The past year has seen one significant decision of note, namely, the Supreme Court of Canada decision in Ordon v Grail which was rendered on November 26, 1998. The case is essential reading for all Canadian maritime law practitioners as it seriously limits the extent to which Provincial statutes apply to maritime accidents.

Ordon v Grail concerned four separate actions commenced in the Ontario Court General Division. The actions involved two boating accidents that resulted in fatalities and in serious personal injury. The actions gave rise to similar legal issues. The issues were:

1. Do the superior courts of the provinces have jurisdiction over maritime fatal accident claims or are such claims within the exclusive jurisdiction of the Federal Court?
2. When can provincial statutes of general application apply to maritime negligence claims? Specifically:
   1. Do the provisions of the Ontario Family Law Act allowing claims for loss of care, guidance and companionship by dependants (including common law spouses and siblings) apply to boating accidents?
   2. Do the provisions of the Ontario Trustee Act allowing the estate of a deceased person to bring an action for damages apply to boating accidents?
   3. Do the provisions of the Ontario Negligence Act apply to boating accidents?
3. Is the limitation period for fatal boating accidents one or two years?

The Supreme Court of Canada held as follows:

1. Provincial superior courts have an inherent general jurisdiction over maritime matters that can only be taken away by clear and explicit statutory language. The provisions of the Canada Shipping Act granting jurisdiction over fatal accident claims to the "Admiralty Court" (which is defined as the Federal Court) do not expressly exclude superior court jurisdiction. Therefore the superior courts have concurrent jurisdiction with the Federal Court over maritime claims.
2. The determination of whether a provincial statute is constitutionally applicable to a maritime negligence action involves a four part analysis:
• Step 1: First, it must be determined whether matter at issue is within the exclusive federal legislative competence over navigation and shipping, i.e. is the subject matter under consideration so integrally connected to maritime matters so as to be legitimate Canadian Maritime Law;
• Step 2: If the answer to step 1 is yes, the second step is to determine whether Canadian Maritime Law provides a counterpart to the statutory provision. If it does, Canadian Maritime Law applies;
• Step 3: If there is no counterpart provided by Canadian Maritime Law, the third step is to consider whether the non-statutory Canadian Maritime Law should be altered in accordance with the principles of judicial reform established by the court, i.e. to reflect the changing social, moral and economic fabric of the country. Such changes should only be incremental. Changes with complex or uncertain ramifications should be left for the legislature. Additionally, in making changes to Canadian Maritime Law the courts should consider the fabric of the broader international community of maritime states and the desirability of maintaining uniformity in maritime law;
• Step 4: Finally, and only if the matter cannot be resolved through the application of steps 1 through 3, the court must determine whether the provincial statute is constitutionally applicable to a maritime claim. The Supreme Court noted that matters within exclusive federal jurisdiction are subject to provincial statutes of general application provided the provincial laws do not go to the core of the federal jurisdiction. If they do, they will be read down. The Court held that Maritime negligence law is a core element of federal jurisdiction over maritime law. The Court therefore concluded that it would be constitutionally impermissible for a provincial statute to regulate maritime negligence law. The Court cautioned, however, that they were not saying that no provincial statute could ever apply in any maritime context. Nevertheless, the Court was of the opinion that it would be relatively rare.
1. With respect specifically to the application of the Ontario Family Law Act to boating accidents, the Supreme Court applied the above analysis and held that Canadian Maritime Law should be reformed to allow claims by dependants for loss of guidance, care and companionship in respect of both personal injury accidents and fatal accidents. The Court further held that "dependants" should include common law spouses but not siblings. Because the Court was able to incrementally reform Canadian Maritime Law to address the issues raised it did not need to consider the constitutional applicability of the Family Law Act (step 4) except with reference to whether siblings could be plaintiffs and, on this issue, the Court held the Family Law Act should be read down so as not to apply to maritime negligence actions;

2. With respect to the application of the Ontario Trustee Act, the Supreme Court also held that Canadian Maritime Law should be reformed to allow a claim by an executor of a deceased. Accordingly, the Court did not decide the constitutional applicability of the Act;

3. With respect to the application of the Ontario Negligence Act, the Supreme Court noted that Canadian Maritime Law includes a general regime of apportionment of liability resulting in joint and several liability and contribution among tortfeasors. Thus, once again, having found a remedy in Canadian Maritime Law the Court did not address the constitutional question of whether the Negligence Act applied;
3. The final issue considered in the case was whether a fatal accident claim is subject to a one or two year limitation period. The issue arises because section 649 of the Canada Shipping Act provides that the limitation period for a fatal accident is one year whereas section 572(1), which deals with collisions, provides for a two year limitation period. The Court held that the plaintiff's claims prima facie came within section 572(1). The Court further held that the ambiguity created by the two sections must be resolved in favour of allowing the plaintiff to rely on the longer period.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

Christopher J. Giaschi

Sub-Committee Chairperson
Giaschi & Margolis
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