Whitbread v. Walley et al., (1990) 120 N.R. 109 (SCC)

• Judge: Dickson, C.J.C., Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier and Cory, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 24, 1990
• Jurisdiction: Canada (Federal)
• Citations: (1990), 120 N.R. 109 (SCC);[1990] SCJ No 138 (QL);77 DLR (4th) 25;1990 CanLII 33 (SCC);[1990] 3 SCR 1273;[1990] ACS no 138;[1991] 2 WWR 195;120 NR 109;52 BCLR (2d) 187

Whitbread v. Walley (1990), 120 N.R. 109 (SCC)

MLB headnote and full text

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 Québec and The Attorney General of British Columbia (interveners)

(No. 21094)

Indexed As: Whitbread v. Walley et al.

Supreme Court of Canada

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

December 20, 1990.

Summary:

In 1983, Whitbread took the "Calrossie", a 32 foot pleasure craft, from its moorings in Vancouver Harbour. The "Calrossie" was owned by Greenwood and Horn and was registered as a ship under the Canada Shipping Act, R.S.C. 1970, c. S-9. Later, Whitbread asked one of his passengers, Walley, to take the helm. Whitbread moved from the controls and later fell asleep. The ship hit rocks and Whitbread suffered severe spinal injury. Whitbread sued Walley (the operator) as well as Greenwood and Horn (the owners) in tort for negligence. Walley denied any negligence. Walley also applied for a declaration that his liability was limited under ss. 647 and 649 of the Canada Shipping Act to approximately $103,000. Under those sections, a maximum liability was established as a function of the ship's tonnage. Whitbread submitted that the application of the limitation of liability provisions, in the case of a noncommercial pleasure craft, was an ultra vires interference with the provincial jurisdiction over property and civil rights contained in s. 92(13) of the Constitution Act, 1967.

The British Columbia Supreme Court, in a decision reported at 19 B.C.L.R.(2d) 120; 45 D.L.R.(4th) 729, read down the legislation and held that ss. 647 and 649 only applied to pleasure craft engaged in commerce. Walley appealed.

The British Columbia Court of Appeal, in a decision reported [1988] 5 W.W.R. 313; 26 B.C.L.R.(2d) 203; 51 D.L.R.(4th) 509, allowed the appeal. The Court of Appeal held that ss. 647 and 649 was legislation in respect of "navigation and shipping" and as such, a valid exercise of federal jurisdiction under s. 91(10) of the Constitution Act, 1867. Whitbread appealed.

The Supreme Court of Canada dismissed the appeal. The court held that, in pith and substance, the impugned provisions were in respect to maritime law and intra vires Parliament under s. 91(10) of the Constitution Act, 1867.

*(Editor's note: Dickson, C.J.C., was Chief Justice on the date of hearing; Lamer, C.J.C., was Chief Justice on the date of judgment).

Admiralty - Topic 23

General - Definitions - Ship - Defined - Pleasure craft - Section 2 of the Canada Shipping Act defined "ship" as including "every description of vessel used in navigation and not propelled by oars ..." - A plaintiff submitted that a 32 foot noncommercial pleasure craft should be excluded from the definition on the ground that the pleasure craft was the modern equivalent of a traditional vessel "propelled by oars" - The Supreme Court of Canada observed that the pleasure craft was a ship as defined by the Act - See paragraphs 1, 6 and 8.

Admiralty - Topic 6021

Principles of law - Canadian maritime law - General - Torts - The plaintiff was injured when a pleasure craft struck rocks in Vancouver Harbour - The craft was not engaged in commerce - The plaintiff sued the operator and owners in negligence - The Supreme Court of Canada discussed the issue concerning the particular law to be applied to torts associated with shipping and navigation - The court held that once the general conduct involving the parties was determined to be within the ambit of shipping and navigation, the tort and negligence law particular to federal maritime law was applicable, not the provincial law of tort or negligence - See paragraphs 18 to 20, 32.

Admiralty - Topic 6021

Principles of law - Canadian maritime law - General - The Supreme Court of Canada stated that there was a uniform body of substantive law applicable to maritime and admiralty matters that was subject to the exclusive legislative jurisdiction of Parliament - It was a body of law encompassing the common law principles of tort, contract and bailment and was uniform throughout Canada - Also, it was the body of law defined in s. 2 of the Federal Court Act and was the maritime law of England as it was incorporated into Canadian law and it was not the law of any province of Canada - See paragraph 18.

Admiralty - Topic 6022

Principles of law - Canadian maritime law - Nature of - [See second Admiralty - Topic 6021].

Admiralty - Topic 6023

Principles of law - Canadian maritime law - Sources - [See second Admiralty - Topic 6021].

Admiralty - Topic 6030

Principles of law - Canadian maritime law - Application - The plaintiff suffered personal injury when a pleasure craft struck rocks in Vancouver Harbour - The boat was not engaged in a commercial operation - The Supreme Court of Canada discussed the issue of what was the applicable law: the tort law of the province or the federal admiralty law - The court stated that the matter was subject to the federal law because its jurisdiction over shipping and navigation covered all navigable waterways, not just the seas or tidal waterways - See paragraphs 21 to 29.

Constitutional Law - Topic 5950

Federal jurisdiction - Constitution Act, s. 91 - Navigation and shipping - Torts - [See Admiralty - Topic 6030].

Shipping and Navigation - Topic 22

General - Definitions - Ship - Pleasure craft - [See Admiralty - Topic 23].

Shipping and Navigation - Topic 501

Ships - Ownership and control - Liability of owner - Limitation of - General - By statute - The plaintiff was injured when a pleasure craft struck rocks in Vancouver Harbour - The plaintiff sued in negligence - The operator applied for declaration that liability was limited to $103,000 by ss. 647 and 649 of the Canada Shipping Act - The plaintiff submitted that the provisions were inapplicable because they were an ultra vires intrusion into the provincial jurisdiction over property and civil rights - The Supreme Court of Canada held that the provisions were applicable because they were, in pith and substance, a valid exercise of the federal constitutional power over shipping and navigation - See paragraphs 14 to 20.

Shipping and Navigation - Topic 543

Ships - Ownership and control - Liability of operator - Limitation on - By statute - [See Shipping and Navigation - Topic 501].

Shipping and Navigation - Topic 5321

Collisions and groundings - Negligence - General - Torts - Applicable law - [See first Admiralty - Topic 6021].

Shipping and Navigation - Topic 5404

Collision and groundings - Negligence - Defences - Statutory limitation of liability - [See Shipping and Navigation - Topic 501].

Cases Noticed:

Singbeil v. Hansen (1985), 19 D.L.R.(4th) 48 (B.C.C.A.), refd to. [para. 6].

B.C. Telephone v. Marpole Shipping, [1971] S.C.R. 321, refd to. [para. 6].

Vancouver v. Rhodes, [1955] 1 D.L.R. 139 (S.C.B.C.), refd to. [para. 6].

Proprietary Articles Trade Association v. Attorney General for Canada, [1931] A.C. 310 (P.C.), refd to. [para. 10].

Montréal v. Montréal Harbour Commissioners, [1926] A.C. 299 (P.C.), refd to. [para. 10].

Nisshin Kisen Kaisha Ltd. v. C.N.R., [1981] 1 F.C. 293 (F.C.T.D.), refd to. [para. 10].

Munro v. National Capital Commission, [1966] S.C.R. 663, refd to. [para. 14].

City National Leasing Ltd. v. General Motors of Canada Ltd., [1989] 1 S.C.R. 641; 93 N.R. 326; 32 O.A.C. 332, refd to. [para. 14].

Union Colliery Co. of British Columbia v. Byrden, [1899] A.C. 580, refd to. [para. 15].

Attorney General for Alberta v. Attorney General for Canada (The Alberta Bill of Rights Reference), [1947] A.C. 503, refd to. [para. 15].

Bank of Toronto v. Lambe (1887), 12 A.C. 575, refd to. [para. 15].

Sivaco Wire and Nail Company and Atlantic Lines and Navigation Company Inc. v. Tropwood A.G. and Owners of the Vessel Tropwood, [1979] 2 S.C.R. 157; 26 N.R. 313; 99 D.L.R.(3d) 235, consd. [para. 18].

Terrasses Jewellers Inc. v. Triglav, [1983] 1 S.C.R. 283; 54 N.R. 321, appld. [para. 18].

Miida Electronics Inc. v. Mitsui O.S.K. Lines Ltd. and ITO-International Terminal Operators Ltd., [1986] 1 S.C.R. 752; 68 N.R. 241, appld. [para. 18].

Chartwell Shipping Limited v. Q.N.S. Paper Co. Ltd., [1989] 2 S.C.R. 683; 101 N.R. 1; 26 Q.A.C. 81, appld. [para. 18].

Clark v. Canadian National Railway Co. and New Brunswick, [1988] 2 S.C.R. 680; 89 N.R. 81; 89 N.B.R.(2d) 116; 226 A.P.R. 116, dist. [para. 19].

Québec North Shore Paper Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054; 9 N.R. 471, consd. [para. 21].

R. v. McNamara Construction (Western) Ltd., [1977] 2 S.C.R. 654; 12 N.R. 321, consd. [para. 21].

De Lovio v. Boit (1815), 2 Gall. 398, refd to. [para. 23].

Mersey Docks Harbour Board v. Turner (The "Zeta"), [1893] A.C. 468, refd to. [para. 23].

Domestic Converters Corp. v. Arctic Steamship Line, [1984] 1 F.C. 211; 46 N.R. 195, refd to. [para. 23].

Queddy River Driving Boom Co. v. Davidson (1883), 10 S.C.R. 222, refd to. [para. 26].

Industrial Relations and Disputes Investigation Act, Reference re (the Stevedoring Case), [1955] S.C.R. 529, refd to. [para. 26].

Stevedoring Case - see Industrial Relations and Disputes Investigation Act, Reference re.

Siddall (William) and Sons Fisheries v. Pembina Exploration Canada, [1989] 1 S.C.R. 206; 92 N.R. 137; 33 O.A.C. 321, refd to. [para. 26].

Shipman v. Phinn (1914), 19 D.L.R. 305 (Ont. S.C.), refd to. [para. 26].

Smith v. Fecampois, [1929] 2 D.L.R. 925 (N.S.S.C.), refd to. [para. 26].

Horne v. Krezan, Shamlock and Young (1955), 14 W.W.R.(N.S.) 625 (Alta. S.C.), refd to. [para. 26].

Pile Foundations Ltd. v. Selkirk Silica Co. and Perry (1967), 59 W.W.R.(N.S.) 622 (Man. Q.B.), refd to. [para. 26].

Harvey v. Tarala (1977), 6 Sask.R. 74 (Q.B.), refd to. [para. 26].

Provincial Fisheries, Re (1895), 26 S.C.R. 444, consd. [para. 27].

Attorney General of Canada v. Attorney General of Québec, [1898] A.C. 700, refd to. [para. 27].

Attorney General of British Columbia v. Attorney General of Canada, [1914] A.C. 153, refd to. [para. 27].

Booth v. Lowery (1917), 57 S.C.R. 421, refd to. [para. 27].

The "Lionel" v. The "Manchester Merchant", [1970] S.C.R. 538, refd to. [para. 28].

Stein Estate v. Ship "Kathy K", [1976] 2 S.C.R. 802; 6 N.R. 359; 62 D.L.R.(3d) 1, refd to. [para. 28].

Horsley v. MacLaren, [1972] S.C.R. 441, refd to. [para. 29].

Coldwell-Horsfall v. West Country Yacht Charters Ltd. (The "Annie Hay"), [1968] 1 Ll.L.R. 141 (Adm. Div.), refd to. [para. 29].

Walithy Charters Ltd. v. Doig (1979), 15 B.C.L.R. 45 (S.C.), refd to. [para. 29].

The "Alastor", [1981] 1 Ll.L.R. 581 (C.A.), refd to. [para. 29].

Chamberland v. Fleming (1984), 54 A.R. 291; 12 D.L.R.(4th) 688 (Q.B.), refd to. [para. 29].

Attorney General for Ontario v. Canada Temperance Federation, [1946] A.C. 193, refd to. [para. 30].

Re Regulation and Control of Aeronautics in Canada (The Aeronautics Reference), [1932] A.C. 54, refd to. [para. 30].

Jorgenson v. North Vancouver Magistrates (1959), 28 W.W.R.(N.S.) 265, refd to. [para. 30].

Statutes Noticed:

Canada Shipping Act, R.S.C. 1970, c. S-9, sect. 2 [para. 4]; sect. 8, sect. 109(1), 109(3), sect. 436, sect. 466 [para. 8]; sect. 647, sect. 649 [para. 1 et seq.].

Shipping Act - see Canada Shipping Act.

Constitution Act, 1867, sect. 91(10) [para. 4 et seq.].

Authors and Works Noticed:

Black's Law Dictionary (5th Ed. 1979), generally [para. 10].

Chorley and Giles' Shipping Law (1987), pp. 365-392 [paras. 28, 29]; 397 [para. 29].

Fernandes, R.M., Boating Law of Canada (1989), pp 61-105 [paras. 28, 29]; 113-117, 119-161 [para. 29].

Gaskell, N.J.J., Debattista, C., and Swatton, R.J., Chorley and Giles' Shipping Law (1987), pp. 365-392 [paras. 28, 29]; 397 [para. 29].

Hogg, Peter W., Constitutional Law of Canada (2nd Ed. 1985), pp. 313, 328 [para. 15].

La Forest, Gerard V. et al., Water Law in Canada (1973), pp. 178-179 [para. 27].

Maxwell, The Interpretation of Statutes (12th Ed. 1969), pp. 28-29 [para. 8].

Odgers, Construction of Deeds and Statutes (5th Ed. 1967), p. 241 [para. 8].

Counsel:

A. Ross and G. Nelson, for the appellant;

W.S. Berardino, Q.C., and B. McLeod, for the respondents;

E.R. Sojonky, Q.C., and Danielle Dion for the intervener the Attorney General of Canada;

L. Price and R. Ratcliffe, for the intervener the Attorney General for Ontario;

Jean Bourchard and Françoise Saint-Martin, for the intervener the Attorney General of Québec;

E.R.A. Edwards, Q.C., and F.A.V. Falzon, for the intervener the Attorney General of British Columbia.

Solicitors of Record:

Edwards, Kenny & Bray, Vancouver, B.C., for the appellant;

Russell & DuMoulin, Vancouver, B.C., for the respondents;

Attorney General of Canada, Ottawa, Ontario, for the intervener the Attorney General of Canada;

Richard F. Chaloner, Toronto, Ontario, for the intervener the Attorney General for Ontario;

Attorney General of Québec, Ste. Foy, Québec, for the intervener the Attorney General of Québec;

Attorney General of British Columbia, Victoria, B.C., for the intervener the Attorney General of British Columbia.

This appeal was heard on May 24, 1990, by Dickson, C.J.C., Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier and Cory, JJ., of the Supreme Court of Canada. The following decision of the Supreme Court of Canada was delivered in both official languages on December 20, 1990, by La Forest, J. La Forest, J.'s, decision is reported below in English only.