COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Jim Pattison Enterprises Ltd. v. British Columbia
  (Workers Compensation Board),

2011 BCCA 35

Date: 20110202

Docket: CA036883;
CA036885

Docket: CA036883

Between:

Jim Pattison
Enterprises Ltd., K. Smith Fishing Ltd.
and 289787 B.C. Ltd.

Appellants

(Petitioners)

And

Workers
Compensation Board of British Columbia

Respondent

(Respondent)

- and -

Docket: CA036885

Between:

Osprey Marine Ltd.

Appellant

(Plaintiff)

And

Workers
Compensation Board
Attorney General for the Province of British Columbia

Respondents

(Defendants)

Before:

The Honourable Madam Justice D. Smith

The Honourable Madam Justice Bennett

The Honourable Madam Justice Garson

On appeal from: Supreme
Court of British Columbia, February 2, 2009
(
Jim Pattison Enterprises v. Workers Compensation Board
, 2009 BCSC 88,
Vancouver Docket Nos. S073643 and S074852)

Counsel for the Appellant,

Jim Pattison Enterprises Ltd.:

H. Swanson

Counsel for the Appellant,

Osprey Marine Ltd.:

J. Perrett

Counsel for the Respondent,
Workers Compensation Board:

S. Nielsen
L. Courtenay

Counsel for the Respondent,
Attorney General:

V. Jackson

Place and Date of Hearing:

Vancouver, British Columbia

May 13 and 14, 2010

Supplemental Written Submissions:

November 26, 2010

Place and Date of Judgment:

Vancouver, British Columbia

February 2, 2011

Written Reasons by:

The Honourable Madam Justice D. Smith

Concurred in by:

The Honourable Madam Justice Bennett

Concurring Reasons by:
(P. 53, para. 144.)

The Honourable Madam Justice Garson

Reasons for Judgment of the Honourable
Madam Justice D. Smith:

[1]

These appeals raise constitutional issues that involve federal and
provincial regulatory regimes for worker safety on vessels in the commercial
fishing industry. Both the federal government and the provincial government of
British Columbia have entered into memoranda of understanding to ensure that
their mutual regulations co-exist harmoniously for the benefit of the worker. This
arrangement reflects the evolution of Canadian federalism from the classical
watertight compartments approach to the more flexible cooperative
federalism of modern Canada in dealing with the division of powers under the
Constitution
Act, 1867
[
Constitution Act
]. It is the latter approach that informs
the legal framework in which the constitutional issues raised in this appeal must
be examined.

A.
Overview

[2]

The appellant petitioners, Jim Pattison Enterprises Ltd., K. Smith
Fishing Ltd. and 289787 B.C. Ltd., are the owners of small fishing vessels. The
appellant plaintiff, Osprey Marine Ltd., is the owner of a large fishing
vessel. Collectively they appeal an order dismissing their proceedings
commenced by way of petition and action respectively, in which they challenged
the constitutional validity of certain provisions of the
Occupational Health
and Safety Regulations
, B.C. Regulation 296/97 [
OHSR
] enacted
pursuant to Part 3 of the
Workers Compensation Act,
R.S.B.C. 1996, c.
492 [
WCA
]. Alternatively, they seek a declaration that the impugned
provisions are inapplicable or inoperative to their commercial fishing
operations by application of the constitutional doctrines of interjurisdictional
immunity and/or paramountcy.

[3]

Madam Justice L. Smith heard the appellants respective applications for
judicial review and summary trial concurrently, as they were ordered to be
heard together. The Federal Government did not participate in the hearing. On
February 2, 2009, in written reasons for judgment, she dismissed both
applications, finding that the appellants operations were a provincial undertaking,
the impugned provisions were constitutionally valid, and the constitutional
doctrines of interjurisdictional immunity and paramountcy were not engaged. In
the result, the orders made by the Workers Compensation Board (the WCB)
requiring the appellants to comply with the impugned provisions were valid and
enforceable:
Jim Pattison Enterprises v. Workers Compensation Board,
2009
BCSC 88.

[4]

The appellants raise a number of grounds of appeal. They contend the
trial judge erred in finding that the impugned provisions are
intra vires
the
provincial legislature. They submit that in pith and substance they are
regulations about vessel stability and safety and therefore fall within the
federal Parliaments jurisdiction over navigation and shipping under s. 91(10)
and sea coast and inland fisheries under s. 91(12) of the
Constitution
Act
.

[5]

They further contend that if the impugned provisions are found to be
intra
vires
the provincial legislature under s. 92(13) of the
Constitution Act
over property and civil rights, the trial judge erred in finding that the
nature of their operations and activities constituted a provincial undertaking.
They submit that since their fishing operations extend beyond the territorial
waters of the province of British Columbia, they are a federal undertaking and
therefore fall within s. 91(29) and the exclusionary provisions of
s. 92(10)(a) of the
Constitution Act.
Section 91(29) provides that
those classes of subjects expressly excluded from provincial jurisdiction under
s. 92 fall within the legislative authority of the federal Parliament.
Section 92(10)(a) grants exclusive legislative authority to the provinces for
local works and undertakings, but excludes works and undertakings connecting
the Province with any other or others of the provinces, or extending beyond the
Limits of the Province.

[6]

In the alternative, the appellants submit that if the impugned
provisions are constitutionally valid, they are inapplicable to their
activities by application of the doctrine of interjurisdictional immunity as
they impair the basic, minimum and unassailable core of the federal heads of
power over navigation and shipping and/or inland seas and fisheries and the
management of a federal undertaking. They further submit that the impugned
provisions are rendered inoperative to their activities by application of the
doctrine of paramountcy because they are incompatible or in conflict with the
federal regulatory regime on vessel stability and safety.

[7]

The respondents, the WCB and the Attorney General for the Province of
British Columbia (the AGBC), contend that the impugned provisions are
constitutionally valid since, in pith and substance, they relate to the
occupational health and safety of workers on fishing vessels and therefore are
a matter of labour relations and workplace conditions which presumptively fall
within the exclusive legislative authority of the provinces over property and
civil rights under s. 92(13) of the
Constitution Act.

[8]

They further submit that the appellants fishing operations are a local
or provincial undertaking within the exclusive legislative authority of the
province under s. 92(10) of the
Constitution Act
and do not fall within
the exclusionary provision of s. 92(10)(a) because they do not cross or
come into contact with any other provincial or international borders.

[9]

The respondents also contend that the doctrine of interjurisdictional
immunity is not triggered because the appellants operations are a provincial
undertaking and therefore the impugned provisions do not impair the basic,
minimum and unassailable core of a federal head of power, and that the doctrine
of paramountcy is not triggered because the impugned provisions are not
incompatible or in conflict with the federal legislative regime on vessel
stability and safety. In support of this latter submission the respondents rely
on the memoranda of understanding entered into between the federal and
provincial governments, which identify as their objective the promotion of the
occupational health and safety of workers in the fishing industry and address
areas of potential conflict or inconsistencies and gaps between the two regulatory
regimes.

[10]

A copy of the relevant sections of the impugned provisions of the
OHSR
in both appellants proceedings are attached in the appendix to these
reasons.

B.
Litigation
Background

[11]

The appellants, Jim Pattison Enterprises Ltd., K. Smith Fishing Ltd. and
289787 B.C. Ltd., commenced proceedings by way of petition and applied for
judicial review of orders made by the WCB to enforce the impugned provisions of
the
OHSR
. The appellant, Osprey Marine Ltd., commenced an action and
applied for a summary trial on the issue of the validity and enforceability of
the orders made by the WCB. Before the trial judge, the appellants collectively
raised the constitutional issues being advanced in the grounds of appeal before
this Court. The WCB agreed to stay enforcement proceedings until the trial judgment
was rendered.

1.

The
Northisle and the Western Investor Small Fishing Vessels

[12]

The appellants Jim Pattison Enterprises Ltd. and 289787 B.C. Ltd., both provincially
incorporated companies, are the owners of the federally registered Northisle
fishing vessel. Northisle is categorized as a small fishing vessel under the
Small
Fishing Vessel Inspection Regulations,
C.R.C., Vol. XVII c. 1486

[
SFVIR
]
issued under the
Canada Shipping Act
[
CSA
]. The
CSA
was
repealed and replaced by the
Canada Shipping Act, 2001 (CSA, 2001)
on
July 1, 2007, but the
SFVIR
remains in force. Small fishing vessels
typically weigh between 15 and 150 gross tons and are less than 124 metres in
length; the Northisle weighs 95.75 gross tons and is 19.6 metres long. The
Northisle is licensed by the Department of Fisheries and Oceans (the DFO) to
fish roe herring and salmon using seine fishing gear, and to fish groundfish
using trawl gear.

[13]

The Northisle began its operations as a seiner but in 1989 was converted
to a trawler. Since 2006, it has fished roe herring in the Gulf of Georgia,
salmon off the south coast, and groundfish off the west coast of Vancouver
Island and in the Queen Charlotte Sound. Over the last five years approximately
90% of the Northisles fishing operations have involved trawling rather than
seining, and approximately 75% of its trawling activity has occurred more than
12 nautical miles off the west coast of Vancouver Island. When trawling for
certain species of groundfish, the Northisle may travel as far as 30 nautical
miles beyond the west coast of Vancouver Island.

[14]

The appellants Jim Pattison Enterprises Ltd. and K. Smith Fishing Ltd.
are the owners of the federally registered Western Investor fishing vessel.
K. Smith Fishing Ltd. is also a provincially incorporated company and the Western
Investor is also a small fishing vessel under the
SFVIR.
The vessel
weighs 119.26 gross tons and is 22.68 metres long. It is licensed by the DFO to
fish roe herring and salmon using seine fishing gear, and to fish groundfish
using trawl gear.

[15]

The Western Investor began its operations as a seiner in 1980 but over
the last five years has spent at least 70% of its time trawling rather than
seining. Since 2006, it has been trawling roe herring in the Gulf of Georgia
and Prince Rupert area, salmon off the B.C. coast, and groundfish off the west
coast of the Queen Charlotte Islands and in the Hecate Strait. At least 40% of
its trawling operations occur more than 12 nautical miles off the west coast of
the Queen Charlotte Islands and in Hecate Straits. When trawling for certain
species of groundfish, the vessel may travel as far as 30 nautical miles beyond
the western boundary of the Queen Charlotte Islands.

[16]

Canada claims 12 nautical miles beyond the shore as territorial sea; the
Northisle and the Western Investor travel well beyond this boundary. Thus, both
vessels spend over 50% of their fishing time beyond the geographic limits of
the province and beyond the territorial sea of Canada.

[17]

Both the Northisle and the Western Investor have stability books on board
as mandated by Transport Canada under the
SFVIR.
The Northisles
stability book was published on August 14, 1989; the Western Investors
stability book was published on April 1, 1980. The masters of both vessels
also have comprehensive safety manuals which include information and
instructions about on board emergency procedures, drills and vessel stability. Neither
vessels stability books have been modified since their conversions to trawlers.

[18]

On April 3, 2006, and April 5, 2006, the Northisle and the
Western Investor, respectively, were inspected by a WCB Inspection Officer. Following
the inspections, the WCB issued several orders under the
OHSR
(the
Review Orders). The Review Orders found that: (i) the owners had failed
to provide on board stability documentation; (ii) the master had failed to
establish emergency procedures for crewmembers overboard; (iii) the master
had failed to establish emergency fire and flooding procedures; and (iv) the
master had failed to establish emergency procedures in regard to abandoning
ship or calling for help. The owners were required to notify the WCB of their
compliance with the Review Orders within 30 days.

[19]

On July 3, 2006, the owners filed compliance plans. They also requested
a review hearing under the
WCA
based on their claims that the province
lacked the constitutional authority to regulate stability and other safety
matters on board their fishing vessels. In that regard, they served notice of
their constitutional challenge under the
Constitutional Question Act,
R.S.B.C.
1996, c. 68, on the AGBC and the Attorney General of Canada (the AGC).
Neither the AGBC nor the AGC participated in the review hearing.

[20]

On March 30, 2007, the WCBs Review Division (the Review
Division) determined that it lacked the jurisdiction to decide the constitutional
questions raised by the owners.

[21]

The appellants then filed a petition for judicial review under the
Judicial
Review Procedure Act
, R.S.B.C. 1996, c. 24, and again served notice of
the constitutional questions on the AGBC and the AGC. On this occasion the AGBC
participated in the proceeding.

[22]

In the judicial review proceeding, the appellant owners of the small
fishing vessels challenged the constitutional validity of ss.

24.72 and 24.74 of the
OHSR.
In the alternative, they applied for an order that the impugned provisions were
inapplicable or inoperable to their commercial fishing operations based on the
constitutional doctrines of interjurisdictional immunity and/or paramountcy,
respectively.

2.
The Osprey No. 1 Large
Fishing Vessel

[23]

The appellant Osprey Marine Ltd. is the owner of several large fishing
vessels including the Osprey No. 1. The Osprey No. 1 is categorized as a
large fishing vessel under the
Large Fishing Vessel Inspection Regulations
[
LFVIR
]

issued under the
CSA.
The
LFVIR
remain in
force under the
CSA, 2001.
The Osprey No. 1 weighs 2,003 gross tons and
is 57.4 metres long, is licensed as a commercial fishing vessel under the
Fisheries
Act
, R.S.C. 1985, c. F-14 and is operated in accordance with the
CSA,
2001,
and the
LFVIR.
The master of the Osprey No. 1 is instructed by
the owner to operate the vessel in accordance with the
Canada Labour Code
,
R.S.C. 1985, c. L-2 [
CLC
] and its corresponding regulations,
including, when the action was commenced, the
Marine Occupational Safety and
Health Regulations
, SOR/87-183 [
MOSH
] (which has since been repealed
and replaced by the
Maritime Occupational Health and Safety Regulations,
SOR/2010-120
[
MOHSR
]. However, there is no evidence that the owner was advised by any
federal government employee to operate the ship pursuant to federal labour laws.
Nor is there evidence of any federal enforcement procedures under the
CLC
having ever been taken against the Osprey No. 1.

[24]

The Osprey No. 1 was purchased by the appellant in 2005 and imported
into Canada. At that time, it was inspected by Transport Canada and was
approved for offshore fishing. Most of its fishing activities extend beyond the
territorial limits of the province.

[25]

The Osprey No. 1 is outfitted with a full complement of electronics for
navigation and fish finding, and has a complex fuel and water system. Its crew
of 24 includes a master, mate, chief engineer and second engineer, all of whom
are certified by Transport Canada. Only qualified crew members are authorized
to operate the vessels fuel and water system and only those individuals are provided
with copies of the relevant portions of the Standards for Training,
Certification and Watchkeeping for Seafarers Code (the International
Seafarers Code). The International Seafarers Code is an international code
established by convention to which Canada is a signatory. Transport Canada
annually inspects the Osprey No. 1 and reviews the qualifications of its crew.

[26]

On February 27, 2007, a fatal accident occurred on board the Osprey
No. 1. A crew member was struck and killed by a trawl door. Transport
Canada did not investigate the fatality; the WCB did investigate the incident and
inspected the vessel following which it issued an order requiring vessel
stability information to be developed and made available to the crew (the
Review Order). In particular, the owner of the vessel was required to provide
a health and safety program for its crew that included written procedures on crew
training and supervision, the vessels operational stability, bridge and engine
room protocol, the use of personal flotation devices, and emergency drill procedures.
The owner was also required to give written notice of compliance with 30 days
of the issuance of the Review Order.

[27]

The owner of the Osprey No. 1 applied to the Review Division for a
stay of the Review Order, claiming that ss. 24.69 through to 24.103 of the
OHSR
were constitutionally invalid, or in the alternative, were
inapplicable or inoperative based on the doctrines of interjurisdictional
immunity and/or paramountcy.

[28]

The Review Division dismissed the appellants stay application
concluding that it lacked the jurisdiction to determine the constitutional
validity of the impugned provisions. In its written reasons, however, it offered
the view that the employer has taken an extreme interpretation of the order in
order to support its constitutional argument noting that:

... The order does not explicitly state that the employer
must hire new crew members who have expert knowledge of stability and be
personally capable of taking all steps that may be needed to deal with
stability issues on the vessel. It refers rather to the development and
presentation of instructions to crew members. ... [I]t only requires that crew
members without specialized knowledge be provided with the information they
need for their particular roles. ...

... [The order] did not require the employer to do anything
initially other than provide a compliance plan. ... The Board would then have
the opportunity to state whether it agrees with the plan or to require
modifications.

... I can see no grounds for
finding a conflict [between the federal and provincial laws] in this case.

[29]

The Review Order required the owner to provide its non-specialized crew
members with documentation and information that would give them a basic
understanding of their general role in maintaining the stability of the vessel.
The crew members did not have to know about stability concepts beyond what was
reasonable in the circumstances, but were required to have information and
documentation available to them to assist them in understanding any role they
might have in maintaining the stability of the vessel.

[30]

After receiving the Review Order, the appellant commenced an action and
filed a summary trial application in which it sought a declaration that the impugned
provisions of the
OHSR
were constitutionally invalid, or alternatively
not applicable or inoperative to their operations based on the doctrines of
interjurisdictional immunity and/or paramountcy, respectively. In support of
its application, the appellant provided affidavit evidence from a marine surveyor
who offered the opinion that, while the federal regulations did not require the
crew of a large fishing vessel to have specific knowledge of ship stability
(except for crews of four or less), they should have some basic knowledge of
how to maintain ship stability by: (i) keeping all water tight openings
closed when at sea; (ii) keeping scuppers free so that water cannot
accumulate on decks; (iii) ensuring that any loose item is well secured
against movement; and (iv) ensuring that pallets or blocks of cargo are
properly stowed in the holding tanks.

C.
Acts
and Regulations Relating to Marine Safety

1.

The
Federal Regulatory Regime

[31]

The federal regulatory regime for all small and large fishing vessels is
found largely in the
SFVIR
and
LFVIR
enacted under the
CSA
(now
the
CSA, 2001
). Other regulations issued pursuant to the
CSA, 2001
include
the
Marine Personnel Regulations
, SOR/2007-115; and the
Safe Working
Practices Regulations,
C.R.C., c. 1487.

[32]

The
CSA, 2001

includes the following objectives as set out
in s. 6:

(
a
) protect the health and well-being of individuals,
including the crews of vessels, who participate in marine transportation and
commerce;

(
b
) promote safety in marine transportation and
recreational boating;

(
c
) protect the marine environment from damage due to
navigation and shipping activities;

(
d
) develop a regulatory scheme that encourages
viable, effective and economical marine transportation and commerce;

(
e
) promote an efficient marine transportation system;

(
f
) develop a regulatory scheme that encourages the
viable, effective and economical use of Canadian waters by recreational
boaters;

(
g
) ensure that Canada can meet its international
obligations under bilateral and multilateral agreements with respect to navigation
and shipping;

(
h
) encourage the harmonization of marine practices;
and

(
i
) establish an effective
inspection and enforcement program.

The legislation also gives Parliament the authority to
implement regulations to achieve these objectives. The regulations that have
been implemented are broad in scope, but also include detailed technical
requirements for ship stability and safety in the construction and equipment of
the vessels, provisions for crew safety training and certification, the
implementation of safe working practices on board the vessel, and documentation
on ship stability for a master.

[33]

The appellant owners of the small fishing vessels submit that all the
requirements for vessel stability and safety are contained in the federal
regulatory framework, which historically has been regulated by the federal
Parliament under its legislative jurisdiction over navigation and shipping. The
appellant Osprey Marine Ltd. submits that it would be redundant to insist on giving
documentation and instructions about vessel stability to non-certified or
untrained crew. It submits that such requirements could create confusion and might
even jeopardize the safety of the vessel and crew.

2.
The Federal Canada
Labour Code Scheme

[34]

The
CLC
applies to all employees who work under federal
jurisdiction, including those employed with federal undertakings which are not
subject to the provincial
WCA
scheme. It addresses the rights and
obligations of workers, union members and employers including certification of
unions and labour-management relations, workplace health and safety, and
employment standards.

[35]

The purpose of Part II of the
CLC
, entitled Occupational Health
and Safety, is stated as follows: to prevent accidents and injury to health
arising out of, linked with or occurring in the course of employment to which
this Part applies. Section 123(1) provides that Part II of the
CLC
applies
to the following employment:

(a)
on or in connection with the operation of any federal work, undertaking or
business other than a work, undertaking or business of a local or private
nature in Yukon, the Northwest Territories or Nunavut;

(b)
by a corporation established to perform any function or duty on behalf of the
Government of Canada; ...

[36]

As previously noted,
MOSH, (
now
MOHSR
) was enacted under
the
CLC.
These regulations focus on the requirements for the master of a
vessel. They require the master to ensure that his crew members are qualified
to undertake their duties, complete marine emergency courses, are subject to
regular emergency drills, and are provided with written safety procedures that
are posted on the fishing vessel.

3.
The Provincial
Workers Compensation Act Scheme

[37]

Those employers and employees not subject to the
CLC
are governed
by provincial labour laws and workplace safety standards. The relevant portion
of the
WCA
scheme, being Part 3 and its related regulations, is
effectively British Columbias equivalent to Part II of the
CLC
.

[38]

The 1966 Tysoe Royal Commission Report described the purpose of the
WCA
as: To keep work-connected injuries to a minimum is the first object.
Restoration of injured workmen physically and economically is the second
(p. 18). Part 3 of the
WCA
contains general provisions in relation
to occupational health and safety, with s. 107 defining its purpose as the
promotion of occupational health and safety and the protection of workers and
other persons present at workplaces from work related risks to their health and
safety. Section 111 describes the WCBs mandate under Part 3 as:

[C]oncerned with occupation
health and safety generally, and with the maintenance of reasonable standards
for the protection of the health and safety of workers in British Columbia and
the occupational environment in which they work.

[39]

Occupational health and safety regulations in the fishing industry were
first enacted in 1975. In 1990, the Supreme Court of Canada refused leave to
appeal
504578 Ontario Limited v. Great Lakes Fishermen and Allied Workers
Union
, [1990] O.L.R.B. Rep. 117 in which provincial control over the
business of fishing first was recognized. As a result of this decision, the
WCB believed they had authority to regulate occupational health and safety in
the fishing industry and formed a fishing safety committee which led to new
regulations in 1995. A representative from a subsidiary of the appellant Jim
Pattison Enterprises Ltd. was a member of that committee.

[40]

In 1995, the WCB signed memoranda of understanding with the Canadian
Coast Guard and the DFO regarding the occupational health and safety regulation
of British Columbias commercial fishing workers. The memoranda acknowledge that
the WCB has jurisdiction to govern all aspects of occupational health and
safety for persons working on commercial fishing vessels in British Columbia.

[41]

Part 24 of the
OHSR
came into effect in 1998. It includes
specific provisions for the occupational health and safety of workers in
diving, fishing and other marine operations. The provisions focus on the
documentation and communication of vessel stability characteristics to the
crew; they do not include detailed requirements for vessel stability. In
particular, s. 24.72 of the
OHSR
requires the owner of a small
fishing vessel to have documentation on vessel stability readily accessible to
its crew on board the vessel. Section 24.74 requires the master of the vessel
to establish procedures and assign responsibilities regarding vessel safety to
each crew member in the case of an emergency.

[42]

In 2001, the WCB signed a further memorandum of understanding with
Transport Canada (Marine Safety) for the purpose of coordinating the oversight
of the WCB and Transport Canada over matters in the fishing industry. WCB was
assigned responsibility for the business of fishing, including the safety of
crews and fishing vessels while operating in B.C. waters. In the memorandum of
understanding the jurisdiction of the WCB is stated to include programs and
activities related to occupational health and safety, which is defined in s. 2
as occupational health and safety on commercial fishing vessels operating in
interior and adjacent waters of British Columbia. The memorandum also provides
that [w]here dual jurisdiction occurs, the WCB and [Transport Canada] may
operate jointly and co-operatively or independently to ensure their respective
program mandates are fulfilled (Annex B, B.5.). Transport Canada was assigned responsibility
for shipping and navigation, including crew certification and the application
of vessel construction standards.

[43]

As will be seen from the discussion below concerning the alleged
conflicts between the two regimes, I have concluded that the WCB policy and
guidelines for occupational health and safety of workers on fishing vessels, as
set out in the
OHSR,
are consistent with the federal regulations and
guidelines on vessel stability.

[44]

The
WCA
also includes a compensation and benefits scheme for
injured workers or their families in the event of death or disability. This is
the historic trade-off between workers and employers that creates a statutory
bar from personal injury or fatal accident lawsuits by employees for the alleged
negligence of their employer. The compensatory aspect of the
WCA
is not generally
considered a part of the workers contract of employment as its provisions do
not intervene to compensate workers until after their health or safety has been
affected (
Bell Canada

v. Quebec,
[1988] 1 S.C.R. 749 at 851-852
[
Bell Canada 1988
]). However, the following from
Bell Canada

1988
at 851 is apposite:

... [O]ne can and must
distinguish between the constitutional law classification of compensatory
schemes and that of preventive schemes for purposes of their application to
federal undertakings. The British Columbia Court of Appeal accordingly erred [in
Alltrans Express Ltd. v. The Workers Compensation Board of British
Columbia,
[1983] 6 W.W.R. 372 at 377 (B.C.C.A.)] in holding that the
compensatory scheme cannot be severed from the preventive scheme.

[45]

Further, in
Alltrans Express Ltd. v. British Columbia (Workers
Compensation Board),
[1988] 1 S.C.R. 897, the Court held at 912 that:

... This differing
characterization allows us to sever the compensation regime from the preventive
regime, even when they are in the same statute, in order to properly focus on
the rules which do and do not apply to federal undertakings.

[46]

Thus, it is the purpose and effect of the preventative regime as
outlined in Part 3 of the
WCA
and the
OHSR
which is material to
the pith and substance analysis of the relevant legislation in this case.

D.
The
Trial Judges Reasons for Judgment

[47]

The trial judge began her analysis by reviewing the history of the
relevant legislation. She noted the evidence demonstrated that fishing is a
dangerous industry. In British Columbia, between 1975 and 2005, 157 fishing
vessels capsized with 66 lives lost, and between 2001 and 2005, one fisherman died
for every 29 WCB claims. She also noted that Jim Pattison Enterprises Ltd. had three
fatalities in 55 WCB claims and that Osprey Marine Ltd. had one fatality in 22 WCB
claims.

[48]

The trial judge identified the standard of review for constitutional
issues as that of correctness. She then referred to the presumption of
constitutionality; an enacting body is presumed to confine the scope of its
legislation within its legislative authority under the
Constitution Act
.
Therefore, where two plausible characterizations exist for an enactment, the
characterization that supports the constitutional validity of the legislation
is generally adopted:
Nova Scotia (Board of Censors) v. McNeil,
[1978] 2
S.C.R. 662 at 687-688;
Siemens v. Manitoba (Attorney General),
2003 SCC 3,
[2003] 1 S.C.R. at para. 33.

[49]

Next, the trial judge turned to the relevant jurisprudence on the
constitutional doctrines of pith and substance, interjurisdictional immunity
and paramountcy, beginning with
Canadian Western Bank v. Alberta,
2007
SCC 22, [2007] 2 S.C.R. 3 [
CWB
] and
British Columbia (Attorney
General) v. Lafarge Canada Inc.,
2007 SCC 23, [2007] 2 S.C.R. 86. She also
reviewed
Ordon Estate v. Grail,
[1998] 3 S.C.R. 437, on the application
of the doctrine of interjurisdictional immunity. In
Ordon,
the Court
held that the doctrine of interjurisdictional immunity rendered provincial tort
legislation inapplicable to claims arising out of two fatal boat accidents
because the provincial legislation had the effect of regulating indirectly
federal maritime negligence law ... in such a manner that the provincial law
effectively alters rules within the exclusive competence of Parliament to
amend, or otherwise (para. 140) under navigation and shipping in s. 91(10)
of the
Constitution Act.

[50]

The trial judge also found the reasoning in
R. v. Mersey Seafoods,
2008
NSCA 67, 295 D.L.R. (4th) 244 persuasive.
Mersey Seafoods
involved
charges under the provinces occupational health and safety legislation against
the owners of a large fishing vessel. The owners had argued successfully at
trial that the charges against them should be dismissed on the grounds that the
provincial legislation was inapplicable, or in the alternative was inoperative,
based on the doctrines of interjurisdictional immunity and paramountcy,
respectively. The Nova Scotia Court of Appeal, in a unanimous decision, allowed
the appeal and reinstated the charges.

[51]

While the constitutional validity of the provincial legislation was not
challenged, the appellate court confirmed that the pith and substance of the
legislation involved matters of working conditions, labour relations and the
management of a provincial undertaking, and only incidentally affected the
federal legislative jurisdiction over navigation and shipping. The Court found
that while the appellants fishing operations extended beyond the provinces
territorial limits (to international waters just 12 miles off the coast of
Greenland and to docking in Newfoundland), the management of its operations was
undertaken solely within the provinces boundaries and therefore its fishing
operations were a provincial or local undertaking under s. 92(10) of the
Constitution
Act.
Relying on the jurisprudence in
Ward v. Canada (Attorney General),
2002
SCC 17,

[2002] 1 S.C.R. 569;
Bell Canada 1988
; and
Northern
Telecom Ltd. v. Communications Workers of Canada
, [1980] 1 S.C.R. 115, the
Court reiterated that labour relations in regard to a provincial undertaking,
which include the occupational health and safety of the undertakings employees,
presumptively falls within the provincial legislative authority over property
and civil rights under s. 92(13) of the
Constitution Act
.

[52]

The Court in
Mersey Seafoods
then turned to the constitutional
doctrines of interjurisdictional immunity and paramountcy. It found that the
doctrine of interjurisdictional immunity did not render the provincial
legislation inapplicable as the pith and substance of the legislation involves
the matter of labour relations and only incidentally affected, without impairing,
the core competence of the federal head of power over navigation and shipping.
The Court distinguished
Ordon
on the grounds that the issue in that case
was whether a provincial statute was applicable to a tort claim under maritime
negligence law, while the issue in
Mersey Seafoods
was whether the
provincial labour relations legislation was applicable to the owners of the
fishing vessels. The Court also found that the provincial legislation was not
rendered inoperative by the doctrine of paramountcy as there was insufficient
incompatibility between the two regulatory regimes to establish an actual
conflict.

[53]

Next, the trial judge turned to the impugned provisions of the
OHSR.
Following the direction in
Kitkatla Band v. British Columbia Minister of
Small Business, Tourism & Culture,
2002 SCC 31, [2002] 2 S.C.R. 146,
she examined those provisions without reference to the
WCA
s general
compensation provisions. She found that in pith and substance the purpose of
the impugned provisions was the prevention of risks to the health or safety of
British Columbia workers on fishing boats, and the promotion of sound
occupational health and safety practices in that sector (para. 152) and
that they only incidentally affected the federal head of power under navigation
and shipping.

[54]

The trial judge expressed the view that although there was considerable
overlap and potential for confusion between the federal and provincial regulatory
regimes, and that compliance with both might be difficult and expensive, it
was not impossible to comply simultaneously with both laws (para. 162).
She also found that the
CSA
(now the
CSA, 2001
),

and the
federal regulations issued pursuant to that enactment, were not intended to
create a comprehensive scheme or complete code for the safety of fishing
vessels and their crew, and therefore the impugned provisions did not undermine
or frustrate the purpose of the federal legislation. She observed that if the
OHSR
were intended to impose stability requirements (rather than stability
documentation), there would be an operational conflict, the purpose of the
federal regime would be frustrated and the doctrine of paramountcy would render
the effect of its provisions inoperable. However, she found that the memoranda
of agreement between the federal and provincial governments, under which the
province of British Columbia assumed responsibility for regulating and
monitoring workplace safety on commercial fishing vessels and Canada assumed
responsibility over navigation and shipping of vessels, demonstrated a classic
example of how cooperative federalism could be employed to avoid operational
conflict between the two regulatory regimes.

[55]

Turning to the nature of the appellants fishing operations, the trial
judge held that they were a local or provincial undertaking because: (i) their
operations do not connect British Columbia with any other country or province;
(ii) they do not provide shipping services to offshore destinations; (iii) they
do not enter ports other than British Columbian ports; (iv) their
operations have no connection with any province other than British Columbia;
(v) the owner companies are provincially registered; (vi) the
vessels home ports are in British Columbia; and (vii) the crew members
are hired from and reside in British Columbia. She found that the federal
legislation is directed at ship safety, whereas the provincial legislation is
directed at crew health and safety. She also found no compelling reason to
distinguish
Mersey Seafoods
and held that the impugned provisions of the
OHSR
did not impair the core federal competence over navigation and
shipping or fisheries. Therefore, she held, the doctrine of interjurisdictional
immunity was not engaged.

[56]

In the result, the trial judge dismissed the appellants respective
proceedings, stating that the courts should not be astute to find ways to
frustrate rather than facilitate federal-provincial cooperation if this can be
done within the rules laid down by the Constitution (para. 208).

E.
Analysis

1.

Principles
of Federalism

[57]

The modern approach to Canadian federalism is illustrated by what has
been commonly referred to as cooperative federalism. This form of federalism
involves cooperation between two levels of government in achieving mutual
policy objectives as illustrated in this case by the memoranda of agreement
that seek to maximize each jurisdictions policy objectives in the field of
worker safety. In such circumstances, significant deference must be given to the
cooperative arrangements of governments exercising their mandates in
legislative areas of overlapping jurisdiction. This standard for judicial
oversight of cooperative arrangements between governments was underscored in
Ontario
Public Service Employees Union v. Ontario (Attorney General),
[1987] 2
S.C.R. 2 at 19-20, as quoted in
Kitkatla
:

[72]      ... The distribution of powers provisions contained
in the
Constitution Act, 1867
do not have as their exclusive addresses the
federal and provincial governments. They set boundaries that are of interest
to, and can be relied upon by, all Canadians. Accordingly, the fact of
federal-provincial agreement on a particular boundary between their
jurisdictions is not conclusive of the demarcation of that boundary.
Nevertheless,
in my opinion the Court should be particularly cautious about invalidating a
provincial law when the federal government does not contest its validity or, as
in this case, actually intervenes to support it and has enacted legislation
based on the same constitutional approach adopted by [the province]
.

[Emphasis added.]

[58]

Similarly, Justices Binnie and Lebel, jointly writing for the majority
in
CWB,
stated:

[22]      ...The fundamental objectives of federalism were,
and still are, to reconcile unity with diversity, promote democratic
participation by reserving meaningful powers to the local or regional level and
to foster co-operation among governments and legislatures for the common good.

[23]      ... [T]his living tree as it is described in the
famous image from
Edwards v. Canada (Attorney General)
, [1930] A.C. 124
(P.C.), at p. 136 ─ the interpretation of these powers [ss. 91 and 92 of
the
Constitution Act
] and of how they interrelate must evolve and must
be tailored to the changing political and cultural realities of Canadian
society. It is also important to note that the fundamental principles of our
constitutional order, which include federalism, continue to guide the
definition and application of the powers as well as their interplay. Thus, the
very functioning of Canadas federal system must continually be reassessed in
light of the fundamental values it was designed to serve.

[24]      As the final arbiters
of the division of powers, the courts have developed certain constitutional
doctrines, which, like the interpretations of the powers to which they apply,
are based on the guiding principles of our constitutional order. The
constitutional doctrines permit an appropriate balance to be struck in the
recognition and management of the inevitable overlaps in rules made at the two
levels of legislative power, while recognizing the need to preserve sufficient
predictability in the operation of the division of powers. The doctrines must
also be designed to reconcile the legitimate diversity of regional
experimentation with the need for national unity. Finally, they must include a
recognition that the task of maintaining the balance of powers in practice
falls primarily to governments, and constitutional doctrine must facilitate,
not undermine what this Court has called co-operative federalism [Citations
omitted].

[59]

It is under the umbrella of these principles of Canadian federalism that
I turn now to the issues raised in this appeal.

2.
The
Constitutional Validity of the Impugned Provisions

[60]

The constitutional validity of the impugned provisions is a threshold
issue. If the impugned provisions are
ultra vires
the

competence
of the provincial legislature, then the issues of whether the appellants
operations are a federal or provincial undertaking, and whether the doctrines
of interjurisdictional immunity and/or paramountcy are engaged, become moot.

[61]

The determination of the
vires
of a legislative provision begins
with the presumption of its constitutional validity. However, if the
constitutional validity of legislation is expressly challenged, the court must
first characterize the pith and substance, or matter of the impugned law,
without reference to its classification under the federal and provincial
legislative heads of power (
Kitkatla
at paras. 55-56). Only
thereafter is the matter classified in relation to a federal or provincial
head of power under ss. 91 and 92 of the
Constitution Act
:
Chatterjee
v. Ontario (Attorney General),
2009 SCC 19, [2009] 1 S.C.R. 624

at
para. 24.

(a)
The pith and substance doctrine:
identifying the matter

[62]

The pith and substance doctrine refers to the dominant purpose and legal
effect of legislation:
Reference Re Firearms Act (Can.),
[2000] 1 S.C.R.
783, 2000 SCC 31. It is the dominant purpose of the law that is decisive in
determining whether its matter falls within the constitutional mandate of the
enacting body. The purpose of the law may be ascertained through intrinsic
evidence from its preamble or object clause(s), or from extrinsic evidence
including Hansard or minutes of parliamentary debates:
CWB
at
para. 27. The legal effect of the law is how the law changes the rights
and liabilities of those who are subject to it and may assist in revealing its
true (rather than apparent) purpose: P. Hogg,
Constitutional Law of Canada
,
5th ed. Vol. 1, (Scarborough: Thomson Carswell)

at 15-16.

[63]

The purpose clause in legislation may be considered in determining the
pith and substance of the impugned law. Part 3 of the
WCA
, which includes
general provisions for the occupational health and safety of workers, lists as
its purpose: to benefit all citizens of British Columbia by promoting
occupational health and safety of workers and other persons present at
workplaces from work related risks to their health and safety. The
OHSR
provides a more detailed regulatory regime for workers at different workplaces.
The effect of the impugned provisions is to create safe workplaces for crew
members on ships. The relevant portion of the
WCA
scheme creates the
mechanisms by which a provincial government agency can enforce the safety
standards under the
WCA
and make workplaces subject to the standards of
provincial labour laws. Thus, the pith and substance of the impugned provisions
is the occupational health, safety and well-being of workers employed on
fishing vessels, which is a matter of labour relations.

(b)

Classifying the pith
and substance under heads of power

[64]

Once the pith and substance of a law has been determined, the law must
be classified under a federal or provincial head of power.

[65]

The appellants submit that the impugned provisions are
ultra vires
the
provincial legislature because in pith and substance they deal with matters
that fall within the federal legislative jurisdiction over navigation and
shipping under s. 91(10) and/or over sea coast and inland fisheries
under s. 91(12) of the
Constitution Act
. The respondent submits
that the pith and substance of the impugned provisions fall within the
provincial head of power over property and civil rights under s. 92(13)
of the
Constitution Act.

(i)
Section
91(10) and the federal power over navigation and shipping

[66]

The appellants argue that in the circumstances of this case, the
occupational health and safety of the crew on fishing vessels is so closely
integrated with the core of the federal head of power over navigation and
shipping that it falls exclusively within the federal regulatory jurisdiction.
In support of that position they rely on the broad construction that has been
given by the courts to the navigation and shipping head of power as reviewed
in
Lafarge
at para. 64, and as applied in
R. v. Investissements
Navimex Inc
. (1998), 127 C.C.C. (3d) 328 (Que. C.A.).

[67]

Navimex
involved a constitutional challenge to ss. 163 and
165 of the
CSA
by an accused shipping company engaged in the business of
organizing whale-watching excursions within the province of Quebec. The accused
was charged with failing to enter into an agreement with its crew members,
contrary to s. 165 of the
CSA.
The trial judge dismissed the
charges on the grounds that s. 163 of the
CSA
did not apply to the
accuseds operations, which he found were a matter of labour relations and
therefore fell within the provinces mandate over property and civil rights.
In allowing the appeal, the Court held that the pith and substance of the
impugned provisions were not to govern on the matter of civil rights, but to
create a distinct framework for the hiring of seamen for shipping operations,
regardless of the territory in which those operations were carried out. The
contract of employment was found to relate to the discipline and safety of the
crew, which the Court held formed an integral connection to the core federal
competence over maritime matters under navigation and shipping.

[68]

However, Mr. Justice Pidgeon, for the Court, went on to write at
pp. 343-344:

I would nevertheless add that this conclusion does not have
the effect, as mentions Rand J. in the case
Reference re: Industrial
Relations and Disputes Investigation Act,
[[1955] S.C.R. 529] of removing
jurisdiction from the provinces. In fact, depending on the nature of the
activity of the business, such as matters as the legal status of a shipping
concern, tariff issues, schedules, the existence and terms and conditions of
shipping services offered to the public, as well as the collective bargaining
relationship arising out of laws of general application such as the
Quebec
Labour Code
or the
Act respecting labour standards,
may remain
within provincial jurisdiction.

...

... However, I would add that even if I had come to the
conclusion that there was encroachment, I would have come to the conclusion
that section 163 of the
Canada Shipping Act
only touches a very limited
aspect of the relationship between seamen and captain, being the signature of a
contract of engagement.
Sections 163 and 165 contain no substantive clause
relating to work conditions and does not frame in any manner the bargaining of
work conditions for seamen.
In this regard, the encroachment is, to say the
least, modest and touches no fundamental aspect of the power of the provinces
in relation to property and civil rights (92(13)
Constitution Act, 1867
).

[Emphasis included in quote.
Footnotes omitted].

[69]

In my view,
Navimex
does not advance the appellants position,
especially in view of the Courts comments on the validity of both federal and
provincial legislation in this area of overlapping jurisdictions. It is
accepted that some matters relating generally to navigation and shipping may in
fact fall within the jurisdiction of the provincial legislatures. This was
noted in
dicta
in each of the three separate reasons for judgment in
Singbeil
v. Hansen,
[1985] 5 W.W.R. 237
.
In that regard, Mr. Justice Seaton
stated at 249:

I
expect that the ferries are within Navigation and Shipping with respect to
crew qualifications, safety equipment, communication procedures, rules of the
road, and that sort of thing. But there are other matters that fall within
provincial jurisdiction. I think that garnishment of seamans wages is one of
them.

Mr. Justice Craig observed: Obviously, many aspects of a
seamans employment fall within the class of navigation and shipping, but not
all aspects. I do not think that garnishment of seamens wages relates to
navigation and shipping (at 249).  Mr. Justice Lambert stated: (at 256):

I think the fact that there is
limited scope to head 91(13) and head 92(10), para. (a) and (b), limiting those
heads to ferries, ships or undertakings extending outside a province, makes it
clear that ferries that are confined to one province are to be regarded as
provincial undertakings.

[70]

Therefore, provincial legislation that may touch (or incidentally affect)
the federal head of power under navigation and shipping does not mean that its
pith and substance necessarily falls under s. 91(10) of the
Constitution Act
.

(ii)
Section 91(12) and the federal power over sea coast and inland
fisheries

[71]

To a lesser extent, the appellants also submit that the safety of fishing
vessels falls within the exclusive legislative authority of the federal
Parliament over Sea Coast and Inland Fisheries under s. 91(12). However,
the federal fisheries power does not confer proprietary rights upon those who
are in the business of fishing. Rather, it is concerned with the management,
preservation and regulation of the resource as a whole for the benefit of all
Canadians:
Ward v. Canada (Attorney General)
, [2002] 1 S.C.R. 569 at
paras. 23, 34 and 38. On the scope of the federal fisheries power, Chief
Justice McLachlin, writing for the Court in
Ward,
stated:

[44]      ... Measures whose essence went to the regulation
of fish processing and labour relations in the fishery have been held to fall
outside the federal power. On the other hand, measures primarily related to the
regulation of the fisheries resource but incidentally touching the sale of fish
have been upheld as valid federal legislation.

...

[46]      Similarly, labour relations in the fisheries were
held to be matters essentially falling within the provincial power to regulate
business and outside the federal fisheries power: see
British Columbia
Packers
and
Mark Fishing, supra;
see also
Barrys Ltd. v.
Fishermen, Food & Allied Workers Union
(1993), 104 Nfld. &
P.E.I.R. 277 (Nfld. C.A.).

[47]      These cases suggest that measures essentially
directed to regulating fish processing and labour relations fall under the
provincial power over property and civil rights, and outside the federal
fisheries power.
If the activity is in pith and substance a matter of trade
and industry within the province, it will not fall under the federal fisheries
power merely because some aspect of the activity touch upon the fishery.
Conversely, measures that are in pith and substance directed to the fishery
fall within the federal fisheries power even though they possess aspects
relating to property and civil rights.

[Emphasis added.]

[72]

Similarly, in
British Columbia Packers Ltd. v. Canada (Labour
Relations Board)
(1976), 1 F.C. 375 (C.A.)
,
the Federal Court of
Appeal observed that the fisheries power does not extend to the making of laws
in relation to things reasonably incidental to carrying on a fishing business,
such as labour relations and disposition of the products of the business, when
such things do not
in themselves
fall within the concept of fisheries
[emphasis in original] (at para. 14).

[73]

In my view, the appellants claim that the pith and substance of their
operations falls within the federal head of power over seacoast and inland
fisheries under s. 91(12) of the
Constitution Act
is not supported by
the jurisprudence.

(iii)
Section
92(13) and the provincial power over property and civil rights

[74]

The scope of s. 92(13) was discussed in
Alltrans,
where the
classification of the
Industrial Health and Safety Regulations,
BC Reg.
585/77 was at issue. The regulations were enacted pursuant to the predecessor
of the
WCA
and involved specifications for appropriate footwear to be
worn by workers in industrial occupations. Mr. Justice Beetz found at 912 that [t]he
impugned provisions ... necessarily relate to the working conditions, labour
relations and the management of the undertakings which are subject to the [
WCA
s
predecessor] and therefore fell within the provincial head of power over
property and civil rights.

[75]

Mersey Seafoods
also classified the provincial legislation
relating to the occupational health and safety of workers in the context of
commercial fishing vessels as a matter of labour relations that fell within the
provincial legislative authority. In arriving at that determination the Court
relied extensively on the following passages in
Bell Canada 1988
:

[31]      ... Justice Beetz said:

I think it is clear that on its face the
Act
principally treats working conditions, labour relations and the management of
an undertaking.  (p. 798)

. . .

Unlike a workmens compensation scheme, such as that in
question in the
Workmens Compensation Board
case, the preventive
provisions dealing with occupational health and safety fall within the scope of
the contract of employment. The essence of legislation the purpose of which is
to safeguard the health of workers is that it articulates the terms of the
contract of employment, in the same way as does a collective agreement which
contains preventive clauses dealing with occupational health and safety.
(p. 799)

. . .

I therefore do not think that the
Act
is intended to
protect the health and safety of people in the province in general.  It
governs relations between worker and employer as such, in the workplace or in
the course of employment, subject to a contract of employment which may add to
the minimum requirements of the
Act
, and relates to a key field of
labour relations, that of the worker's health and safety. (p. 809)

. . .

In my opinion, the first fifty-seven sections of the
Act
manifestly deal with working conditions and labour relations. The same is
largely true either directly or incidentally of a number of subsequent
provisions, such as those contained in Chapter X, entitled "Inspection",
and Chapter XII, entitled Regulations.  (p. 810)

Justice Beetz concluded the pith and substance analysis (p.
816):

The
Act
deals with the following matters:
working conditions, labour relations and the management of undertakings.
Under proposition two, these subjects in principle fall into the class of
subject mentioned in s. 92(13) of the
Constitution Act
,
1867
:
Property and Civil Rights in the Province.  The
Act
is therefore
intra
vires
, valid and applicable to undertakings which it may constitutionally
cover.

[76]

In this case, I am satisfied the impugned provisions are in pith and
substance a matter involving the occupational health and safety of workers on
fishing vessels. Such matters relate to labour relations and working
conditions which presumptively fall within the exclusive provincial
jurisdiction over property and civil rights under s. 92(13).

(iv)
The incidental effects
doctrine

[77]

Legislation enacted by one jurisdiction may have incidental or secondary
effects upon a head of power allocated to the other jurisdiction. However,
incidental effects that are corollary or secondary to the dominant purpose of the
law will not render the law constitutionally invalid. Incidental intrusions
into another jurisdictions mandate are to be expected as it is in practice
impossible for a legislature to exercise its jurisdiction over a matter
effectively without incidentally affecting matters within the jurisdiction of
another level of government (
CWB
at paras. 25-29). The majority in
CWB
described the incidental effects of legislation as follows:

[28]      The fundamental
corollary to this approach to constitutional analysis is that legislation whose
pith and substance falls within the jurisdiction of the legislature that
enacted it may, at least to a certain extent, affect matters beyond the
legislatures jurisdiction without necessarily being unconstitutional. At this
stage of the analysis of constitutionality, the dominant purpose of the
legislation is still decisive. Its secondary objectives and effects have no
impact on its constitutionality: merely incidental effects will not disturb
the constitutionality of an otherwise
intra vires
law (
Global
Securities Corp. v. British Columbia (Securities Commission),
[2002] 1
S.C.R. 494, 2000 SCC 21, at para. 23). By incidental is meant effects that
may be of significant practical importance but are corollary and secondary to the
mandate of the enacting legislature: see
British Columbia v. Imperial
Tobacco Canada Ltd.,
[2005] 2 S.C.R. 473, 2005 SCC 49, at para. 28. Such
incidental intrusions into matters subject to the other level of governments
authority are proper and to be expected:
General Motors of Canada Ltd. v.
City national Leasing,
[1989] 1 S.C.R. 641, at p. 670.

[78]

The incidental effects of legislation on another jurisdictions
legislative authority may in some instances be resolved by a firm application
of the pith and substance doctrine. This should result in the classification of
a law into a single head of legislative power under ss. 91 or 92 of the
Constitution
Act
:
CWB
at para. 31. If the true nature of the law, in purpose and
effect, is found to fall within the enacting bodys legislative mandate, the
law will be constitutionally valid; if its purpose and effect are found to fall
outside the enacting bodys mandate, the law will be viewed as colourable and
constitutionally invalid.

(v)
The double aspect doctrine

[79]

Some areas of legislative authority include a matter that falls under
both federal and provincial legislative authority. In other words, the matter
of the legislation may have both a federal and provincial aspect: one aspect of
the legislative field comes within federal jurisdiction while another aspect of
the legislative field falls within provincial jurisdiction. In such
circumstances, each jurisdiction has the authority to legislate on the matter
within the scope of its mandate, albeit the purposes of the legislation in each
jurisdiction will be different:
Firearms Reference
at para. 52.
This is known as the double aspect doctrine (see
Law Society of British
Columbia v. Mangat,
2001 SCC 67, [2001] 3 S.C.R. 113 at para. 48)

and
reflects the principle of concurrency that constitutionally valid legislation
from each jurisdiction may co-exist provided the dominant purpose and effect of
each law is limited in scope to the matter within the enacting bodys
mandate. In other words, the laws from each jurisdiction are constitutionally
valid provided they fall within the scope of the enacting bodys mandate.

[80]

As stated in
CWB
, the double aspect doctrine:

[30]      ... recognizes that
both Parliament and the provincial legislatures can adopt valid legislation on a
single subject depending on the perspective from which the legislation is
considered; that is, depending on the various aspects of the matter in
question.

[81]

The rationale for the double aspect doctrine is to ensure that the
policies of the elected legislators of both levels of government are respected
(
CWB
at para. 30). In
CWB
, the Court underscored how a flexible
approach to the application of the pith and substance doctrine is better
adapted to the modern cooperative federalism rather than the classical
watertight compartments approach:

[37]      The dominant tide finds its principled
underpinning in the concern that a court should favour, where possible, the
ordinary operation of statutes enacted by
both
levels of government. In
the absence of conflicting enactments of the other level of government, the
Court should avoid blocking the application of measures which are taken to be
enacted in furtherance of the public interest. ...

...

[42]      ... Canadian federalism
is not simply a matter of legalisms. The Constitution, though a legal document,
serves as a framework for life and for political action within a federal state,
in which the courts have rightly observed the importance of co-operation among
government actors to ensure that federalism operates flexibly.

[82]

An example of the application of the double aspect doctrine can be found
in
Chatterjee.
That case involved a constitutional challenge to
Ontarios civil forfeiture legislation for drug related activities. The
appellants argued that the legislation amounted to an impermissible intrusion
into the federal legislative authority over criminal law. In considering the
federal aspect of the civil forfeiture legislation, Mr. Justice Binnie,
writing for the Court, observed that the occupied field test has been
rendered obsolete by subsequent case law which makes it clear that a federal
law touching on a matter does not in general create a negative inference
ousting the operation of a provincial law otherwise valid in relation to
provincial objects, so long as there is no operational conflict (at
para. 35). In the result the Court held that the legislation was
constitutionally valid as it did not introduce an interference with the
administration of [the
Criminal Code
] provisions within the scope of
the mischief identified by Rand J. in [
Johnson
v.
Attorney General of
Alberta,
[1954] S.C.R. 127]

(para. 53).

[83]

The appellants submit that the double aspect doctrine does not apply in
the circumstances of this case as the two regulatory regimes reflect the same
aspect or purpose: namely to prevent risks to the health and safety of workers
on fishing vessels in an area of exclusive federal jurisdiction over navigation
and shipping. Uniformity of regulation in the area of ship stability and
safety, they say, is necessary so that Canada can meet its international
obligations under the International Seafarers Code.

[84]

However, as stated above (see paras. 31-43) there are substantial
differences between the federal regulatory scheme relating to shipping and
navigation, and the provincial
WCA
preventative scheme. Unlike Part 3 of
the
WCA
and the
OHSR,
the dominant purpose of the federal regime
under the
CSA, 2001
focuses on a broad spectrum of objectives relating
to shipping and navigation. In contrast, the focus of Part 3 is on the
prevention of workplace accidents, and the occupational health and safety of
workers in British Columbia, through provisions for documentation and
disseminating of information to crew members to the extent that their duties
may include a role in maintaining the stability of the vessel.

[85]

With respect, the appellants submissions speak more to the incidental
effects doctrine

of the impugned provisions on the federal jurisdiction
over navigation and shipping rather than to a single joint purpose of each
level of government to regulate on worker health and safety on fishing vessels.
As stated, the dominant purpose of the federal regulations is on vessel
stability and safety; worker safety is an incidental effect of the regulations.
In comparison, the dominant purpose of the
OHSR
is on worker safety on
fishing vessels; vessel stability and safety are incidentally affected. Any
potential for conflict or inconsistency has been resolved by the two
jurisdictions through memoranda of understanding.

[86]

There is often a degree of overlap between federal and provincial
legislative measures where both jurisdictions have the authority to legislate
on a similar matter. This overlap between jurisdictions is now recognized as
the inevitable indicia of cooperative federalism. In
Chatterjee,
Binnie
J. described it in this fashion:

[32]      ...Co-operative federalism recognizes that overlaps
between provincial and federal laws are inevitable:

Matters, however, which in one aspect and for one purpose
fall within the jurisdiction of a province over the subjects designated by one
or more of the heads of s. 92, may in another aspect and for another purpose,
be proper subjects of legislation under s. 91, and in particular under head 27.

(
Reference re Validity of the Combines Investigation Act
and of s. 498 of the Criminal Code,
[1929] S.C.R. 409. at p. 413)

[87]

Professor Hogg posits that duplication is not a test of inconsistency,
writing at 16.5 on Overlap and Distribution:

There is no reason why duplication should be a case of
inconsistency once the negative implication or covering the field test is
rejected. On the contrary, duplication is the ultimate in harmony. The
argument that it is untidy, wasteful and confusing to have two laws when only
one is needed reflects a value which in a federal system often has to be
subordinated to that of provincial autonomy. Nor does the latter value
disappear when provincial law merely duplicates federal law, because the
suspension of a provincial law may create a gap in a provincial scheme of
regulation which would have to be filled by federal law ─ a situation as
productive of untidiness, waste and confusion as duplication.

In any event, arguments against
duplication of federal and provincial laws can have little weight once
overlapping is admitted. After all, overlapping legislation is duplicative to
the extent of the overlap, and yet it is clear that provincial law is not
inoperative to the extent of its overlap with federal law.

(vi)
The need for provincial
regulation of workers on fishing vessels

[88]

The appellants also submit that there is no need for a provincial
regulatory scheme to protect workers on fishing vessels as there is no
legislative gap in the federal legislation. I cannot agree. This case provides
a good illustration of the gap in the regulatory schemes. The Western Investor
was built and certified in 1980 as a seiner. Its original stability tests were
done as a seiner. It now operates as a trawler. The original stability books
referred to water in the holding tanks. The holding tanks now contain fuel
which changes the stability of the vessel. Yet, there are gaps in the
SFVIR
on
the requirements for the upgrading of stability books as a result of the
vessels conversion to a trawler. Under the
SFVIR
there are only four
instances when a small fishing vessel must be inspected: upon completion of its
construction; upon registration as a Canadian ship; upon conversion to a herring
or capelin fishing vessel; or upon modification where its keel was laid or
where its stability characteristics were adversely affected. Conversion from a
seiner to a trawler does not necessarily fall into any of these categories.

[89]

Similarly, the
LFVIR
do not require crew members to be briefed on
or have access to the stability characteristics of the vessel; the stability
book is only required to be on board for the information of the master since
only the master and crew with the specialized skills for large fishing vessels
have the authority to take such actions as may be required. Nor does it appear
that the Osprey No. 1 was inspected by Labour Canada after the fatality on board
the vessel.

[90]

Such gaps in health and safety regulations within the
SFVIR
and
LFVIR
are filled by
MOHSR
and the
OHSR.
Indeed, both the federal
government and the provincial government have legislated additional health and
safety requirements for marine vessels beyond that which is contained within
the
CSA, 2001
and its regulations. Undertakings that are subject to
federal jurisdiction are subject to
MOHSR
(federal regulations enacted
under the
CLC
)

rather than the
OHSR
(provincial
regulations enacted under the
WCA
)
.
Thus, both federal and
provincial undertakings are subject to safety regulations beyond those found
within the general marine regulatory regime (the
CSA, 2001
). It appears,
therefore, that both the federal and provincial governments recognize that a
gap exists and have attempted to fill the void in the manner described.

[91]

Furthermore, the effect of the cooperative arrangements between the two
levels of government can only add to the safety of the crew and thereby promote
the mutual objectives of each jurisdiction to decrease the incidents of
injuries and deaths on fishing vessels. I agree with the observations of the
Review Division of the WCB that the concerns expressed by the appellants appear
to be an overreaction to some basic requirements to provide documentation and
information on vessel stability and safety to the crew.

(c)
Summary

[92]

In sum, I agree with the trial judge that the impugned provisions are
constitutionally valid legislation in regard to the labour relations and
working conditions for workers on commercial fishing vessels. Conditions of
employment, including legislation relating to the occupational health and
safety of workers, presumptively fall within provincial legislative
jurisdiction over property and civil rights under s. 92(13) of the
Constitution
Act
unless the appellants can establish that the nature of their operations
amount to a federal undertaking.

3.

The
Appellants Operations: A Federal or Provincial Undertaking?

[93]

The presumption that matters involving labour relations and conditions
of employment fall within provincial jurisdiction over property and civil
rights under s. 92(13) can be rebutted where it can be demonstrated that
the normal or habitual activities of an undertaking fall within
s. 92(10)(a) or are found to be an integral or essential part of a federal
work, undertaking or business based on the functional test adopted in
Construction
Montcalm Inc. v. Minimum Wage Commission,
[1979] 1 S.C.R. 754,
Northern
Telecom  Ltd. v. Communications Workers of Canada,
[1980] 1 S.C.R. 1031,
and
NIL/TU,O Child and Family Services Society v. B.C. Government and
Service Employees Union,
2010 SCC 45 at para. 11 [
NIL/TU,O
].

[94]

In
NIL/TU,O
at para. 13, Madam Justice Abella, for the majority, referred
to the principles governing federal-provincial jurisdiction over labour
relations as summarized in
Northern Telecom,
which adopted the reasoning
of the majority judgment,
per
Beetz J. in
Construction Montcalm.
The
first four principles in
Northern Telecom,
set out in
NIL/TU,O,
are
as follows
:

(1)        Parliament
has no authority over labour relations as such nor over the terms of a contract
of employment; exclusive provincial competence is the rule.

(2)        By way
of exception, however, Parliament may assert exclusive jurisdiction over these
matters if it is shown that such jurisdiction is an integral part of its
primary competence over some other single federal subject.

(3)        Primary
federal competence over a given subject can prevent the application of
provincial law relating to labour relations and the conditions of employment
but only if it is demonstrated that federal authority over these matters is an
integral element of such federal competence.

(4)        Thus, the regulation of wages
to be paid by an undertaking, service or business, and the regulation of its
labour relations, being related to an integral part of the operation of the
undertaking, service or business, are removed from provincial jurisdiction and
immune from the effect of provincial law if the undertaking, service or
business is a federal one. [P. 132.]

[95]

Abella J. then turned to the remaining two principles from
Northern
Telecom
at para. 14
,
in which the Court set out the functional
test to be applied when determining whether an undertaking is federal or
provincial:

(5)        The
question whether an undertaking, service or business is a federal one depends
on the nature of its operation.

(6)        In
order to determine the nature of the operation, one must look at the
normal
or habitual activities of the business as those of a going concern, without
regard for exceptional or casual factors
; otherwise, the Constitution could
not be applied with any degree of continuity and regularity.

[Emphasis added.]

[96]

The functional test was also applied in
Four B Manufacturing Ltd. v.
United Garment Workers of America,
[1980] 1 S.C.R. 1031, and more recently
in
Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters
,

2009 SCC 53,

[2009] 3 S.C.R. 407, in determining whether operations
of a business were a federal or provincial undertaking. I shall return to
Consolidated
Fastfrate
below.

[97]

The functional test calls for a distinct inquiry regardless of the
specific federal head of power that may be engaged in a particular case (
NIL/TU,O
at para. 3). The bifurcated approach to the inquiry, adopted by the
majority, was described by Abella J. as follows:

[3]        ...
It calls for an inquiry into
the nature, habitual activities and daily
operations of the entity in question
to determine whether it constitutes a
federal undertaking. This inquiry is known as the functional test. Only if
this test is inconclusive as to whether a particular undertaking is federal,
does the court go on to consider whether provincial regulation of that entitys
labour relations would impair the core of the federal head of power.

...

[22]      ...To the extent that the functional test is
inconclusive as to jurisdiction over labour relations of an entity, the
presumption of provincial jurisdiction will apply in such a case
unless
the
core of the federal head of power would be impaired by provincial regulation of
the entitys labour relations. It is only in this circumstance of an
inconclusive finding about the application of the functional test that this
narrow analysis of the core of the federal power will be engaged.

[Emphasis added.]

[98]

Thus, under the functional test the court must examine the nature,
habitual activities and daily operations of the appellants operations to
determine if they are a vital, essential or integral aspect of a federal head
of power. In those circumstances, the appellants operations would be properly
characterized as a federal undertaking:
Northern Telecom
at 132. If the
inquiry into the nature of their activities is inconclusive, the court must
then go on to consider if the impugned provisions
impair
the core of one
of the federal heads of power. If their activities are found to impair the core
of the federal head of power over navigation and shipping, then the impugned provisions
will be inapplicable to the appellants operations.

(a)
Section
92(10)(a) and the extension of the appellants operations beyond

the
provinces territorial waters

[99]

The appellants submit that their operations are excluded from provincial
legislative control by operation of s. 92(10)(a) of the
Constitution
Act.
Section 92(10)

provides that the provinces have exclusive
legislative authority over local works and undertakings with the exception of:

(a)        Lines of steam or other Ships, Railways, Canals,
Telegraphs, and other Works and Undertakings connecting the Province with any
other or others of the Provinces, or extending beyond the Limits of the
Province;

(b)        Lines of Steam Ships between the Province and any
British or Foreign Country;

(c)        Such Works as,
although wholly situate within the Province, are before or after their
Execution declared by the Parliament of Canada to be for the general Advantage
of Canada or for the Advantage of Two or more of the Provinces.

[100]

The
appellants say that because their fishing operations extend beyond the
territorial boundaries of the province, they necessarily fall within the
exclusionary provisions of s. 92(10)(a). They submit that ss. 92(10)(a)
and (b) are based on the concept of geography and territory, and that in order
to give meaning to the phrase connecting [two or more provinces] or extending
beyond the Limits of a Province the words must be read disjunctively and not
equated with the same meaning. In support of their position, they rely on
Agence
Maritime Inc. v. Canada Labour Relations Board,
[1969] S.C.R. 851,
Northern
Telecom,
and
Singbeil v. Hansen.

[101]

The issue
in
Agence
was whether certification of a proposed bargaining agent for
employees of three coastal vessels that operated largely within the province of
Quebec (except for some isolated and exceptional occasions) was subject to the
provincial or federal labour relations legislation. The Court held that the
appellants operations were a local or provincial undertaking and did not fall
under the subject matter of maritime law since the appellants operations were
essentially limited to the territorial boundaries of Quebec, and the wording of
s. 92(1)(a) and (b) intended to exclude from federal jurisdiction
intraprovincial shipping undertakings. In
dicta,
however, the Court
observed that continuous and regular activities outside the provincial
territorial limits would likely be characterized as a federal undertaking and
therefore fall within the exclusionary provisions of s. 92(10)(a) of the
Constitution
Act.

[102]

Northern
Telecom
involved a similar issue regarding the certification of a proposed
bargaining agent for the employees of its telecommunications operations.
Although the Court did not address the constitutional issue of whether the
telecommunications operation was a provincial or federal undertaking, in the
course of its reasons it provided the oft-cited summary of the principles
governing federal-provincial jurisdiction over labour relations quoted above in
NIL/TU,O
(para. 90)
.

[103]

In
Singbeil
the issue was whether the wages of an employee of the British Columbia ferry
system could be garnished under provincial legislation, or whether the ferry
system was a federal undertaking and therefore subject to the
CSA,
which
contained provisions that exempted the garnishment of wages
.
This Court
held that the ferry system was a provincial undertaking as its service operated
almost entirely within the boundaries of British Columbia except for incidental
excursions through waters outside the inland waters of the province and
therefore the federal
CSA
was not applicable.

[104]

The
appellants contend that implicit in the comments and reasoning of these
decisions, is the view that where the normal or habitual activities of a
fishing vessel extend beyond the limits of the province, their operations will
be characterized as a federal undertaking by operation of the exclusionary
provisions of s. 92(10)(a). The appellants also seek to distinguish
Mersey
Seafoods
on the basis that it did not address the interpretation of
s. 92(10)(a).

[105]

In my
view, the recent decision of
Consolidated Fastfrate
provides
considerable guidance on the interpretation of s. 92(10)(a). In
Consolidated
Fastfrate
the Court had to determine whether labour relations issues at the
Calgary branch of a national trucking company with branches across Canada were
subject to provincial regulation under s. 92(13) or were subject to
federal regulation under the exclusionary provisions of s. 92(10)(a). The
Court concluded that the operations at the Calgary branch were a provincial
undertaking and subject to provincial jurisdiction since the employees role in
the operation of the company was entirely intraprovincial.

[106]

In the
course of his analysis, Mr. Justice Rothstein, for the majority, reviewed
the historical context in which s. 92(10)(a) arose and observed that only
those works and undertakings that furthered the general interest of the
country were historically made subject to federal regulation (at
para. 33). He also considered the underlying purpose of s. 92(10)(a),
which he found was to secur[e] the economic and political viability of Canada
as a federal union (at para. 36 citing C.H. McNairn, Transportation,
Communication and the Constitution: The Scope of Federal Jurisdiction (1969)
47 Can. Bar. Rev. 355 at p. 355). He examined the text of the exclusionary
provisions and concluded that they should be read
ejusdem generis
(in
reference to the specific examples that precede them), indicating that only
those operations of a similar nature as the ones listed, which focus on a
physical connectivity to another jurisdiction, will be subject to federal
regulation (at paras. 42-43).

[107]

Rothstein J. then examined the nature and scope of the appellants
operations. He observed that in determining the operational reality of an
activity the court should not descend to a level of detail or be subject to
technical, legal niceties of the corporate structure or the employment
relationship (para. 77 quoting from
Northern Telecom
at p. 133).
The preferred approach, he said, was to look for commonalities within
industries in order to give regulators a degree of predictability (see
paras. 43-46). He concluded that the focus of the constitutional analysis
should not be on the
means
by which an undertakings activities are
carried out but on the
actual nature of its operation
(at
para. 60). He then stated:

[61]      ... Section 92(10(a) is
concerned with the nature of undertakings, not how they are subjectively
understood by consumers. As this court emphasized in
Northern Telecom,
at
p. 132, [t]he question whether an undertaking, service or business is a
federal one depends on the nature of its operations.

[108]

In this
regard, Rothstein J. held that merely facilitating interprovincial [or
international] transport will not, without more, attract federal jurisdiction
(at para. 78); a mere physical connection or extension of a work or
undertaking to beyond provincial boundaries will not displace the general rule
that local works and undertakings fall within provincial regulatory
jurisdiction. Rather it is the business
performing
[the operations]

(at para. 80) that is decisive: if the business of the undertaking
crosses interprovincial boundaries, or involves an international jurisdiction,
the undertaking will be subject to federal jurisdiction; if it does not, it
will be subject to provincial jurisdiction. In other words, there must be an
actual connection with another jurisdiction to fall with the exclusionary
provisions of s. 92(10)(a), not merely a geographical or physical
connection with another jurisdiction.

[109]

This interpretation of s. 92(10)(a) is supported by Professor
Hoggs analysis at 22.4 Connection with another Province:

According to s. 92(10) (a), an
undertaking in a province is within federal jurisdiction if it is an
undertaking connecting the province with any other or others of the provinces,
or extending beyond the limits of the province. The courts have held that the
connection (or extension) that is contemplated by s. 92(10)(a) is an
operational connection, and not a merely physical connection. For example, a
local railway [see
Montreal v. Montreal St. Ry.
[1912] A.C. 333;
B.C.
Elec. Ry. v. CNR,
[1932] S.C.R. 161;
UTU v. Central Western Ry.,
[1990]
3 S.C.R. 1112] or pipeline [see
Re National Energy Bd. Act
[1988] 2 F.C.
196 (C.A.)]

does not come within federal jurisdiction just because it is
physically connected to an interprovincial railway or pipeline. The local
undertaking will remain within provincial jurisdiction despite the physical
connection and despite regular cooperation between the two undertakings to
facilitate through traffic. An undertaking will come within s. 92(10)(a) only
if (1) the undertakings own business operations extend beyond the provincial
border or (2) the undertaking has a close operational relationship with an
interprovincial undertaking.

[110]

Also related is Professor Hoggs comments in his chapter entitled Transportation
by Water at 22.10:

Jurisdiction over transportation
by water depends upon some of the same principles as those applicable to
transportation by land. Section 92(10)(a) expressly refers to lines of steam
or other ships and to canals. In addition, however, s. 91(10) confers on the
federal Parliament jurisdiction over navigation and shipping. The unqualified
language of s. 91(10) does not authorize Parliament to regulate labour
relations in undertakings engaged in intraprovincial shipping. In
Agence
Maritime v. Canada Labour Relations Board
(1969)
,
it was held that
labour relations on ships plying the waters of the St. Lawrence River within
the province of Quebec were within provincial, not federal, jurisdiction. Of
course ships with a continuous and regular trade to the ports of more than one
province (or more than one country) would be within federal jurisdiction.
Labour relations on the ships supplying and servicing the oil drilling rigs off
the coast of Newfoundland have been held to be within federal jurisdiction:
although each voyage began and ended in a single province (Newfoundland), the
major part of the voyage was in international waters [
Crosbie
]. However,
ferries passing briefly through American waters on journeys between ports in
British Columbia have been held to be within provincial jurisdiction [
Singbeil
].

[111]

Finally,
Rothstein J. discussed the policy rationale for this interpretation of
s. 92(10)(a). He noted that the need for predictability in order to
preserve the federal-provincial regulatory balance is to be achieved by
looking at industries on a broad, rather than excessively detailed basis (such
as by calculating the number of days a vessel fishes outside the provinces
territorial waters) rather than to splice and dice discrete differences among
companies within an industry (para. 46). Fluidity within industries, he
suggested, is to be encouraged.

(b)

The application of Mersey Seafoods

[112]

I agree with the trial judge that while
Mersey Seafoods
is not
binding on this Court and did not expressly address the interpretation of
s. 92(10)(a), its reasoning is persuasive and provides guidance on the
issue of whether the appellants operations are a federal or provincial
undertaking.

[113]

One of the issues before the Nova Scotia Court of Appeal was whether the
Mersey Seafoods operations were a federal undertaking that came within federal
regulatory control under its jurisdiction over navigation and shipping, and
therefore were protected by interjurisdictional immunity from the provincial
labour relations legislation. On that issue Mr. Justice Fichaud, for the
Court, undertook a thorough review of the relevant jurisprudence and concluded:

[59]
In my view, Mersey Seafoods is a provincial undertaking.
Section 91(12) (Seacoast and Island Fisheries) and s. 91(29) with s. 92(10)
(federal shipping undertakings) were not the basis of the [Summary Conviction
Appeal Court] reasons and were not featured in the grounds of appeal. So I will
not expand on those heads of federal power. But, from the authorities cited
above,
Mersey Seafoods provincially based fishing operation does not become
a federal undertaking just because its vessel fishes outside the boundary of
Nova Scotia.
That its vessel navigates does not convert Mersey Seafoods to
a federal undertaking by s. 91(10). Nova Scotias
OHS Act
[
Occupational
and Safety Act,
S.N.S. 1996, c.7] applies to Mersey Seafoods under s.
92(13), as an aspect of labour relations or management of an undertaking, and
does not offend the exclusive federal legislative jurisdiction over navigation
and shipping under s. 91(10).
Any impact of the
OHS Act
on navigation
and shipping is incidental. That Mersey Seafoods also is subject to federal
legislation governing navigation and shipping is the double aspect doctrine at
work under our system of cooperative federalism (
Canadian Western Bank,
¶

24, 30;
Ward
¶ 30).

[
Emphasis added.]

(c)
Application of the functional
test

[114]

Based on
the functional test, characterization of the appellants fishing operations
as a federal or provincial undertaking does not depend on where the vessels
cast their nets, or the waters in which they navigate. Rather, it requires a
consideration of the nature of their operations, their habitual activities as a
going concern, and whether those activities engage national or foreign
interests. If their habitual activities include an
operational
connection or extension to another jurisdiction (interprovincial or
international) then the undertaking will have a sufficient national interest or
purpose to require federal regulation. However, a mere physical extension of
the undertakings activities beyond the physical boundaries of the province
will not, absent something more, be sufficient to establish the need for
federal control. That something more will exist where the
business
of
the operation extends beyond the territorial limits of the province. This
interpretation of s. 92(10)(a) does not, as suggested by the appellants,
render the words extending beyond the Limits of the Province superfluous but
rather is consistent with the historical context in which s. 92(10)(a) was
created.

[115]

The
business
of the appellants fishing operations is exclusively intraprovincial. There is
nothing in their habitual activities that can be identified as having a
national or foreign interest or purpose. There is no connectivity to another
jurisdiction. The vessels are owned by provincially incorporated companies; their
home port is in the province; they leave and return only from and to B.C.
ports; they unload and sell their harvest solely within the province; and, their
crew are residents of B.C. and hired solely out of this province. While a
significant percentage of the appellants activities involve excursions into
waters outside the territorial boundaries of the province, there is no
operational connectivity to another jurisdiction. In my view, the appellants focus
on the number of fishing trips its vessels take outside the provinces
territorial waters speaks more of the rejected slice and dice approach to the
jurisdictional issue than the functional approach which focuses on the actual
nature of the appellants daily business activities.

[116]

The
circumstances in this case are, in my view, similar to those in
Mark Fishing
Co. v. United Fishermen & Allied Workers Union
(1972), 24 D.L.R. (3d)
585 (B.C.C.A.). While somewhat lengthy, the following reasons by Chief Justice
Davey, for the majority, at 596-597, in my view capture the essence of the
issue:

I do not overlook the fact that deep sea fishing, with which
we are concerned here, is carried on beyond the territorial limits of the
province.
But the management of the industry is located in the province. The
vessels have their home ports in the province where the crews are engaged and
discharged, and for the most part the catch is delivered to shore plants in the
province.
I do not understand counsel for the Minister of Justice to take
that point, but since some of the duties of the crews are performed outside the
province, it should be considered. The point seems to be answered by the
judgment of the Privy Council in
Workmens Compensation Board v
. C.P.R.
Co. (1919) 48 D.L.R. 218, [1920] A.C. 184, [1919] 3 W.W.R. 167, as explained by
Martland J. in the
Bell Telephone
case,
supra
[1966] S.C.R. 767].

Viscount Haldane at p. 221-2 of the first report stated:

But in their Lordships opinion this is not a case in which
it is sought to enact any law giving a right to arise from a source outside the
Province. The right conferred arises under s. 8, and is the result of a
statutory condition of the contract of employment made with a workman resident
in the province, for his personal benefit and for that of members of his family
dependent on him. Where the services which he is engaged to perform are of such
a nature that they have to be rendered both within and without the Province, he
is given a right which ensures for the benefit of himself and the members of
his family dependent on him, not the less that the latter may happen to be
non-resident aliens. This right arises, not out of tort, but out of the
workmans statutory contract, and their Lordships think that it is a legitimate
provincial object to secure that every workman resident within the Province who
so contracts should possess it as a benefit conferred on himself as a subject
of the Province. ...
The scheme of the Act is not one for interfering with
rights outside the Province. It is in substance a scheme for securing a civil
right within the Province. ... It makes no difference that the accident insured
against might happen in foreign waters. For the question is not whether there
should be damages for a tort, but whether a contract of employment made with
persons within the Province has given a title to a civil right within the
Province to compensation.

In view of the explanation of that authority by Martland J.
in the
Bell Telephone
case, it must not be interpreted as giving a
province as legislative authority over labour relations or any aspect thereof
that belong to Parliament exclusively under a specific head of section 91.
But
where, as here, labour relations have not been assigned to and do not belong to
Parliament, the
Workmens Compensation
case stands as authority that a
provinces authority to legislate upon labour relations under section 92 will
not be defeated by the mere fact that some of the employees duties are to be
performed out of the territorial limits of the province.

For the foregoing reasons I conclude that the
Labour
Relations Act
of the province governs the relations between the owners of
these fishing vessels sailing out of Prince Rupert and their crews, and governs
the appellant union that represents some of the crew members.

[Emphasis added.]

[117]

These
comments continue to be apposite to the issue in this case as the Supreme Court
of Canada, in dismissing the appeal in
Mark Fishing
, declined to address
this Courts decision on the constitutional issue and decided the appeal on the
non-constitutional issue alone.

[118]

I am not
persuaded the trial judge erred in finding that the operational activities of
the appellants are a provincial undertaking within s. 92(10) of the
Constitution
Act
.

(d)
Distinguishing
the maritime negligence cases

[119]

There may
be circumstances where the activities of a provincial undertaking will be
subject to federal control if they are found to be closely integrated with a
federal head of power:
Monk Corp. v. Island Fertilizers Ltd.,
[1991] 1
S.C.R. 779. This occurs in the maritime negligence cases where issues of
tortious liability on navigable waters have historically been held to fall
within the federal legislative head of navigation and shipping:
Whitbread v.
Walley,
[1990] 3 S.C.R. 1273.

[120]

Historically,
maritime law has been viewed as part of the unassailable core of Parliaments
jurisdiction over navigation and shipping because of the intrinsically
multi-jurisdictional nature of maritime matters, particularly claims against
vessels or those responsible for their operation and a concern for
uniformity, which requires that provincial statutes of general application be
precluded from application to a maritime negligence claim:
Ordon
at
para. 93, cited in
CWB
at para. 59.

[121]

The
circumstances of this case do not involve a claim in maritime negligence law.
That factor distinguishes the uniform assignment of federal jurisdiction to
those cases involving the apportionment of tortious liability on accidents that
occur on navigable waters, in favour of the functional approach which focuses
on the nature of the operations activities and whether they involve a matter
of national or foreign interest.

4.

The
Doctrines of Interjurisdictional Immunity and Paramountcy

[122]

While the
appellants contend that their operations are a federal undertaking, they
submit, in the alternative, that if they are found to be a provincial
undertaking then the impugned provisions are inapplicable because they impair
an unassailable core aspect of the federal head of power over navigation and
shipping under s. 91(10). This is the second stage of the functional test
set out in
NIL/TU,O
which is

to be considered only if an analysis
of the first stage of the test is inconclusive.

While not essential to
the analysis in light of my conclusive finding that the appellants fishing
operations constitute a provincial undertaking and therefore are subject to
provincial regulatory control, for the sake of a complete analysis of the
grounds of appeal raised by the appellants I propose to address the
applicability of the doctrine of interjurisdictional immunity to the
circumstances of this case, followed by an analysis of whether the doctrine of
paramountcy is engaged.

[123]

I begin
with a discussion of the doctrine of interjurisdictional immunity since
NIL/TU,O
has reframed the analysis; only if the functional test is inconclusive does
a court move to the second stage and consider whether the provincial regulation
of labour relations in that particular circumstance would impair the core of a
federal power (at para. 22). I note, however, that it remains the case that the
doctrine of paramountcy is much better suited to contemporary Canadian
federalism (
CWB
at para. 69) and as such should generally be considered
first in other situations.

[124]

The
potential for impairment of a federal purpose or operational conflict between
valid but overlapping areas of legislation jurisdiction has given rise to the
constitutional doctrines of interjurisdictional immunity and paramountcy, respectively.
Thus, where the incidental effects of constitutionally valid legislation can be
demonstrated to impair or actually conflict with the constitutional mandate of
the other jurisdiction, these constitutional doctrines will be engaged for the
purpose of containing the intrusive incidental effects by rendering them
inapplicable through the method of reading down the impugned provisions (in the
case of the doctrine of interjurisdictional immunity), or by rendering them inoperative
to the extent of the inconsistency (in the case of the doctrine of paramountcy).

(a)
The doctrine of interjurisdictional
immunity

[125]

The doctrine of interjurisdictional immunity operates by cloaking a
non-enacting jurisdiction from the effects of an enacting jurisdictions
legislation that is found to impair the basic, minimum, and unassailable core
competence of one of the non-enacting jurisdictions subject matters under
ss. 91 or 92 of the
Constitution Act.
The majority in
CWB
described
this doctrine by reference to the leading decision of
Bell Canada 1988
:

[33]      Interjurisdictional
immunity is a doctrine of limited application, but its existence is supported
both textually and by the principles of federalism. The leading modern
formulation of the doctrine of interjurisdictional immunity is found in the
judgment of this Court in
Bell Canada (1988)
where Beetz J. wrote that
classes of subject in ss. 91 and 92 must be assured a basic, minimum and
unassailable content immune from the application of legislation enacted by the
other level of government.

[126]

In
Bell
Canada

1988,
the federal telecommunications giant challenged the
applicability of general provincial legislation regulating the health and
safety of employees in the workplace, including the re-assignment of pregnant
workers. The Court held that while the pith and substance of the provincial
legislation related to labour relations and working conditions (matters
typically falling within the exclusive provincial jurisdiction over property
and civil rights under s. 92(13)), the provincial regulations did not
apply to Bell Canada because it was a federal undertaking and labour relations
in regard to a federal undertaking were a vital or essential part of the
undertakings management and operation.

[127]

The Court
stated that provincial regulation of the labour relations of a federal
undertaking would impair the unassailable core of the federal jurisdiction over
the undertakings operation. Therefore, by application of the doctrine of
interjurisdictional immunity, the federal undertaking was granted immunity from
the application of provincial law. This was achieved by reading down the
scope of the provincial legislation to limit the effects of the provincial law
to only those undertakings within its constitutional mandate control. In the
result, the provincial occupational health and safety legislation remained
constitutionally valid but was held to be inapplicable to management of the
Bell Canada operations.

[128]

In the course of his analysis, Beetz J., writing for the Court,
summarized the jurisdictional principles in regard to labour relations and
working conditions at 761-762:

In principle, labour relations and working conditions fall
within the exclusive jurisdiction of the provincial legislatures: these matters
fall into the class of subject mentioned in s. 92(13) of the
Constitution
Act, 1867,
Property and Civil Rights in the Province [citation omitted].

...

... Parliament is vested with
exclusive legislative jurisdiction over labour relations and working conditions
when that jurisdiction is an integral part of its primary and exclusive
jurisdiction over another class of subjects, as is the case with labour
relations and working conditions in the federal undertakings covered by ss.
91(29) and 92(10 a., b. and c. of the
Constitution Act, 1867....
It
follows that this primary and exclusive jurisdiction precludes the application
to those undertakings of provincial statutes relating to labour relations and
working conditions, since such matters are an essential part of the very
management and operation of such undertakings ... This third proposition
reflects, at least in part, a constitutional theory which commentators who have
criticized it have called the theory of interjurisdictional immunity. ...

[129]

This
doctrine, as noted in
CWB,
is rooted in the notion of exclusivity
between the heads of power in ss. 91 and 92 of the
Constitution Act
and
the classical watertight compartments concept of federalism. Application of
the doctrine, however, has also produced what has been described as asymmetrical,
or centrali[zed] results in favour of granting immunity to the federal companies,
works and undertakings from the effects of provincial legislation (
CWB
at
paras. 34 and 45). This historical approach to federalism is said to
undermine the principle of subsidiarity and has been described as not
...particularly compelling (
CWB
at para. 36 referring to Chief
Justice Dickson in
O.P.S.E.U. v. Ontario (Attorney General),
[1987] 2
S.C.R. 2 at 17). As a consequence, the watertight compartments approach to
jurisdictional issues has been given limited application in face of the
dominant tide of recent jurisprudence that would have a court favour, where
possible, the ordinary operation of statutes enacted by
both
levels of
government and [i]n the absence of conflicting enactments of the other level
of government ...avoid blocking the application of measures which are taken to
be enacted in furtherance of the public interest (
CWB
at
para. 37).

[130]

The
appellants rely heavily on
Ordon
, the leading authority on
interjurisdictional immunity, to support their position that the impugned
provisions should be found inapplicable to their operations. However, the issue
in
Ordon
was whether tortious liability arising from a boating accident
was governed by federal maritime law or the provinces fatal accidents
legislation. The Supreme Court of Canada held that based on the doctrine of
interjurisdictional immunity the provincial legislation was inapplicable to the
plaintiffs claims as maritime negligence actions fall within the core of
federal jurisdiction over navigation and shipping.

[131]

The Court
in
CWB,
on the other hand, observed that

in the course of
considering federal jurisdiction over maritime law, the Court [in
Ordon
]
acknowledged that the doctrine could potentially apply to all activities
within Parliaments jurisdiction (para. 41). The majority in
CWB
further
observed that a broad application [of the doctrine] also appears inconsistent
... with the flexible federalism that the constitutional doctrines of pith and
substance, double aspect and federal paramountcy are designed to promote
(para. 42). The challenge of defining the core of every legislative head
of power, rather than adopting a case-by-case incremental approach to that task
and avoiding the interplay between the different heads of power under ss. 91
and 92 of the
Constitution Act,
carries with it the potential to drain
the content of the provincial authority over property and civil rights (
CWB
at para. 43).

[132]

The majority in
CWB
went on to state:

[45]      Commentators have noted
that an extensive application of this doctrine to protect federal heads of
power and undertakings is both unnecessary and undesirable in a federation
where so many laws for the protection of workers, consumers and the environment
(for example) are enacted and enforced at the provincial level (Hogg, at p.
15-30; see also Weiler, at p. 312; J. Leclair, The Supreme Court of Canadas
Understanding of Federalism: Efficiency at the Expense of Diversity (2003), 28
Queens L.J.
411)

[133]

In this
case, the impugned provisions are not onerous requirements that could be said
to impair the core competence of the federal jurisdiction over navigation and
shipping. Rather, they appear to complement the federal regulatory regime in a
way that will benefit the health and safety of workers employed in a
potentially hazardous workplace.

[134]

I agree
with the trial judge that the doctrine of interjurisdictional immunity does not
apply in these circumstances. The exclusivity of the heads of power endorsed
by the doctrine is not suited to circumstances that involve double aspects of
complimentary legislative regimes. This limitation to the doctrine of
interjurisdictional immunity was recognized by the majority in
Lafarge,
which
noted that the doctrine [of interjurisdictional immunity] should not be used
where, as here, the legislative subject matter (waterfront development) presents
a double aspect (para. 4). Rather, it is through a firm application of
the pith and substance, double aspect, and paramountcy doctrines that most
cases involving overlapping jurisdiction will be resolved. That is the
situation here, where the memoranda of understanding between the different
levels of government have created a harmonious co-existence between the two
regulatory regimes that can only enhance the safety of workers on fishing
vessels.

(b)
The doctrine of paramountcy

[135]

The
doctrine of paramountcy typically arises with double aspect matters. It is
said to apply where an actual conflict or incompatibility exists between
compliance with the federal and provincial legislation, or where provincial
legislation frustrates the purpose of the federal legislation. In such
circumstances the federal legislation will prevail and render the provincial
legislation inoperative to the extent of the incompatibility (
CWB
at
para. 69
).

[136]

The early
application of the doctrine of paramountcy involved the narrow test of
impossibility of dual compliance set out in
Multiple Access Ltd. v.
McCutcheon,
[1982] 2 S.C.R. 161, where there is actual conflict in
operation 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 (at 191). Thereafter, it expanded to include the impossibility
of dual effect by decision makers as articulated in
Mangat,
where Mr.
Justice Gonthier, for the Court, wrote that actual conflict in double aspect
matters favoured the application of the doctrine of paramountcy over the
doctrine of interjurisdictional immunity (para. 52). Currently, it also encompasses
the frustration of federal purpose test as was endorsed in
CWB
and
Lafarge.
See R. Elliot,
Safeguarding Provincial Autonomy from the Supreme Courts
New Federal Paramountcy Doctrine: A Constructive Role for the Intention to
Cover the Field Test?
(2007), 38 S.C.L.R. (2d) 629-668.

[137]

The application of the doctrine of paramountcy is consistent with the
principle of cooperative federalism. The trend of co-existing of federal and
provincial legislation on  double aspect matters was acknowledged in
Multiple
Access
where Mr. Justice Dickson, for the majority, stated at 190-191:

With Mr. Justice Henry I would say that duplication is, to
borrow Professor Ledermans phrase, the ultimate in harmony. The resulting
untidiness or diseconomy of duplication is the price we pay for a federal
system in which economy often has to be subordinated to [...] provincial
autonomy (Hogg, at p. 110).
Mere duplication without actual conflict or
contradiction is not sufficient to invoke the doctrine of paramountcy and
render otherwise valid provincial legislation inoperative.

The following passage from Professor Ledermans article The
Concurrent Operation of Federal and Provincial Laws in Canada,
supra,
at
p. 199 (fn. 39) is apposite:

As Dr. J.A. Corry has pointed out, our country is
increasingly moving away from the older classical federalism of water-tight
compartments with provincial legislatures and federal parliament carefully
keeping clear of one another. We seem to be moving towards a co-operative
federalism. The co-ordinate governments no longer work in splendid isolation
from one another but are increasingly engaged in cooperative ventures in which
each relies heavily on the other. See J.A. Corry, Constitutional Trends and
Federalism, in the volume of essays
Evolving Canadian Federalism
(Durham,
N.C., U.S.A., 1958), p. 96.
The multiplication of concurrent fields is one
of the facets of this trend.

[Emphasis added.]

[138]

This trend
toward interjurisdictional accommodation of validly enacted federal and
provincial legislation is illustrative of cooperative federalism in action. The
doctrine of paramountcy is now triggered only when the operational effects of
provincial legislation are incompatible with federal legislation (
CWB
at
para. 69). This clarification of the frustration of federal purpose test
suggests that the critical factor in determining if the doctrine is engaged is
the identification of an operational conflict. Operational conflict must be
demonstrated by the party relying on the doctrine of paramountcy, and exists
when federal and provincial laws are in fact incompatible. In order to succeed,
it must be shown either that it is impossible to comply with both laws or that
to apply the provincial law would frustrate the purpose of the federal law (
CWB
at para. 75).

[139]

In this
case, the appellants presented no evidence at trial of any actual
incompatibility between the two regulatory regimes. Instead, they relied on
hypothetical examples in support of their contention that the doctrine should
apply in the circumstances of this case. The absence of evidence of actual
incompatibility is not surprising in this case. It would be difficult if not
impossible to secure such evidence in light of the cooperative arrangements
between the two levels of government that focus on how to avoid any potential
for actual conflict. Moreover, the memoranda of agreement evince no frustration
of federal purpose on the matters of vessel safety and crew safety. If
anything, the impugned provisions appear to enhance the federal purpose. In my
view, the appellants are unable to demonstrate that the impugned provisions
create an operational conflict or inconsistency with the federal regulatory
regime.

F.
Conclusion

[140]

The
appellants fishing operations are tethered to the provinces jurisdiction over
worker health and safety on fishing vessels by a commercial umbilical cord
through which flows the business of the appellants fishing operations. Those
operations are anchored by a provincial home port of call for the maintenance
of the vessels, for all of the loading and unloading of the harvest, and for
the hiring and residency of the crew. The fact that the harvest does not
respect the geographical and territorial boundaries of the province does not
convert the appellants otherwise exclusively intraprovincial fishing operations
into interprovincial or international fishing operations over which the federal
jurisdiction has exclusive legislative control.

[141]

Both
levels of government, through their cooperative efforts, have enacted
complimentary regulatory regimes that provide enhanced protection on issues of
worker safety. This exercise of cooperative federalism should be accorded significant
deference in the absence of any demonstrated operational or actual conflict
between the two regulatory regimes. Courts should be slow to interfere with
federal and provincial agreements in legislative areas of double aspect or
overlapping jurisdictions that achieve their purpose without impairing Canadas
constitutional arrangements as provided for in the
Constitution Act.

[142]

In my
view, the trial judge was correct in finding that the impugned provisions of
the
OHSR
are constitutionally valid as they relate to property and
civil rights under s. 92(13) of the
Constitution Act,
the
appellants operations are a provincial undertaking, and the doctrines of
interjurisdictional immunity and paramountcy are not engaged.

[143]

I would
dismiss the appeals.

The Honourable Madam Justice D. Smith

I AGREE:

The
Honourable Madam Justice Bennett

Reasons for Judgment of the Honourable Madam Justice
Garson:

[144]

I have had
the privilege of reading in draft form the reasons for judgment of Madam
Justice D. Smith in this court. I agree with her that these appeals should be
dismissed, but reach that conclusion on the basis of a somewhat different
analysis.

[145]

I agree
with the conclusion of the trial judge, Madam Justice L. Smith, and with my
colleague that, despite the fact both appellants fish beyond British Columbia
waters, neither appellant is a federal undertaking; and I do not address that
issue further in these concurring reasons for judgment.

[146]

The
appellants argue that there is no room in such a highly technical and complex
area [ship stability] for a province to take on the regulation of some aspects
of ship stability or safety procedures, even if only incidentally or in a
limited capacity. They say a firm application of the doctrine of federal
paramountcy should result in our holding that the challenged aspects of the
OHSR
are
ultra vires
or inapplicable to fishing vessels operating within or beyond
British Columbia waters. The Pattison appellants argue in their factum that the
trial judge erred in, [drawing] a bright line between a regulation requiring
the provision of stability documentation (considered
intra vires
the
province) and the imposition of stability requirements (considered
ultra
vires
the province). They say that such a distinction cannot be legally,
factually, or practically justified.

[147]

The
respondents contend that the two regimes, (the Provincial
OHSR
regime governing
work place health and safety for the fishing industry, and the federal regime,
statutory and regulatory, governed by the
CSA
and other related
enactments, all as described by my colleague) have different purposes and the
incidental intrusion by the
OHSR
into the federal area of competence,
shipping and navigation, is not cause to find that the provincial regime is
applicable to the appellants. The trial judge and my colleague agree with this
proposition.

[148]

The trial
judge did characterize the two legislative regimes as having different
purposes. She said that the provincial regime did not trench on federal
jurisdiction because it dealt only with the question of the
documentation of
vessel stability
. She found that it was only the federal regime that was
concerned with the
imposition of stability requirements
, and compliance
with stability standards (reasons for judgment at para. 173). It is in on this
point that I respectfully disagree with the trial judge and with my colleague
(at para. 41). In my view both levels of government are regulating aspects of
vessel stability. There is considerable overlap and duplication between the two
regimes. The trial judge justifies the provincial intrusion on the navigation
and shipping power by her conclusion that the provincial regime dealt only with
the
documentation
of stability. I agree with the appellants that this
distinction cannot be made, but I disagree with the appellants as to the
consequence that must result. In my view both regimes may co-exist harmoniously
as there is no real operational conflict between the requirements imposed by
the two regimes, despite the fact that there is considerable duplication and
overlap between them.

[149]

Thus like
my colleague I would dismiss the appeals.

Discussion

Review of WCB/Federal
co-operation

[150]

The
historical development of the
OHSR
regime regulating safety on board
fishing vessels indicates how the two levels of government have reached the
apparent consensus mentioned in the reasons for judgment of the trial judge.

[151]

As noted by the WCB review officer in his decision:

The Board has a long history with respect to
regulating the fishing industry, beginning in 1975, when the Legislature
enacted what is now Section 4 of the [
WCA
]
.
The
Fishing
Industry Regulations (FIR)
were enacted in 1975 under section 4 giving
compensation coverage to fishers and requiring fish buyers to pay assessments
on the purchase price of fish.  These regulations also provided for the
application of prevention regulations.  The Board commenced inspections but
withdrew during 1976 when the Federal Government asserted jurisdiction.  The
regulations were then amended to remove most of the provisions relating to
prevention.  The position remained largely unchanged until the 1990 decision in
50478 Ontario Ltd v. Great Lake Fisherman and Allied Worker's Union
referred
to above.  I understand that this decision was accepted by the Federal
Government as giving the provinces jurisdiction over labour relations and
health and safety on fishing vessels.  The Board then followed a consultation
process that resulted in the enactment of prevention regulations known as the
Fishing
Operations Regulations
which were effective January 1, 1995.  They applied
to owners, masters and crewmembers of fishing vessels and were later
incorporated into Part 24 of the
OHSR.

The [
WCA
]

was then amended by the legislature to include further references to
fishing vessels.  As a result of these amendments taking effect on October 1,
1999, the prevention provisions of the [
WCA
]

were moved to a new

Part 3, sections 106 to 230.  The definitions relating to Part 3 are found
in section 106, which defines employer to include the owner and the master
of a fishing vessel for which there is a crew to whom Part 1 applies as if the
crew were workers. The definition of worker includes a person who is deemed
to be a worker under Part 1 or the regulations under that Part, or to whom that
Part applies as if the person were a worker.  These definitions are related to
section 4 of the [
WCA
]

and
the
FIR.
The
FIR
state that any provision of Part 1 relating to workers applies to commercial
fishers, which means that, under the definition of worker in section 106, Part
3 also applies to commercial fishers.

[152]

As far
back as 1977, the WCB expressed concern about the lack of effective monitoring
of Canadian Coast Guard (CCG) safety regulations. Their concern arose from an
unacceptable number of injuries and deaths occurring in the fishing industry. In
a 1977 letter addressed to the then federal Minister of Labour, the WCB noted
that the Marine Safety Branch of the CCG had not promulgated or enforced
adequate regulations for vessels under 80 feet. The WCB noted its continued
complaints that the Minister of Transportation was not doing an effective job
and that the majority of vessels in the fishing fleet had been inspectionally
neglected. There was a long simmering dispute between Victoria and Ottawa
concerning the lack of any inspections of smaller fishing vessels.

[153]

In the Fall of 1987, federal, provincial and territorial Ministers
responsible for occupational health and safety in the commercial fishing
industry met. A committee was formed and was instructed to put aside
jurisdictional concerns in order to proceed to their task of considering
appropriate safety issues.

[154]

A report of the committee on occupational safety and health in the
fishing industry was published under the authority of the Minister of Labour
for the Government of Canada in 1988. Jurisdictional issues were discussed in
the executive summary as was the question of inspection of small fishing
vessels (under 15 tons):

The discussion on regulation tended to be
circumscribed by the instruction given the Committee to put aside matters of
jurisdiction.  The question of who has jurisdiction regarding occupational
safety and health in the fishing industry is unclear and, although the
Committee is not making a formal recommendation in this regard because of the
nature of its mandate, it respectfully suggests that ministers address this
issue at some time and attempt to reach an understanding in the interests of
avoiding administrative problems or, worse still, running the risk of having
the effective exercise of occupational safety and health in the industry slip
between the cracks.

Considerably
less uncertain is the matter of jurisdiction over operational safety in the
fishing industry.  Such responsibility clearly falls within the purview of the
Canadian Coast Guard under the
Canada Shipping Act
.  This being the
case, the Committee considers that the regulatory route can be more profitably
and effectively pursued by having the Coast Guard extend the application of

its
safety regulations to vessels under 15 tons, in which category the majority of
the problems being addressed are

concentrated.  The Coast Guard has the
authority to inspect vessels under 15 gross tons but for resource reasons does
so on a very limited basis.  The Committee believes it would be of inestimable
value in attempting to improve the level of safety if the Coast Guard were to
extend its implementation.

[155]

In 1993, a Government of Canada memorandum regarding the WCB
subcommittee on fishing vessels included the following note:

2.         The Sub Committee is most anxious
to develop legislation which quote will dove tail with that of C.C.G.  At
some point, there should be a formal agreement or understanding between the
Province of British Columbia Workers Compensation Board and the Canadian Coast
Guard as to how this dove tailing will be given effect.  This in order to avoid
confusion and duplication in the industry.

3.         At this point given that C.C.G.
does not inspect and certify F.Vs. of less than 15 G.T.  I believe one option
would be that of the W.C.B. applying their own Regulations and thus rendering
our Safe Working Practices Regulations redundant for this class of vessel.  In
the event that W.C.B. personnel run across deficiencies of a
seaworthy/structural nature, the owners would be advised to have these
deficiencies made good.  In cases where our advice was deemed necessary this could
be solicited from us by the W.C.B. Inspector.

4.         For
vessels of more than 15 G.T. - to a large extent the same remark applies to our
SWP Regulations and also to the Marine OSH regulations where an employer -
employee relationship exists.  As this class of vessel is under our periodic inspection
and certification the need for a formal agreement e.g. a Memorandum of
Understanding is all the more pertinent.

[156]

In 1995, a Memorandum of Understanding (MOU) between the WCB and the
CCG was signed. That memorandum provides in part:

3.         The
CCG recognizes the jurisdiction of the WCB to govern all aspects of
occupational health and safety of persons working in commercial fishing vessels
in British Columbia.

4.         WCB
and CCG will pursue a cooperative working relationship in keeping with
respective responsibilities.

[157]

In 2001, a further MOU, executed between the WCB and Transport Canada
(TC), included the following provisions:

operational
safety means fishing vessel operational safety requirements intrinsic to
shipping and navigation.

OHS means
Occupational health and safety on commercial fishing vessels operating in
interior and adjacent waters of British Columbia.

...

5.1 TC has
sole responsibility to Parliament for the application and enforcement of the
operational safety provisions of the
Canada Shipping Act
.

...

6.2 The
jurisdiction of TC includes programs and activities related to shipping and
navigation.

[158]

These
areas of jurisdiction are specified in Annex B of the 2001 memorandum. At Annex
B under the heading Jurisdiction, the memorandum provides as follows:

B.3.      Case
law from Labour Boards and

Law Courts have defined the 'business of
fishing' as falling primarily within provincial jurisdiction.  All other
jurisdictional aspects of fishing vessel shipping and navigation operations,
crew certification and vessel construction standards fall primarily within the
federal jurisdiction.

B.4.      The
WCB and TC agree, for the purpose of this MOU and for the purposes of
clarifying jurisdictional boundaries, that:

B.4.1.   The
'Business of Fishing', being the activities of the crew and the operation of
the vessel and its gear, while fishing in British Columbia waters, are the
jurisdiction of the WCB.

B.4.2.   Shipping
and navigation operations, certification of crewmembers and the application of
vessel construction standards are the jurisdiction of TC.

B.4.3.   Activities
on board commercial fishing vessels that are outside of, but incidental to, the
strict definition of the 'business of fishing', such as stowing cargo and
catch, setting and retrieving the vessel's anchor, engine room procedures, and
conducting emergency drills, as defined by Regulation, are the joint focus of
the WCB and TC. Both WCB and TC are actively involved in addressing these
program concerns.

B.5.      When dual
jurisdiction occurs, the WCB and TC may operate jointly and co-operatively or
independently to ensure their respective program mandates are fulfilled.

[159]

There is
also a MOU between the WCB and the DFO dated February 16, 2000. It too records
that occupational health and safety of persons working on commercial fishing
vessels in B.C. is the jurisdiction of the WCB.

[160]

I conclude
that the result of federal provincial co-operation in this area was that the
provincial WCB authority, among other things, regulated and inspected fishing
vessels with a view to ensuring crew safety on both small and large fishing
vessels.

[161]

In its
factum, the respondent, the WCB, explains how the co-operative regime
functioned in the case of the Western Investor. The WCB notes that the federal
regulatory regime does not provide for mandatory assessment of stability where
vessels are modified. The fishing vessel, the Western Investor, was modified
and not inspected. In 1980 stability tests were conducted on the Western Investor.
Subsequently modifications were made to the vessel. In particular water ballast
tanks were converted to fuel oil tanks. No further stability checks were
performed until the WCB order of April 5, 2006, despite the fact that the
modifications on the vessel would have implications for its stability. As a
result of the WCB order, stability tests were performed on the Western
Investor, and those tests resulted in further WCB orders being made concerning
the operation of the vessel as modified. The WCB notes in its factum (at para.
24) that, [w]ithout the Boards Orders, those tests would not have been
conducted and Western Investors compromised stability would not have been
detected.

[162]

The trial
judge drew a sharp distinction between the federal regulatory regime, which she
said dictates stability requirements, and the WCB regime, which provides for
the documentation of stability requirements.

[163]

I cited
the example of the WCBs orders and inspections of the Western Investor to
illustrate my view that there is, as the appellants say, no bright line between
the functions of the two regulatory agencies, respecting stability, rather it
illustrates the WCB has under
OHSR
a far broader mandate related to
stability than was suggested by the trial judge. Section 24.70 of the
OHSR
requires all fishing vessels to be maintained in a seaworthy condition. Section
24.71(2) mandates that an owner of a fishing vessel must ensure major
modifications to the vessel do not adversely affect its stability. Section
24.72(b) requires the vessel owner to provide documentation describing vessel
characteristics. Section 179(1)(d) of the
WCA
permits the WCB to inspect
vessels for the purposes of ensuring compliance with its regulations. Section
187 empowers the WCB to make orders following an inspection.

[164]

According
to the WCB respondent, the federal provisions do not require a stability book
for the Pattison appellants vessels because they are under 15 tons. The WCB
focuses on this gap in the regulatory requirements as justifying the
provincial regime. As pointed out by the Pattison appellants, this WCB
submission belies the respondents argument that the provision of documentation
concerning stability does not equate to the imposition of stability
requirements.

[165]

I conclude
from a review of the
OHSR
and the orders made by the WCB affecting these
vessels and referred to by the trial judge at paras. 15 and 28 of her reasons
for judgment, that there is considerable overlap in the responsibilities of the
federal and provincial authorities. In some cases the regulations are
duplicative.  In some cases the
OHSR
impose a higher standard than do
their federal counterpart.

[166]

I now turn
to the pith and substance analysis.

[167]

I agree
with my colleagues pith and substance legal analysis, but I would add these
comments. One of the principle purposes of Maritime law is to ensure the safety
of vessels, crews, and passengers as ships navigate water bodies. Every ship
except a pleasure craft is a workplace. Section 6(a) of the
Canada Shipping
Act
lists its first objective to: protect the health and well-being of
individuals, including the crews of vessels, who participate in marine
transportation and commerce. The second objective of the
Canada Shipping
Act
is to promote safety in marine transportation and recreational
boating. The
OHSR
regime focuses on the relations between the employer
and worker in the workplace (
Bell Canada 1988
at 816). Its dominant
purpose is to require provincially regulated employers to provide workers with
a safe workplace. Both regimes are contained within, and are a part of, a much
broader multi-purpose legislative scheme, (the
Canada Shipping Act
and
the
Workers Compensation Act
). In fulfilling their respective
legislative purposes in a cohesive way, both regimes do regulate aspects of
crew safety. I do not consider that in fulfilling its valid legislative purpose
the provincial regime impermissibly encroaches on the federal regime.

[168]

Turning
next to the paramountcy issue, at para. 159 of her reasons for judgment, the
trial judge, set out the arguments of the appellants concerning operational
incompatibility between the federal regime and the impugned provincial

regulations.
For example, the
LFVIR
(applicable to the Osprey) require an owner to
provide the master with a stability booklet for the information of the master
while the Provincial
OHSR
require that the owner provide documentation
readily accessible to the master
and crew members
. She gave several
further examples at paras. 159-160 and then concluded, at paras. 161-163, that
operational incompatibility had not been established. She had this to say:

Counsel for the WCB and for the Attorney General of British
Columbia argued that the provisions of the provincial legislation are
compatible with those of the federal legislation, reflecting the efforts of the
two levels of governments embodied in their Memoranda of Understanding.

Clearly there is considerable overlap and potential for
confusion, as stated in the expert opinion evidence filed by the plaintiff.  It
is possible that compliance with both regimes will be difficult and expensive.
However, it has not been shown that it is impossible to comply simultaneously
with the
CSA
and its regulations and with the
WCA
and the
OH&SR
,
properly interpreted, or that there are provisions of one law forbidding what
the other law requires.  This case is not like
Lafarge
, where it was
impossible to comply simultaneously with both laws as the Supreme Court
interpreted them.

I find that operational
incompatibility has not been established.

[169]

Importantly, after concluding that the doctrine of federal paramountcy
did not come into play, the trial judge said at para. 173:

I would add that if the
provincial
OH&SR
were designed to impose stability requirements,
rather than simply to require the provision of stability documentation, that
would, in my opinion, create operational conflict and frustrate the purpose of
the federal legislation and regulations.  However, the more limited
interpretation urged by the WCB and by the Attorney General is consistent with
the language of the
OH&SR
and is to be preferred.

[170]

As I have
said, the question of documenting stability requirements cannot always be
distinguished from the imposition of vessel stability requirements. On this
question I respectfully disagree with the trial judge and my colleague (at para
41). I would not rest my conclusion that the provincial regime is
constitutional on what I see as a compartmentalization of the scope of the two
regimes, one the imposition and specification of stability requirements
(federal), and the other the documentation and communication of stability
requirements (provincial). However, I do agree in the result reached by the
trial judge and my colleague that the provincial regime is not
unconstitutional.

[171]

In my view, the modern approach to constitutional division of powers
jurisprudence, as discussed by my colleague, does not preclude the duplication
and over-lap that exists in this case. Specifically where both levels of government
legislate pursuant to a valid purpose, as here, such duplication is not
objectionable:
CWB
at para. 30;
Multiple Access
at 190-191; Chatterjee
at paras. 4 and 40; and Hogg at 16.5. (See also my colleagues discussion of
the double aspect doctrine at para. 79 of her reasons.) However, if those
regimes conflict, the doctrine of federal paramountcy dictates that the federal
regime would prevail, and the provincial regime would be rendered inoperative
to the extent of the inconsistency. In this case there are some modest
conflicts, but as already noted they are primarily instances of the province
imposing a higher standard.

[172]

At para. 30 of
CWB
,

Binnie and LeBel JJ., described the
double aspect doctrine, that is applicable where both levels of government legislate
in respect to the same matter, as here, but for their own legitimate purpose
:

Also, some matters are by their
very nature impossible to categorize under a single head of power: they may
have both provincial and federal aspects.  Thus the fact that a matter may for
one purpose and in one aspect fall within federal jurisdiction does not mean
that it cannot, for another purpose and in another aspect, fall within
provincial competence:
Hodge v. The Queen
(1883), 9 App. Cas. 117 (P.C.),
at p. 130;
Bell Canada v. Quebec (Commission de la santé et de la sécurité
du travail)
, [1988] 1 S.C.R. 749 (
Bell Canada (1988)
), at p. 765.  The
double aspect doctrine, as it is known, which applies in the course of a pith
and substance analysis, ensures that the policies of the elected legislators of
both levels of government are respected.  A classic example is that of
dangerous driving: Parliament may make laws in relation to the public order
aspect, and provincial legislatures in relation to its Property and Civil
Rights in the Province aspect (
O'Grady v. Sparling
, [1960] S.C.R. 804).
 The double aspect doctrine recognizes that both Parliament and the provincial
legislatures can adopt valid legislation on a single subject depending on the
perspective from which the legislation is considered, that is, depending on the
various aspects of the matter in question.

[173]

In this case each level of government has enacted legislation pursuant
to a valid legislative objective. Absent evidence of actual operational
conflict I would not find that the two regimes are inconsistent such that the
provincial regime should be precluded by an application of the federal
paramountcy doctrine. In
CWB
, at para. 71, Binnie and LeBel JJ.
discussed the test for incompatibility sufficient to trigger the doctrine of
paramountcy, citing
Multiple Access
at 191, where Dickson J. said:

In principle, there would seem
to be no good reasons to speak of paramountcy and preclusion except where there
is actual conflict in operation 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. ...

[174]

Of importance to this case, they continued at para. 72 to discuss
duplication:

Thus, according to this test, the
mere existence of a duplication of norms at the federal and provincial levels
does not in itself constitute a degree of incompatibility capable of triggering
the application of the doctrine.  Moreover,
a provincial law may in principle
add requirements that supplement the requirements of federal legislation
[citation omitted].  In both cases, the laws can apply concurrently, and
citizens can comply with either of them without violating the other.

[Emphasis added.]

[175]

Justices Binnie and LeBel concluded this discussion in
CWB
at
para. 75:

... To sum up, the onus is on the
party relying on the doctrine of federal paramountcy to demonstrate that the
federal and provincial laws are in fact incompatible by establishing either
that it is impossible to comply with both laws or that to apply the provincial
law would frustrate the purpose of the federal law.

[176]

The
justices noted in
CWB
that an operational conflict might also be found
in cases where the provincial law frustrates the purpose of the federal
regime. As the court found in
CWB
at para. 4, I find here that the
provincial regulatory regime under scrutiny in this case, will complement, not
frustrate, the federal purpose. This is especially evident in light of the
memoranda of understanding between the federal authorities and the WCB. As
noted already, the 2001 memorandum provides for joint and co-operative
regulation where dual jurisdiction occurs.

[177]

I see
nothing objectionable in the provincial regime requiring, in some instances, a higher
standard than the federal regime on the same subject matter.  Only where
compliance with both regimes is impossible, or where the provincial law
frustrates the purpose of the federal regime, will the doctrine of federal
paramountcy come into play.

[178]

On the
facts of this case, the trial judge correctly applied the inconsistency test
mentioned above in
CWB
and found no actual conflict. I would not disturb
her finding in that regard (para. 163).

[179]

Like my colleague, I would dismiss the appeals.

The
Honourable Madam Justice Garson

APPENDIX

Workers
Compensation Act

Occupational
Health and Safety Regulation

[includes
amendments up to B.C. Reg. 258/2008, September 1, 2009]

Part
24  Diving, Fishing and Other Marine Operations

Fishing Operations

General Requirements

Application

24.69
Sections 24.70 to 24.143
apply to all owners, masters and crewmembers of licensed commercial fishing
vessels.

Compliance with standards

24.70
All fishing
vessels must

(a) be maintained in seaworthy condition, and

(b) if constructed after January 1, 1995, be built in
accordance with applicable Canadian Coast Guard Regulations, or other standard
acceptable to the Board.

Owner and master responsibilities

24.71
(1)  An owner of a
fishing vessel must ensure that all machinery and equipment on board a fishing
vessel is capable of safely performing the functions for which it is used.

(2)  The owner must ensure that major modifications to a
fishing vessel do not adversely affect the stability of the vessel.

(3)  The master of a fishing vessel must ensure that

(a) machinery and equipment is properly maintained and
functions safely during the voyage, and

(b) any replacement equipment meets the requirements of
this Part.

Documentation

24.72
The owner of every
fishing vessel must provide documentation on board, readily accessible to
crewmembers, which describes

(a) engine room instructions,

(b) vessel characteristics, including stability,

(c) the location and use of firefighting equipment, and

(d) the location and use of emergency equipment,
including radio equipment.

Instruction

24.73
(1)  Before the start of
each fishing season, the master must ensure that each crewmember is instructed
in the operational characteristics of the fishing vessel including

(a) the location and use of safety equipment, engine
room components and controls,

(b) deck equipment and rigging,

(c) navigation equipment and electronic aids,

(d) fishing equipment and its use, including safe work
practices for each fishery the vessel will be engaged in,

(e) procedures for anchoring the vessel,

(f) the location and use of emergency equipment,
including firefighting and radio equipment, and

(g) escape routes in the event of fire.

(2)  The master must ensure as far as is reasonably
practicable, that the instruction required by subsection (1) results in
each crewmember being able to apply the information as needed to protect the
crewmember's health and safety.

(3)  New crewmembers joining the vessel must be
instructed in accordance with the requirements of this section at the time that
they join the vessel.

Emergency procedures

24.74
(1)  The master must
establish procedures and assign responsibilities to each crewmember to cover
all emergencies including

(a) crewmember overboard,

(b) fire on board,

(c) flooding of the vessel,

(d) abandoning ship, and

(e) calling for help.

(2)  The master must ensure that drills are conducted at
the start of each fishing season, when there is a change of crew, and at
periodic intervals to ensure that crewmembers are familiar with emergency
procedures.

Crewmember responsibility

24.75
Crewmembers must take all
reasonable precautions necessary to ensure the health and safety of themselves
and other persons on board the fishing vessel.

Vessel preparation

24.76
Before leaving on a
voyage the master must ensure that the fishing vessel is capable of safely
making the passage, due consideration being given to

(a) the seaworthiness of the vessel,

(b) the stowage and securing of all cargo, skiffs,
equipment, fuel containers and supplies,

(c) ballasting, and

(d) present and forecast weather conditions.

Reporting injuries

24.77
(1)  Crewmembers
must report all injuries to the master, without delay.

(2)  The master must report to the owner of the fishing
vessel all injuries that required medical aid and record all injuries in the
vessel log book.

Unsafe conditions

24.78
(1)   A crewmember
who observes an unsafe or harmful condition or situation must immediately
report it to the master.

(2)  The master must ensure that action is taken,
without delay, to correct an unsafe or harmful condition or situation.

Repealed

24.79
Repealed. [B.C. Reg.
348/2003, s. 10.]

Slipping and tripping hazards

24.80
(1)  All work areas
must be kept

(a) clear of unnecessary obstructions, and

(b) free of slipping and tripping hazards.

(2)  Decks must have non-skid surfaces except in those
locations where a smooth deck is required for handling fish.

(3)  Tools and equipment must be securely stowed when
not in use.

Guarding of equipment

24.81
The owner of a fishing
vessel must ensure that moving parts of power operated equipment are, where
practicable, fitted with effective guards if such parts constitute a danger to
crewmembers.

Inspection of rigging

24.82
The master must ensure
that all rigging is maintained and inspected regularly to ensure that it is
able to safely carry out the work for which it was designed.

Access and egress

24.83
Every portable ladder or
gangway between a fishing vessel and shore, between vessels, or when used on
board a vessel must be designed and rigged to provide safe access and egress.

Protection from falling

24.84
(1)  Crewmembers
must be protected from falling overboard by means of grabrails, siderails,
handrails, guardrails or personal fall protection equipment.

(2)  Crewmembers working aloft or on deck during adverse
weather conditions must tie off to a lifeline to prevent falling.

Deck openings

24.85
(1)  Deck openings
and hatches on a fishing vessel must be

(a) equipped with an effective means of securing them,
and

(b) closed and secured when it is not essential to the
fishing operation that they be open.

(2)  When deck openings and hatches are required to be
open for ventilation or other purposes, they must be marked and guarded.

De-energization

24.86
(1)  The maintenance
and repair of machinery or equipment on board a fishing vessel must only be
carried out when the power source has been de-energized and effectively secured
to prevent inadvertent startup.

(2)  If it is essential that equipment remain
operational during the maintenance process, the master must establish a
procedure to prevent injury from contact with moving or energized parts.

(3)  The main engine must be shut off whenever a diver
is conducting work underwater in proximity to the vessel.

Equipment control devices

24.87
(1)  Winches, drums,
capstans, and similar equipment on board a fishing vessel must have at least
one master on/off control that is readily accessible on deck.

(2)  Drum pedals and other types of hold-to-run controls
must not be bypassed or otherwise rendered ineffective.

Braking devices

24.88
Winches and drums capable
of freewheeling must be fitted with an effective braking device.

Illumination

24.89
All work areas on board a
fishing vessel must be sufficiently illuminated to enable work to be done
safely.

Ventilation

24.90
All crew spaces on
fishing vessels must be provided with an adequate supply of fresh air either by
passive or mechanical means.

Propane installations

24.91
Propane, liquefied
petroleum gas (LPG) and compressed natural gas (CNG) installations used for
appliances on fishing vessels must be in conformity with the
NFPA Standard
302-1989, Fire Protection Standard for Pleasure and Commercial Motor Craft
.

Galley requirements

24.92
(1)  Galley stoves
on fishing vessels must be fitted with rails or other means to restrain the
movement of cooking utensils, and to prevent inadvertent contact by
crewmembers.

(2)  Stove fuel supply tanks and lines must

(a) be fitted with a shutoff valve at the tank, and

(b) not be located directly above the stove.

(3)  Galley stoves must

(a) be secured to prevent movement, and

(b) have sufficient clearance to permit the effective
cleanup of oil and grease.

Requirements for sensors and alarms

24.93
(1)  An owner of a
fishing vessel must ensure that a heat sensor, connected to an alarm system, is
installed

(a) above the galley stove or near the stove pipe, and

(b) in proximity to the engine exhaust.

(2)  The owner must ensure that a water level sensor,
connected to an alarm system, is installed

(a) in the machinery space bilges, and

(b) in the shaft log or lazarette.

(3)  The owner must ensure that main engines are fitted
with low oil pressure and high temperature sensors connected to an alarm
system.

(4)  The owner must ensure that a sensor and alarm
system is installed if the Board considers this necessary to detect leaks of
potentially explosive fuel used in engines or appliances.

(5)  The owner must ensure that an audible marine grade carbon
monoxide sensor, connected to an alarm system where practicable, is installed
in crew quarters.

[am. B.C. Reg. 243/2006, s. 13.]

Repealed

24.9424.95
Repealed. [B.C.
Reg. 312/2003, App. D, s. 26.]

Protection against cold

24.96
Crewmembers working in
freezers must wear clothing, including headgear, footwear and gloves, that
provides adequate protection against cold.

Crewmember overboard

24.97
(1)  Every fishing
vessel must carry, for each crewmember, one immersion suit meeting standards
acceptable to the Board.

(2)  The master of a vessel must ensure that there is
suitable equipment on board and that procedures have been developed which will
enable the prompt recovery of a crewmember overboard.

Davits

24.98
The owner of a fishing
vessel must ensure that all moveable davits are fitted with an effective
locking device.

Communication

24.99
The master must ensure
that effective procedures are developed to communicate between the bridge and
all work areas on the vessel.

Ozone generators

24.100
The owner of a fishing vessel
must ensure that ozone generating equipment is installed and operated in
accordance with standards acceptable to the Board.

Loading and offloading

24.101
The master of a fishing
vessel carrying fish or cargo must establish safe procedures for the loading
and offloading of fish and cargo.

Work areas and operations

24.102
All work areas must be
arranged and operations organized to minimize the potential for injury to
crewmembers, including strains and sprains.

Proper lifting

24.103
The master must ensure
that crewmembers are instructed in and use proper lifting techniques.