2011 NLCA 42, 2011 NLCA 42

Date: 20110615 Docket: 09/95 Citation: Newfoundland (Workplace Health, Safety and Compensation Commission) v.

Ryan Estate, 2011 NLCA 42 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMISSION APPELLANT AND : THE ESTATE OF JOSEPH RYAN, by its Administratrix, Yvonne Ryan FIRST RESPONDENT AND : YVONNE RYAN, in her own right SECOND RESPONDENT AND : STEPHEN RYAN, a Minor, by his Guardian, ad litem , Yvonne Ryan and JENNIFER RYAN, a Minor, by her Guardian, ad litem , Yvonne Ryan THIRD RESPONDENTS AND : THE ESTATE OF DAVID RYAN, by its Administratrix, Marilyn Ryan FOURTH RESPONDENT AND : MARILYN RYAN, in her own right FIFTH RESPONDENT

AND : DAVID MICHAEL RYAN, a Minor, by his Guardian, ad litem , Marilyn Ryan SIXTH RESPONDENT AND : J AND Y FISHERIES INC. and D AND M FISHERIES INC., bodies corporate, trading and operating as RYAN’S FISHERIES PARTNERSHIP SEVENTH RESPONDENTS AND : UNIVERSAL MARINE LIMITED EIGHTH RESPONDENT AND : THE ATTORNEY GENERAL OF CANADA NINTH RESPONDENT AND : MARINE SERVICES INTERNATIONAL LIMITED TENTH RESPONDENT AND : DAVID PORTER ELEVENTH RESPONDENT AND : ATTORNEY GENERAL OF NEWFOUNDLAND AND LABRADOR INTERVENOR and Docket: 09/96 BETWEEN : MARINE SERVICES INTERNATIONAL LIMITED FIRST APPELLANT AND : DAVID PORTER SECOND APPELLANT

AND : THE ESTATE OF JOSEPH RYAN, by its Administratrix, Yvonne Ryan FIRST RESPONDENT AND : YVONNE RYAN, in her own right SECOND RESPONDENT AND : STEPHEN RYAN, a Minor, by his Guardian, ad litem , Yvonne Ryan and JENNIFER RYAN, a Minor, by her Guardian, ad litem , Yvonne Ryan THIRD RESPONDENTS AND : THE ESTATE OF DAVID RYAN, by its Administratrix, Marilyn Ryan FOURTH RESPONDENT AND : MARILYN RYAN, in her own right FIFTH RESPONDENT AND : DAVID MICHAEL RYAN, a Minor, by his Guardian, ad litem , Marilyn Ryan SIXTH RESPONDENT AND : J AND Y FISHERIES INC. and D AND M FISHERIES INC., bodies corporate, trading and operating as RYAN’S FISHERIES PARTNERSHIP SEVENTH RESPONDENTS

AND : UNIVERSAL MARINE LIMITED EIGHTH RESPONDENT AND : THE ATTORNEY GENERAL OF CANADA NINTH RESPONDENT AND : WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMISSION TENTH RESPONDENT AND : ATTORNEY GENERAL FOR NEWFOUNDLAND AND LABRADOR INTERVENOR Coram: Green, C.J.N.L., Welsh and Rowe, JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division 200801T3312 Appeal Heard: November 18 & 19, 2010 Judgment Rendered: June 15, 2011 Reasons for Judgment by Green, C.J.N.L. and Rowe, J.A. Dissenting Reasons by Welsh, J.A.

Counsel for the Workplace Health, Safety and Compensation Commission: Jamie Martin Counsel for the Estate of Joseph Ryan: Corwin Mills, Q.C. and Joseph Twine Counsel for Yvonne Ryan: Corwin Mills, Q.C. and Joseph Twine Counsel for Stephen Ryan: Corwin Mills, Q.C. and Joseph Twine Counsel for Jennifer Ryan: Corwin Mills, Q.C. and Joseph Twine Counsel for the Estate of David Ryan: Corwin Mills, Q.C. and Joseph Twine Counsel for Marilyn Ryan: Corwin Mills, Q.C. and Joseph Twine Counsel for David Michael Ryan: Corwin Mills, Q.C. and Joseph Twine

Counsel for J and Y Fisheries Inc.: Corwin Mills, Q.C. and Joseph Twine Counsel for D and M Fisheries Inc.: Corwin Mills, Q.C. and Joseph Twine Counsel for Universal Marine Limited: No appearances Counsel for the Attorney General of Canada: Corinne Bedford and Melissa Chan Counsel for Marine Services International Limited: Peter O’Flaherty and Brodie Gallant Counsel for David Porter: Peter O’Flaherty and Brodie Gallant Counsel for Her Majesty in Right of Newfoundland and Labrador/Intervenor: Rolf Prichard and Laura Brown Green, C.J.N.L. and Rowe, J.A.: Introduction [ 1 ] The Northwest Atlantic can be a cruel place.

So it was for David and Joseph Ryan in September 2004 when their vessel, Ryan’s Commander , capsized in heavy seas off Cape Bonavista. [ 2 ] Were their deaths simply a peril of the sea? Were they punished by an unforgiving ocean for errors of seamanship? Or were they sailing a floating coffin, a vessel that was negligently designed or built or inspected? [ 3 ] This appeal is not about the answers to those questions. Rather, it is about whether those questions are to be answered. Facts [ 4 ] David and Joseph Ryan were brothers. They fished together out of the community of St.

Brendan’s on the Northeast coast of Newfoundland. [ 5 ] Each had formed a corporation with his spouse. The two corporations (J and Y Fisheries Inc. and D and M Fisheries Inc.) operated as a partnership called Ryan’s Fisheries Partnership. In practical terms, David and Joseph Ryan owned and operated a fishing vessel. [ 6 ] In 2003, they contracted with Universal Marine Limited and Marine Services International Limited for the design and construction of a 65 foot fishing vessel, later called the Ryan’s Commander .

David Porter was a naval architect involved in design of the vessel. [ 7 ] The vessel was inspected by Trevor White, an employee of Transport Canada in his capacity as a steamship inspector under the Canada Shipping Act, R.S.C. 1985, c. S-9. The Small Fishing Vessel Inspection Regulations , C.R.C. c. 1486 required this, the object being to ensure that the vessel was safe and suitable for its intended use. One part of the inspection related to vessel stability. [ 8 ] The Ryans began fishing with the vessel in June 2004.

On September 19, 2004, the vessel was steaming from Bay de Verde (where the catch had been unloaded) toward her home port of St. Brendan’s. [ 9 ] In heavy seas off Cape Bonavista, the Ryan’s Commander capsized. The Ryans abandoned ship. Their life raft capsized in heavy surf and they drowned.

The Ryan’s Commander was pounded to pieces at the base of the cliffs at Spillar’s Cove, near Cape Bonavista. [ 10 ] In 2006, the families of the Ryan brothers and their estates sued Universal Marine and Marine Services International, plus David Porter, alleging negligence and breach of contract in the design and construction of the vessel.

They also sued the Attorney General of Canada alleging negligence in the vessel’s inspection, notably stability testing. [ 11 ] In March 2007, Marine Services International and David Porter applied to the Workplace Health, Safety and Compensation Commission (hereafter “the Commission”) seeking a determination whether the Ryan families were barred from pursuing the action they had commenced, by virtue of the Workplace Health, Safety and Compensation Act , R.S.N.L. 1990, c. W-11 (hereinafter the “WHSCA”). [ 12 ] Counsel for the Ryan families confirmed that they have received compensation from the Commission.

Counsel for the Commission advised this Court during the appeal hearing that the payments have been made pursuant to an arrangement that is contingent upon whether they are ultimately successful in their intended lawsuits. [ 13 ] In July 2008, an internal review specialist with the Commission decided that the Ryan families’action against the various defendants was barred by virtue of s. 44 of the WHSCA .

The plaintiffs applied to the Trial Division for judicial review of this decision. [ 14 ] In February 2009, a judge of the Trial Division quashed the decision, holding that the WHSCA did not bar the plaintiffs’ action because, applying the constitutional doctrines of interjurisdictional immunity and paramountcy; [32] …

Section 44 of the Workplace, Health, Safety and Compensation Act must be read down to conclude that it cannot have the effect of barring any action which the [Ryans] would have against [Marine Services, Universal Marine and the Attorney General for Canada] under the Marine Liability Act of Canada . [ 15 ] In October 2009, the Commission, Marine Services International and David Porter filed notices of appeal from the Trial

Division decision. [16] The appeal was heard in November 2010. Counsel appeared for: the plaintiffs; the Commission; Marine Services Internationaland David Porter; the Crown in right of Canada; and the Crown in right of Newfoundland and Labrador. The federal and provincialgovernments were represented as the case involves questions relating to the division of powers under the constitution. Issues [17] Two issues must be dealt with.

The first, or preliminary question, is whether notice of a constitutional question was required tobe served by the appellants on the Attorneys General for Canada and Newfoundland and Labrador under s. 57 of the Judicature Act,R.S.N.L. 1990, c.

J-4 in the Court below and, if so, what is the legal effect of failure, as occurred in this case, to give such a notice. [18] The second issue, dealing with the merits of the appeal, is whether the applications judge erred in relying on the constitutionaldoctrines of interjurisdictional immunity and federal paramountcy to support his conclusion that s. 44 of the WHSCA must be read downin such a way that it does not prevent an action by the Ryans (the First through Sixth Respondents) for damages for negligence underfederal maritime negligence law.

The Preliminary Issue: Notice of Constitutional Question [19] Subsection 57(1) provides: Where in a proceeding the constitutional validity of

an Act or regulation of the Parliament of Canada or of the Legislature isbrought into question, it shall not be heard until notice has been given to the Attorney General for Canada and to the Attorney Generalfor the province. [emphasis added] [20] Notice of the constitutional issue raised in this case was not given to the Attorney General of Newfoundland and Labradoreither at the hearing before the Commission or in the Trial Division. Upon becoming aware of the matter, the Attorney General appliedfor, and was granted, intervenor status on the appeal in this Court.

As explained at the time intervenor status was granted, the applicationfor such status was taken as a precautionary step, because of uncertainty as to whether s. 57 applied to this case. If that

section did notapply, the Attorney General of the province would not have been entitled to be heard unless intervenor status was granted. [21] On the appeal the Attorney General submitted that s. 57 required that notice should have been given in the proceedings belowand that the failure to do so rendered all proceedings to date a nullity thereby depriving this Court of jurisdiction to hear the appeal.

Theresult, so it was argued, was that the issue would have to be re-argued from the beginning, with the Attorney General as a participant. [22] Other parties submitted that s. 57 had no application because it only required notice to be given when issues of constitutionalvalidity, and not issues of constitutional applicability or operability, were engaged.

In this case, the Ryans were not arguing thatprovisions of the WHSCA were ultra vires as a result of the division of powers under the Constitution Act, 1867, nor were they arguingthat the legislation should be struck down as a result of the requirements of the Canadian Charter of Rights and Freedoms. Instead, theywere arguing that portions of the legislation were rendered inapplicable or inoperable as a result of the application of the constitutionaldoctrines of interjurisdictional immunity or federal paramountcy. [23] We have concluded that a purposive

interpretation of the language in s. 57 leads to the conclusion that it encompasses caseswhere constitutional issues involving not only the vires but also the applicability and operability of statutory provisions are raised. Wewould also conclude, however, that failure to give the requisite notice in this case does not result in the court having to declare allprevious proceedings a nullity because there is no prejudice to the Crown in proceeding to hear the appeal. [24] The scope and application of s. 57 have been considered in a number of cases in this Court: R. v. J.B.L.

Amusements Ltd.(1998), (NL CA), 161 Nfld. & P.E.I.R. 181; R. v. Port Enterprises Ltd. (1999), (NL CA), 169Nfld. & P.E.I.R. 315; R. v. Ralph (2006), 2006 NLCA 15 , 253 Nfld. & P.E.I.R. 349; R. v. Aisthorpe (2006), 2006 NLCA 40, 257 Nfld. & P.E.I.R. 1; Noseworthy v. Smith (2008), 2008 NLCA 73 , 281 Nfld. & P.E.I.R. 330. None of these casesdecides that the words “constitutional validity” are limited in meaning to cases involving issues relating to the vires of a statute orunconstitutionality under the Charter.

In Ralph, the issue, although raised in argument, did not have to be decided because the Court wasof the opinion that the case did engage the vires of provincial legislation.

Section 57 therefore applied even on its narrowestinterpretation. [25] While we agree that perhaps the most common notion of “validity” relates to the idea of ultra vires, the meaning is not limitedto that either in common parlance or in law. The Shorter Oxford English Dictionary (Oxford: Clarenden Press, 1956 rev) defines“validity’ to include: 1. The quality of being valid in law; legal authority, force or strength. 2. The quality of being well-founded and applicable to the case or circumstances… and Black’s Law Dictionary, 8th ed. (St.

Paul, MN: Thomson West, 2004) defines “valid” as “legally sufficient; binding”. Thesemeanings, encompassing, as they do, notions of legal force or strength, applicability to circumstances, and considerations of whethersomething is binding, can be said to include the concepts of applicability and operability, which deal with whether a legislative provisionis binding in a particular situation. [26] A number of cases in other jurisdictions have also held that the notion of constitutional validity encompasses matters relating toapplicability and operability.

The Northwest Territories’ notice provision, like s. 57, only applies to “constitutional validity”. In Andre v.Blake, (NWT SC), [1991] N.W.T.R. 351 (S.C.), a case involving an argument for the expanded application of

legislation which was alleged to be constitutionally under-inclusive, the Court held at para. 25 that “it is the calling into question of theconstitutionality of an enactment that triggers s. 59 [N.W.T.’s equivalent of s. 57] of the Judicature Act”. In other words, “constitutionalvalidity” may refer to constitutionality generally, not just whether the legislation was enacted by the proper legislative body. In ReBroddy and Director of Vital Statistics (1982), 1982 ABCA 312 , 142 D.L.R. (3d) 151 (Alta.

C.A.), Kerans, J.A. for the courtalso observed at p. 160 that: … a proposal to read down in the light of the Charter is also an attack on validity and s. 25(1) of The Judicature Act, R.S.A. 1980 c. J-1,applies. [27] See also R. v. Aberdeen, 2006 ABCA 164 (holding that retrospective application of the Sex Offender Registration Act, S.C.2004, c. 10 was an issue of constitutional validity).

While none of these cases directly addresses the factual scenario presently before thisCourt, they do indicate that, depending on context, the notion of constitutional validity may include more than the issue of the vires of astatute and extend to the broader issues of its constitutional reach. [28] It is true, of course, that statements can be found in cases drawing distinctions, for different analytical purposes, between theconcepts of validity and applicability (see e.g., Canadian Western Bank v. Alberta, 2007 SCC 22 , [2007] 2 S.C.R. 3 at para. 76and R. v.

Toronto Railway Co. (1899), 26 O.A.R. 491; [1899] O.J. No. 52 at para. 11). That does not mean, however, that thosedistinctions must always infuse conceptual analysis in other contexts, as the references to the Andre, Broddy and Aberdeen cases above,make clear. [29] It is also true that most other jurisdictions have added the words “applicability” and in some other cases “operability” to theirnotice provisions, in contradistinction to this province’s provision which only refers to “validity”.

One might take this to mean that“constitutional validity” in s. 57, which did not adopt the applicability or operability terminology, must exclude those concepts. [30] Professor Hogg in his treatise, Constitutional Law of Canada, 5th ed., Looseleaf (consulted on February 21, 2011) (Toronto:Carswell, 2008), at p. 59-23, footnote 100, makes note of this differing terminological usage. He does so, however, merely in the contextof a descriptive analysis of the differing provincial statutory treatments, not as an assertion of any particular ascription of meaning to theterms employed in any one jurisdiction.

In fact, at another place in his text (p. 16-20), when discussing the distinction between theeffects of the interjurisdictional immunity and paramountcy doctrines, he referred to the inapplicability of a law to which theinterjurisdictional immunity doctrine applies as being based on “an implied prohibition in the Constitution which makes the applicationof the law ultra vires”. [Emphasis added.] [31] In our respectful view, the Court should be cautious in placing too much weight on differences in terminology employed inrelated statutes in other jurisdictions.

As noted by Ruth Sullivan in Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.:LexisNexis, 2008), p. 427, “the presumptions respecting the use of related legislation are rebuttable and some courts have been inclinedto give them only modest weight”. She cites Estey, J. in Township of Goulbourn v. Regional Municipality of Ottawa Carlton, (SCC), [1980] 1 S.C.R. 496 to the effect that a comparison of like statutes by the same legislature is “at most peripheralassistance” in determining the proper

interpretation of the statute under consideration. If a comparison of statutes within the samelegislative jurisdiction is of peripheral assistance, then a simple linguistic comparison of related statutes across jurisdictions should be ofno greater – and perhaps of even lesser – assistance. [32] The problem of putting too much emphasis on legislative amendments made in other jurisdictions as an aid in interpreting thedomestic unamended legislation is that it assumes that the legislatures in the other jurisdiction were correct in perceiving a need toamend to achieve the intended purpose.

It is an equally plausible assumption, in the absence of legally binding uniform national draftingconventions, that the legislative draftsperson in the local jurisdiction disagreed with the amendment approach and decided that theamendment in question was not necessary to achieve the intended purpose because that purpose was encompassed within the existingterminology. [33] The purpose of notice provisions such as s. 57 was stated by Sopinka, J. in Eaton v. Brant Co.

Bd. of Educ., (SCC), [1997] 1 S.C.R. 241 as follows: [48] The purpose of s. 109 [the Ontario analogue of s. 57 but including references to validity and applicability] is obvious. In ourconstitutional democracy, it is the elected representatives of the people who enact legislation. While the courts have been given thepower to declare invalid laws that contravene the Charter and are not saved under s. 1, this is a power not to be exercised except after thefullest opportunity has been accorded to the government to support its validity.

To strike down by default a law passed by and pursuantto the act of Parliament or the legislature would work a serious injustice not only to the elected representatives who enacted it but to thepeople.

Moreover, in this Court, which has the ultimate responsibility of determining whether an impugned law is constitutionally infirm,it is important that in making that decision, we have the benefit of a record that is the result of thorough examination of the constitutionalissues in the courts or tribunal from which the appeals arise. [34] Clearly, the attorneys-general of both levels of government are the ones who ought to be heard from before the constitutionaleffect of a particular piece of legislation is pronounced upon.

Constitutional validity, in the narrow sense, as well as constitutionalapplicability and operability, are all concerned with the legal effect of a statute or statutory provision – the scope of its reach under theconstitution, as it were.

As such, it would seem that each level of government would be equally concerned about a challenge to thatreach, whether it is alleged that the statute is ultra vires, inapplicable or inoperable because of a particular constitutional doctrine. [35] It would be a bizarre result if an attorney general would have the right to be notified and be heard on the exact sameconstitutional issue in, say, Nova Scotia and most of the other provinces but not in Newfoundland and Labrador simply becauselegislatures in different provinces chose to use different language to effect the same purpose. [36] In practical terms as well, there will often be difficulty in ascertaining the exact nature of the grounds of a constitutionalchallenge.

Often, validity in the narrow sense as well as applicability may be potentially engaged. By requiring notice in one case but not

the other, there will always be a potential for the Court being placed in the position, if notice were not given, of not being able to dealwith one aspect of the constitutional issues raised and thereby being precluded from engaging in a complete analysis.

It must beremembered, the Court is not bound by the characterization by the parties of the constitutional issue (Ralph). [37] We have concluded, therefore, that neither precedent nor principle precludes the Court from concluding that “constitutionalvalidity” in s. 57 encompasses cases where the applicability or operability of legislation is impugned in a given set of circumstances as aresult of the application of constitutional doctrine.

Given the underlying purpose of s. 57 and the practical necessity of ensuring that theattorneys-general have the opportunity to be heard whenever the constitutional reach of a statute in the broad sense of applicability andoperability, is engaged, we conclude that s. 57 required notices in this case. [38] It then becomes necessary to consider what the consequences of failing to give notice are. The first thing to notice is that s. 57does not expressly state what those consequences are.

One must divine those consequences from a proper construction of the statutoryprovision and its underlying purpose. [39] Two differing consequences have been discussed in the cases: (

i) the requirement of notice is mandatory and any hearingconducted in the absence of notice is a nullity; or (ii) failure to give notice renders the proceeding voidable unless there is no prejudice tothe ability of the attorneys-general to make the arguments they wish to make in support of or against the constitutionality of the statute inquestion. [40] The issue is starkly presented in the current case where counsel for the Attorney General of the province conceded that theAttorney General would not be prejudiced by the absence of notice in the proceedings below so long as he was given the opportunity tomake submissions at the appellate level. (The Attorney General of Canada was a party to the proceedings and thus could be said to havehad notice by virtue of that status.) [41] The majority (and the more recent) of the cases addressing this matter in other appellate courts have chosen the first approach.See e.g., Paluska v.

Cava (2002), (ON CA), 158 O.A.C. 319; Canada (Attorney General) v. Mercier, 2010 FCA 167;R. v. Nome, 2010 SKCA 147. Others, however, have supported the contrary view: Ontario (Workers’ Compensation Board v.Mandlebaum, Spergel Inc. (1993), (ON CA), 12 O.R. (3d) 385 (C.A.); R. v. Beare and R. v. Higgins, (SK CA), [1987] 4 W.W.R. 309 (Sask. C.A.). [42] In this Court the differing approaches were discussed in detail in the Port Enterprises case.

The subsequent cases (Ralph,Aisthorpe and Noseworthy) simply assert that s. 57 is “mandatory”, that the court below had “no jurisdiction” to hear the case in theabsence of notice having been given, or that the case “cannot be heard”. In addition to citing the previous cases in the chronology, theypurport to rely on either Port Enterprises or the Supreme Court of Canada in Eaton as having decided the matter. With respect, thepost-Port Enterprises cases in this Court are built upon an overly robust

interpretation of Port Enterprises and Eaton. [43] In Eaton, Sopinka. J., writing for the Court, indicated that he was “inclined to agree with” the proposition that the decision wasa nullity without any showing of prejudice - hardly a ringing endorsement; however it was not necessary finally to decide the pointbecause he concluded that the Attorney General had been prejudiced by the failure to give notice in that case. He also went on to statethat there was “room for

interpretation” of notice provisions such as the one involved in Eaton and that there might well be “cases inwhich failure to serve a written notice is not fatal” either because the Attorney General consented to the issue being dealt with or becausethere has been a de facto notice which is the equivalent of a written notice.

He emphasized that it was “… not … necessary to express afinal opinion on these questions.” As Green, J.A. pointed out in Port Enterprises, the fact that Sopinka, J. would admit certain exceptionsto the requirement of formal notice militates against the conclusion that non-compliance with the notice requirement renders theproceedings a nullity. [44] In Port Enterprises, Green, J.A., in dissent, favoured the view that the absence of notice would not invalidate the priorproceedings if there was no prejudice to the Attorney General.

The majority, on the other hand, relied on Eaton for the proposition thatabsence of notice, even without demonstrated lack of prejudice, invalidated the prior proceedings. However, they concluded that, in thecircumstances in Port Enterprises, it could not be said that there was no prejudice shown. Accordingly, they did not have to decide, anddid not decide, the issue definitively.

Gushue J.A. stated as follows: [9] As to the case at bar, even if prejudice (or the absence of same) was a valid consideration, it cannot be demonstrated that theAttorney General of Canada was not prejudiced by the failure to be afforded the opportunity to make representations at the trial level.Nor can it be accurately stated what position the Attorney General of Canada would have taken… … [12] In my view, the issue of prejudice (or, perhaps more correctly put, non-prejudice) should not be permitted to circumvent themandatory provisions of s. 57(1).

However, that issue should be left to another time because (1) even if relevant, it would haveapplication only in a matter where it can be absolutely demonstrated that the issue of prejudice cannot arise and (2), such, in my view …is not the position in the case at bar. [Emphasis added.] [45] Accordingly, we conclude that although the majority appeared to favour the “mandatory” view, they did not have to decide itdefinitively (because in their view prejudice was not ruled out) and they expressly left the matter open to another time.

To the extent thatthe majority’s position was based on Eaton, it, in our respectful, view ascribes too confident a view as to the definitiveness of what thatcase decided as well. Insofar as the subsequent cases in this Court are based on these precedents, they also cannot be considered anymore authoritative. It is to be noted as well, that in Noseworthy counsel conceded without argument that the absence of notice created anullity.

The issue has not therefore been fully considered again, as contemplated by the majority in Port Enterprises. [46] We share the view expressed by Green, J.A. in Port Enterprises and, for the reasons given above, do not feel constrained byexisting precedent in this Court from continuing to express and apply that view.

[ 47 ] We return to the fact that the consequences of failing to give notice are not spelled out in the legislation. In s. 57, it is provided that the issue “shall not be heard” without saying what is to happen if it is inadvertently heard anyway. In other jurisdictions, the equivalent legislation comes closer to spelling out those consequences. For example, in Ontario the legislation, s. 109(2) of the Courts of Justice Act , under the heading “Failure to give Notice”, says that the impugned legislation “shall not be adjudged to be invalid or inapplicable or the remedy shall not be granted”.

In such jurisdictions, there cannot be a ruling made. [ 48 ] It is arguable that s. 57 is merely directory, not mandatory. The distinction was discussed by this Court in Royal Newfoundland Constabulary Public Complaints Commissioner v. Oates , 2003 NLCA 40 where Roberts, J.A. observed: [3] As Rowe, J.A. has indicated, where “shall” is determined to be mandatory as opposed to directory, failure to comply with the relevant provision renders the procedure invalid and void and goes to jurisdiction. The rule is expressed by Francis Bennion in his text Statutory

Interpretation , 3rd ed. (London: Butterworths, 1997), at p. 34: … If the step is mandatory, the failure vitiates the exercise of the statutory power. If the step is merely directory, the failure will not be fatal. Bennion, in the following sentences, qualifies the rule in much the same way as did Lord Campbell: In deciding whether the step is mandatory or directory, the court considers the broad policy of the Act and the principle of fairness to the subject.

The policy is not to be frustrated by a mere procedural irregularity, … [4] In other words, the dictate that “shall” is to be construed as imperative is no more than a prima facie basis for interpreting a particular statutory provision. … [A] review of the cases and commentators identifies three major rules which can assist a court in getting beyond that prima facie or presumptive position. … [7] The third rule … was that of possible prejudice to the parties … [ 49 ] The litigants will be prejudiced if this Court cannot deal with the constitutional issues that have been raised.

They would be forced to re-litigate the whole matter again for no good practical reason. As noted, the Attorney General concedes that he will not be prejudiced by not having had the opportunity to be heard in the proceedings below. This is not a case where it is important to have the record augmented by evidence, either documentary or viva voce , submitted in the prior proceedings. [ 50 ] In Port Enterprises, Green, J.A. stated at para. 26 that the purpose of a notice provision is twofold: (

i) to give the legislators an opportunity to present appropriate constitutional legal argument in support of their positions with respect to the constitutional issues which have been raised; and (ii) to ensure that a proper evidentiary record is provided to the court to enable it to make a proper and thorough adjudication of the constitutional issues that have been raised. [ 51 ] The purpose of s. 57 will not be subverted if the provision is construed to be directory rather than mandatory, based on considerations of prejudice.

In that way, prejudice to the litigants in being forced to re-litigate the matter, involving more cost and time for no apparent reason, can be avoided without rote, technocratic application of the provision. [ 52 ] We therefore adopt and affirm Green, J.A.’s analysis in Port Enterprises , especially para. 36: [Section 57] … has no ritualistic purpose of its own. If its objective is satisfied, there is no logical reason to treat proceedings which have taken four years to wend their way to this appellate stage, as a nullity and order the parties back to the starting line.

If they have to be remitted because it is demonstrated that the federal Attorney General must adduce evidence which is most properly considered at first instance, that is one thing. If, however, the appeal can be disposed of without such evidence, it would seem that justice would not be served by remitting the matter to the trial judge simply because a technical procedure which may not, in the circumstances, be causative of prejudice has not been followed. [ 53 ] We would apply this analysis to the current case.

Because there is no prejudice to the provincial Attorney General claimed here, substantial justice can be done by allowing the Attorney General to participate at the appellate level without remitting the matter for reconsideration in the adjudicative bodies below. We would so order. The Constitutional Issue: Application of Interjurisdictional Immunity and Paramountcy Doctrines (

a) Nature of the Issues at Stake [ 54 ] The problem in this case results from the fact that the federal and provincial levels of government have chosen to operate two fundamentally different legal regimes dealing with compensation for injury and death, and these two regimes appear to overlap in their application to claims arising out of workplace injuries in a marine environment. [ 55 ] The federal government has allowed fault-based tort law, under the rubric of maritime negligence law (which is primarily judge-made law but supplemented by some statutory provisions) to operate within the field of federal jurisdiction relating to navigation and shipping.

With particular reference to this case, s. 6(2) of the Marine Liability Act , S.C. 2001, c. 6 (“MLA”) is being relied on by the Ryans to allow the dependents of the two deceased fishers to maintain an action in court for their losses.

The language of s. 6(2) is important: If a person dies by the fault or neglect of another under circumstances that would have entitled the person, if not deceased, to recover damages, the dependents of the deceased person may maintain an action in a court of competent jurisdiction for their loss resulting from the death against the person from who the deceased would have been entitled to recover.

[56] This provision, which codifies a legal principle that was developed in the case law (Ordon Estate v. Grail, (SCC), [1998] 3 S.C.R. 437), follows the approach of fatal accidents legislation in the provinces which extended the right to sue forwrongful death to dependents of the deceased, something that was not available at common law. By its terms, the

section does notexclude its application to workplace injuries and it requires that fault or neglect be established in the sense that the deceased must havebeen entitled to sue in negligence if he had not died.

Although other federal legislation extends a no-fault based insurance scheme tocertain other groups, no federal insurance scheme applies in the context of the facts of this case. [57] By contrast, the province of Newfoundland and Labrador, in line with other provinces, has eliminated the fault-based tortregime in respect of workplace injuries and substituted a no-fault insurance scheme which requires all employers in the province andcovered by the scheme to pay into a common insurance fund, out of which claims for compensation by workers and their dependentsresident in the province can be satisfied.

In return, the employers, in what has been described as an “historic trade-off” (Pasiechnyk v.Saskatchewan (Workers’ Compensation Board), (SCC), [1997] 2 S.C.R. 890 at para. 26), are insulated from suits innegligence in the courts. This is accomplished by s. 44 of the WHSCA, which provides in pertinent part:

(1) The right to compensation by this Act is instead of rights and rights of action, statutory or otherwise, to which a worker or his or herdependents are entitled against an employer or a worker because of an injury in respect of which compensation is payable or which arisesin the course of the worker’s employment.

(2) A worker, his or her personal representative, his or her dependents or the employer of the worker has no right of action in respect ofan injury against an employer or against a worker of that employer … [58] The two legal regimes are fundamentally different in their operation.

The problem, as presented in this case, results from thepurported extension by the province, through the combined operation of ss. 2(l), 40, 43, 48 and 51 of the WHSCA and ss. 2(b), 2(g), 5and 6 of the Workplace Health, Safety and Compensation Regulations, CNLR 1025/96, of its workers’ compensation scheme toNewfoundland and Labrador fishers and employers working and operating in a marine environment. [59] It is well-recognized in the case law that the “trade-off” of the right to sue at common law and under statute amending thecommon law in return for the benefits of a no-fault based insurance scheme that is supposed to be quicker, more efficient and more easilyaccessible than traditional tort litigation, is a “necessary feature” of workers’ compensation regimes (Reference re Validity of Sections 32and 34 of the Workers’ Compensation Act, (1987), (NL CA), 44 D.L.R. (4th) 501 (Nfld.

C.A.) at p. 524, cited withapproval in Pasiechnyk, para. 26). For the WHSCA system to operate as intended, therefore, the statutory bar should apply. [60] It is important to appreciate that giving up the right to sue as a condition of receiving compensation under the WHSCA systemis not a matter of election on the part of the claimant. The legislation, by virtue of its definitional reach, purports automatically to takeaway the right to sue from workers; it leaves them with no choice but to take compensation under the system instead of suing.

Even ifthey choose not to take the compensation, they still cannot sue. [61] On their face, therefore, there is a potential clash between the two legal regimes as to how a claimant (or his or dependents)injured or killed in a workplace accident in a maritime setting may pursue a claim for compensation.

What is being asserted in this caseis that s. 44 operates to bar, not merely a right to sue under Newfoundland and Labrador tort law, but also a right to sue under federalmaritime negligence law. [62] To sue under maritime negligence law or to be limited to claiming workers’ compensation - how are these two differentalternative methods of asserting claims for compensation for Newfoundland and Labrador workers for injuries and death in a maritimecontext to be reconciled? We have concluded that they cannot. The culprits are the doctrines of interjurisdictional immunity andparamountcy. (

b) General Principles [63] Recent decisions of the Supreme Court of Canada, in particular the Canadian Western Bank case (CWB), Ordon Estate v. Grail(Ordon), and Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39 (COPA), provide a roadmap forresolution of a case involving the constitutionality of legislation in relation to the division of powers in the Constitution. Theseprinciples, insofar as they may be applicable to the instant case, can be stated as follows. [64] The starting point is with an analysis of the pith and substance of the impugned legislation.

This analysis involves an inquiryinto the true nature of the law in question with a view to identifying the matter to which it essentially relates: CWB, paras. 25 and 26. [65] If the pith and substance of the impugned legislation, determined by considering the purpose and effect of the law, can be saidto be anchored in a matter which falls within a head of power of the legislature that enacted it, the legislation in question will be held tobe intra vires notwithstanding the fact that the operation of the law may incidentally affect another head of power within the jurisdictionof the other level of government: CWB, paras. 27-29. [66] In the instant case, the legislation under attack is the WHSCA, in particular, s. 44.

It was not contended by any party on thisappeal that a provincial legislature does not have the constitutional authority to enact this type of no-fault compensation legislation. It haslong been recognized that workers’ compensation legislation enacted by a province is valid provincial legislation even if it purports toextend benefits to provincial residents who are injured while working outside the province and in a maritime environment. See CanadianPacific Railway Co. v.

Workmen’s Compensation Board (1919), (UK JCPC), 48 D.L.R. 218 (PC), holding, at p. 222, that even though the legislation in question purported to confer benefits on provincial workers outside British Columbia, the scheme ofthe Act is not one for interfering with rights outside the province. It is in substance a scheme for securing a civil right within theprovince. [67] The pith and substance of the WHSCA is, as the applications judge concluded (para. 32), an insurance scheme. It is no-faultbased, with payments to injured workers paid from a fund to which employers are required to contribute.

Conceptually integral to thescheme is that the benefits are in substitution for a right to sue in tort. As such it lies clearly within provincial jurisdiction under s. 92(13)

of the Constitution Act, 1867. Nothing more need be said about this aspect of the matter. [68] But the issue does not end there. Although provincially-enacted legislation may be intra vires because in pith and substance itrelates to a matter in the division of powers on which the province has authority to legislate, it may nevertheless incidentally affectmatters beyond the province’s jurisdiction without necessarily being unconstitutional: CWB, para. 28. The limit to this extra-jurisdictional reach, however, is that it must not impair the “core” content of a head of power of the other level of government.

This is thedoctrine of interjurisdictional immunity. It is based on the theory that there is a “basic, minimum and unassailable content” (per Beetz, J.in Bell Canada v.

Quebec (Commision de la sante et de la securite du travail), (SCC), [1988] 1 S.C.R. 749 at p. 839), orcore, of each head of power that is assigned exclusively to the level of government authorized to legislate in respect of that head ofpower, and which is “immune from the application of legislation enacted by the other level of government” (CWB, para. 33) even if thatpower to legislate is unexercised. [69] The result of the operation of this doctrine is that, in the words of Binnie and LeBel JJ. in CWB at para. 44: [44] … despite the absence of law enacted at one level of government, the laws enacted by the other level cannot have even incidentaleffects on the so-called “core” of jurisdiction. [70] Determination of whether the doctrine applies involves answering two questions affirmatively: (

i) does the provincial lawtrench on the protected “core” of federal competence? and (ii) is the provincial law’s effect on the exercise of the protected federal power“sufficiently serious” to invoke the doctrine? (COPA, para. 27). [71] With respect to the first question it becomes important to identify just what comprises the “core” of the particular head ofpower in question. As noted in CWB, para. 43, the core of a power is often difficult to define and this in itself can lead to constitutionaluncertainty.

The essence, however, is that it is “the authority that is absolutely necessary to enable Parliament ‘to achieve the purpose forwhich exclusive legislative jurisdiction was conferred’: Canadian Western Bank, at para. 77” (COPA, para. 35). [72] In Ordon, a case involving the question of “whether and when it is constitutionally permissible for provincial statutes to beapplied in the context of a maritime law negligence claim” (para. 72) involving injuries and death in boating accidents, the SupremeCourt asserted that, as a preliminary to attempting to resolve the constitutional question, a court should first attempt to identify “whetherthe specific matter at issue in a claim is within the exclusive federal legislative competence over navigation and shipping” (para. 73). (Infact, the Court also enunciated two other preliminary questions before it would be necessary to undertake a constitutional analysis, butthey are not relevant in the current context and will not therefore be further discussed.) [73] The test for determining the “matter at issue”, as described in Ordon, is “to ask whether the subject matter under considerationin the particular case is so integrally connected to maritime matters as to be legitimate Canadian maritime law within federal legislativecompetence” or whether it is “a matter which is in pith and substance one of local concern involving property and civil rights” (para. 73).To do this the court must examine the factual context of the claim.

The “pith and substance” analysis required at this stage is not thesame as the pith and substance analysis that one is required to engage in as the starting point of constitutional analysis discussed above.That would make no sense: why engage in it twice? The difference is found in the differing purposes of the two analyses. The pith andsubstance analysis required as the starting point of constitutional analysis to determine whether impugned legislation falls within a headof power assigned to the legislature enacting that impugned legislation focuses, as it must, on the legislation that is under attack.

It askswhat the true nature of that legislation is and whether it can be grounded in an appropriate head of power. By contrast, the pith andsubstance analysis referred to in Ordon focuses on the “subject matter at issue” – not the impugned legislation, but the “factual contextof the claim” (para. 71).

One must look at the factual circumstances giving rise to the issue to determine whether those circumstances arenot connected sufficiently to a federal head of power so as to be within federal competence and thus not even engage a constitutionalissue. [74] Assuming that a conclusion is reached that the “matter in issue” is integrally connected to maritime matters as to be legitimatemaritime law, it will then be necessary to proceed to the constitutional analysis as to whether interjurisdictional immunity applies.

Thequestion then to be addressed, in accordance with the two-part test in COPA, is, first, whether the provincial law “trenches on theprotected core of a federal competence”. [75] The core of a federal power is, as noted previously, the authority that is “absolutely necessary” to enable Parliament to achievethe purpose for which exclusive legislative jurisdiction was conferred: COPA, para. 35.

McLachlin, C.J.C. in COPA also noted,reiterating what Binnie and LeBel JJ. said in CWB, the existing jurisprudence will frequently serve as a useful guide to identify the coreof a federal power and that the doctrine of interjurisdictional immunity should in general be reserved for situations already covered byprecedent. [76] The second part of the test described in COPA is whether the impact on the core of the federal power is “sufficiently serious”to attract the doctrine.

The test is whether the provincial law impairs, not merely affects, the federal exercise of the core competence, thatis, it does so in a way that “seriously or significantly trammels” the federal power: COPA, paras. 43, 45. The significant trammeling mayresult from an indirect impact. [77] The majority in CWB were of the view that there should not be “intensive reliance” on the doctrine of interjurisdictionalimmunity (para. 47).

Iacobucci and Major JJ. opined that although the doctrine is in principle applicable to all federal and provincialheads of legislative authority, its natural area of operation is in relation to those heads of legislative authority that confer on Parliamentpower over enumerated “federal things, people, works or undertakings”.

This point was reiterated in COPA where McLachlin C.J.C.stressed that, in practice, the application of the doctrine should be limited to those heads of power already mentioned in the existingjurisprudence. (para. 27). [78] In this connection, it is to be noted that Ordon is a case which dealt with the application of the doctrine of interjurisdictionalimmunity in the context of an argument that provincial legislation trenched on the “unassailable core of Parliament’s exclusive

jurisdiction over navigation and shipping” (as described in CWB, para. 59).

The majority in CWB did not disapprove of the continuingauthority of Ordon; instead, they distinguished it on the basis that one of the underlying rationales for its analysis (the need foruniformity in maritime negligence law) was not present in the analysis in CWB, which was dealing with the impact of provincialinsurance regulation on the federal banking power. [79] We have already noted that the doctrine of interjurisdictional immunity applies even where the other level of government hasnot purported to legislate under its head of legislative authority.

This is because the doctrine postulates that the impugned legislation maynot trench upon the core of the other level’s legislative competence (not the results of the exercise of that competence) in a way thatseriously or significantly trammels it. The result of the application of the doctrine is that the overreaching legislation will be read downso as not to apply to those specific factual contexts that fall within the core of the other head of power.

In that way, it will “negate thepotential inconsistency between federal and provincial legislation” (COPA, para. 63). (our emphasis) [80] Where, on the other hand, there is actual conflicting federal and provincial legislation, the doctrine of paramountcy will apply.The doctrine postulates that, in the words of the majority in CWB: [69] … when the operational effects of provincial legislation are incompatible with federal legislation, the federal legislation mustprevail and the provincial legislation is rendered inoperative to the extent of the incompatibility. [81] The paramountcy doctrine must also be used with restraint.

In CWB, the majority recognized as a “fundamental rule ofconstitutional

interpretation” the following comment in Attorney General of Canada v. Law Society of British Columbia, (SCC), [1982] 2 S.C.R. 307 at p. 356: When a federal statute can be properly interpreted so as not to interfere with a provincial statute, such an

interpretation is to be applied inpreference to another applicable construction which would bring about a conflict between the two statutes. [82] Federal paramountcy may arise from one of two situations: (

i) where there is an impossibility of dual compliance with bothpieces of legislation; or (ii) where the operation of the provincial legislation will result in the frustration of a federal purpose: COPA,para. 64. [83] With respect to impossibility of compliance, a strict test is postulated in these terms in Multiple Access Ltd. v.

McCutcheon, (SCC), [1982] 2 S.C.R. 161 at p. 191 (cited with approval in CWB at para. 71: In principle, there would seem to be no good reasons to speak of paramountcy or preclusion except where there is an actual conflict inoperation as where one enactment says “yes” and the other says “no”; “the same citizens are being told to do inconsistent things”;compliance with one is defiance of the other. [84] On the other hand, as noted in CWB: [72] … the mere existence of a duplication of norms at the federal and provincial levels does not in itself constitute a degree ofincompatibility capable of triggering the application of the doctrine.

Moreover, a provincial law may in principle add requirements thatsupplement the requirements of federal legislation… In both cases, the laws can apply concurrently, and citizens can comply with eitherof them without violating the other. [85] The paramountcy doctrine will also be triggered where a provincial law is incompatible with the underlying purpose of afederal law. That involves determining the purpose of the federal statute and then showing that the provincial legislation is incompatiblewith that purpose: COPA, para. 66.

McLachlin, C.J.C. in COPA stated: [66] … The standard for invalidating provincial legislation on the basis of frustration of federal purpose is high; permissive federallegislation, without more, will not establish that a federal purpose is frustrated when provincial legislation restricts the scope of thefederal permission… [86] The result of the operation of the paramountcy doctrine is that the federal legislation must prevail and the incompatibleprovincial legislation is rendered inoperative to the extent of the incompatibility. (

c) Interjurisdictional Immunity [87] In CWB the majority expressed the view that it was not appropriate “to always” begin with a consideration of interjurisdictionalimmunity after completing a pith and substance analysis; often it would be appropriate to proceed directly to a consideration ofparamountcy.

Bastarache, J. on the other hand was of the view that the proper methodological approach was to begin a division ofpowers analysis with a consideration, first, of the pith and substance of the federal and provincial statutory provisions to ensure they arevalidly enacted and to determine the nature of any overlap; then, to consider the applicability of the provincial law to the federal matter inquestion by considering the doctrine of interjurisdictional immunity; and, finally, to consider whether any overlap constitutes a conflictsufficient to trigger the doctrine of paramountcy.

The majority did not rule this approach out completely; they merely recognized thatsometimes the intervening step of considering interjurisdictional immunity might not be necessary.

In fact, it is to be noted thatinterjurisdictional immunity was in fact considered before paramountcy in both CWB and COPA. [88] We propose to consider interjurisdictional immunity first because it is logical to do so once the provincial legislation has beendetermined, as it has in this case, in pith and substance to fall within a head of provincial power (property and civil rights), with thecorollary that it may then incidentally affect a head of federal power (in this case, navigation and shipping).

The question then logicallybecomes whether the effect trenches on the core of the federal power to a degree that impairs its potential operation. If so, the doctrine ofinterjurisdictional immunity will apply and the provincial law will have to be read down to eliminate the overlap. [89] The focus in this analysis is on the core of s. 91(10) of the Constitution Act, 1867 which assigns exclusive legislative authorityto the Parliament of Canada over “navigation and shipping”. The decision in Ordon determines that navigation and shipping, a head of

legislative power, encompasses Canadian maritime law which is “a comprehensive body of federal law dealing with all claims in respect of maritime and admiralty matters” (para. 71, item #1). It is a uniform body of law, the principles of which constitute federal, not provincial, law (para. 71, item #2). It encompasses maritime negligence law. [ 90 ] Parliament has not sought to legislate comprehensively in this area. As such, “the inherited non-statutory principles embodied in Canadian maritime law as developed by Canadian courts remain applicable” ( Ordon , para. 71 , item #6).

The vast majority of the principles applicable to determining who may seek compensation for death and injury caused by negligence in a maritime context and to what extent, are not dealt with by statute. It is only in respect of certain limited piece-meal matters that Parliament has chosen to speak through legislation.

Section 6 of the MLA is one such instance. Although s. 6 did not exist at the time of the decision in Ordon , it is clear that the Court in Ordon regarded the doctrine of interjurisdictional immunity as being applicable to resolving issues involving the potential application of provincial statutes enacted under the property and civil rights power to matters covered by the core of the federal power over navigation and shipping. The existence of s. 6, which codified principles established in Ordon , does not change this.

The application of the doctrine of interjurisdictional immunity in the context of s. 91(10) of the Constitution Act is therefore an area that has already been dealt with by precedent. [ 91 ] The first inquiry to be engaged in is, as noted in Ordon , whether the “subject matter at issue” is within the exclusive federal legislative competence over navigation and shipping. Do the facts of the particular case raise a maritime or admiralty matter or is the matter only one of local concern involving property and civil rights?

To answer this, one must examine the factual context of the claim. [ 92 ] The subject matter at issue in this case is the compensation of Newfoundland and Labrador workers for death or injury from workplace accidents occurring in a maritime context, i.e. on board a fishing vessel at sea, that raises safety issues relating to the design, construction and inspection of that vessel.

While it has local aspects – compensation for workplace injuries involving provincial workers and employers – it also has maritime aspects relating to compensation in relation to safety at sea resulting from alleged design, construction and inspection deficiencies of vessels operating at sea. As such, the subject matter does not relate solely to one of local concern involving property and civil rights. The issue of alleged failure to comply with safety standards of design, construction, and inspection of a boat, leading to death and injury, clearly engages the application of maritime negligence law.

Section 44 of the WHSCA purports to take away the right of a worker to sue. The right to sue is the gateway into the federal system of maritime negligence law. If it is closed to a litigant then the totality of the legal principles upon which a worker can seek compensation for death and injury resulting from the sinking of a vessel at sea will not be available. It therefore raises a maritime or admiralty matter.

The subject matter is therefore integrally connected with maritime matters so as to engage legitimate Canadian maritime law. [ 93 ] Our colleague, Welsh, J.A. would distinguish Ordon from the circumstances of the current case on the basis that “in pith and substance, the Workplace Compensation Act cannot be characterized as negligence law” (para. 156) and that it therefore does not fall within the scope of maritime negligence law (para. 153). Accordingly, she argues, Ordon does not apply to this case.

With respect, to state that workers’ compensation legislation, which is by its nature no-fault based, cannot be characterized as negligence law is merely to state a self-evident truth, but one that misses the point and leads, in our respectful opinion, to error in the result. The analysis required by Ordon (which requires a determination whether the matter in issue is “truly a matter of Canadian maritime negligence law”) requires the focus to be placed on the “ matter in issue ”, not the pith and substance of the provincial legislation under consideration.

When viewed from this perspective, the case raises a maritime or admiralty matter. Although the provincial scheme is not negligence-based, s. 44 most definitely deals with negligence – it purports to wipe out a right to sue in tort, including negligence under maritime negligence law, which falls within navigation and shipping under s. 91(10) . [ 94 ] Once it is determined that the matter in issue raises a matter of maritime negligence law, the question becomes whether the WHSCA , in particular s. 44 , trenches on the “core” of the federal legislative competence related to navigation and shipping.

Viewed anew and without reference to precedent, it would seem to be arguable that the principles of maritime negligence law do not necessarily lie at the core of navigation and shipping. While regulatory safety standards for the design, construction and inspection of vessels can be said to be part of the “basic, minimum and unassailable content” of the navigation and shipping power, it does not follow that the rules with respect to compensation for death and injury resulting from failure to abide by those standards would be part of the core.

Those rules could be said to be merely an adjunct to, or consequence of, the regulation of navigation and shipping. There is no tort of breach of statutory duty. Whether a system of compensation is fault-based and enforceable in the courts or no-fault-based and enforceable through an administrative agency would not appear to be central to the function of regulation of navigation and shipping. [ 95 ] Notwithstanding that form of analysis, however, the matter is not free of precedent.

In Ordon , Iacabucci and Major JJ. stated for the Court: [84] … Maritime negligence law is a core element of Parliament’s jurisdiction over maritime law .

The determination of the standard, elements, and terms of liability for negligence between vessels or those responsible for vessels has long been an essential aspect of maritime law, and the assignment of exclusive federal jurisdiction over navigation and shipping was undoubtedly intended to preclude provincial jurisdiction over maritime negligence law, among other maritime matters … [85] In our opinion, where the application of a provincial statute of general application would have the effect of regulating indirectly an issue of maritime negligence law, this is an intrusion upon the unassailable core of federal maritime law and as such is constitutionally impermissible .

In particular, with respect to the instant appeals, it is constitutionally impermissible for the application of a provincial statute to have the effect of supplementing existing rules of federal maritime negligence law in such a manner that the provincial law effectively alters rules within the exclusive competence of Parliament or the courts to alter.

In the context of an action arising from a collision between boats or some other accident, maritime negligence law encompasses the following issues, among others: the range of possible claimants, the scope of available damages, and the availability of a regime of apportionment of liability according to fault.

A provincial statute of general application dealing with such matters within the scope of the province’s legitimate powers cannot apply to a maritime law negligence action, and must be read down to achieve this end. [86] … [I]t will be relatively rare that a provincial statute upon which a party seeks to rely in a maritime law negligence action will not have the effect of regulating a core issue of maritime law.

[Emphasis added.] [ 96 ] Ordon was a case where it was argued that certain provincial statutes dealing with aspects of provincial negligence law could be relied on to supplement the principles of maritime negligence law in the federal context. In the current case, the issue is not one of supplementation; instead, it is a case of the provincial law ( s. 44 ) purporting to eliminate completely access to a body of federal law.

It certainly purports to, in the words of Ordon , “alter rules within the exclusive competence of Parliament.” [ 97 ] We conclude, therefore, on the basis of Ordon , that s. 44 of the WHSCA trenches on the protected core of federal competence over navigation and shipping, because maritime negligence law has been determined to be part of the core of that jurisdiction. [ 98 ] The final question to be addressed in an interjurisdictional immunity analysis is whether s. 44’s effect on the core is sufficiently serious in the sense that it impairs, as opposed to merely affects, the federal power.

The conclusion must be that it does.

Section 44 purports to eliminate completely reliance on maritime negligence law to obtain compensation for death or injury arising from workplace accidents in a maritime context. [ 99 ] Counsel for the Attorney General of the province submitted that the impact of s. 44 does not rise to the level of “impairing” the exercise of a core federal power because it purports to remove a right of action only “for a small minority of potential plaintiffs in a maritime context” and that the “vast majority of federal jurisdiction in relation to tortious liability in a maritime context remains unaffected” by the operation of the alternative workers’ compensation system (Factum, para. 82).

This argument misses the point. The consideration is not the proportion of all potential maritime claims that may be affected by s. 44; rather, it is whether in relation to the claims in issue the impairment is serious. Clearly it is, because it purports to remove the right completely. [ 100 ] In similar manner, an argument that s. 44 does not impair the core of navigation and shipping because it only affects claims by provincial workers against provincial employers and other employees, leaving claims involving litigants across jurisdictions unaffected, also misses the mark.

The fact is that in relation to the claims in issue, the degree to which the core of navigation and shipping is impaired is serious; the rights under maritime negligence law are extinguished. [ 101 ] We conclude, therefore, that the doctrine of interjurisdictional immunity applies and the provincial statute ( s. 44 ) must be read down to ensure that its application does not impair the operation of Parliament’s jurisdiction over navigation and shipping. [ 102 ] It is true that by reading s. 44 down, the statutory bar, which all agree is an integral part of the workers’ compensation system, will not have application.

To that extent, the underlying purpose of the workers’ compensation system may be subverted. It must be remembered, however, that the issue only arises in the first place because the province has expressed the constitutional reach of its legislation in such expansive terms. It has chosen not to make the removal of the right to sue contingent on the claimant electing not to make a claim under the workers’ compensation system, but to eliminate the right to sue under federal maritime law absolutely, even if the claimant does not avail of the provincial compensation system. (

d) Paramountcy [ 103 ] To the extent that the issue in this case can be regarded as a conflict between federal and provincial statutory provisions (as opposed to a situation involving a provincial statute and an impermissible intersection with the core of a federal head of power), the doctrine of paramountcy applies. [ 104 ] The first question is whether there is an incompatibility between s. 44 of the WHSCA and s. 6 of the MLA . As previously noted, s. 6(2) purports to confer on the dependents of a person who dies as a result of the fault or neglect of another, the right to sue that other person.

It is the gateway, in certain circumstances, for such persons with derivative claims to access the maritime tort regime that is within the federal legislative jurisdiction under navigation and shipping. Such claims encompass claims in maritime negligence arising from injuries and fatalities, whether in the course of employment or not, occurring in a maritime setting. [ 105 ]

Section 44, on the other hand, purports, as an integral part of a no-fault-based insurance scheme, to remove the right to sue in tort on the part of Newfoundland and Labrador workers and their dependents in relation to workplace accidents. It purports to apply to fishers working on a vessel at sea. There is a clear overlap with s. 6 . If the

definitions of the WHSCA apply to the workers or dependents concerned, they may not sue even if they choose not to claim compensation under the WHSCA. While it is true that s. 6(2) does not require a potential maritime claimant to sue, but only enables him or her to do so (and in that sense if the worker chooses to avail of the workers’ compensation regime and not to sue, there might not be an outright operational conflict), the opposite situation is different: if a maritime claimant wishes to avail of the right to sue, he or she will be precluded from doing so.

He or she cannot comply with the federal law without violating the provincial. The two provisions cannot, in an operative sense, co-exist. [ 106 ] This is not a situation where the provincial legislation takes away the right to sue only if the worker or his or her dependents elect to claim compensation under the WHSCA . If that were the case, the two provisions might be able to co-exist because access to each legal regime would remain theoretically available. But that is not the situation here. The operation of s. 44 is not dependent on an election.

It purports to operate in all circumstances by virtue of the definitional reach of the legislation itself. [ 107 ] Even if dual compliance with both pieces of legislation were theoretically possible, the operation of s. 44 still will run afoul of the second test for the application of the paramountcy doctrine (frustration of a federal purpose). The federal purpose underlying s. 6(2) is to allow dependents of a deceased person access to the federal maritime tort regime to the same extent that the deceased would have had if he or she had not died.

Section 44 frustrates that purpose because it purports to take away that right from both the deceased and the dependents. It purports to strip the estate and dependents of a deceased fisher of a cause of action in damages that is expressly authorized by federal legislation.

To allow that to happen would be, in effect to turn paramountcy on its head and give primacy to the provincial law. [ 108 ] Counsel for the appellant, Marine Services International Limited, argued that s. 6(2) in fact did not create a federal right of action in the current circumstances because it expressly contemplates circumstances where injuries and fatalities may arise from the fault or neglect of another where nevertheless the person injured is not entitled to recover damages.

Counsel focused on the phrase in s. 6 that limits the right of a dependent to maintain an action to “circumstances that entitle the person [who died by the fault or neglect], if not

deceased, to recover damages”. He submitted that this contemplates the very circumstance occurring in this case – a deceased worker whose right to sue in tort has been taken away by s. 44 of the WHSCA . Accordingly, he says, there is no conflict between the two provisions. [ 109 ] This argument has its attractions, if for no other reason than it would provide an

interpretation that would be in accord with the concern of the majority in CWB that the constitution be interpreted in a manner that would promote cooperative federalism rather than conflict. Thus, as noted previously, an

interpretation that can be given to a federal statute so as not to interfere with a provincial statute is to be “applied in preference to another applicable construction which would bring about a conflict between the two statutes” ( A.G. (Can) v. Law Society of B.C. ). [ 110 ] After further consideration, however, we have had to conclude, not without some reluctance, that the

interpretation proposed by counsel reaches too far and is not a reasonable

interpretation in the circumstances. It would amount to pounding a square peg into a round hole in violation of proper principles of statutory

interpretation simply to meet a perceived need to achieve constitutional harmony which is not justified in the circumstances. [ 111 ] It is axiomatic that a province cannot, in principle, unilaterally eliminate a federally-created right. The rights recognized by s. 6 were created by the federal government by way of amplification of maritime negligence law which, as Ordon underscores, is federal law and “not the law of any province” (para. 71, item 2).

On the other hand, a federal statute could adopt a provincial regime as part of federal law or limit its operation to circumstances where provincial law does not apply. For example, under the Merchant Seaman Compensation Act , R.S.C., 1985, c. M-6 , which creates a workers’ compensation scheme for “seamen”, it is provided that no compensation is payable under that Act where a seaman or his dependents are entitled to claim compensation “under any provincial workers’ compensation law” (s. 5). The definition of “seaman”, however, expressly excludes fishers employed or engaged on a Canadian registered ship (s. 2(1)).

Fishers are therefore, by express legislative policy, excluded from a workers’ compensation regime but they are, instead, permitted to avail of the maritime tort regime under s. 6. [ 112 ] It is not reasonable to interpret the generally-worded phrase in s. 6 , “circumstances that would have entitled the person, if not deceased, to recover damages” as being intended to have the effect of allowing provincial workers’ compensation legislation to determine the scope of the federal right to access the maritime tort regime.

If the federal government wanted to accomplish that result, it could have used much more precise and pointed language, specifically referring to the applicable provincial legislation, as it has done in other situations. [ 113 ] That this is not a reasonable

interpretation is all the more evident when it is apparent that the phrase has an entirely different purpose.

Section 6 creates a derivative tort claim by extending the right to sue to dependents of a deceased person, but only where the deceased would have had a right to sue had he or she not died. It accomplishes the same result that provincial fatal accidents legislation addresses in respect of provincial tort law. The phrase merely underlines the point that the claim is derivative, just as the provincial legislation does (though not necessarily using precisely the same language).

Furthermore, inasmuch as s. 6 purports to affect maritime tort law, not provincial law, it must be taken as referring to the right to sue under that law. In other words, it makes the dependent’s right to sue contingent on whether the deceased would have had a claim under maritime law had he or she not died.

It makes no sense to conclude that the legislation is referring to a right to sue under a different legal regime which in itself has no ability to eliminate the right to sue under maritime law. [ 114 ] To interpret s. 6(2) to give effect to counsel’s argument is not merely to interpret the statute “liberally” to provide co-operative federalism. Such an

interpretation would involve construing the statute not simply liberally but would give it an

interpretation that was not intended and one which it cannot reasonably bear. The motivation to promote cooperative federalism, while commendable, cannot have the effect of giving a statute an

interpretation that is outside a range of possible reasonable

interpretations. [ 115 ] We conclude, therefore, that the paramountcy doctrine applies and s. 44 is rendered inoperative to the extent of its incompatibility with s. 6(2) . (

e) Conclusion as to the correctness of the Applications judge’s decision [ 116 ] The applications judge held that the s. 44 bar was rendered inoperative in relation to the Ryans under the doctrines of interjurisdictional immunity and paramountcy. He held that the standard of review by the court of the decisions of the workers compensation internal review specialist was correctness. We agree, as the issue involves

interpretation and application of constitutional provisions and jurisprudence.

It also goes without saying that the standard of appellate review by this Court of the applications judge’s decision is also correctness. [ 117 ] In light of the conclusions we have reached above, we are of the view that the applications judge was correct to conclude, applying the interjurisdictional immunity and paramountcy doctrines, that s. 44 of the WHSCA should be read down, or otherwise rendered inoperative, so as not to have the effect of barring any action that the Ryans would have against Marine Services International Limited and Universal Marine Limited under federal maritime negligence law. [ 118 ] Accordingly, the appeal should be dismissed and the decision of the Trial Division quashing the decision of the internal review specialist be affirmed.

The respondents (Ryans) shall be entitled to their costs of this appeal on a party and party basis jointly and severally against Marine Services International Limited, and the Workplace Health, Safety and Compensation Commission. The Attorney General of Canada and the intervenor the Attorney General of Newfoundland and Labrador should bear their own costs. J. D. Green, C.J.N.L.

__________________________ M. H. Rowe, J.A. Welsh, J.A.: (dissenting) [119] Two men lost their lives when the fishing vessel Ryan’s Commander sank off the coast of Newfoundland. At issue in thisappeal is whether federal jurisdiction over navigation and shipping precludes the operation of an essential component of the provincialworkers’ compensation legislation, the bar against taking an action in court. As well, the requirement to serve a notice of constitutionalquestion is considered.

BACKGROUND [120] Joseph and David Ryan lost their lives on September 19, 2004 when the Ryan’s Commander sank near the coast ofNewfoundland while returning to port after a fishing voyage. On September 18, 2006, their estates, their surviving spouses and children,and Ryan’s Fisheries Partnership, which was formed to finance and direct construction of the vessel, commenced an action in the TrialDivision claiming negligence and breach of contract in the design, construction and inspection of the vessel.

For convenience, theseparties, with the exception of the Partnership, will be referred to collectively as “the Ryans”. Because the Partnership cannot make aclaim for compensation under the workers’ compensation legislation, the effect of this appeal is limited to the Ryans. [121] Universal Marine Limited (“Universal Marine”), Marine Services International Limited (“Marine Services”) and David Porterare defendants in the action on the grounds they were involved in the design or construction of the vessel. For convenience, UniversalMarine, Marine Services and Mr.

Porter will be referred to collectively as “the defendant companies”. Universal Marine and MarineServices are registered as employers under the Workplace Health, Safety and Compensation Act, RSNL 1990, c. W-11 (“the WorkplaceCompensation Act”). Mr. Porter is an employee of Marine Services and is considered to be a worker under that legislation. TheCommission’s conclusion that the companies were employers and Mr.

Porter and the Ryans workers under the legislation was acceptedby the applications judge and not challenged on appeal (decision of the applications judge (2009), 2009 NLTD 120 , 289 Nfld.& P.E.I.R. 198, at paragraph 12). [122] In addition, a claim based on negligent testing of the vessel for stability and other features was commenced against the AttorneyGeneral of Canada, representing Her Majesty the Queen in right of Canada (Minister of Transport, Infrastructure and Communities forCanada) (the “Attorney General”). It was determined that the Attorney General is not an employer under the Workplace CompensationAct.

It follows that the Act has no application to a claim against the Attorney General. [123] Regarding the Workplace Health, Safety and Compensation Commission (the “Commission”), the Ryans confirmed in the TrialDivision that those who are eligible under the Workplace Compensation Act have received compensation. Those meeting the definitionof dependant spouse are entitled to compensation from September 19, 2004 to the date their deceased husbands would have reached agesixty-five. [124] On March 27, 2007, Marine Services and Mr.

Porter filed an application with the Commission for a determination of whetherthe Ryans were statute barred from proceeding with their claim in the

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