Pattison (Jim) Enterprises Ltd. et al. v. Workers' Compensation Board (B.C.), 2011 BCCA 35

• Judge: D. Smith, Bennett and Garson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 02, 2011
• Jurisdiction: British Columbia
• Citations: 2011 BCCA 35;(2011), 299 B.C.A.C. 29 (CA)

Pattison Ent. Ltd. v. WCB (2011), 299 B.C.A.C. 29 (CA);

    508 W.A.C. 29

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. FE.017

Jim Pattison Enterprises Ltd., K. Smith Fishing Ltd. and 289787 B.C. Ltd. (appellants/petitioners) v. Workers' Compensation Board of British Columbia (respondent/respondent)

(CA036883)

Osprey Marine Ltd. (appellant/plaintiff) v. Workers' Compensation Board, Attorney General for the Province of British Columbia (respondents/defendants)

(CA036885; 2011 BCCA 35)

Indexed As: Pattison (Jim) Enterprises Ltd. et al. v. Workers' Compensation Board (B.C.)

British Columbia Court of Appeal

D. Smith, Bennett and Garson, JJ.A.

February 2, 2011.

Summary:

The appellant owners of fishing vessels commenced proceedings in which they challenged the constitutional validity of ss. 24.72 and 24.74 of the Occupational Health and Safety Regulations (B.C.) enacted pursuant to Part 3 of the Workers Compensation Act (B.C.). Alternatively, they sought a declaration that the impugned provisions were inapplicable or inoperative to their commercial fishing operations by application of the constitutional doctrines of interjurisdictional immunity and/or paramountcy.

The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 88, dismissed the applications. The appellants appealed.

The British Columbia Court of Appeal dismissed the appeals.

Constitutional Law - Topic 1581

Extent of powers conferred - Double aspect doctrine - General - The British Columbia Court of Appeal stated that "[s]ome areas of legislative authority include a matter that falls under both federal and provincial legislative authority. In other words, the matter of the legislation may have both a federal and provincial aspect: one aspect of the legislative field comes within federal jurisdiction while another aspect of the legislative field falls within provincial jurisdiction. In such circumstances, each jurisdiction has the authority to legislate on the 'matter' within the scope of its mandate, albeit the purposes of the legislation in each jurisdiction will be different [...]. This is known as the 'double aspect doctrine' [...] and reflects the principle of concurrency that constitutionally valid legislation from each jurisdiction may co-exist provided the dominant purpose and effect of each law is limited in scope to the 'matter' within the enacting body's mandate. In other words, the laws from each jurisdiction are constitutionally valid provided they fall within the scope of the enacting body's mandate. [...] The rationale for the double aspect doctrine is to ensure 'that the policies of the elected legislators of both levels of government are respected.'" - See paragraphs 79 to 82.

Constitutional Law - Topic 1581

Extent of powers conferred - Double aspect doctrine - General - The federal regulatory regime for all small and large fishing vessels was found largely in the Small Fishing Vessel Inspection Regulations and Large Fishing Vessel Inspection Regulations enacted under the Canada Shipping Act - The Canada Labour Code (CLC) applied to all employees who worked under federal jurisdiction, including those employed with federal undertakings which were not subject to the provincial Workers Compensation Act scheme - Those employers and employees not subject to the CLC were governed by provincial labour laws and workplace safety standards - Part 24 of the Occupational Health and Safety Regulations (B.C.) (OHSR) enacted pursuant to Part 3 of the Workers Compensation Act (B.C.) included specific provisions for the occupational health and safety of workers in diving, fishing and other marine operations - The provisions focussed on the documentation and communication of vessel stability characteristics to the crew; they did not include detailed requirements for vessel stability - Section 24.72 of the OHSR required the owner of a small fishing vessel to have documentation on vessel stability readily accessible to its crew on board the vessel - Section 24.74 required the master of the vessel to establish procedures and assign responsibilities regarding vessel safety to each crew member in the case of an emergency - The appellant owners of fishing vessels commenced proceedings in which they challenged the constitutional validity of ss. 24.72 and 24.74 - The appellants submitted that the double aspect doctrine did not apply as the two regulatory regimes reflected the same aspect or purpose: namely to prevent risks to the health and safety of workers on fishing vessels in an area of exclusive federal jurisdiction over navigation and shipping - The British Columbia Court of Appeal rejected the appellants' submission - The appellants' submission spoke more to the incidental effects doctrine of the impugned provisions on the federal jurisdiction over navigation and shipping rather than to a single joint purpose of each level of government to regulate on worker health and safety on fishing vessels - The dominant purpose of the federal regulations was on vessel stability and safety; worker safety was an incidental effect of the regulations - In comparison, the dominant purpose of the OHSR was on worker safety on fishing vessels; vessel stability and safety were incidentally affected - Any potential for conflict or inconsistency had been resolved by the two jurisdictions through memoranda of understanding - See paragraphs 83 to 87.

Constitutional Law - Topic 1761

Extent of powers conferred - Necessarily incidental doctrine - General - The British Columbia Court of Appeal stated that "Legislation enacted by one jurisdiction may have incidental or secondary effects upon a head of power allocated to the other jurisdiction. However, incidental effects that are corollary or secondary to the dominant purpose of the law will not render the law constitutionally invalid. Incidental intrusions into another jurisdiction's mandate are to be expected as 'it is in practice impossible for a legislature to exercise its jurisdiction over a matter effectively without incidentally affecting matters within the jurisdiction of another level of government' [...] The incidental effects of legislation on another jurisdiction's legislative authority may in some instances be resolved by a 'firm' application of the pith and substance doctrine. This should result in the classification of a law into a single head of legislative power under ss. 91 or 92 of the Constitution Act [...]. If the true nature of the law, in purpose and effect, is found to fall within the enacting body's legislative mandate, the law will be constitutionally valid; if its purpose and effect are found to fall outside the enacting body's mandate, the law will be viewed as 'colourable' and constitutionally invalid." - See paragraphs 77 and 78.

Constitutional Law - Topic 2511

Determination of validity of statutes or acts - General principles - Interjurisdictional immunity - The British Columbia Court of Appeal stated that "[t]he doctrine of interjurisdictional immunity operates by cloaking a non-enacting jurisdiction from the effects of an enacting jurisdiction's legislation that is found to impair the 'basic, minimum, and unassailable' core competence of one of the non-enacting jurisdiction's subject matters under ss. 91 or 92 of the Constitution Act. This doctrine [...] is rooted in the notion of 'exclusivity' between the heads of power in ss. 91 and 92 of the Constitution Act and the classical 'watertight compartments' concept of federalism. Application of the doctrine, however, has also produced what has been described as 'asymmetrical', or 'centrali[zed]' results in favour of granting immunity to the federal companies, works and undertakings from the effects of provincial legislation [...] . This historical approach to federalism is said to undermine the principle of subsidiarity and has been described as 'not ... particularly compelling' [...]. As a consequence, the 'watertight compartments' approach to jurisdictional issues has been given limited application in face of the 'dominant tide' of recent jurisprudence that would have a court 'favour, where possible, the ordinary operation of statutes enacted by both levels of government' and '[i]n the absence of conflicting enactments of the other level of government ... avoid blocking the application of measures which are taken to be enacted in furtherance of the public interest'" - See paragraphs 125 to 132.

Constitutional Law - Topic 2511

Determination of validity of statutes or acts - General principles - Interjurisdictional immunity - The federal regulatory regime for all small and large fishing vessels was found largely in the Small Fishing Vessel Inspection Regulations and Large Fishing Vessel Inspection Regulations enacted under the Canada Shipping Act (CSA) - The Canada Labour Code (CLC) applied to all employees who worked under federal jurisdiction, including those employed with federal undertakings which were not subject to the provincial Workers Compensation Act scheme - Those employers and employees not subject to the CLC were governed by provincial labour laws and workplace safety standards - Part 24 of the Occupational Health and Safety Regulations (B.C.) (OHSR) enacted pursuant to Part 3 of the Workers Compensation Act (B.C.) included specific provisions for the occupational health and safety of workers in diving, fishing and other marine operations - The provisions focussed on the documentation and communication of vessel stability characteristics to the crew; they did not include detailed requirements for vessel stability - Section 24.72 of the OHSR required the owner of a small fishing vessel to have documentation on vessel stability readily accessible to its crew on board the vessel - Section 24.74 required the master of the vessel to establish procedures and assign responsibilities regarding vessel safety to each crew member in the case of an emergency - The appellant owners of fishing vessels commenced proceedings in which they challenged the constitutional validity of ss. 24.72 and 24.74 - Alternatively, they sought a declaration that the impugned provisions were inapplicable or inoperative to their commercial fishing operations by application of the constitutional doctrine of interjurisdictional immunity - The British Columbia Court of Appeal held that the doctrine of interjurisdictional immunity did not apply in these circumstances - The "exclusivity" of the heads of power endorsed by the doctrine was not suited to circumstances that involved double aspects of complimentary legislative regimes - It was through a "firm application" of the pith and substance, double aspect, and paramountcy doctrines that most cases involving overlapping jurisdiction would be resolved - That was the situation here, where the memoranda of understanding between the different levels of government had created a harmonious co-existence between the two regulatory regimes that could only enhance the safety of workers on fishing vessels - See paragraph 134.

Constitutional Law - Topic 2950

Determination of validity of statutes or acts - Pith and substance - General principles - The British Columbia Court of Appeal stated that "[t]he pith and substance doctrine refers to the dominant purpose and legal effect of legislation [...] It is the dominant purpose of the law that is decisive in determining whether its 'matter' falls within the constitutional mandate of the enacting body. The purpose of the law may be ascertained through intrinsic evidence from its preamble or object clause(s), or from extrinsic evidence including Hansard or minutes of parliamentary debates [...] The legal effect of the law is how the law 'changes the rights and liabilities of those who are subject to it' and may assist in revealing its true (rather than apparent) purpose." - See paragraphs 62 and 63.

Constitutional Law - Topic 3611

Paramountcy of federal statutes - Overlapping legislation - General - The British Columbia Court of Appeal stated that "The doctrine of paramountcy typically arises with "double aspect" matters. It is said to apply where an actual conflict or incompatibility exists between compliance with the federal and provincial legislation, or where provincial legislation frustrates the purpose of the federal legislation. In such circumstances the federal legislation will prevail and render the provincial legislation inoperative to the extent of the incompatibility [...] . The early application of the doctrine of paramountcy involved the narrow test of 'impossibility of dual compliance' [...] Thereafter, it expanded to include the 'impossibility of dual effect by decision makers' [...] Currently, it also encompasses the 'frustration of federal purpose test' [...] The application of the doctrine of paramountcy is consistent with the principle of cooperative federalism. [...] This trend toward interjurisdictional accommodation of validly enacted federal and provincial legislation is illustrative of cooperative federalism in action. The doctrine of paramountcy is now triggered only 'when the operational effects of provincial legislation are incompatible with federal legislation' [...]. This clarification of the 'frustration of federal purpose test' suggests that the critical factor in determining if the doctrine is engaged is the identification of an operational conflict. Operational conflict must be demonstrated by the party relying on the doctrine of paramountcy, and exists when federal and provincial laws are in fact incompatible. In order to succeed, it must be shown either 'that it is impossible to comply with both laws or that to apply the provincial law would frustrate the purpose of the federal law'" - See paragraphs 135 to 138.

Constitutional Law - Topic 3611

Paramountcy of federal statutes - Overlapping legislation - General - The federal regulatory regime for all small and large fishing vessels was found largely in the Small Fishing Vessel Inspection Regulations and Large Fishing Vessel Inspection Regulations enacted under the Canada Shipping Act - The Canada Labour Code (CLC) applied to all employees who worked under federal jurisdiction, including those employed with federal undertakings which were not subject to the provincial Workers Compensation Act scheme - Those employers and employees not subject to the CLC were governed by provincial labour laws and workplace safety standards - Part 24 of the Occupational Health and Safety Regulations (B.C.) (OHSR) enacted pursuant to Part 3 of the Workers Compensation Act (B.C.) included specific provisions for the occupational health and safety of workers in diving, fishing and other marine operations - The provisions focussed on the documentation and communication of vessel stability characteristics to the crew; they did not include detailed requirements for vessel stability - Section 24.72 of the OHSR required the owner of a small fishing vessel to have documentation on vessel stability readily accessible to its crew on board the vessel - Section 24.74 required the master of the vessel to establish procedures and assign responsibilities regarding vessel safety to each crew member in the case of an emergency - The appellant owners of fishing vessels commenced proceedings in which they challenged the constitutional validity of ss. 24.72 and 24.74 - Alternatively, they sought a declaration that the impugned provisions were inapplicable or inoperative to their commercial fishing operations by application of the constitutional doctrine of paramountcy - The British Columbia Court of Appeal held that the doctrine did not apply - The appellants presented no evidence of any actual incompatibility between the two regulatory regimes - Instead, they relied on hypothetical examples in support of their contention that the doctrine should apply - The absence of evidence of actual incompatibility was not surprising - It would be difficult if not impossible to secure such evidence in light of the cooperative arrangements between the two levels of government that focussed on how to avoid any potential for actual conflict - Moreover, the memoranda of agreement evinced no frustration of federal purpose on the "matters" of vessel safety and crew safety - If anything, the impugned provisions appeared to enhance the federal purpose - The appellants were unable to demonstrate that the impugned provisions created an operational conflict or inconsistency with the federal regulatory regime - See paragraph 139.

Constitutional Law - Topic 5950

Federal jurisdiction (s. 91) - Navigation and shipping - General - The federal regulatory regime for all small and large fishing vessels was found largely in the Small Fishing Vessel Inspection Regulations and Large Fishing Vessel Inspection Regulations enacted under the Canada Shipping Act - The Canada Labour Code (CLC) applied to all employees who worked under federal jurisdiction, including those employed with federal undertakings which were not subject to the provincial Workers Compensation Act scheme - Those employers and employees not subject to the CLC were governed by provincial labour laws and workplace safety standards - Part 24 of the Occupational Health and Safety Regulations (B.C.) (OHSR) enacted pursuant to Part 3 of the Workers Compensation Act (B.C.) included specific provisions for the occupational health and safety of workers in diving, fishing and other marine operations - The provisions focussed on the documentation and communication of vessel stability characteristics to the crew; they did not include detailed requirements for vessel stability - Section 24.72 of the OHSR required the owner of a small fishing vessel to have documentation on vessel stability readily accessible to its crew on board the vessel - Section 24.74 required the master of the vessel to establish procedures and assign responsibilities regarding vessel safety to each crew member in the case of an emergency - The appellant owners of fishing vessels commenced proceedings in which they challenged the constitutional validity of ss. 24.72 and 24.74 - They contended that the impugned provisions were ultra vires the provincial legislature - They submitted that in pith and substance they were regulations about vessel stability and safety and therefore fell within the federal Parliament's jurisdiction over "navigation and shipping" under s. 91(10) and "sea coast and inland fisheries" under s. 91(12) of the Constitution Act - The British Columbia Court of Appeal held that "the pith and substance of the impugned provisions is the occupational health, safety and well-being of workers employed on fishing vessels, which is a 'matter' of labour relations. [...] provincial legislation that may touch (or incidentally affect) the federal head of power under navigation and shipping does not mean that its pith and substance necessarily falls under s. 91(10) [...] the appellants' claim that the pith and substance of their operations falls within the federal head of power over seacoast and inland fisheries under s. 91(12) of the Constitution Act is not supported by the jurisprudence." - See paragraphs 64 to 73.

Constitutional Law - Topic 5990

Federal jurisdiction (s. 91) - Fisheries - General - [See Constitutional Law - Topic 5950 ].

Constitutional Law - Topic 7289

Provincial jurisdiction (s. 92) - Property and civil rights - Regulatory statutes - Labour relations - The federal regulatory regime for all small and large fishing vessels was found largely in the Small Fishing Vessel Inspection Regulations and Large Fishing Vessel Inspection Regulations enacted under the Canada Shipping Act - The Canada Labour Code (CLC) applied to all employees who worked under federal jurisdiction, including those employed with federal undertakings which were not subject to the provincial Workers Compensation Act scheme - Those employers and employees not subject to the CLC were governed by provincial labour laws and workplace safety standards - Part 24 of the Occupational Health and Safety Regulations (B.C.) (OHSR) enacted pursuant to Part 3 of the Workers Compensation Act (B.C.) included specific provisions for the occupational health and safety of workers in diving, fishing and other marine operations - The provisions focussed on the documentation and communication of vessel stability characteristics to the crew; they did not include detailed requirements for vessel stability - Section 24.72 of the OHSR required the owner of a small fishing vessel to have documentation on vessel stability readily accessible to its crew on board the vessel - Section 24.74 required the master of the vessel to establish procedures and assign responsibilities regarding vessel safety to each crew member in the case of an emergency - The appellant owners of fishing vessels commenced proceedings in which they challenged the constitutional validity of ss. 24.72 and 24.74 - They contended that the impugned provisions were ultra vires the provincial legislature - The British Columbia Court of Appeal held that "the impugned provisions are in pith and substance a 'matter' involving the occupational health and safety of workers on fishing vessels. Such 'matters' relate to labour relations and working conditions which presumptively fall within the exclusive provincial jurisdiction over 'property and civil rights' under s. 92(13)." - See paragraphs 74 to 76.

Constitutional Law - Topic 7289

Provincial jurisdiction (s. 92) - Property and civil rights - Regulatory statutes - Labour relations - The federal regulatory regime for all small and large fishing vessels was found largely in the Small Fishing Vessel Inspection Regulations and Large Fishing Vessel Inspection Regulations enacted under the Canada Shipping Act - The Canada Labour Code (CLC) applied to all employees who worked under federal jurisdiction, including those employed with federal undertakings which were not subject to the provincial Workers Compensation Act scheme - Those employers and employees not subject to the CLC were governed by provincial labour laws and workplace safety standards - Part 24 of the Occupational Health and Safety Regulations (B.C.) (OHSR) enacted pursuant to Part 3 of the Workers Compensation Act (B.C.) included specific provisions for the occupational health and safety of workers in diving, fishing and other marine operations - The provisions focussed on the documentation and communication of vessel stability characteristics to the crew; they did not include detailed requirements for vessel stability - Section 24.72 of the OHSR required the owner of a small fishing vessel to have documentation on vessel stability readily accessible to its crew on board the vessel - Section 24.74 required the master of the vessel to establish procedures and assign responsibilities regarding vessel safety to each crew member in the case of an emergency - The appellant owners of fishing vessels commenced proceedings in which they challenged the constitutional validity of ss. 24.72 and 24.74 - The British Columbia Court of Appeal held that the impugned provisions fell within the exclusive provincial jurisdiction over "property and civil rights" under s. 92(13) of the Constitution Act - The court then applied the functional test as affirmed in NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees' Union (SCC 2010) and found that the business of the appellants' fishing operations was exclusively intraprovincial and therefore, were a provincial undertaking within s. 92(10) - See paragraphs 93 to 118.

Cases Noticed:

504578 Ontario Ltd. et al. v. Great Lakes Fishermen and Allied Workers' Union and Labour Relations Board (Ont.), [1990] O.L.R.B. Rep. 117, leave to appeal refused (1990), 127 N.R. 238; 43 O.A.C. 160 (S.C.C.), refd to. [para. 39].

Bell Canada v. Commission de la santé et de la sécurité du travail (Qué.) and Bilodeau et al., [1988] 1 S.C.R. 749; 85 N.R. 295; 15 Q.A.C. 217, refd to. [paras. 44, 167].

Alltrans Express Ltd. v. Workers' Compensation Board (B.C.) et al., [1988] 1 S.C.R. 897; 85 N.R. 241; 15 Q.A.C. 161, refd to. [para. 45].

McNeil v. Board of Censors (N.S.) and Nova Scotia (Attorney General), [1978] 2 S.C.R. 662; 19 N.R. 570; 25 N.S.R.(2d) 128; 36 A.P.R. 128, refd to. [para. 48].

Siemens et al. v. Manitoba (Attorney General) et al., [2003] 1 S.C.R. 6; 299 N.R. 267; 173 Man.R.(2d) 1; 293 W.A.C. 1, refd to. [para. 48].

Canadian Western Bank et al. v. Alberta, [2007] 2 S.C.R. 3; 362 N.R. 111; 409 A.R. 207; 402 W.A.C. 207; 2007 SCC 22, refd to. [paras. 49, 171].

British Columbia (Attorney General) v. Lafarge Canada Inc. - see Burrardview Neighbourhood Association v. Vancouver (City) et al.

Burrardview Neighbourhood Association v. Vancouver (City) et al., [2007] 2 S.C.R. 86; 362 N.R. 208; 241 B.C.A.C. 1; 399 W.A.C. 1; 2007 SCC 23, refd to. [para. 49].

Ordon et al. v. Grail, [1998] 3 S.C.R. 437; 232 N.R. 201; 115 O.A.C. 1, refd to. [para. 49].

R. v. Mersey Seafoods Ltd. (2008), 267 N.S.R.(2d) 288; 853 A.P.R. 288; 295 D.L.R.(4th) 244; 2008 NSCA 67, consd. [para. 50].

Ward v. Canada (Attorney General) et al., [2002] 1 S.C.R. 569; 283 N.R. 201; 211 Nfld. & P.E.I.R. 125; 633 A.P.R. 125; 2002 SCC 17, refd to. [paras. 51, 71].

Northern Telecom Ltd. v. Communications Workers of Canada and Canada Labour Relations Board, [1980] 1 S.C.R. 115; 28 N.R. 107, refd to. [paras. 51, 93].

Kitkatla Indian Band et al. v. British Columbia (Minister of Small Business, Tourism and Culture) et al., [2002] 2 S.C.R. 146; 286 N.R. 131; 165 B.C.A.C. 1; 270 W.A.C. 1; 2002 SCC 31, refd to. [para. 53].

Ontario Public Service Employees' Union et al. v. Ontario (Attorney General) et al., [1987] 2 S.C.R. 2; 77 N.R. 321; 23 O.A.C. 161, refd to. [paras. 57, 129].

Ontario (Attorney General) v. Chatterjee, [2009] 1 S.C.R. 624; 387 N.R. 206; 249 O.A.C. 355; 2009 SCC 19, refd to. [paras. 61, 171].

Reference Re Firearms Act (Can.), [2000] 1 S.C.R. 783; 254 N.R. 201; 161 A.R. 201; 225 W.A.C. 201; 2000 SCC 31, refd to. [para. 62].

R. v. Investissements Navimex Inc. (1998), 127 C.C.C.(3d) 328 (Que. C.A.), dist. [para. 66].

Singbeil v. Hansen, [1985] 5 W.W.R. 237 (B.C.C.A.), refd to. [para. 69].

British Columbia Packers Ltd. v. Canada Labour Relations Board, [1976] 1 F.C. 375 (F.C.A.), refd to. [para. 72].

Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113; 276 N.R. 339; 157 B.C.A.C. 161; 256 W.A.C. 161; 2001 SCC 67, refd to. [para. 79].

Johnson v. Alberta (Attorney General), [1954] S.C.R. 127, refd to. [para. 82].

Reference Re Validity of the Combines Investigation Act and of s. 498 of the Criminal Code, [1929] S.C.R. 409, refd to. [para. 86].

Montcalm Construction Inc. v. Minimum Wage Commission et al., [1979] 1 S.C.R. 754; 25 N.R. 1, refd to. [para. 93].

NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees' Union (2010), 407 N.R. 338; 294 B.C.A.C. 1; 498 W.A.C. 1; 2010 SCC 45, consd. [para. 93].

Four B Manufacturing Ltd. v. United Garment Workers of America, Labour Relations Board (Ont.) and Brant et al., [1980] 1 S.C.R. 1031; 30 N.R. 421, refd to. [para. 96].

Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters et al., [2009] 3 S.C.R. 407; 395 N.R. 276; 469 A.R. 150: 470 W.A.C. 150; 2009 SCC 53, refd to. [para. 96]; appld. [para. 105].

Agence Maritime Inc. v. Canada Labour Relations Board, [1969] S.C.R. 851, consd. [para. 100].

Mark Fishing Co. v. United Fishermen & Allied Workers' Union (1972), 24 D.L.R.(3d) 585 (B.C.C.A.), folld. [para. 116].

Monk Corp. v. Island Fertilizers Ltd., [1991] 1 S.C.R. 779; 123 N.R. 1, refd to. [para. 119].

Whitbread v. Walley et al., [1990] 3 S.C.R. 1273; 120 N.R. 109, refd to. [para. 119].

Multiple Access Ltd. v. McCutcheon et al., [1982] 2 S.C.R. 161; 44 N.R. 181, refd to. [paras. 136, 171].

Authors and Works Noticed:

Elliot, Robin, Safeguarding Provincial Autonomy from the Supreme Court's New Federal Paramountcy Doctrine: A Constructive Role for the Intention to Cover the Field Test? (2007), 38 S.C.L.R.(2d) 629, pp. 629 to 668 [para. 136].

Hogg, Peter W., Constitutional Law of Canada, (5th Ed. 2007), pp. 15, 16 [para. 62]; 16.5 [paras. 87, 171]; 22.4 [para. 109]; 22.10 [para. 110].

McNairn, Colin H., Transportation, Communication and the Constitution: The Scope of Federal Jurisdiction (1969), 47 Can. Bar Rev. 355, p. 355 [para. 106].

Tysoe, Report of the Royal Commission of Inquiry into the Workers' Compensation Act (1966), p. 18 [para. 38].

Counsel:

H. Swanson, for the appellant, Jim Pattison Enterprises Ltd.;

J. Perrett, for the appellant, Osprey Marine Ltd.;

S. Nielsen and L. Courtenay, for the respondent, Workers' Compensation Board;

V. Jackson, for the respondent, Attorney General.

These appeals were heard on May 13 and 14, 2010, at Vancouver, B.C., by D. Smith, Bennett and Garson, JJ.A., of the British Columbia Court of Appeal. The judgment of the Court of Appeal was delivered on February 2, 2011, and included the following opinions:

D. Smith, J.A. (Bennett, J.A., concurring) - see paragraphs 1 to 143;

Garson, J.A., concurring - see paragraphs 144 to 179.