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

Extract

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

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

John Joseph Blair Horn Whitbread Appellant v.

Robert Norman Walley, Robert Greenwood and John A. N. Horn Respondents and

The Attorney General of Canada, the

Attorney General for Ontario, the

Attorney General of Quebec and the

Attorney General of British Columbia Interveners indexed as: whitbread v. walley

File No.: 21094.

1990: May 24; 1990: December 20.

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

on appeal from the court of appeal for british columbia

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

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

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

Held: The appeal should be dismissed.

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

Canadian maritime law extended to torts committed not only on the high seas or national waters bu...

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