 Hello, my name is David Henley. I practice maritime law with the firm Stuart McKelvie and Halifax. I've been an associate of the Marine and Environmental Law Institute for about 11 years after completing my master's in law under the Marine Environmental Law Program. I also have taught fisheries law at the Schulich School of Law for the past 11 years. So my topic today is the scope and content of Canadian maritime law. Just what is Canadian maritime law and why does it matter? To put it simply, it matters because maritime law falls within Parliament's jurisdiction over navigation and shipping under Section 9110 of the Constitution Act, essentially navigation and shipping. In this respect, if it is a matter of Canadian maritime law, it will be subject to the application of various federal statutes in the concurrent jurisdiction of the federal court. This can be very significant. It matters a limitation of rights and statutory limitation periods, among other things. I will talk briefly about how the jurisdiction over maritime law affects its scope and then delve more deeply into some aspects of the content of Canadian maritime law. To start at the beginning, the Federal Courts Act defines Canadian maritime law as follows. Canadian maritime law means the law that was administered by the Exchequer Court of Canada on its abernalty side by virtue of the Abernalty Act, Chapter A1 of the Revised Statutes of Canada 1970, or any other statute that would have been so administered if that court had had on its abernalty side unlimited jurisdiction in relation to maritime and abernalty matters as that law has been altered by this act or any other act of Parliament. I start with this because it demonstrates that what is Canadian maritime law is not readily apparent to a casual reader of the Federal Courts Act if there is such a thing. The scope and content of Canadian maritime law is a complex mix of English laws it was received and the jurisprudence which has developed since that time. To decipher what this means, it can be useful to examine the related jurisdiction of the Federal Court of Canada. I like the description of the requirements for Federal Court jurisdiction in a maritime context provided by Justice DeCarrie in his dissent in the 2005 Federal Court of Appeal Decision of Eisen and Sims. I think it guides the jurisdictional analysis for maritime claims. He summarized it as saying the Federal Court must have been granted jurisdiction by either the Canada Shipping Act or Section 22 of the Federal Courts Act. The claim must be a Canadian maritime law claim as this expression is defined in Section 2 of the Federal Court Act and as it has been interpreted by the Supreme Court of Canada. And the Canada Shipping Act or the Federal Court Act must be the law of Canada. Section 22.1 of the Federal Court Act gives the Federal Court concurrent original jurisdiction with the provincial courts in all cases where a claim for relief is made or remedy sought with respect to Canadian maritime law or any other law of Canada coming in within navigation and shipping, except where it has been otherwise specifically assigned. In Subsections 22 and 3 expressly bring a long list of maritime items into its jurisdiction. They include things like claims for damages for loss of life or personal injury caused by a ship, either by collision or otherwise. Claims for loss or damage of goods carried in a ship. Claims for salvage. Claims arising out of contracts relating to the construction, repair or equipping of a ship. And that's just to name a few. It is a long list. So while the matters in Subsection 22.2 likely fall within Canadian maritime law, the express conveyance of jurisdiction does not end the analysis. Justice McIntyre made it clear in ITO that a source of substantive maritime law is still necessary. He said that Section 22.2 does no more than grant jurisdiction and it does not create operative law. One must still be able to point to some applicable and existing federal law which nourishes that grant of jurisdiction. So regardless of what Section 22 says, there must be applicable federal law as just to carry a note in Eisen and Sims. The quest for this source of substantive maritime law then informs the scope and content of Canadian maritime law. So as I've said, the Federal Court Act defines Canadian maritime law, but the Supreme Court in the 1986 case of ITO International Terminal Operators addressed the composition of the definition. In ITO, Justice McIntyre summarized this as adopting into Canadian law English Admiralty Jurisdiction Law as it existed in 1934. Concluding that the term Canadian maritime law includes all that body of law which was administered in England by the High Court on its Admiralty side in 1934 as such law may from time to time have been amended by the federal parliament as it's developed through judicial precedent to date. On the second aspect of the definition, he stated that in reality the ambit of Canadian maritime law is limited only by the constitutional division of powers in the Constitution Act 1867. The Supreme Court also made it clear in the 1990 case of Whitbread and Wally that the scope and substantive content of the federal court's jurisdiction over Canadian maritime law is simultaneously an inquiry as to the scope and content of an important aspect of parliament's exclusive jurisdiction over navigation into shipping. Now this seems intuitive. Federal jurisdiction over Canadian maritime law can only be conferred to the extent of the appropriate head of power under the Constitution Act, and in this case navigation and shipping. Canadian maritime law is then the body of English Admiralty law as it was received in 1934, but as it has evolved in a modern context since that time. Justice McIntyre described Canadian maritime law as a body of federal law encompassing the common law principles of twerk contract and bailment. So what does this mean? Well there have been a wide variety of cases which have touched upon or expanded the concept of Canadian maritime law. The most important for the purpose of this topic is the 1998 case of Orden and Grail. In Orden and Grail, the Supreme Court of Canada outlined a test to be applied in the first instance where any provincial statute is being invoked as part of a maritime negligence claim. The first step of the test is to identify the matter of issue. In doing so, it was necessary to determine whether the facts of the case raise a maritime or admiralty matter or one of local concern. In order to determine this, the Court examined at paragraph 73 whether the subject matter under consideration in the particular case was so integrally connected to maritime matters as to be legitimate Canadian maritime law within federal legislative competence. As I've mentioned, this is closely linked to the assessment of whether a matter falls within navigation and shipping. Of greater importance, Orden and Grail gave us a roadmap for the development of Canadian maritime law by outlining seven general principles. I'm just going to highlight the first two principles and then commend the rest for your reading pleasure. The first principle was that Canadian maritime law as defined in section two of the Federal Court Act is a comprehensive body of federal law dealing with all claims and respective maritime and admiralty matters. The scope of Canadian maritime law is not limited by the scope of English admiralty law at the time of its adoption into Canadian law in 1934. Rather, the word maritime is to be interpreted within the modern context of commerce and shipping, and the ambit of Canadian maritime law should be considered limited only by the constitutional division of powers in the Constitution Act 1867. The test for determining whether a subject matter under consideration is within maritime law requires a finding that the subject matter is so integrally connected to maritime matters as to be legitimate Canadian maritime law within federal competence. A few important points come under this first principle. While the adoption of English admiralty law was crystallized as it was in 1934, it was not limited to this law. The nature of shipping has evolved substantially, and Canadian maritime law is free to evolve with it. Of great importance, the test for determining whether a claim is within maritime law is whether the subject matter is so integrally connected to maritime matters. I'll have more to say on this later, but that is the driving test. Now the second principle was that Canadian maritime law is uniform throughout Canada and is not the law of any province of Canada. All of its principles constitute federal law and not an incidental application of provincial law. You will see in many of the decisions the application of the test in the context of whether there is a need for uniformity on a particular subject. Because of the inter-jurisdictional nature of navigation and shipping, uniformity of maritime law is a significant policy issue which informs those decisions. The third through seventh principles generally elaborate on those first two and provide a little bit more meat on the bone. I won't go into those in detail, but these principles serve as guideposts in the subsequent jurisprudence, and as we've seen, they loosely mark the boundaries of Canadian maritime law. So moving on to the scope of Canadian maritime law. The jurisprudence of the Supreme Court has resulted in a substantial change to the scope of Canadian maritime law. The principles that I discussed that were articulated in Ordon and Grail make it clear that Canadian maritime law will continue to evolve through judicial reform. However, aspects of the present boundaries can be traced through those cases, and I must emphasize that it is the present boundaries that the boundaries can move and have in the past. As a first step, it is important to assess the nature of each claim for its integral connection to maritime matters. For example, see the comments of Justice Heenehan in the 2004 Federal Court case of Kusigak and Northern Transportation. In this case, she stated that the common law principles of tort are only encompassed by subsection 22.1 to the extent that the matters in which they arise are integrally connected to maritime law. In Kusigak, Justice Heenehan further opined that paragraph 53 that not every tortuous activity engaged in on Canada's waterways is subject to Canadian maritime law, noting the need to establish sufficient connection of the claim to navigation and shipping. In this respect, Canadian maritime law does not bring in aspects of the common law on block, rather it is necessary to demonstrate that the subject matter of the particular claim is integrally connected to maritime law. But then look at Rattle Brothers Fishing and Canada, Department of Fisheries and Oceans, another Federal Court decision. In this decision, Justice DeKerry took a somewhat more restrictive view of the requirement to be integrally connected with maritime matters, noting that it is not an easy requirement to meet. He stated at paragraph 53, it is indeed one thing to adjust, as the Supreme Court invites us to do, the maritime jurisdiction of the Federal Court to the modern context of commerce and shipping. It is another to extend it through the pretext of modernity to claims the foundation resource of which was and still is essentially a non-maritime matter. These comments suggest a fairly high bar, however I think overall the cases indicate that the integral connection test has been given significant latitude. For example, if we look at the Supreme Court decision of Bow Valley Husky and St. John Shipbuilding, and then runs a Court of Appeal decision of Russell and McKay, you'll see that the courts have, in my view, aired on the side of inclusion largely on the basis of uniformity. In Bow Valley, the Supreme Court dealt with a case involving a fire on board an oil rig alleged to have been caused by negligent work of the shipyard. In determining whether contributory negligence was a bar to recovery, the Court examined whether the Contributory Negligence Act of Newfoundland and Labrador applied or whether the Federal Maritime Law applied. Faced with an argument that maritime law should not apply because the particular source of the fire had no relationship to the rig's navigational equipment, and because the claims were advanced in tort and contract rather than under navigation and shipping, the Court stated that the tortuous liability in a maritime context is governed by a body of maritime law under the Exclusive Jurisdiction of Parliament. Regardless of whether the rig was a navigable vessel, the Court was satisfied that the tort claim was still a maritime matter as the main purpose of the rig was activity in navigable waters. The Court also took note of the fact that the heat trace system, which was the source of the fire, had special marine material requirements, causing product liability issues to be dominated by marine considerations. This is not unlike the situation in the New Brunswick Court of Appeal case of Russell and McKay, which more directly addressed arguments that activities aboard a vessel unrelated to navigation should not be captured by Canadian maritime law. This was a much less complex case in which the plaintiff sought damages for personal injury arising from a fall aboard a whale watching vessel. The plaintiff's injuries arose from having fallen over a movable drink cooler on the deck of the vessel while the vessel was at sea. The Court of Appeal considered arguments as to whether it made any difference that the fall related to the cruise placement of a cooler which had nothing to do with the navigation of the vessel. Chief Justice Draupo concluded that the Canadian maritime law was engaged largely on the strength that the vessel was engaged in navigation at the time, very similar to the Bow Valley Husky case. Of particular importance, he noted that to make the distinction on the basis of the cooler not being related to navigation would create substantial uncertainty. Justice Draupo went on to say, it makes no sense to apply provincial law to a passenger's trip and fall over a movable cooler filled with beverages and to apply federal law to a passenger's trip and fall over a portable fuel tank or a container, perhaps even one ordinarily used as a cooler, because it happened to be filled with navigational accessories. I submit that these cases indicate that the boundaries of what type of claim is integrally connected to maritime matters are broadened by the policy need for uniformity of maritime law. But the distinction can turn on still finer points. This is particularly evident in cargo related claims. For example, in Monk Corporation and Island Fertilizers, the Supreme Court accepted that contracts related to discharge of cargo were integrally connected to maritime matters. But an important nuance can be found in the 2014 decision of Justice Harrington and AK Steel Corporation. That decision highlights the distinction we made as to whether the claim is connected to navigation and shipping or to the contract for sale of goods. Justice Harrington was satisfied the claim fell within Canadian Maritime Law but noted at paragraph 20 that had, for instance, the cargo had been out of spec because of its iron content. This court might not have had jurisdiction. The moisture content, however, was relevant to the fitness of the cargo for shipment. Justice Harrington's comments about the specification of the iron content were directed at the question of whether the claim is a dispute over the nature of the cargo as opposed to the carriage of it by sea. A significant difference in establishing an integral connection with navigation and shipping. The cases dealing with fishing licenses also helped delineate this line of reason. I referred earlier to the Rattle Brothers case, which was a federal court case. It's an example of where the court concluded that the nature of the claim did not have sufficient maritime connection. The claim was brought in tort by the owner of a fishing vessel against its agent for failing to transfer a fishing license. Justice DeCarrie found a general lack of authority that would suggest that the matters arising out of an agreement to purchase a fishing license from a private party or breach of a related agency contract for purposes of purchasing the license would fall within Canadian Maritime Law. The court's analysis on this connection or the lack thereof was similar to that in Eisen and Sims, which I'll come to later. Justice DeCarrie noted that the sole factor connecting this case to maritime law was the fact that the license, with respect to which the agency contract was entered into, happened to be issued in relation to an activity occurring at sea. He noted that there was no contract to carriage of goods, there was no marine insurance, there were no goods at all, nothing had actually happened at sea. He went on to say that the claim, at best and incidentally, may be said to relate to the ability of a ship to perform certain fishing activities in accordance with requirements that have nothing to do with navigation and shipping and everything to do with fisheries. I submit that this rationale seems consistent without a Justice Harrington in the recent case of AK Steel Corporation, but then contrast Rattle Brothers with the 2011 decision of Alcan Primary Metal and Group Maritime Virole. In the Alcan case, the Federal Court of Appeal accepted that a claim for breach of an agreement to rewrite brokerage services for the procurement of tugs was subject to Canadian maritime law. Justice Noelle, as he then was, agreed with the trial decision of Justice Pinard, who noted that this agreement was maritime in nature. Both parties carried on maritime activities and the brokerage services were connected to the purchase of ships. The claim for unpaid commission was connected to the brokerage services for the purchase of a ship. Justice Noelle concluded that the purchase of the tugs and eminently maritime activity and the brokerage services which enabled it to make that purchase were inseparable. The problem identified in the contract and the goal sought out by signing it, that is leasing or acquisition by the appellant of two tugs meeting its needs, go hand in hand. He said that the jurisdictional issue raised by the appellant cannot be resolved by disregarding the contract that gave rise to the claim. Now the comment that the purchase of tugs is an eminently maritime activity is interesting, given the 2013 decision of Justice Montmey in 9171702 Quebec, in which he cast doubt on whether the sale of vessel was necessarily subject to Canadian maritime law. This raises the potential question of at what point purely contractual matters become integrally connected to maritime matters. I think this is an issue which we may see further development on. Another interesting issue that relates to the boundary of maritime law is the inclusion of pleasure craft. The Supreme Court case of Whitbread and Wally, which I've mentioned, involved a pleasure craft which ran aground while a passenger was at the helm, rendering the owner a quadriplegic. The passengers sought to limit liability under certain provisions of the Canada Shipping Act, and the question was whether those provisions were beyond the powers of parliament. The court quickly dispelled any suggestion that there was any significance to the use of pleasure craft above the high watermark or inland waters in respect of whether provincial or federal laws applied. In this respect, the court held that the requirement for a uniform maritime law was a necessity for all navigable waterways. Since commercial and pleasure craft both operate on many of the same waters, it was an obvious conclusion that liability for common maritime issues such as collisions must be consistent. In this decision, Justice Laferet's brief statement that the inclusion of pleasure craft within the ambit of maritime law gains further support could perhaps merit a clarification as it suggests a blanket conclusion which the court seems to have moved away from in Eisen and Simms. The later Supreme Court of Canada decision of Eisen and Simms also was a pleasure craft case and dealt with an injury which occurred in connection with that vessel but not its actual operation. The vessel had actually been removed from the water and the parties were preparing it for transport on the highway in a parking lot close to the water. A bungee cord being used to secure the engine cover snapped loose and caused an eye injury. The defendant sought to apply a limitation of liability provisions under the Canada Shipping Act similar to Whitbread and Wally's case. In a brief decision, Justice Rothstein found that the negligent act which gave rise to the injury was not governed by federal maritime law. The court applied the test from ITO as to whether the subject matter was so intimately connected to maritime matters as to be legitimate Canadian maritime law noting that it was essentially a line drawing exercise. Reviewing Whitbread and Wally, Justice Rothstein held a paragraph 24 of his decision that Parliament does not have jurisdiction over pleasure craft per se. The mere involvement of a pleasure craft in an incident is not sufficient to ground Parliament's jurisdiction. Rather, in cases such as this, the court must look at the allegedly negligent acts and determine whether the activity is intimately connected to the act of navigating the pleasure craft on Canadian waterways such that it is practically necessary for Parliament to have jurisdiction over the matter. Given that the focus is on the act that forms the basis of the negligent claim, where or when those acts occurred is not determinative. This comment raises a number of issues. While said in the context of pleasure craft, why would the rationale not apply to any vessel? Would it be correct to say that Parliament does not have jurisdiction over vessels per se on the basis that the jurisdiction is not over ships, but rather navigation and shipping? I think it is questionable whether the purpose of a vessel, whether recreational, commercial, or otherwise should govern the applicable law. In drawing the line, the court agreed with Justice Nadal of the Federal Court of Appeal that the launching of a pleasure craft and removal from the water are within the federal jurisdiction over navigation on the basis that these activities could pose a hazard to navigation of other vessels. That is the link to navigation and shipping. However, Justice Rothstein drew the line once the vessel was being secured for highway transportation, considering it to be at that point akin to any other type of cargo transported on the highway and then subject to verbal law. His reasoning was that there should not be a difference in the law applicable to particular cargo being secured for transport on the highway simply because the cargo was above. A potentially helpful note in Justice Rothstein's statement was that he was in substantial agreement with the analysis of justice to carry in his dissent in the Federal Court of Appeal in which he outlined a list of what he saw were the relevant criteria. While some of the elements of the list clearly refer to Section 222 of the Federal Court Act, it potentially is of significant assistance in demonstrating what is relevant for the line drawing exercise with respect to Canadian maritime law. However, it would have been more useful if Justice Rothstein had simply said that he was in agreement with the analysis rather than a substantial agreement, which leaves some doubt over what aspects may be of more or less significance. Whether Eisen and Sims assists in drawing the line for application of Canadian maritime lies, in my view, somewhat unclear. For example, would it matter if the engine cover was secured for transport before the vessel was pulled from the water? The act and purpose are the same. Perhaps the act was not sufficiently connected to maritime law once it was performed on land. However, the justification for any link to the intended use of the vessel seems unclear and would be even more problematic where a vessel had mixed recreational and commercial purposes. While a line was drawn in Eisen and Sims, I submit that its location and effect are not as well defined as maybe desirable. So in summary, the primary test articulated by the Supreme Court for whether a claim falls within Canadian maritime law is whether the subject matter of the claim is so intricately connected to maritime matters as to be legitimate Canadian maritime law. The challenge with this approach is that there's no bright line to define which claims are placed in which basket. Some claims are more obviously within the realm of Canadian maritime law, such as those directly related to carriage goods by sea, or perhaps negligence in respect of collisions at sea. However, as claims move further from dependency on navigation and shipping, they are susceptible to greater, though perhaps not consistent, scrutiny. As a claim moves away from its connection to navigation and shipping, such as disputes over the goods supplied which do not relate to sea-going issues, they will not be subject to Canadian maritime law. The fact that a claim has some basis in land-related activities also does not necessarily rule out the application of Canadian maritime law if it can still be said to be integrally connected to maritime matters. So those are my brief comments on the scope and content of Canadian maritime law. I hope you found that interesting, and thank you for listening.