Mime'j Seafoods Ltd. v. Workers' Compensation Appeals Tribunal (N.S.) et al., 2007 NSCA 115

• Judge: MacDonald, C.J.N.S., Cromwell and Saunders, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 04, 2007
• Jurisdiction: Nova Scotia
• Citations: 2007 NSCA 115;(2007), 260 N.S.R.(2d) 127 (CA)

Mime'j Seafoods Ltd. v. WCAT (2007), 260 N.S.R.(2d) 127 (CA);

    831 A.P.R. 127

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. DE.012

Mime'j Seafoods Limited (Claim No. 182485-11) (appellant) v. Nova Scotia Workers' Compensation Appeals Tribunal and the Workers' Compensation Board of Nova Scotia (respondents)

(CA 277720; 2007 NSCA 115)

Indexed As: Mime'j Seafoods Ltd. v. Workers' Compensation Appeals Tribunal (N.S.) et al.

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Cromwell and Saunders, JJ.A.

December 7, 2007.

Summary:

The Native Council of Nova Scotia, an incorporated society dedicated to protecting the rights of off-reserve aboriginals living in Nova Scotia, owned Mime'j Seafoods Ltd. Mime'j existed not as a business per se, but solely to accommodate the federal Department of Fisheries and Oceans' requirement that fishing licenses be held by either a band or some other entity recognized in Canadian law. Mime'j held legal title to various fishing licenses, vessels and equipment. It held them not on its own behalf but on behalf of the off-reserve aboriginal community, making those assets available to off-reserve aboriginals through a series of community-based joint venture agreements. Mime'j claimed that it was not an employer as defined in the Workers' Compensation Act and therefore not subject to assessment under the Act. The Workers' Compensation Board of Nova Scotia initially determined that Mime'j was not an employer. However, following a claim by an injured crew member, a field officer for the Board revisited its decision and determined that Mime'j was an employer. A hearing officer confirmed the field officer's assessment. The Workers' Compensation Appeals Tribunal dismissed a further appeal. Mime'j appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Statutes - Topic 2271

Interpretation - Presumptions and rules in aid - Against tautology (every word must have a meaning) - Section 2(n) of the Workers' Compensation Act provided that "'employer' means an employer within the scope of Part I and includes ... (ix) any person operating a boat, vessel, ship, dredge, tug, scow or other craft usually employed or intended to be employed in an industry to which Part I applies and, with respect to the industry of fishing, the owner or operator of a boat or vessel rented, chartered or otherwise provided to a worker employed in the fishing industry and used in or in connection with an industry carried on by the employer to which Part I applies," - The Nova Scotia Court of Appeal interpreted the phrase "worker employed in the fishing industry" in s. 2(n)(ix) in light of the rule against tautology - See paragraphs 40 to 45.

Workers' Compensation - Topic 4

General principles - Definitions - Employer defined - The Native Council of Nova Scotia, an incorporated society dedicated to protecting the rights of off-reserve aboriginals living in Nova Scotia, owned Mime'j Seafoods Ltd. - Mime'j existed not as a business per se, but solely to accommodate the federal Department of Fisheries and Oceans' requirement that fishing licenses be held by either a band or some other entity recognized in Canadian law - Mime'j held legal title to various fishing licenses, vessels and equipment - It held them on behalf of the off-reserve aboriginal community and made them available to off-reserve aboriginals through a series of community-based joint venture agreements - Mime'j claimed that it was not an employer as defined in the Workers' Compensation Act and therefore not subject to assessment under the Act - The Workers' Compensation Appeals Tribunal disagreed - Mime'j appealed - The Nova Scotia Court of Appeal dismissed the appeal.

Workers' Compensation - Topic 7086.1

Practice - Appeals to the courts - Scope of appeal or review - The Native Council of Nova Scotia, an incorporated society dedicated to protecting the rights of off-reserve aboriginals living in Nova Scotia, owned Mime'j Seafoods Ltd. - Mime'j existed not as a business per se, but solely to accommodate the federal Department of Fisheries and Oceans' requirement that fishing licenses be held by either a band or some other entity recognized in Canadian law - Mime'j held legal title to various fishing licenses, vessels and equipment - It held them on behalf of the off-reserve aboriginal community and made them available to off-reserve aboriginals through a series of community-based joint venture agreements - Mime'j claimed that it was not an employer as defined in the Workers' Compensation Act and therefore not subject to assessment under the Act - The Workers' Compensation Board initially determined that Mime'j was not an employer - However, following a claim by an injured crew member, a field officer for the Board revisited the decision and determined that Mime'j was an employer - A hearing officer confirmed the field officer's assessment - The Workers' Compensation Appeals Tribunal dismissed a further appeal - Mime'j appealed - The Nova Scotia Court of Appeal stated that with WCAT's expertise not in play and no disputed facts, what was left was a pure question of law commanding the correctness standard of review - Therefore, WCAT had to be correct in its conclusion that Mime'j was an employer under the Act - See paragraphs 10 to 19.

Words and Phrases

Employed in the fishing industry - The Nova Scotia Court of Appeal discussed the meaning of this phrase as found in s. 2(n)(ix) of the Workers' Compensation Act, S.N.S. 1994-95, c. 10 - See paragraphs 35 to 47.

Cases Noticed:

Logan v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2006), 246 N.S.R.(2d) 147; 780 A.P.R. 147; 2006 NSCA 88, refd to. [para. 12].

Nova Scotia (Minister of Transportation and Public Works) v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2005), 231 N.S.R.(2d) 390; 733 A.P.R. 390 (C.A.), refd to. [para. 15].

Puddicombe - see Nova Scotia (Minister of Transportation and Public Works) v. Workers' Compensation Appeals Tribunal (N.S.) et al.

Baigent v. Ross (John) & Sons Ltd. (2005), 237 N.S.R.(2d) 81; 754 A.P.R. 81; 2005 NSCA 128, refd to. [para. 18].

Ross (John) & Sons Ltd. v. Nova Scotia (Workers' Compensation Appeals Tribunal) - see Baigent v. Ross (John) & Sons Ltd.

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 25].

House of Commons et al. v. Vaid et al. (2005), 333 N.R. 314 (S.C.C.), refd to. [para. 25].

Imperial Oil Ltd. v. Minister of National Revenue (2006), 353 N.R. 201; 2006 SCC 46, refd to. [para. 25].

Statutes Noticed:

Workers' Compensation Act, S.N.S. 1994-95, c. 10, sect. 2(n)(ix) [para. 36].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 25].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 1 [para. 26]; 162 [para. 42].

Counsel:

D. Bruce Clarke, for the appellant;

Alexander C. W. MacIntosh, for the respondent, Workers' Compensation Appeals Tribunal;

David P.S. Farrar, Q.C., and Paula Arab, for the respondent, Workers' Compensation Board of Nova Scotia;

Alexander Cameron, for the respondent, Attorney General of Nova Scotia.

This appeal was heard in Halifax, N.S., on October 4, 2007, by MacDonald, C.J.N.S., Cromwell and Saunders, JJ.A., of the Nova Scotia Court of Appeal. MacDonald, C.J.N.S., delivered the following decision for the court on December 7, 2007.