Simms v. Isen, 2005 CAF 161 (2005)
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Simms v. Isen, 2005 CAF 161 (2005)
Date: 20050506
Docket: A-127-04Citation: 2005 FCA 161CORAM: DÉCARY J.A.NADON J.A.SEXTON J.A.BETWEEN:STEPHEN SIMMS and MARLA SIMMSAppellantsandWILLIAM ISENRespondentHeard at Toronto, Ontario, on January 13, 2005.Judgment delivered at Ottawa, Ontario, on May 06, 2005.REASONS FOR JUDGMENT BY: NADON J.A.CONCURRED IN BY: SEXTON J.A.DISSENTING REASONS BY: DÉCARY J.A.Date: 20050506Docket: A-127-04Citation: 2005 FCA 161CORAM: DÉCARY J.A.NADON J.A.SEXTON J.A.BETWEEN:STEPHEN SIMMS and MARLA SIMMSAppellantsandWILLIAM ISENRespondentREASONS FOR JUDGMENTNADON J.A.[1] This appeal raises two questions. The first one is whether the events which have given rise to the appellants' action in damages for personal injury constitute a maritime matter and, thus, fall within the jurisdiction of the Court. The second question, which depends on an affirmative answer to the first question, is whether the personal injury claim is one subject to the limitation of liability provisions of the Canada Shipping Act , R.S.C. 1985, c. S-9, as amended by an Act to Amend the Canada Shipping Act (Maritime Liability) , S.C. 1998, c. 6 (the "Act").[2] With regard to the first question, I have read, in draft, the Reasons of my colleague Décary J.A. which lead him to conclude that the appellants' personal injury claim is not a Canadian maritime law claim and that, consequently, the Federal Court is without jurisdiction to hear and determine the respondent's action in limitation of liability.[3] For the reasons that follow, I arrive at a different conclusion. In my view, the appellants' claim is a Canadian maritime law claim and, as a result, it falls squarely within the ambit of the Federal Court's maritime jurisdiction.[4] At paragraph 98 of his Reasons, Décary J.A. says, inter alia , that "the accident has nothing to do with navigation, nor with shipping". I cannot agree with my colleague. In my view, he has taken much too narrow a view of the Federal Court's maritime jurisdiction. I am satisfied that the accident has a clear connection with shipping and navigation, and more particularly, with pleasure craft navigation.[5] The judge below, Madam Justice Snider, concluded that the appellants' personal injury claim was within the Court's maritime jurisdiction. At paragraphs 11 and 12 of her Reasons, she states her conclusion in the following terms:[11] The Simms submit that the incident that gives rise to this motion concerned the manipulation of a bungie cord to transport a cargo by trailer on land. It had nothing to do with navigation and shipping. I disagree. The hooks of the bungie cord were applied to the ship. The cord was used to secure an engine cover to the boat. The incident arose immediately following use of the boat on a lake and just before it would be transported to another lake. To my mind, this is an incident that occurred on land but is sufficiently connected to navigation and shipping to bring it within the admiralty jurisdiction of this Court (ITO International Terminal Operators Ltd., supra).[12] The Federal Court has held that the negligent stuffing of a container, while on land, for loading and carriage by sea is sufficiently connected with shipping so as to invoke admiralty jurisdiction (Peter Cremer Befrechtungskontor GMBH v. Amalgamet Canada Ltd., [1989] F.C.J. No. 136 (T.D.) (QL), aff'd [1990] F.C.J. No. 850 (F.C.A.) (QL)). If handling cargo on land for carriage by sea is sufficiently connected with shipping and navigation, I fail to see how handling of the ship itself is not. I conclude that this Court has jurisdiction to hear the motion before it. I will now turn to the issue of the statutory provisions upon which Mr. Isen seeks to rely.In my view, Snider J. reached the correct conclusion.[6] At paragraphs 61 to 67 of his Reasons, Décary J.A. summarizes the law pertaining to the Federal Court's jurisdiction and, in particular, to its maritime jurisdiction. After identifying the three requirements necessary to support the Court's jurisdiction, Décary J.A. correctly states that the first and third requirements are met in this case, leaving only to decide whether the second requirement is met, which he formulates in the following terms:[62] ...2. The claim must be a "Canadian maritime law" claim, as this expression is defined in section 2 of the Federal Courts Act and as it has been interpreted by the Supreme Court of Canada;[7] Before concluding that the second requirement has not been met, Décary J.A. carefully reviews the concept of Canadian maritime law in the light of the Supreme Court of Canada's decisions in, inter alia : ITO - International Terminal Operators Ltd. v. Miida Electronics Inc. , [1986] 1 S.C.R. 752; Whitbread v. Walley , [1990] 3 S.C.R. 1273; and Ordon Estate v. Grail , [1998] 3 S.C.R. 437.[8] In ITO, supra , the Supreme Court of Canada held that Canadian maritime law extende...See the full content of this document
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