Date: 20020405
Docket: T-2215-00
Ottawa, Ontario, April 5, 2002
Before: Pinard J.
ADMIRALTY ACTION IN REM AND IN PERSONAM
BETWEEN:
CHANTAL NORMANDEAU
and
MICHEL LAPOINTE
and
MICHEL LAPOINTE, in his capacity as executor and
testamentary liquidator of the late SÉBASTIEN LAPOINTE
Plaintiffs
AND:
ESTATE LATE BASTIEN LÉVESQUE
and
LA NORDIQUE, COMPAGNIE D'ASSURANCE DU CANADA
and
CIGNA INSURANCE COMPANY OF CANADA
and
LIBERTY MUTUAL INSURANCE COMPANY
and
LA SOUVERAINE, COMPAGNIE D'ASSURANCE GÉNÉRALE
and
JEAN DOE and/or JEAN DOE INC.
and
THE OWNERS AND ALL OTHER PERSONS
HAVING AN INTEREST IN THE SHIP BRIER MIST
and
THE SHIP BRIER MIST
Defendants
Motion by the defendant Estate Late Bastien Lévesque for summary judgment dismissing action for lack of jurisdiction by the Federal Court of Canada: dismissal of action for inadmissibility of proceeding pursuant to Industrial Accidents and Occupational Diseases Act.
The whole with costs.
[Sections 213, 214, 364 and 366 of the Federal Court Rules (1998)]
ORDER
The motion is dismissed: costs to follow.
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Yvon Pinard
JUDGE
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20020405
Docket: T-2215-00
Neutral citation: 2002 FCT 369
ADMIRALTY ACTION IN REM AND IN PERSONAM
BETWEEN:
CHANTAL NORMANDEAU
and
MICHEL LAPOINTE
and
MICHEL LAPOINTE, in his capacity as executor and
testamentary liquidator of the late SÉBASTIEN LAPOINTE
Plaintiffs
AND:
ESTATE LATE BASTIEN LÉVESQUE
and
NORDIC INSURANCE COMPANY OF CANADA
and
CIGNA INSURANCE COMPANY OF CANADA
and
LIBERTY MUTUAL INSURANCE COMPANY
and
LA SOUVERAINE, COMPAGNIE D'ASSURANCE GÉNÉRALE
and
JEAN DOE and/or JEAN DOE INC.
and
THE OWNERS AND ALL OTHER PERSONS
HAVING AN INTEREST IN THE SHIP BRIER MIST
and
THE SHIP BRIER MIST
Defendants
REASONS FOR ORDER
PINARD J.
[1] By this motion Estate Late Bastien Lévesque, defendant-applicant, is seeking a summary judgment dismissing the plaintiffs' action claiming from it damages resulting from the death of their son Sébastien Lapointe, which occurred when the ship BRIER MIST was shipwrecked on November 27, 1998.
[2] The late Bastien Lévesque was a fisherman who had obtained his Class IV fishing boat master's licence from Transport Canada in 1986.
[3] The BRIER MIST was a fibreglass scallop dragger which the late Bastien Lévesque bought in March 1998. This class boat, built in Nova Scotia in 1981, left Les Escoumins for Rimouski on November 27, 1998 with its master Bastien Lévesque and four other fishermen, including the late Sébastien Lapointe, on board. The purpose of the journey was to sell in Rimouski some 11 tonnes of scallops caught by the crew of the BRIER MIST a few days before in the fishing zone covered by the fishing licence of one Georges Huard. Later the same day the BRIER MIST foundered off Rimouski, thus causing the death of the plaintiffs' son, the late Sébastien Lapointe.
* * * * * * * * * * * *
[4] First, the defendant-applicant maintained that we are dealing here with an industrial accident within the meaning of the Act respecting industrial accidents and occupational diseases, R.S.Q., c. A-3.001 ("the AIAOD") and that as the plaintiffs had already received the indemnities provided for by that Act, s. 439 of the Act prevented them from bringing an action in tort against it on account of the death of their son Sébastien Lapointe. Section 439 of the AIAOD reads:
439. Immunity. In no case may the beneficiary of a worker who dies by reason of an employment injury, may institute a civil liability action against the employer of the worker by reason of the death.
[5] The defendant-applicant argued that, as the AIAOD applied to the exclusion of any other law, including Canadian maritime law, the plaintiffs' action was inadmissible as this Court lacked jurisdiction.
[6] In support of its position the defendant-applicant referred in particular to the following passage from the Supreme Court of Canada's judgment, Béliveau St-Jacques v. FEESP (Fédération des employées et employés de services publics inc.), [1996] 2 S.C.R. 345, at 412:
I am therefore of the view that s. 438 has the effect of validly barring the victim of an employment injury from bringing an action for damages under the Charter. By making this exclusion, the AIAOD clearly does not violate any of the rights guaranteed in ss. 1 to 38 of the Charter. Moreover, victims of employment injuries are not denied all forms of monetary compensation. Rather, they are subjected to a special scheme, which offers a number of advantages but which allows them to obtain only partial, fixed-sum compensation. In this sense, and although the point is not determinative, it is worth noting that this Court has already held that a similar ban on civil liability actions by victims of work accidents did not violate s. 15 of the Canadian Charter of Rights and Freedoms (Reference re Workers' Compensation Act, 1983 (Nfld.), [1989] 1 S.C.R. 922).
[7] Further, the plaintiffs-respondents argued that their claim falls within this Court's admiralty jurisdiction under s. 22(1) and (2)(d) and (g) of the Federal Court Act, R.S.C. 1985, c. F-7. Specifically, they alleged that their action is governed by Canadian maritime law as defined in s. 2 of that Act. They submitted that the provisions of the AIAOD relied on by the defendant-applicant constitutionally cannot be applied to a dispute in Canadian maritime law so as to limit the legislative jurisdiction in this area belonging exclusively to the Parliament of Canada. Finally, they added that the defendant-applicant was not being sued as the estate of the employer of their deceased son, but as the estate of the owner, operator, master and/or person who performed or supervised the alterations to the ship in question which caused or contributed to its being shipwrecked.
[8] Citing the Supreme Court of Canada judgment in Ordon Estate v. Grail, [1998] 3 S.C.R. 437, the plaintiffs-respondents argued that Canadian maritime law is a body of rules of federal law which are uniform throughout the country and which leaves no scope for the application of any provincial legislation. The plaintiffs-respondents referred in particular to the following passages from that judgment, at 498 and 499:
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.
And at 500:
The question to be asked is: "Does the provincial statutory provision at issue have the effect of regulating indirectly an issue of maritime negligence law?". If the provincial law has this effect, it should be read down so as not to apply outside of the scope of legitimate provincial power.
* * * * * * * * * * * *
[9] Bearing in mind the test applicable to an application for a summary judgment, as stated by Tremblay-Lamer J. in Granville Shipping Co. v. Pegasus Lines Ltd., [1996] 2 F.C. 853, cited with approval by the Federal Court of Appeal in ITV Technologies Inc. v. WIC Television Ltd., 2001 FCA 11, [2001] F.C.J. No. 400 (QL), I feel that the matter should go to trial.
[10] The Court has before it a claim which is clearly based on Canadian maritime law, a claim against which a provincial statute, the AIAOD, is being set up. In these circumstances, the evidence presented to date raises questions of law and fact as a result of which the Court is not satisfied that there is no genuine issue for trial with respect to the plaintiffs' claim (Rule 216(1) of the Federal Court Rules, 1998). If in fact, as I believe, but without deciding the point, the AIAOD should be read down, so has not to impede the full application of Canadian maritime law, the evidence of facts which could establish the liability of the defendant-applicant is still to be presented so that this Court can correctly apply the relevant rules of law.
[11] Consequently, the motion for a summary judgment is dismissed: costs to follow.
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Yvon Pinard
JUDGE
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OTTAWA, ONTARIO
April 5, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: T-2215-00
STYLE OF CAUSE: Chantal Normandeau et al.
v.
Estate Late Bastien Lévesque et al.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 26, 2002
REASONS FOR ORDER BY: PINARD J.
DATE OF REASONS: April 5, 2002
APPEARANCES:
Louis Buteau FOR THE PLAINTIFFS
Sarto Landry FOR THE DEFENDANT ESTATE LATE BASTIEN LÉVESQUE
SOLICITORS OF RECORD:
Flynn, Rivard FOR THE PLAINTIFFS
Montréal, Quebec
Sarto Landry FOR THE DEFENDANT ESTATE LATE
Sainte-Foy, Quebec BASTIEN LÉVESQUE
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