Court may apply provincial law incidentally necessary to resolve the issues presented by the parties; see Kellogg Co. v. Kellogg, [1941] S.C.R. 242, where, in a case involving a dispute over patent rights, the effect of an employment contract had to be considered in the Federal Court, and see as well: McNamara Construction (Western) Ltd. v. The Queen, supra, where Laskin C.J. suggested that the provincial law of contribution and indemnity may be applied by the Federal Court where jurisdiction is otherwise founded on federal law.

(Emphasis added)

The second case in the Supreme Court of Canada’s maritime law trilogy is Chartwell. The issue in that case was whether under Canadian maritime law an agent of an unnamed, or partially disclosed. principal is personally liable on a contract entered into by the agent with another party, when the agent indicates that he is acting only as agent. The action was commenced in the Quebec Superior Court.

La Forest J., writing for the majority, held that Mcintyre J.’s definition of Canadian maritime law in ITO should be interpreted to include common law principles of agency. He also considered whether the content and principles of Canadian maritime law may differ based on whether the action is brought in the Federal Court or in a provincial court. This argument arose because it was submitted that a provincial court hearing a maritime matter could apply the Quebec civil law on agency. La Forest J. rejected this. He wrote at pp. 697-98:

This argument seems to me to overlook the essentially federal nature of maritime law, falling as it does under the federal power over navigation and shipping. In allowing concurrent jurisdiction over maritime law to provincially created courts, I cannot believe Parliament intended to delegate to those courts the authority to apply law different from that administered by the Federal Court. . . . Thus McIntyre J.’s statement that Canadian maritime law is a body of federal law encompassing certain common law principles and that this law is uniform throughout Canada applies whatever court may exercise jurisdiction in a particular case.

(Emphasis added)

In Whitbread, the Supreme Court of Canada’s third maritime law decision, the issue was the applicability of what are now ss. 575 and 577 of the Canada Shipping Act to an action for damages brought by a person who had been injured as a result of the operation of a pleasure craft on a body of water in British Columbia, known as Indian Arm. Sections 575 and 577 limit the liability of ship owners and ship masters or crew members to 3,100 gold francs per ton of the ship’s tonnage for loss of life, personal injury and damage to property where such injury or damage occurs without the “actual fault or privity” of the owner or operator. The specific question addressed by the court was whether these limitation provisions, when invoked by the owner, master or crew member of a boat designed for pleasure, rather than commercial use, were beyond the powers of Parliament over navigation and shipping as set out in s. 91(10) of the Constitution Act, 1867. In the circumstances, the court was required to consider whether Canadian maritime law extended to boating accidents involving recreational boats.

Both parties in Whitbread agreed that the tortious liability to which ss. 575 and 577 of the Canada Shipping Act were said to apply was a subject of provincial legislative power in relation to property and civil rights. La Forest J. rejected this position. He commented at p. 1288 that viewing tortious liability in a maritime context as the subject of provincial law runs “directly counter to a series of this Court’s recent decisions”. He affirmed McIntyre J.’s statement in ITO that Canadian maritime law is a uniform body of federal law and that it is not the law of any province. He held at p. 1289 that ITO makes it “perfectly clear that tortious liability which arises in a maritime context is governed by a body of maritime law within the exclusive jurisdiction of Parliament”. La Forest J. further said that the decisions in ITO and Chartwell [p. 1289]:

. . . 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 dependent on any application of the double aspect or necessarily incidental doctrines.

In Whitbread, La Forest J. also considered whether the maritime law jurisdiction of Parliament extends to torts committed on non-tidal waters within a province. He repeated Mcintyre J.’s remarks in ITO that what may constitute a maritime matter was not frozen by the Admiralty Act, 1934. In referring to the result in ITO, La Forest J. concluded at pp. 1292-93:

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.

La Forest J. commented on the policy reasons for having a uniform body of maritime law that applies to maritime matters on both tidal and inland waters. He said at p. 1294:

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.

La Forest J. rejected the argument that the damage limitation provisions in ss. 575 and 577 of the Canada Shipping Act are invalid as they apply to liability arising from the operation of pleasure craft. He observed at p. 1297 that pleasure craft and commercial vessels will often share the same navigational network and 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”.

It is apparent that La Forest J.’s rationale for a uniform body of federal maritime law is based on the need for consistency in resolving commercial navigation disputes. He did not deal directly with those bodies of water that are for all practical purposes unconnected to commercial navigation. Lake Joseph and Lac Seul are examples of such bodies of water. There are, of course, thousands of lakes in this province which have no connection to the “shipping lanes by which this country does business with the world”.

McIntyre J.’s judgment in ITO acknowledged the potential application of provincial law “incidentally necessary to resolve the issues presented by the parties”. In all five actions before us, we must consider what, if any, room there is for the application of provincial law to maritime disputes. A number of the questions posed in the special case require consideration of the extent to which, if at all, provincial statutes (e.g., the Negligence Act and the Family Law Act) may apply. We will address the specific statutes later in these reasons. For now we consider the broader issue, that is, whether there is room for the application of any provincial law in a maritime case.

The strongest justification for concluding that federal statutes and the common law are not the exclusive sources of maritime law is that the Supreme Court of Canada has in the past applied provincial legislation to maritime accidents. In Stein v. The “Kathy K”, [1976] 2 S.C.R. 802, 62 D.L.R. (3d) 1, the Supreme Court applied the British Columbia Contributory Negligence Act,

R.S.B.C. 1960, c. 74, to a collision between a sailboat and a barge towed by a tug. The collision occurred on inland British Columbia waters. A passenger in the sailboat, Charles Stein, was killed in the accident. The action was brought by the executors of the deceased under what is now s. 646 of the Canada Shipping Act.

Ritchie J. gave the judgment of the unanimous Supreme Court. He allowed the appeal, restoring the trial judge’s finding of contributory negligence. Ritchie J. observed that there were only two provisions in the Canada Shipping Act allowing for the apportionment of liability. These provisions are currently ss. 565 and 566. He noted that s. 638 [now s. 565] allows for the apportionment of liability in accordance with fault in a case of damage to a vessel or its “cargoes or freight or to any property on board”. He also said that s. 639 [now s. 566] is “directed to the liability of joint tortfeasors whose combined negligence has injured an innocent third party and it recognizes the joint and several liability of such tortfeasors” (at p. 823).

Because the parties in Stein were not joint tortfeasors in the sense of s. 566, there was no applicable apportionment provision in the Canada Shipping Act.

Ritchie J. held that the common law defence of contributory negligence which would bar the plaintiff’s claim did not apply. Instead, he concluded that the British Columbia Contributory Negligence Act, which provides for the apportionment of fault, should be applied. He said at p. 823:

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

It is significant that in Whitbread, La Forest J. referred to Stein in the context of maritime “rules of the road”; he did not object to its holding that provincial legislation could be applicable in a maritime context. We also note that neither of the apportionment provisions in the Canada Shipping Act applies to the actions before us in the appeal or the special case.

The Supreme Court of Canada’s decision in Stein was central to the Newfoundland Court of Appeal’s consideration of the same issue, that is, the application of provincial law in a maritime case, in Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Co. (1995), 126 D.L.R. (4th) 1, 130 Nfld. & P.E.I.R.

92. In that case, the Newfoundland Court of Appeal considered the Supreme Court’s decisions in ITO, Whitbread and Stein in the context of whether provincial law applies to an alleged tort arising from a fire on an oil rig located in the Atlantic Ocean within the offshore area regulated by Canada.

Cameron J.A., writing for the court, considered the competing views as to how these decisions might be reconciled. Counsel for one of the defendants submitted that Stein was an “example of a case where the Supreme Court of Canada concluded in essence that the contributory negligence bar did not apply to the facts of the case, and therefore having no federal law to apply, it simply applied the law of the province” (at p. 54). On this view of Stein, there must be a true gap in both the federal and common law before provincial legislation that is incidentally necessary to resolve the dispute between the parties can be applied. In our view, this reasoning is consistent with McIntyre J.’s comments in ITO about the potential application of provincial law to a maritime matter.

The plaintiffs in Bow Valley argued that the correct reading of Stein is that expressed by McLachlin J., in dissent, in Sunrise Co. v. The “Lake Winnipeg”, [1991] 1 S.C.R. 3, 77 D.L.R. (4th) 701. In that case, McLachlin J. observed at p. 37 S.C.R., p. 724 D.L.R., that in Stein “this court held that provincial contributory negligence legislation applied to maritime

collisions within the territory of the province”.

A third possible reading of Stein noted by Cameron J.A. in Bow Valley is that of MacKenzie J. of the British Columbia Supreme Court in Peters v. A.B.C. Boat Charters Ltd., [1993] 2 W.W.R.

390, 98 D.L.R. (4th) 316. In Peters, the plaintiff was injured when she fell through an open hatch on a moored boat that was under construction. She brought an action for damages under the British Columbia Occupiers Liability Act, R.S.B.C. 1979, c. 303. The trial judge found that the defendants were occupiers within the meaning of that Act and also that the plaintiff was contributorily negligent. On the authority of Whitbread, the defence contended that neither the Occupiers Liability Act nor the provincial Negligence Act, R.S.B.C. 1979, c. 298, applied to the action.

MacKenzie J. noted that if the provisions of the Negligence Act did not apply, the common law position on contributory negligence would govern. He observed at p. 398 that “[t]he prevalence of apportionment statutes throughout Canada demonstrates that any survival of the common law contributory negligence bar would be a harsh anachronism out of tune with contemporary standards of fairness.” He also noted at p. 398 that while apportionment provisions in the Canada Shipping Act would override inconsistent provincial legislation where applicable, the limited way in which the Act addresses apportionment suggests that the “draftsmen assumed that complimentary provincial legislation would otherwise govern”. He concluded that because the provincial Negligence Act did not overlap or conflict with federal legislation (the Canada Shipping Act), the Negligence Act should be applied.

MacKenzie J. also held that the Occupiers Liability Act applied. He proceeded with his analysis on the premise that the common law relevant to an occupier’s liability is essentially codified in the Act.

The decision in Peters is thus to the effect that where there is no overlap between federal and provincial legislation with

respect to a maritime action, relevant provincial legislation can be applied to fill a gap. It also stands for the position that the common law contributory negligence bar should not be applied

because it is grossly out of step with the current legal conception of what is fair.

The Newfoundland Court of Appeal in Bow Valley also referred to the British Columbia Court of Appeal’s decision in Shulman v.

McCallum (1993), 105 D.L.R. (4th) 327, [1993] 7 W.W.R. 567;

notice of discontinuance filed February 28, 1994. In Shulman, an 18-foot Starcraft motorboat collided with a log boom on Comox Lake. The collision caused the death of two passengers on the motorboat. A wrongful death action, based on the British Columbia Family Compensation Act, R.S.B.C. 1979, c. 120, was commenced in the Supreme Court of British Columbia. The defendants applied for a declaration that the plaintiffs’ claims could only be founded on the Canada Shipping Act and not on the British Columbia Family Compensation Act. This Act is the British Columbia equivalent of the Ontario Family Law Act. The issue in Shulman was whether the British Columbia Act could be said to form part of Canadian maritime law.

Hutcheon J.A., for a unanimous British Columbia Court of

Appeal, reconciled the decisions in ITO, Chartwell, Whitbread and Stein on the basis that Stein demonstrated an exception to the exclusive jurisdiction of Parliament in respect of maritime law. He defined the exception in these terms at p. 331:

If the Canadian maritime law does not provide the necessary principle or rule, the courts . . . have applied the law in force in the locality of the proceedings.

Hutcheon J.A. held that because the federal government had enacted Part XIV of the Canada Shipping Act, which dealt with wrongful death claims, there was no place for the British Columbia wrongful death statute, the Family Compensation Act. As to the applicability of that Act to a maritime claim, he concluded at p. 333 that it “does not form part of Canadian maritime law” for purposes of the wrongful death claim asserted in Shulman. He reached a different conclusion about the apportionment of liability. Relying on Stein, Hutcheon J.A. concluded that there was a gap, in the sense that Parliament had not legislated in that area. He thus affirmed resort to the British Columbia Contributory Negligence Act.

In Bow Valley, Cameron J.A. agreed with Hutcheon J.A.’s reasoning in Shulman. She concluded that provincial apportionment legislation applied to the alleged tort committed on an oil rig operating on the Canadian continental shelf. In the alternative, she held that if provincial legislation did not apply, she would change, or at least not enforce, the common law contributory negligence bar to recovery. She noted that the common law has always allowed for development. She said at p. 58:

It seems to me that it is time for the courts to respond to the injustice of the application of a contributory negligence bar and to declare that liability for tort, in maritime law, should be borne in relation to the degree of fault of the parties. If the contributory negligence bar was once seen by the judges who developed it as a fitting response to the problem of a defendant being held responsible for all the damage when it was in fact caused in part by the plaintiff and in part by the defendant, that should no longer be the case. . . . Apportionment of fault has been the tradition of maritime law in collision cases. It seems to me to be a logical extension of that tradition to extend apportionment to other areas.

(Emphasis added)

The United States Supreme Court has taken a somewhat similar position in dealing with maritime wrongful death cases.

Relevant American authorities include The “Harrisburg”, 119

U.S. 199, 7 S.Ct. 140 (1886), The “Tungus” v. Skovgaard, 358

U.S. 588, 79 S.Ct. 503 (1959), Moragne v. States Marine Lines Inc., 398 U.S. 375, 90 S.Ct. 1772 (1970), and Yamaha Motor Corp. U.S.A. v. Calhoun, 116 S.Ct. 619 (1996).

In Yamaha, Ginsburg J., writing for a unanimous court, considered, among other issues, the application of state wrongful death and survival statutes to accidents of non-seamen in U.S. territorial waters. In Yamaha, a 12-year-old child was killed in a jet ski accident at a beach-front resort. The deceased’s parents alleged that the jet ski was defectively

manufactured and they sought to recover damages from the manufacturer under state survival and wrongful death statutes. Ginsburg J. carefully reviewed the evolution of American maritime law regarding the extent to which state legislation could be applied.

In her review of the relevant history of American maritime law’s acceptance of state law, she said at p. 624:

Though we had generally refused to give effect to state laws regarded as inconsonant with the substance of federal maritime law, we concluded that extending wrongful death statutes to fatal accidents in territorial waters was compatible with substantive maritime law policies.

. . . . .

State wrongful death statutes proved an adequate supplement to federal maritime law, until a series of this Court’s decisions transformed the maritime doctrine of unseaworthiness into a strict liability rule.

She added at p. 628, n. 13:

Permissible state regulation, we have recognized, must be consistent with federal maritime principles and policies.

In Sutton v. Earles, 26 F.3d 903 (9th Cir., 1994), at p. 912, Canby, Circuit Judge, quoted with approval Thomas J. Schoenbaum, Admiralty and Marine Law, para. 19-1 n. 43 (Practitioner’s ed. 1987 & Supp. 1992) as follows:

The general maritime law, however, is not a complete or all- inclusive system. When new situations arise that are not directly governed by legislation or admiralty precedent, federal courts may fashion a rule for decision by a variety of methods. Federal courts may, and often do, look to state statutory law and to precepts of the common law which they “borrow” and apply as the federal admiralty rule.

It is apparent from a consideration of the more recent

American authorities that the American courts dealing with maritime cases in contract, bailment and tort are prepared to resort to state law provided that there is a gap in federal maritime law and provided that resort to state law is consistent with maritime principles and policies.

Analysis

What is to be taken from these cases? First, we are of the view that the Supreme Court of Canada in ITO,

Chartwell and Whitbread did not overrule its earlier decision in Stein. Manifestly, had the Supreme Court intended to do that, La Forest J. would have said so in Whitbread. Instead, as we have noted earlier, he referred to Stein without comment on its basic conclusion that the provincial contributory negligence legislation should be applied in order to reduce the recovery of those entitled to recover under Part XIV of the Canada Shipping Act to the extent of the deceased’s negligence.

Second, in our view, when considering whether a particular provincial law should be applied to a maritime-related accident claim, it is necessary to determine whether the provincial law would encroach on or destroy the uniformity of federal maritime law, as referred to in ITO, Chartwell and Whitbread.

In other words, would the application of the provincial legislation frustrate the exclusive, uniform federal jurisdiction relating to navigation and shipping?

This brings us to the particular issues in this case related to the application of provincial legislation sought by the plaintiffs and opposed by all of the defendants.

Applicability of Legislation Other than the Canada Shipping Act

  1. Family Law Act

Given our conclusion that Part XIV of the Canada Shipping Act applies to both in rem and in personam actions for wrongful death in a maritime context, and given that Part XIV allows recovery for damages to dependants of persons killed (as defined in the Part), we see no need to apply the Family Law

Act to extend the class of persons who may recover. Parliament has seen fit to define the class, and any addition pursuant to provincial law would, in our view. conflict with the provisions of the Canada Shipping Act.

With respect to the plaintiffs’ alternative argument that if the Family Law Act does not apply, they should be able to base their claims on the Act respecting Compensation to the Families of Persons killed by Accident, and in Duels, C.S.C. 1859, c.

78, or on the English Fatal Accidents Acts, 1846-1908, we see no reason to resort to the application of those Acts in place of the Canada Shipping Act. Those statutes provided the basis for in personam claims in maritime wrongful death actions prior to the enactment of Part XIV of the Canada Shipping Act. In any case, they do not define dependants any more broadly than Part XIV of the Canada Shipping Act and they do not provide claims for guidance, care and companionship. In addition, they carry with them the same one-year limitation period as Part XIV. It is our view that any claims formerly available under those statutes for maritime wrongful death have been displaced by the provisions of Part XIV.

  1. Trustee Act

Part XIV of the Canada Shipping Act does not provide that the estate of the deceased can bring a claim for damages arising from wrongful death. Such a claim would relate to damages accruing after the accident and before death. In contrast, s. 38(1) of the Trustee Act allows the personal representative of the deceased to bring an action on behalf of the estate. In such an action, the personal representative may claim damages suffered by the deceased before his or her death to his person or property. These damages would include special damages, lost income and compensation for pain and suffering. Section 38(3) prescribes that the action must be brought within two years of the date of death. In Ontario, in a survival action, the deceased’s personal representative cannot recover damages for loss of future income. Those damages are only recoverable in an action under Part V of the Family Law Act.

We agree with the submission of the plaintiffs in the special

case that, while the Canada Shipping Act recognizes a right to bring an action for damages in the case of wrongful death, it does not address the action established in s. 38 of the Trustee Act; nor does it set out the procedure to be employed or address the parameters of the action for wrongful death. In accordance with gap-filling principles that we have discussed earlier, we see no reason why the Trustee Act, like the British Columbia Contributory Negligence Act in Stein, cannot be called upon to fill the gap. Proceeding in this way will not compromise the fundamental principles of Canadian maritime law or the uniformity of that law.

  1. Occupiers’ Liability Act

The Occupiers’ Liability Act addresses the liability of the occupier of premises. In general, it provides that an occupier of premises owes a duty to take such care as is reasonable in the circumstances to see that persons entering the premises, and property brought on the premises by those persons, are reasonably safe while there: see s. 3(1). In the Lac Seul action, the plaintiffs contend that the defendant Onaway Lodge owed a duty of care to ensure that its boat was fit and safe to use. that is, that it was seaworthy.

As defined in the Ontario Occupiers’ Liability Act, “premises” includes ships and vessels. It is thus clear that this Act contemplates that it may apply to a ship or vessel. That, of course, does not mean that the Occupiers’ Liability Act is inevitably part of Canadian maritime law.

In Peters v. A.B.C. Boat Charters Ltd., supra, MacKenzie J. considered whether the British Columbia Occupiers Liability Act could be applied in a maritime context. As we have stated previously, he concluded that because the Occupiers Liability Act was valid provincial legislation and was not inconsistent with federal legislation or the common law, it could be applied to a maritime accident.

We do not consider the application of the Occupiers’ Liability Act to raise a constitutional issue. We accept that this Act is valid provincial legislation, including its

references to ships and vessels. The question, however, remains whether it can be applied to an accident which happened on a body of inland water. We do not think that it can. There is no gap in the sense that there is no need to introduce provincial legislation in order to determine whether the occupier, Onaway Lodge, is liable to the plaintiffs. Basic principles of negligence law, in its maritime context, can be resorted to to determine whether Onaway Lodge is liable for having provided the deceased with a boat which is said to be unseaworthy.

  1. Negligence Act

The applicability of the Negligence Act has been previously addressed in our discussion of the implications of the Supreme Court of Canada’s decision in Stein. We accept the authority of that case and conclude that the Ontario Negligence Act may be applied with the result that the common law bar to recovery in the event of contributory negligence will not operate.

Does an Action Lie for Loss of Guidance, Care and Companionship Arising from a Wrongful Death?

Section 61 of the Family Law Act lists as a head of damages recoverable by named relations of a person killed (or injured) through the fault of negligence of another “an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred”.

The loss of guidance, care and companionship is not referred to in Part XIV of the Canada Shipping Act or, for that matter, in any of the alternative statutory causes of action listed by the plaintiffs. Section 647(2) of the Canada Shipping Act is quite broad in its statement of the “damages” recoverable by dependants. The damages referred to are not those caused to the deceased but rather, damages caused to the dependants as a result of the loss. The section states that:

. . . damages may be awarded as are proportioned to the injury resulting from the death to the dependants respectively for whom and for whose benefit the action is

brought . . . (Emphasis added)

In Mason v. Peters (1982), 39 O.R. (2d) 27, 139 D.L.R. (3d)

104 (C.A.), Robins J.A. considered the effect of the introduction of a right to claim damages for loss of guidance, care and companionship in a wrongful death case under what is now s. 61 of the Family Law Act. He noted that under the old Fatal Accidents Act, the word “damages” was taken to mean pecuniary loss only. He then outlined what was added by the introduction of an entitlement to damages for loss of guidance, care and companionship. He said at p. 38:

Guidance, care and companionship cannot ordinarily be equated in dollar value; the deprivation of these important elements of a family relationship is not generally capable of computation on a strictly monetary basis; and while it cannot be said that they can never constitute economic benefits (Vana v. Tosta et al., [1968] S.C.R. 71, 66 D.L.R. (2d)

97), the connection can seldom be traced from one to the other. Guidance, care and companionship, including as they do imponderable elements of loss, are essentially non-pecuniary in character.

Although we agree with the defendants’ submission that the plaintiffs’ wrongful death claims are controlled by the provisions of the Canada Shipping Act, we do not think it necessarily follows, or should follow, that “damages to the dependants” should exclude compensation for the loss of care, guidance and companionship. Canadian maritime law is not frozen and should not be static. Although provincial legislation, even though generally common to all Canadian provinces, cannot be directly resorted to, we see no reason why it would not be appropriate to include the loss of care, guidance and companionship within “damages to the dependants”. This is consistent with contemporary concepts of the loss suffered by a dependant unit (generally a family) as a result of the wrongful death of a member of that unit.

The Appropriate Claimants

Those who may make a claim for wrongful death are specifically referred to in the Canada Shipping Act. Section 645 of the Act defines “dependants” to include the wife,

husband, parents and children of a deceased person. It does not include siblings or what is commonly referred to as a common- law spouse. While we express the hope that Parliament may

see fit to expand the class of eligible claimants to specifically include siblings and common-law spouses in a manner generally consistent with existing provincial legislation, we must take into account that the controlling legislation is the Canada Shipping Act. We agree with the defendants, therefore, that siblings of the deceased cannot assert a claim because they are not included in the statutory definition of “dependants” in s. 645 of the Canada Shipping Act.

It remains to be considered, however, whether a common law spouse is an eligible claimant under Part XIV of the Act.

Section 645 does not define “wife” or “husband”. The issue here is what meaning or scope should be given to the terms “wife” and “husband”, and more particularly, whether they should be taken to include a common law spouse.

The definition of “spouse” in Part III of the Family Law Act (Support Obligations) provides some assistance. Section 29

of that Act defines “spouse” in this way:

“spouse” means a spouse as defined in subsection 1(1), and in addition includes either of a man and woman who are not married to each other and have co-habited,

  1. continuously for a period of not less than three years, or

  1. in a relationship of some permanence, if they are the natural or adoptive parents of a child.

The Supreme Court of Canada considered the definition of spouse, albeit in an automobile insurance benefit context, in Miron v. Trudel, [1995] 2 S.C.R. 418, 124 D.L.R. (4th) 693. In

that case, the plaintiff was injured while he was a passenger in an uninsured automobile driven by an uninsured driver.

However, his common law spouse was insured under a standard Ontario automobile insurance policy prescribed by the Insurance Act, R.S.O. 1980, c. 218. As a result of the accident, the plaintiff could no longer work or contribute to his family’s support. The insurer denied his claim for accident benefits on the ground that he was not legally married to the insured, and thus not her “spouse” under the Act. In the Supreme Court of Canada, the majority concluded that the exclusion of partners in an unmarried relationship from automobile accident benefits available to married partners violated s. 15(1) of the Canadian Charter of Rights and Freedoms, and could not be justified under s. 1. The majority held that the appropriate remedy was to read in to the statute an expanded definition of “spouse” consistent with that in Part III of the Family Law Act.

We think Miron v. Trudel applies here. The terms “wife” and “husband” in Part XIV of the Canada Shipping Act should be interpreted to conform with the definition used by the majority in Miron v. Trudel and with that in Part III of the Family Law Act. We do not view this to constitute resorting to the Family Law Act as part of maritime law. Rather, we think the definition of “dependants” in the Canada Shipping Act should be interpreted in a way that will meet constitutional requirements. It is thus our view that “wife” and “husband” in

s. 645 of the Act should have the same meaning as that of “spouse” in s. 29 of the Ontario Family Law Act.

Actions for Personal Injury

The bulk of the argument before us is directed to the wrongful death claims in the Ordon v. Grail appeal and the special case actions, and to the applicability of Part XIV of the Canada Shipping Act to those claims. Part XIV clearly does

not apply to actions for personal injury. Consequently, we must deal separately with the problem of recovery for loss of guidance, care and companionship where personal injury rather than death follows a maritime accident.

The final step in transferring to Canada all jurisdiction of

the High Court of Justice in England exercised in maritime matters was taken by the enactment of the Admiralty Act. That jurisdiction had been exercised traditionally in cases of personal injury.

Section 22(1) and (2)(g) of the Federal Court Act now confer concurrent jurisdiction on the Federal Court and the Ontario Court (General Division) in maritime matters involving personal injury. The law applied is the common law of negligence.

However, the cause of action is that of the injured person, not that of his or her dependants.

We have decided that the damages which dependants of deceased accident victims may recover under s. 647(2) of the Canada Shipping Act should include recovery for guidance, care and companionship. It would be anomolous to provide for such recovery in fatal accidents but not in cases of personal injury

, particularly serious personal injury such as that suffered by Peter Hall in the incident on Lake Joseph. As in fatal accidents, we are of the view that the continued appropriate growth of Canadian maritime law allows for such claims in cases of personal injury, and we would allow them in this case, with the proviso that only the same claimants as in fatal accident cases are entitled to recovery.

The Applicable Limitation Period

Assuming that we are correct in our conclusion that the Family Law Act (and thus its two-year limitation period) does not apply because direct resort to it would conflict with existing maritime law as set out in Part XIV of the Canada

Shipping Act, it remains to be considered whether only the one- year limitation period in s. 649 of the Canada Shipping Act applies to the cases before us, or whether resort can be had to ss. 572(1) and (3) of that Act or, alternatively, whether the court has jurisdiction to extend, and should extend, the limitation period in some other manner.

Section 649, in Part XIV of the Canada Shipping Act, provides:

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

Since we have decided that Part XIV applies to both in rem and in personam claims, it would seem to follow that the one- year limitation period prescribed in s. 649 applies to all

of the fatal injury actions before us. However, the plaintiffs in the Lake Joseph actions argue that the two-year limitation period in s. 572(1) of the Act applies in their cases because the accident involved a collision between two boats. Section 572(1) reads:

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

(Emphasis added)

We agree that the wording of that section, standing alone, clearly applies to the Lake Joseph actions, and there is no doubt it would apply to personal injury claims. The difficulty, however, is our conclusion that Part XIV applies to both in rem and in personam fatal injury claims. Section 649 states that “[n]ot more than one action lies for and in respect of the

same subject-matter”. If that subject-matter is a claim by survivors of persons killed in maritime accidents, then it is our view that those actions must now be brought under Part XIV of the Canada Shipping Act. If that is so, all of Part XIV must apply to such actions, not just those parts that it is convenient to apply in a given case. In addition to not fitting within our interpretation of Part XIV, it makes no practical sense to treat cases involving collisions differently from cases involving wrongful death brought about in a different

way.

Although we feel logically compelled to conclude that only

the limitation period in Part XIV can apply to the fatal injury cases before us, we believe strongly that to deny the plaintiffs their remedies under the circumstances would be extremely unfair. The plaintiffs’ alternative argument is that the court should rely on its inherent jurisdiction to extend the limitation period where required: see Basarsky v. Quinlan, [1972] S.C.R. 380, 24 D.L.R. (3d) 720. In our view, the

special circumstances which would warrant such an extension exist here. Until the British Columbia Court of Appeal’s judgment in Shulman, which we note was after the commencement of the three Lake Joseph actions, it was thought that wrongful death claims in the maritime context could be pursued under provincial legislation (in Ontario, Part V of the Family Law Act): see Palleschi v. Romita, a judgment of the Ontario District Court, released March 4, 1988, [1988] O.J. No. 822; LeVae Estate v. The “Giovanni Amendola” (1955), 1 D.L.R. (2d)

117 (Ex. Ct.). Further, the defendants were aware of the claims in all of the actions. There is no suggestion that extending the limitation period, where required, to give effect to the plaintiffs’ claims would result in prejudice to the defendants.

It would, in our view, result in a gross injustice if the plaintiffs in the Lake Joseph actions were denied a right to proceed on account of the one-year limitation period contained in s. 649 of the Canada Shipping Act. We would, therefore, extend that period for the time necessary, in accordance with the rationale in Basarsky.

With respect to the personal injury claims in the Lake Joseph actions, the limitation period in Part XIV of the Canada Shipping Act clearly cannot apply, since Part XIV governs only fatal accident claims. The Lake Joseph plaintiffs argue that the two-year limitation period in s. 572(1) of Part IX of the Act should apply, as the accident involved was a collision. We see no reason why that should not be so.

The Ordon v. Grail appeal raises a related, but somewhat different, issue. In that case, as we have stated, the

defendant sought an order striking out certain parts of the plaintiffs’ statement of claim on the ground that the Family Law Act was not applicable to claims for damages arising from negligence in the operation of a vessel. The plaintiffs opposed the defendant’s motion and brought their own motion in which they sought leave to amend their statement of claim to plead Part XIV of the Canada Shipping Act as a ground of relief for the claims of the deceased’s widow, children and mother. In his order, McMahon J. found that the Family Law Act did not apply because of the maritime character of the case. However, he granted leave to the plaintiffs to amend their statement of claim on a nunc pro tunc basis to plead Part XIV of the Canada Shipping Act in substitution for Part V of the Family Law Act. The cause of action, wrongful death, remained unchanged.

This is not a maritime law issue. It concerns the right of a motions judge to amend the pleadings on a nunc pro tunc basis. We do not think that McMahon J. erred in exercising his discretion as he did. The defendant was aware of the claim being made against him, which we note was made within one year of the date of the accident. In our view, to accede to the defendant’s position on this issue would result in a gross injustice. In any event, the defendant’s argument only applies to the adult plaintiffs. The limitation periods for the actions of the minor plaintiffs, Jeffrey Ordon and Stephanie Ordon, have not yet begun to run: see Murphy v. Welsh, [1993] 2 S.C.R. 1069, 106 D.L.R. (4th) 404. We see no reason to interfere with McMahon J.’s order permitting the nunc pro tunc amendment and would not give effect to this ground of appeal.

Answers to Questions in Special Case

Our responses to the questions in the special case are as follows:

  1. (a) No.

  1. Irrelevant in the light of our reasons respecting Part XIV of the Canada Shipping Act.

  1. Irrelevant in the light of our reasons respecting Part XIV

of the Canada Shipping Act.

  1. Yes.

  1. No, in the light of our reasons respecting Part XIV of the Canada Shipping Act.

  1. Irrelevant in the light of our reasons respecting the application of s. 572(1).

  1. Yes, pursuant to the inherent jurisdiction of the court.

  1. Yes, under Part XIV of the Canada Shipping Act.

  1. Yes, under general non-statutory principles of Canadian maritime law, with the single exception of siblings of the deceased.

  1. Yes. damages under s. 647(2) of the Canada Shipping Act.

  1. Yes, with respect to common law spouses; no, with respect to siblings.

  1. Yes.

  1. No to the first part of the question, and yes to the second part.

  1. No.

Relief

The plaintiffs in the Lake Joseph actions are entitled to the following requested relief:

  1. a declaration that the appropriate plaintiffs may rely on the provisions of Part XIV of the Canada Shipping Act in

respect of the deaths of Louise Carroll and Grant Perry, and that they may maintain claims for loss of guidance, care and companionship and other losses thereunder;

  1. an order extending the limitation period pursuant to the court’s inherent jurisdiction, to permit the appropriate plaintiffs to rely on Part XIV of the Canada Shipping Act;

  1. a declaration that the appropriate plaintiffs may rely on general non-statutory principles of Canadian maritime law in respect of the personal injuries of Peter Hall and Josephine Perry, and that they may maintain claims for loss of guidance, care and companionship and other losses thereunder;

  1. a declaration that the plaintiffs may rely on the limitation period in s. 572(1) of the Canada Shipping Act in respect

of the personal injury claims;

  1. a declaration that the plaintiffs’ claims are properly brought in the Ontario Court of Justice (General Division);

  1. a declaration that the plaintiffs may rely on the Ontario Trustee Act;

  1. a declaration that the plaintiffs may rely on the contributory negligence provisions of the Ontario Negligence Act;

  1. their costs of the special case and of the motion for leave to state the special case.

The plaintiffs in Van Duser et al. v. Knolmayer et al. are entitled to:

  1. a declaration that the plaintiffs may rely on the provisions of Part XIV of the Canada Shipping Act in respect of the death of Thomas Charles Brandenburg Jr., and that the appropriate plaintiffs may maintain claims for loss of guidance, care and companionship and other losses

thereunder;

  1. a declaration that the plaintiffs’ claims are properly brought in the Ontario Court of Justice (General Division);

  2. a declaration that the plaintiffs may rely on the contributory negligence provisions of the Ontario Negligence Act;

  1. a declaration that the plaintiffs may rely on the Ontario Trustee Act;

  1. their costs of the special case.

The Ordon et al. v. Grail appeal is dismissed with costs.

APPENDIX “A” STATED QUESTIONS

Fatal Accident Claims — Limitation and Jurisdiction

  1. Does an action for wrongful death, based on alleged negligent operation or ownership of a vessel on inland waters in Ontario, lie under:

  1. Part V of the Ontario Family Law Act, R.S.O. 1990, c. F.3;

  1. the Act respecting compensation to the Families of Persons Killed by Accident, and in duels, enacted in 1848 by the Parliament of the United Province of Canada [now C.S.C. 1859, c. 78, referred to herein as the Canada Fatal Accidents Act, 1848];

  1. the English Fatal Accidents Acts, 1846-1908, as received into Canadian Maritime Law;

  1. Part XIV of the Canada Shipping Act, R.S.C. 1985, c. S-9;

  1. otherwise, under general non-statutory principles of Canadian Maritime Law?

  1. Has the one-year limitation period in the Fatal Accidents Act, 1848 of the United Province of Canada, or the English Fatal Accidents Acts, 1846-1908, as received into Canadian Maritime Law, been extended to two years by what is now s.

572(1) of the Canada Shipping Act, as has been held in the United Kingdom under the equivalent statutes?

  1. In the event that Question 1(a) is answered in the negative and Questions 1(b), 1(c) or Question 2 are also answered in the negative, can the court extend the one-year limitation period in s. 649 of Part XIV of the Canada Shipping Act, pursuant to s. 572(3) of Part IX of that Act or otherwise pursuant to the inherent jurisdiction of the court to

extend a limitation period, and are the Lake Joseph actions appropriate cases for so doing in order to permit the plaintiffs to rely on Part XIV of the Canada Shipping Act?

  1. Does the Ontario Court (General Division) have jurisdiction to entertain a fatal accident claim arising from the

alleged negligent operation or ownership of a vessel on inland waters in Ontario under Part XIV of the Canada Shipping Act or under any of the statutes or bodies of law referred to in Question 1?

Personal Injury — Dependants’ Relief

  1. Can a person who comes within the class of persons contemplated by Part V of the Ontario Family Law Act bring a claim for loss of guidance, care and companionship and other losses arising from a personal injury suffered by another, arising out of the alleged negligent operation or ownership of a vessel on inland waters in Ontario, either under Part V of the Ontario Family Law Act, or under the causes of actions listed at Questions 1(b), (c), (d), or

(e) above?

Compensation — Care, Guidance and Companionship — Claimants

  1. Do any of the above-mentioned causes of action (apart from that under the Ontario Family Law Act), permit claims for damages for loss of guidance, care and companionship?

  1. Do any of the above-mentioned causes of action (apart from that under the Ontario Family Law Act), permit claims to be maintained by the siblings and common law spouse of the

deceased or injured person?

Estate Claims

  1. May a plaintiff in an action based on alleged negligent operation or ownership of a vessel on inland waters in Ontario resulting in a fatality assert claims for damages based on the provisions of s. 38(1) of the Ontario Trustee Act, R.S.O. 1990, c. T.23?

Contributory Negligence — Apportionment

  1. Is contributory negligence a complete bar to a plaintiff’s recovery in an action based on the alleged negligent operation or ownership of a vessel on inland waters in Ontario resulting in personal injury or death, or may the court apportion liability in accordance with fault, under the Ontario Negligence Act, R.S.O. 1990, c. N.1, or otherwise?

Occupier’s Liability

  1. May a plaintiff in an action based on alleged negligent operation or ownership of a vessel on inland waters in Ontario resulting in a fatality assert claims for damages based on the provision of the Ontario Occupiers’ Liability Act, R.S.O. 1990, c. O.2?

ESTT

TRRT ESTT CONT CIVT