R. v. Mersey Seafoods Ltd., (2008) 267 N.S.R.(2d) 288 (CA)

• Judge: Cromwell, Hamilton and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 09, 2008
• Jurisdiction: Nova Scotia
• Citations: (2008), 267 N.S.R.(2d) 288 (CA);2008 NSCA 67

R. v. Mersey Seafoods Ltd. (2008), 267 N.S.R.(2d) 288 (CA);

    853 A.P.R. 288

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. JL.036

The Attorney General of Nova Scotia (appellant) v. Mersey Seafoods Limited (respondent) and Attorney General of Canada (intervenor)

(CAC 282454; 2008 NSCA 67)

Indexed As: R. v. Mersey Seafoods Ltd.

Nova Scotia Court of Appeal

Cromwell, Hamilton and Fichaud, JJ.A.

July 24, 2008.

Summary:

The accused was charged with violations of provincial occupational health and safety legislation, regarding its fishing vessel, Mersey Venture.

The Nova Scotia Provincial Court, in a decision not reported in this series of reports, determined that the provincial legislation should not apply to a vessel regulated under the Canada Shipping Act. The court quashed the charges. The Crown appealed.

The Nova Scotia Supreme Court, in a decision reported at (2007), 255 N.S.R.(2d) 245; 814 A.P.R. 245, dismissed the appeal. The Crown appealed.

The Nova Scotia Court of Appeal allowed the appeal. The court reinstated the charges.

Constitutional Law - Topic 1581

Extent of powers conferred - Double aspect doctrine - General - The accused was charged with violations of Nova Scotia's Occupational Health and Safety (OHS) Act, regarding its fishing vessel, Mersey Venture - The lower courts concluded that the operation and safety of maritime vessels was a federally-regulated undertaking and that the OHS Act had to be read down to exclude application to the accused - The Nova Scotia Court of Appeal allowed the Crown's appeal - The OHS Act's pith and substance related to labour relations or management of an undertaking, which were generally provincial under s. 92(13) unless federal jurisdiction was integral to Parliament's exclusive jurisdiction over a class of subjects in s. 91 - Subject to the same federal exception, labour relations of a provincially based fishing undertaking was generally provincial, notwithstanding that the vessels operated outside provincial boundaries - Whether labour relations of the accused was federal as an exception to the general rule depended on whether the accused or its vessel was a federal undertaking - An examination of the accused as a "going concern" established that it was provincial - The OHS Act applied to it under s. 92(13) - This did not offend the exclusive federal jurisdiction over navigation and shipping - Any impact of the OHS Act on navigation and shipping was incidental - This was the double aspect doctrine at work - The court also rejected the argument that the vessel, itself, was a separate and differently governed undertaking - Mersey Venture belonged to the accused's provincial undertaking - There was no infringement of federal interjurisdictional immunity - See paragraphs 34 to 64.

Constitutional Law - Topic 2508

Determination of validity of statutes or acts - General principles - Provincial legislation - [See Constitutional Law - Topic 1581 ].

Constitutional Law - Topic 2511

Determination of validity of statutes or acts - General principles - Interjurisdictional immunity - [See Constitutional Law - Topic 1581 ].

Constitutional Law - Topic 3504

Paramountcy of federal statutes - General principles - Requirement of conflict or repugnancy - The accused was charged with violations of Nova Scotia's Occupational Health and Safety (OHS) Act, regarding its fishing vessel, Mersey Venture - The lower courts concluded that the operation and safety of maritime vessels was a federally-regulated undertaking and that the OHS Act had to be read down to exclude application to the accused - The Nova Scotia Court of Appeal allowed the Crown's appeal - Having found that the accused and the Mersey Venture were provincial undertakings, that the OHS Act applied and that there was no infringement of federal interjurisdictional immunity, the court considered whether the OHS Act was inoperative because of federal paramountcy - The lower courts had erroneously assumed that the Mersey Venture was regulated by the Canada Labour Code - Because the accused and the Mersey Venture were provincial undertakings, the OHS Act applied and the Canada Labour Code did not - These were two mutually exclusive regimes between which paramountcy did not arise - Further, there was no operational conflict between federal safety regulation of the Mersey Venture under the Canada Shipping Act and Fisheries Act and provincial regulation - Neither was there frustration of a federal purpose - As the accused and the Mersey Venture were provincial undertakings, the Canada Labour Code was replaced by the OHS Act - This did not frustrate any federal statutory purpose - The Canada Shipping Act did not aim to exclude occupational health and safety legislation - See paragraphs 65 to 86.

Constitutional Law - Topic 5952

Federal jurisdiction (s. 91) - Navigation and shipping - Scope of power - [See Constitutional Law - Topic 1581 ].

Constitutional Law - Topic 7075

Provincial jurisdiction (s. 92) - Local works and undertakings - General - [See Constitutional Law - Topic 1581 ].

Constitutional Law - Topic 7289

Provincial jurisdiction (s. 92) - Property and civil rights - Regulatory statutes - Labour relations - [See Constitutional Law - Topic 1581 ].

Constitutional Law - Topic 7296

Provincial jurisdiction (s. 92) - Property and civil rights - Regulatory statutes - Industrial safety - [See Constitutional Law - Topic 1581 ].

Trade Regulation - Topic 7710

Industrial safety - General - Application of legislation - [See Constitutional Law - Topic 1581 ].

Trade Regulation - Topic 7715

Industrial safety - General - Workplace safety legislation - Conflict with other legislation - [See Constitutional Law - Topic 1581 ].

Cases Noticed:

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, refd to. [para. 28].

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, dist. [para. 31].

Ordon et al. v. Grail, [1998] 3 S.C.R. 437; 232 N.R. 201; 115 O.A.C. 1, refd to. [para. 39].

Whitbread v. Walley et al., [1990] 3 S.C.R. 1273; 120 N.R. 109, refd to. [para. 42].

Isen v. Simms, [2006] 2 S.C.R. 349; 353 N.R. 147, refd to. [para. 42].

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, refd to. [para. 48].

Mark Fishing Co. v. United Fishermen and Allied Workers' Union (1972), 24 D.L.R.(3d) 585 (B.C.C.A.), affd. (1973), 38 D.L.R.(3d) 316 (S.C.C.), refd to. [para. 49].

British Columbia Packers Ltd. v. Canada Labour Relations Board, [1976] 1 F.C. 375 (F.C.A.), refd to. [para. 50].

Barry's Ltd. v. Fishermen, Food and Allied Workers' Union (1993), 104 Nfld. & P.E.I.R. 277; 329 A.P.R. 277 (Nfld. C.A.), leave to appeal refused (1993), 158 N.R. 319; 108 Nfld. & P.E.I.R. 90; 339 A.P.R. 90 (S.C.C.), refd to. [para. 50].

504578 Ontario Ltd. et al. v. Great Lakes Fishermen and Allied Workers' Union and Labour Relations Board (Ont.), [1990] O.J. No. 39 (C.A.), leave to appeal refused (1990), 127 N.R. 238; 43 O.A.C. 160 (S.C.C.), refd to. [para. 50].

Underwater Gas Developers Ltd. v. Labour Relations Board (Ont.) (1960), 24 D.L.R.(2d) 673 (Ont. C.A.), refd to. [para. 50].

Clearwater Seafoods Limited Partnership v. Labour Relations Board (Nfld. and Lab.) et al. (2006), 258 Nfld. & P.E.I.R. 170; 779 A.P.R. 170 (N.L.T.D.), refd to. [para. 50].

Dandy Dan's Fish Market Ltd. v. Newfoundland et al. (2007), 265 Nfld. & P.E.I.R. 102; 805 A.P.R. 102; 2007 NLCA 26, refd to. [para. 50].

Port Enterprises Ltd. et al. v. Newfoundland and Labrador (Minister of Fisheries and Aquaculture) (2006), 256 Nfld. & P.E.I.R. 186; 773 A.P.R. 186; 2006 NLCA 36, refd to. [para. 50].

R. v. Allen (C.R.) et al. (2005), 236 N.S.R.(2d) 258; 749 A.P.R. 258; 2005 NSCA 118, refd to. [para. 50].

Agence Maritime Inc. v. Canada Labour Relations Board, [1969] S.C.R. 851; 12 D.L.R.(3d) 722, consd. [para. 53].

Montcalm Construction Inc. v. Minimum Wage Commission et al., [1979] 1 S.C.R. 754; 25 N.R. 1, consd. [para. 55].

Northern Telecom Ltd. v. Communications Workers of Canada and Canada Labour Relations Board, [1980] 1 S.C.R. 115; 28 N.R. 107, consd. [para. 55].

Singbeil v. Hansen (1985), 19 D.L.R.(4th) 48 (B.C.C.A.), refd to. [para. 56].

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, refd to. [para. 61].

Canadian Pacific Railway Co. v. British Columbia (Attorney General), [1950] 1 D.L.R. 721, dist. [para. 62].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (5th Ed.) (Looseleaf Supp.), vol. 1, p. 16-16 [para. 69].

Counsel:

Edward A. Gores, Q.C., and Karen H. Anthony, for the appellant;

David P.S. Farrar, Q.C., and Mark D. Tector, for the respondent;

Theodore K. Tax, for the intervenor.

This appeal was heard at Halifax, Nova Scotia, on May 9, 2008, by Cromwell, Hamilton and Fichaud, JJ.A., of the Nova Scotia Court of Appeal. On July 24, 2008, Fichaud, J.A., delivered the following judgment for the court.