R. v. Mersey Seafoods Ltd.

R. v. Mersey Seafoods Ltd. Court Court of Appeal Date 2008-07-04 Citation 2008 NSCA 67 Docket CAC 282454 Judge/Registrar/Adjudicator Cromwell, Thomas A. (Honourable Justice) Document Type Decision Relations Library Sheet - R. v. Mersey Seafoods Ltd. - 2008 NSCA 67 - 2008-07-04 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: R. v. Mersey Seafoods Ltd., 2008 NSCA 67 Date: 20080724 Docket: CAC 282454 Registry: Halifax Between: The Attorney General of Nova Scotia Appellant v. Mersey Seafoods Limited Respondent and Attorney General of Canada Intervenor Revised judgment: The text of the original judgment has been corrected according to the errata dated July 25, 2008 and September 5, 2008. Judges: Cromwell, Hamilton and Fichaud, JJ.A. Appeal Heard: May 9, 2008, in Halifax, Nova Scotia Held: Leave to appeal granted, appeal allowed and charges reinstated per reasons for judgment of Fichaud, J.A.; Cromwell and Hamilton, JJ.A. concurring. Counsel: Edward A. Gores, Q.C. and Karen H. Anthony, for the appellant David P.S. Farrar, Q.C. and Mark D. Tector, for the respondent Theodore K. Tax, for the intervenor Reasons for judgment: [1] Mersey Seafoods’ fishing business is based in Nova Scotia. Its seagoing fishing vessels are regulated by federal shipping and fisheries legislation. The provincial Crown charged Mersey Seafoods under Nova Scotia’s Occupational Health and Safety Act for alleged workplace safety infractions related to one of its fishing vessels. The constitutional issues are whether inter-jurisdictional immunity or paramountcy exclude the application or operation of the provincial Occupational Health and Safety Act to Mersey Seafoods or its vessel. Background [2] Mersey Seafoods Limited (“Mersey Seafoods”) catches and processes fish and sells the fish product. It manages the business from Nova Scotia. It has three factory freezer shrimp vessels, three wet fish trawlers, two wet fish scallopers and one factory freezer scalloper. This case involves the Mersey Venture, one of the factory freezer shrimping trawlers. [3] Mersey Venture is 58.7 metres long, 2337 gross tonnes, with a carrying capacity of 520 gross tonnes. It has 27 crew. It is a seagoing vessel. [4] Mersey Venture’s port of registry is Liverpool, Nova Scotia. It fishes northern shrimp and groundfish beyond 12 nautical miles from shore to the Greenland coast, about 1500 nautical miles at sea. The vessel’s time at sea ranges between 30 and 50 days. It docks in Newfoundland to take on supplies. Mersey Venture returns to Nova Scotia, unloads and usually stays in port four or five days. The Charges and OHS Act [5] An Information sworn September 24, 2005 charges Mersey Seafoods with eight counts alleging violations of Nova Scotia’s Occupational Health and Safety Act, SNS 1996, c. 7 (“OHS Act”). The charges are prosecuted by the Attorney General of Nova Scotia (“Provincial Crown”). The Information alleges that, between January 1, 2005 and May 31, 2005, “at or near Stormont, Guysborough County, Nova Scotia”, Mersey Seafoods: Count 1: Being an employer, failed to take every precaution that was reasonable in the circumstances to ensure the health and safety of persons at or near the workplace, contrary to section 13(1)(a) of The Occupational Health and Safety Act, and did thereby commit an offence under section 74(1)(a) of The Occupational Health and Safety Act; Count 2: Being an employer failed to ensure that adequate personal protective equipment or devices required for the assigned task are used, contrary to section 9(1) of The Occupational Safety General Regulations, and did thereby commit an offence under section 74(1)(a) of The Occupational Health and Safety Act; Count 3: Being an employer, failed to provide and ensure the use of a personal floatation device or an alternate means of protection to prevent a person from drowning, contrary to section 14 of The Occupational Safety General Regulations and did thereby commit an offence under section 74(1)(a) of The Occupational Health and Safety Act; Count 4: Being an employer, failed to provide for a supply of fresh air into and the removal of air from a workplace or part there of, contrary to section 15(a) of The Occupational Safety General Regulations and did thereby commit an offence under section 74(1)(a) of The Occupational Health and Safety Act; Count 5: Being an employer, failed to establish an Occupational Health and Safety Policy, contrary to section 13(1)(e) and section 27(1) of The Occupational Health and Safety Act, and did thereby commit an offence under section 74(1)(a) of The Occupational Health and Safety Act; Count 6: Being an employer, failed to establish an Occupational Health and Safety Program, contrary to section 13(1)(e) and section 28(1) of The Occupational Health and Safety Act, and did thereby commit an offence under section 74(1)(a) of The Occupational Health and Safety Act; Count 7: Being an employer, failed to ensure that employees and particularly supervisors and foremen are made familiar with any health or safety hazards that may be met by them at the workplace, contrary to section 13(1)(d) and did thereby commit an offence under section 74(1)(a) of The Occupational Health and Safety Act; Count 8: Being an employer, failed to establish and maintain a Joint Occupational Health and Safety Committee, contrary to section 29(1) of The Occupational Health and Safety Act and did thereby commit an offence under section 74(1)(a) of The Occupational Health and Safety Act. [6] The provisions of the OHS Act and its Regulations cited in these charges are: Act: 13 (1) Every employer shall take every precaution that is reasonable in the circumstances to (a) ensure the health and safety of persons at or near the workplace; . . . (d) ensure that the employees, and particularly the supervisors and foremen, are made familiar with any health or safety hazards that may be met by them at the workplace; (e) ensure that the employees are made familiar with the proper use of all devices, equipment and clothing required for their protection; . . . 27 (1) Where (a) five or more employees are regularly employed by an employer other than a constructor or contractor; (b) five or more employees are regularly employed directly by a constructor or contractor, not including employees for whose services the constructor or contractor has contracted; (c) the regulations require an occupational health and safety policy; or (d) an officer so orders, the employer shall prepare and review, at least annually, a written occupational health and safety policy, in consultation with the committee or representative, if any. . . . 28 (1) Where (a) twenty or more employees are regularly employed by an employer other than a constructor or contractor; (b) twenty or more employees are regularly employed directly by a constructor or contractor, not including employees for whose services the constructor or contractor has contracted; or (c) the regulations require an occupational health and safety program, the employer shall establish and maintain a written occupational health and safety program, in consultation with the committee or representative, if any, that is adapted to the circumstances of the organization for the purpose of implementing the employer's policy, this Act and the regulations. . . . 29 (1) At every workplace where twenty or more persons are regularly employed, the employer shall establish and maintain one joint occupational health and safety committee or, at the discretion of the employer, more than one such committee and, where twenty or more persons are regularly employed by one or more constructors at a project, a constructor shall establish and maintain a joint occupational health and safety committee for the project. . . . 74 (1) A person who (a) contravenes this Act or the regulations . . . is guilty of an offence and liable on summary conviction to a fine not exceeding two hundred and fifty thousand dollars, or to a term of imprisonment not exceeding two years, or to both a fine and imprisonment. Regulations: Use of personal protective equipment 9 (1) An employer shall ensure that adequate personal protective equipment or devices required for an assigned task are used, based on (a) the nature of the task; (b) the location and conditions of the workplace; and (c) any hazards that may affect the health and safety of people in the workplace. . . . Risk of drowning 14 Where a person is exposed to the risk of drowning, an employer shall provide and ensure the use of a personal flotation device that complies with CGSB standard CAN/CGSB‑65.11‑ M88, "Personal Flotation Devices" or an alternative means of protection that provides an equivalent level of safety to prevent the person from drowning. . . . Ventilation 15 An employer shall (a) provide for a supply of fresh air into, and the removal of air from, a workplace or part thereof that is, so far as is reasonably practicable, sufficient to (i) keep the air reasonably pure, and (ii) render harmless all gases, vapours, dust or other impurities that are likely to endanger the health or safety of any person therein; (b) where a process is carried on that produces a gas, vapour, dust or other impurity that is likely to be inhaled to an injurious extent by a person in the workplace, provide and use such mechanical means as are capable of (i) preventing such inhalation so far as is reasonably practicable, (ii) effectively carrying off and disposing of the impurity, and (iii) preventing the recirculation and re‑entry into the workplace of air containing the impurity; and (c) ensure that all ventilation systems used for controlling the dissemination of gases, vapours, dust or other impurities, including their collection systems and emptying processes, are designed, installed, operated, maintained and repaired in an adequate manner by a competent person. The Motion and Evidence [7] The record has no evidence concerning the alleged offences. At the hearing in the Provincial Court, Mersey Seafoods made a preliminary motion for dismissal of the charges. Judge Burrill heard the motion on April 25, 2006. The basis of the motion was that the subject of the charges is within federal responsibility and that Nova Scotia’s OHS Act is either inapplicable because of inter-jurisdictional immunity or inoperative for paramountcy. [8] In support, Mersey Seafoods filed two affidavits of Mr. Raymond Bush, Mersey Seafoods’ Marine Manager. The affidavits set out facts respecting the Mersey Venture recited above (¶ 2 - 4) and contain the following paragraphs describing the vessel’s safety procedures administered by federal authorities: 7. In my years of working in the fishing industry I have always understood and verily believed that the safety of fishing vessels and crew was regulated by the federal government, particularly by Transport Canada under the Canada Shipping Act. 8. Since taking a management position, I have been involved in annual safety inspections, radio inspections and other inspections all carried out by the office of Transport Canada. Yearly safety inspections are carried out for the Mersey Venture by Transport Canada. Attached as Exhibit “A” to this affidavit are true copies of the 2004 and 2005 Transport Canada safety inspections for the Mersey Venture. Other aspects of the vessel are also federally regulated and inspected. Attached as Exhibit “B” are true copies of the Mersey Ventures Certificate of Registry (issued October 18, 2002), Shrimp Fishing License (2005-2006), Certificate of Registration of a Fish Processing Establishment (issued September 1, 2005), Radio Inspection Certificate (issued August 18, 2005), Arctic Pollution Prevention Certificate (issued April 14, 2003), and International Oil Pollution Prevention Certificate (issued December 5, 2003). 9. The crew are also subject to federal requirements with respect to training and certification. For instance, the deckhands on board the Mersey Venture and our other vessels take federally required training courses. Attached as Exhibit “C” to this Affidavit are true copies of such training certificates. 10. The Captain of the Mersey Venture is also subject to numerous federal and international training and certification requirements. During the period of January to May 2005 one of the Captains of the Mersey Venture was Andrew Titus. Attached as Exhibit “D” to this Affidavit are true copies of various federal and international training certificates for Mr. Titus. 11. In January 2005 through to May 2005, I was involved in various inspections and orders by the Nova Scotia Department of Environment and Labour (the “Department”) with respect to workplace safety and their inspection of the Mersey Venture. It was during this time that I first became aware that the province was taking the position that the safety aboard the Mersey Venture and Mersey Seafoods’ other fishing vessels was the domain of the province and not federal jurisdiction. As I have already stated, all of my previous experience was in relation to monitoring and inspections by federal agencies. 12. The inspections by the Department occurred between fishing trips by the Mersey Venture and so would occur in the few days between trips when she was tied to dock. During the period of January 2005 to May 2005 and beyond, the Mersey Venture continued to operate as usual and fish as required in Canadian or international waters. The stops in port were merely to unload and reload for the next trip. 13. I was present during a number of these inspections and maintained Mersey Seafoods’ objection that this was the first that we had been informed that the Province thought that it had jurisdiction and that Mersey Seafoods and that the Mersey Venture had always been inspected by federal agencies and departments, specifically Transport Canada. [9] Exhibit “A” to Mr. Bush’s affidavit contains Transport Canada inspection certificates that begin with: This is to certify: (1) That the above-mentioned ship has been duly inspected in accordance with the provisions of the Canada Shipping Act, that the provisions of that Act respecting the inspection of steamships that are applicable to that ship have been complied with and that the vessel is, subject to such limitations as may be specified herein, fit to ply on voyages. [10] Mr. Bush’s Exhibit “B” contains: (i) Mersey Venture’s Certificate of Registry issued by Transport Canada under the Canada Shipping Act RSC 1985, c. S-9; (ii) Mersey Venture’s Shrimp Fishing License issued by the federal Department of Fisheries and Oceans, further to the Fishery (General) Regulations and Atlantic Fishery Regulations, 1985, under the Fisheries Act RSC 1985, c. F-14; (iii) the Canadian Food Inspection Agency’s Certificate of Registration of Mersey Venture as a Fish Processing Establishment further to the Fish Inspection Regulations under the Fish Inspection Act, R.S.C. 1985, c. F-12; (iv) Transportation Canada’s Radio Inspection Certificate for the Mersey Venture under the Canada Shipping Act; (v) Transport Canada’s Arctic Pollution Certificate for the Mersey Venture under the Arctic Waters Pollution Presentation Act, RSC 1985, c. A-12; and (vi) Transport Canada’s International Oil Pollution Prevention Certificate for the Mersey Venture citing the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the 1978 Protocol. [11] Mr. Bush’s Exhibit “C” contains two training certificates for marine emergency duties and a medical examination certificate issued by Transport Canada to a crew member of the Mersey Venture. Transport Canada issued the Medical Examination Certificate further to the former Medical Examination of Seafarers Regulations under the Canada Shipping Act. [12] Mr. Bush’s Exhibit “D” contains: (i) a Minister’s certificate issued by Transport Canada under the Canada Shipping Act that the named crew member qualifies as a fishing master, Class 1; (ii) an Industry Canada Certificate under the Radiocommunications Act RSC 1985, c. R-2 that a named crew member has radio proficiency, (iii) a medical examination certificate issued by Transport Canada further to the Medical Examination of Seafarers’ Regulations including a physician’s assessment of a crew member’s fitness for duty; (iv) certificates from the Canadian Coast Guard and the federal Department of Transport that the named crew member has successfully completed training in marine emergency duties, training as an officer-in-charge of a navigational watch, and training as a fishing master, class II further to the Canada Shipping Act; (v) certificates issued by Transport Canada under the Canada Shipping Act that the named crew member qualifies as a second mate of a home-trade steamship/watchkeeping mate of a foreign-going steamship, a first mate, intermediate voyage/second mate of a foreign-going vessel; (vi) and a certificate issued by Transport Canada under the International Convention on Standards of Training Certification and Watchkeeping for Seafarers, 1978, that the crew member qualifies as a chief mate. [13] There is no evidence that Mersey Seafoods or Mersey Venture is regulated by the Canada Labour Code, RSC 1985, c. L-2, Part II (Occupational Health and Safety). Neither is there evidence whether Mersey Seafoods’ labour relations are regulated federally under Part I of the Canada Labour Code or provincially under the Trade Union Act RSNS 1989, c. 475. [14] The Canada Shipping Act RSC 1985, c. S-9 was in force in 2005, at the time of these alleged offences. This statute was repealed by the Canada Shipping Act, 2001, S.C. 2001, c. 26, s. 332 in force on July 1, 2007 (S.I./2007-65), after the date of these alleged offences. Provincial Court [15] On July 26, 2006, the Provincial Court judge gave an oral decision quashing the charges. He said: An examination of the Canada Labour Code and the Marine Occupational Health and Safety Regulations made thereunder, the Canada Shipping Act and the Safe Working Practises Regulations, the Tackle Regulations and the Large Fishing Vessel Inspection Regulations all make it clear that the Federal Government is attempting to regulate workplace safety aboard vessels. In fact, Section 2 of the Canada Labour Code defines Federal work as including a work that is carried on, for, or in connection with navigation and shipping. And it is hard to imagine that that definition is not intended to cover the work carried out upon the Mersey Venture as a factory freezer trawler. He determined that there was an integral relationship between the sea transportation of vessels and the well being of ships’ crews: In my view, the legislation dealing with the operation and safety of maritime vessels and the crew aboard such vessels are integral to the regulation of navigation and shipping, which often by its very nature occurs outside of the Province and into international waters. An examination of the full legislative scheme, introduced by the Federal Government, makes it clear to this Court that there is an integral relationship between the transportation of vessels across the sea and the health and well-being of the crews aboard the ships that participate in marine commerce. [16] The Provincial Court judge then ruled that the individual charges against Mersey Seafoods dealt with matters covered by federal legislation. He referred to the Canada Labour Code and the Canada Shipping Act: The charges to some extent can be described, a number of them, as general charges. It’s clear that in each aspect of the charges there is federal legislation that would deal with the same situation. While I won’t review the counts in detail, it’s clear that in respect of Count 1 that under Section 125 of the Canada Labour Code and Section 4 of the Safe Working Practices Regulations, that there is federal law to cover the allegations made by the Province. Similarly, in Count 2, Sections 124 and 125 of the Canada Labour Code and Section 4 of the Safe Working Practices Regulations. Dealing with the equipment that must be aboard a vessel for safety, would again cover the allegations made against provincial legislation. Count 3 deals with failure to provide and ensure the use of personal floatation devices or alternative means of protection to prevent a person from drowning. But it is clear that under Section 338 of the Canada Shipping Act that regulations may be made for requirements for personal floatation devices, et cetera. With regard to Count 4 dealing with failing to supply fresh air into the workplace, Section 21 of the Large Fishing Vessel Regulations under the federal legislation dealing with ventilators would cover that situation. And dealing with the development of an Occupational Health and Safety Policy or program on Counts 5 and 6, and also the making of employees familiar with health and safety hazards in the workplace, it is clear that Section 125 of the Canada Labour Code, 125 (z. 01) and (z. 03), as well as 8.18 of the Marine Occupational Health and Safety Regulations under the federal legislation would all cover such allegations. Count 8 of the charge dealing with the failure to establish[ed] a Joint Occupational Health and Safety Committee perhaps brings into stark contrast the provincial scheme and the federal scheme. Under the Occupational Health and Safety Act there is a requirement for the establishment of a Joint Occupational Health and Safety committee, whereas under 135(1)(2) of the Canada Labour Code, there is an exemption exempting employers from the requirement to establish a workplace Health and Safety Committee if the workplace is aboard a ship in respect of employees who[se] base is the ship. So under Count “A” i[s] appear[s] that the Province would require a committee, where under the federal legislation it’s clear that an employer would be exempt from the establishment of a workplace Health and Safety Committee if the base is aboard the vessel. [17] The Provincial Court judge concluded: I have decided that workplace health and safety aboard vessels is the primary responsibility of the Federal Government. However, if I am wrong on that point, I am convinced, because of the legislation that I have just reviewed that the Doctrine of Paramountcy must apply in the particulars of this situation such to render inoperable the provincial legislation, for as I’ve said there is little doubt that the provisions are in conflict with one another, in this particular case. The Provincial Court judge allowed Mersey Seafoods’ preliminary motion to quash the charges. Summary Conviction Appeal Court [18] The Provincial Crown appealed to the Supreme Court of Nova Scotia as a Summary Conviction Appeal Court (“SCAC”). Justice Warner heard the appeal on April 12, 2007, and issued a decision on May 16, 2007 (2007 NSSC 155). The SCAC judge dismissed the appeal. He relied on federal legislative jurisdiction over navigation and shipping under s. 91(10 ) of the Constitution Act, 1867. He said that navigation and shipping includes maritime law: [78] In this case, the trial judge characterized the operation and safety of maritime vessels, including fishing vessels, as a federal undertaking already regulated by federal law. I agree. The SCAC judge referred to provisions of the Canada Shipping Act, the Canada Shipping Act, 2001, and the Canada Labour Code and their regulations: [84] The subject matter of Part III of CSA 2001 is the qualification, training, certification and protection of masters and crew. Part V, entitled “Safety”, contains a comprehensive and complete scheme for the safety of all vessels, whether registered in Canada, or if registered elsewhere while they are in Canadian waters. Regulations prescribed under this part of the CSA, including the Large Fishing Vessel Inspection Regulations, Safe Working Practices Regulations and Tackle Regulations, and the regulations under the Code, entitled Marine Occupational Health and Safety Regulations, reflect the comprehensiveness of the scheme. Part VI deals not only with wrecks and salvage, but contains a scheme for the investigation of shipping casualties. Parts XII (“Legal Proceedings”) and Part XIII (“Supplemental”) outline the scheme for enforcement of the CSA and Regulations. He then said: [85] The health and safety of workers on fishing vessels is, in ‘pith and substance’, a matter properly characterized as maritime, and a vital or essential or integral part of the management of ships; as such, it goes to the essential core of the federal jurisdiction over navigation and shipping. ... [19] The SCAC judge concluded that the provincial occupational health and safety legislation directly and vitally affected a federally-regulated undertaking, and was integrally connected to maritime matters. He ruled that the application of Nova Scotia’s OHS Act to Mersey Seafoods and the Mersey Venture would offend inter-jurisdictional immunity. So he read down the OHS Act to exclude its application to the events leading to these charges. [20] The SCAC judge ruled alternatively that the application of the OHS Act would offend the paramountcy doctrine: [87] . . . I conclude that both levels of legislation are self-contained complete schemes. Piecemeal comparison of individual provisions may not, in all cases, conflict directly, but the totality of the effect of superimposing the provincial legislative scheme on the federal legislative scheme creates a conflict and repugnancy of the kind described in Hall [Bank of Montreal v. Hall, [1990] 1 S.C.R. 121] and Mangat [Law Society of British Columbia v. Mangat, 2001 SCC 67]. [21] The SCAC judge summarized his conclusions: [99] Safety aboard ships, including fishing vessels, is, in pith and substance, an essential part of the management of ships, and of maritime law, and is therefore a matter of exclusive federal jurisdiction under section 91(10) of the Constitution Act 1867. [100] Provincial occupational health and safety legislation is not applicable to federally regulated undertakings and activities - and in particular to ships and safety aboard ships, per the Bell 1988 trilogy and the interjurisdictional immunity doctrine. It should be read down to exclude application to safety aboard ships. [101] Alternatively, the provincial legislation is in conflict with the federal legislation, in the manner described in Hall and Mangat. It should not be operative in respect of safety aboard ships regulated by the Canada Shipping Act and Canada Labour Code, by reason of the paramountcy doctrine. . . . [103] Nova Scotia’s occupational health and safety legislation should not apply to a fishing vessel regulated under the Canada Shipping Act. The appeal is dismissed. Court of Appeal [22] The Provincial Crown applies for leave to appeal and, if granted, appeals to this court under s. 839(1) of the Criminal Code and s. 7 of the Summary Proceedings Act RSNS 1989, c. 450. On the appeal, the Attorney General of Canada intervened, filed a factum and made submissions at the hearing. The Attorney General of Canada supported the Provincial Crown’s position on all the constitutional issues. This is not a contest between levels of government. Issues and Standard of Review [23] The Provincial Crown’s factum stated four issues, with which Mersey Seafoods’ factum agreed. To paraphrase: (1) Is the OHS Act intra vires the provincial legislature under s. 92 of the Constitution Act, 1867? (2) Does the OHS Act have more than an incidental effect on Parliament’s power over navigation and shipping under s. 91(10) of the Constitution Act, 1867? (3) Is Mersey Seafoods or Mersey Venture a federal undertaking immunized from the operation of the OHS Act? (4) Does paramountcy render the OHS Act inoperative? [24] On the first issue, the lower courts and all parties in the Court of Appeal agreed that the OHS Act is intra vires s. 92. Though the first issue is not in dispute, I will discuss it to introduce the contentious issues 2, 3 and 4. [25] The second and third issues are both founded on the proposition that the OHS Act impermissibly encroaches on Parliament’s exclusive power over navigation and shipping under s. 91(10). Under the third issue, Mersey Seafoods says its vessel is a federal undertaking because the vessel engages the federal navigation and shipping power. I will consider the second and third issues together. [26] The Information charges that the offences happened in Nova Scotia. There is no evidence of the circumstances of the alleged offences. So there is no issue on this appeal, and these reasons do not address, whether provincial legislation may apply to an offence that occurred outside the boundaries of the Province. [27] These are legal and constitutional issues. The standard of review is correctness, conceded by Mersey Seafoods. First Issue - Is the OHS Act ultra vires s. 92? [28] In the constitutional analysis, the court first characterizes the pith and substance of the impugned legislation, Nova Scotia’s OHS Act. The court identifies the “matter” to which the legislation essentially relates. If the pith and substance of the OHS Act is a matter within Provincial legislative jurisdiction, the OHS Act is intra vires. If not, it is ultra vires. Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3, at ¶ 25 - 26. [29] To determine pith and substance, the court examines both the statute’s purpose and its effect. It is the true purpose, not necessarily the stated purpose, to which the court addresses its attention. In Canadian Western Bank, Justices Binnie and LeBel explained: [27] . . . For example, in Attorney‑General for Alberta v. Attorney‑General for Canada, [1939] A.C. 117 ("Alberta Banks"), the Privy Council held a provincial statute levying a tax on banks to be invalid on the basis that its effects on banks were so great that its true purpose could not be (as the province argued) the raising of money by levying a tax (in which case it would have been intra vires), but was rather the regulation of banking (which rendered it ultra vires, and thus invalid). [30] The OHS Act, s. 2 says that the “foundation of this Act is the Internal Responsibility System” by which employers and employees at a workplace “share the responsibility for the health and safety of persons at the workplace”. The Act focuses on the “workplace” defined by s. 3(ah) as “any place where an employee is or is likely to be engaged in an occupation.” The Act lists the duties and precautions to be taken by employers at a workplace and, if there are sufficient employees, prescribes that the employer prepare an occupational health and safety policy or program or have a joint occupational health and safety committee. The Act establishes the rights of employees to information and monitoring respecting occupational health and safety issues and sometimes permits an employee to refuse work. The Act provides inspection and enforcement mechanisms through the office of the Director of Occupational Health and Safety appointed by the Province, and creates offences including those under which these charges were laid against Mersey Seafoods. [31] In Bell Canada v. Quebec (Commission de la santé et de la sécurité du Travail), [1988] 1 S.C.R. 749, (“Bell, 1988") the Supreme Court considered the pith and substance of provincial occupational health and safety legislation. 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 workmen's compensation scheme, such as that in question in the Workmen's 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. [32] Justice Beetz’ “proposition two” is one of five propositions stated earlier in his reasons (pp. 761-5). Propositions two, three and five pertain to Mersey Seafoods’ prosecution: Proposition One (to paraphrase): General legislative jurisdiction over health is provincial under s. 92(16) of the Constitution Act, 1867, subject to Parliament’s limited jurisdiction either ancillary to the powers expressly conferred in s. 91, or Parliament’s emergency and peace, order and good government powers. Proposition Two: In principle, labour relations and working conditions fall within the exclusive jurisdiction of the provincial legislatures: these matters fall into the class of subjects mentioned in s. 92(13) of the Constitution Act, 1867, "Property and Civil Rights in the Province": Toronto Electric Commissioners v. Snider, [1925] A.C. 396 (‘Snider’). Proposition Three: Notwithstanding the rule stated in proposition two, 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 . . . Proposition Four deals with workers’ compensation. Proposition Five is the double aspect doctrine, namely: . . . subjects which in one aspect and for one purpose fall within sect. 92, may in another aspect and for another purpose fall within sect. 91. [33] From Bell 1988, I conclude that the pith and substance of Nova Scotia’s OHS Act engages the matters of working conditions, labour relations and the management of undertakings. These matters are provincial, within property and civil rights in the province under s. 92(13) of the Constitution Act, 1867. The OHS Act is intra vires and applicable to undertakings that it may constitutionally affect. This conclusion is subject to the remaining issues that consider whether the OHS Act may constitutionally affect Mersey Seafoods’ fishing undertaking. Second and Third Issues - - Does the effect of OHS Act on Mersey Seafoods or Mersey Venture infringe Parliament’s navigation and shipping power under s. 91(10)? - Do Mersey Seafoods’/Mersey Venture’s navigation and shipping functions make them a federal undertaking protected by interjurisdictional immunity? [34] Mersey Seafoods’ factum says: . . . Application of the OHSA would not incidentally affect Mersey's operation of the Mersey Venture, but would instead amount to a direct and major intrusion into this federal power over Navigation and Shipping. Safety aboard vessels, such as the Mersey Venture, is the exclusive jurisdiction of Parliament under the Navigation and Shipping head of power. . . . . . Safety aboard vessels, including Mersey Venture, is a vital and essential element of the federal Navigation and Shipping power. . . . Mersey Seafoods submits that the lower courts were correct in concluding that the operation and safety of maritime vessels, specifically Mersey Venture, is a federally regulated undertaking. Health and Safety aboard is part of the basic, minimum and unassailable content of the Shipping and Navigation Power. Mersey submits that it is the Federal law that applies and not the OHSA and that pursuant to the doctrine of interjurisdictional immunity, the provisions of the OHSA should be read down so as not to apply to Mersey Venture or Mersey. [35] The courts below agreed, and ruled that the OHS Act should be read down to exclude application to Mersey Seafoods and the Mersey Venture. [36] The OHS Act has an intra vires purpose, as discussed earlier. The issue here is its effect. In Canadian Western Bank, Justices Binnie and LeBel discussed the principles governing whether an otherwise valid statute has an ultra vires effect: 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" (Husky Oil Operations Ltd. v. Minister of National Revenue, [1995] 3 S.C.R. 453, at para. 162; Reference re Employment Insurance Act (Can.), ss. 22 and 23, [2005] 2 S.C.R. 669, 2005 SCC 56, at para. 10). . . . 28 The fundamental corollary to this [pith and substance] 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 legislature's 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" . . . . 30 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: [citations omitted] 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. 31 When problems resulting from incidental effects arise, it may often be possible to resolve them by a firm application of the pith and substance analysis. The scale of the alleged incidental effects may indeed put a law in a different light so as to place it in another constitutional head of power. The usual interpretation techniques of constitutional interpretation, such as reading down, may then play a useful role in determining on a case‑by‑case basis what falls exclusively to a given level of government. [37] Section 4(2)(b) of Nova Scotia’s OHS Act says: “This Act applies to . . . all matters within the legislative jurisdiction of the Province.” So it would be unnecessary to read down the OHS Act by constitutional remediation. The statute itself directs that it be read to apply only within the Legislature’s constitutional jurisdiction. [38] Still, the underlying issue remains to determine whether the application of the OHS Act to Mersey Seafoods and Mersey Venture would unconstitutionally intrude into Parliament’s exclusive jurisdiction. As Justices Binnie and LeBel said in Canadian Western Bank: 31 . . . The scale of the alleged incidental effects may indeed put a law in a different light so as to place it in another constitutional head of power. [39] The SCAC judge relied principally on Ordon Estate v. Grail, [1998] 3 S.C.R. 437, where the Supreme Court of Canada held that the federal navigation and shipping power included maritime negligence law. From this conclusion and from the safety provisions of the Canada Shipping Act, Canada Shipping Act, 2001 and their regulations, the SCAC judge induced that “safety aboard ships, including fishing vessels” was exclusively federal under s. 91(10) (above ¶ 21). [40] In my respectful view, the SCAC judge’s analysis was legally flawed. [41] In Ordon Estate Justices Iacobucci and Major described the issue: 72 These appeals provide an appropriate occasion on which to resolve the issue of whether and when it is constitutionally permissible for provincial statutes to be applied in the context of a maritime law negligence claim. All of the relevant principles for this resolution have been stated in one form or another in the Court's recent maritime law jurisprudence. We believe that it will prove useful for future cases if these principles are assembled and synthesized into a test that may be applied in any instance where a provincial statute is sought to be invoked as part of a maritime law negligence claim. The test has four steps. [emphasis added] Justices Iacobucci and Major concluded: 85 In our opinion, where the application of a provincial statute of general application would have the effect of regulating indirectly an issue of maritime negligence law, this is an intrusion upon the unassailable core of federal maritime law and as such is constitutionally impermissible. In particular, with respect to the instant appeals, it is constitutionally impermissible for the application of a provincial statute to have the effect of supplementing existing rules of federal maritime negligence law in such a manner that the provincial law effectively alters rules within the exclusive competence of Parliament or the courts to alter. In the context of an action arising from a collision between boats or some other accident, maritime negligence law encompasses the following issues, among others: the range of possible claimants, the scope of available damages, and the availability of a regime of apportionment of liability according to fault. A provincial statute of general application dealing with such matters within the scope of the province's legitimate powers cannot apply to a maritime law negligence action, and must be read down to achieve this end. [emphasis added] [42] The issue in Ordon Estate was whether a provincial statute could affect a tort claim under maritime negligence law. Similar issues were involved in the Supreme Court’s earlier decision in Whitbread v. Walley, [1990] 3 S.C.R. 1273, cited by the SCAC judge here, and later decision in Isen v. Simms, [2006] 2 S.C.R. 349. [43] The provincial Crown does not sue Mersey Seafoods in tort. There is no issue of maritime negligence law. This is a prosecution under a provincial occupational health and safety statute. Occupational health and safety legislation has its own genealogy, rooted in neither maritime law nor tort. Rather, its “matter” for pith and substance analysis is labour relations or management of an undertaking, as discussed in Bell, 1988 (above ¶ 31-33). [44] The SCAC discussed the OHS Act’s characterization, but then dissociated it from the ensuing constitutional analysis. The section of the SCAC decision entitled “Characterization of workplace safety on fishing vessels” did not incorporate a characterization of Nova Scotia’s OHS Act. Instead, the SCAC began with maritime negligence law, a matter that the Supreme Court in Ordon Estate ¶ 68 described as “federal law, uniform across the country, within which there is no room for the application of provincial statutes.” The SCAC then moved to the Canada Shipping Act and its successor, the Canada Shipping Act, 2001. From this perspective, the SCAC concluded: [99] Safety aboard ships, including fishing vessels, is, in pith and substance, an essential part of the management of ships, and of maritime law and is therefore a matter of exclusive federal jurisdiction under s. 91(10) of the Constitution Act 1867. [45] I respectfully disagree with the SCAC’s approach. The departure point is not the pith and substance of federal maritime negligence law, or federal statutes such as the Canada Shipping Act, or generic safety aboard ships. To exclude provincial legislative jurisdiction because federal law deals with safety connotes the discarded paramountcy doctrine that provincial legislation is inoperative if federal statutes occupy the field (discussed below ¶ 68-69). The analysis stems from the question – What is the “matter” to which the pith and substance of the impugned statute, Nova Scotia’s OHS Act, relates? (Canadian Western Bank, ¶ 25-26) The response to this question points to a different reasoning path marked by a different set of authorities than those considered by the SCAC. [46] Bell, 1988 established that occupational health and safety relates to the matter of working conditions, labour relations and management of undertakings, presumptively provincial under s. 92(13) subject to federal exceptions under Justice Beetz’ five propositions (above ¶ 31-33). [47] The courts have held that labour relations of a provincially based fishing undertaking presumptively is provincial under s. 92(13), notwithstanding that the vessels fish, and therefore navigate, waters outside provincial boundaries. [48] In Ward v. Canada (Attorney General), [2002] 1 S.C.R. 569, Chief Justice McLachlin summarized the case law: 44 The cases bear this out. 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 in the province and outside the federal fisheries power: see British Columbia Packers and Mark Fishing, supra; see also Barry's Ltd. v. Fishermen, Food and 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 aspects 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. [49] In Mark Fishing Co. Limited v. United Fishermen and Allied Workers’ Union (1972), 24 D.L.R. (3d) 585 (B.C.C.A.), affirmed summarily (1973), 38 D.L.R. (3d) 316 (S.C.C.), Chief Justice Davey for the Court of Appeal said: 18 It may be that some aspects of employment on fishing vessels involve "Navigation and Shipping" under head (10) of s. 91 and so fall within the authority of Parliament, e.g. qualifications of captains, engineers, and seamen. However, those special aspects of maritime employment do not bear upon the broad question that arises here of whether Parliament or the Legislative Assembly has the power to legislate upon labour relations generally in the fishing fleet. . . . 41 . . . There is no ground upon which it can be held that such a power [referring to the regulation of terms and conditions of employment] is necessary, essential or vital to Parliament's exclusive control over seacoast and inland fisheries, so labour relations in the fishing industry must belong to the Provinces. 42 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 Workmen's Compensation Board v. Canadian Pacific Railway Company (1919), 48 D.L.R. 218 . . . 44. . . . the Workmen's Compensation case stands as authority that a province's 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. [50] To similar effect: B.C. Packers v. Canada Labour Relations Board, [1976] 1 F.C. 375 (F.C.A.) at p. 385; Barrys Ltd. v. Fishermen, Food and Allied Workers’ Union (1993), 104 Nfld. & P.E.I.R. 277 (N.C.A.) leave to appeal denied [1993] S.C.C.A. No. 142; 504578 Ontario Limited v. Great Lakes Fishermen and Allied Workers’ Union (1990), O.J. No. 39 at p. 2 (O.C.A.), leave to appeal denied (1990) S.C.C.A. No. 233; Underwater Gas Developers Ltd. v. ORLB (1960), 24 D.L.R. (2d) 673 (O.C.A.) at pp. 682-83; Clearwater Seafoods Limited Partnership v. Labour Relations Board (N.L.) (2006), 258 Nfld. & P.E.I.R. 170 (NLSCTD) at page 189; See also: Dandy Dan’s Fish Market Ltd. v. Nfld. and Labrador, 2007 NLCA 26 at ¶ 27-29; Port Enterprises Ltd. v. Nfld. (Minister of Fisheries and Aquaculture), 2006 NLCA 36 at ¶ 28; R. v. Allen, 2005 NSCA 118 at ¶ 33. [51] So the labour relations (including occupational health and safety) of a provincially based fishing undertaking generally is a matter within provincial jurisdiction. Fishing vessels navigate. If marine navigation ousted provincial jurisdiction, then labour relations in the fishing industry would be federal, contradicting these authorities. [52] The SCAC judge did not consider the authorities that labour relations of a provincially based fishing undertaking presumptively is provincial. Neither did he consider whether the general rule succumbs to the exception of federal jurisdiction, under the approach outlined by the following authorities. [53] In Agence Maritime Inc. v. Canada Labour Relations Board, [1969] S.C.R. 851, 12 D.L.R. (3d) 722 (S.C.C.), the Court considered whether the labour relations of an undertaking using coastal vessels was federal or provincial, given federal jurisdiction over navigation and shipping under s. 91(10). Justice Fauteux for the Court said (D.L.R. pp. 728-9): Even if this is the case, then according to the respondents, these operations still fall within the jurisdiction of Parliament, by reason of s. 91(10) (Navigation and Shipping) of the British North America Act, and, accordingly, fall within the jurisdiction of the Board, by virtue of the preliminary words and of para. (a) of s. 53 of the Industrial Disputes Act. This argument rests purely and simply upon the interpretation to be given to the sections quoted, and is not in any way based on facts relating to the appellant’s enterprise and capable of attributing to this enterprise an aspect requiring particular consideration. We cannot accept the interpretation being suggested, without being driven to the conclusion that, by enacting the provisions of s. 91(29) and s. 92(10)(a) of the British North America Act, and of para. (c) of s. 53 of the Industrial Disputes Act, Parliament was speaking for nothing. ... To summarize, and, regardless of how liberally the powers conferred upon Parliament by s. 91(10) of the British North America Act must be construed, according to the judgment of the Privy Council in City of Montreal v. Montreal Harbour Commissioners, [1926] 1 D.L.R. 840, [1926] 1 W.W.R. 398, [1926] A.C. 299, I am of the opinion, that in a case of the type presently before us, and, except in so far as the shipping aspect of the matter is concerned, the provisions of s. 91 (29) and s. 92(10)(a) and (b) are collectively intended to exclude from the jurisdiction of Parliament maritime shipping undertakings whose operations are carried on entirely within the boundaries of a single Province. In Commission du Salaire Minimum v. Bell Telephone Co. of Canada, 59 D.L.R. (2d) 145, [1966] S.C.R. 767, this Court unanimously approved the following principle laid down by my colleage, Mr. Justice Abbott, in the Reference dealing with the validity of the statute governing the Board [Stevedoring case], [1959] 3 D.L.R. at pp. 779-80, [1955] S.C.R. at p. 592: The right to strike and the right to bargain collectively are now generally recognized, and the determination of such matters as hours or work, rates of wages, working conditions and the like, is in my opinion a vital part of the management and operation of any commercial or industrial undertaking. This being so, the power to regulate such matters, in the case of undertakings which fall within the legislative authority of Parliament lies with Parliament and not with the provincial Legislatures. This clearly implies that as a general rule, provincial legislation must be applied in these cases to enterprises falling within the legislative jurisdiction of the Provinces. [emphasis added] [54] From Agence Maritime, the emphasis is on whether the undertaking is federal or provincial. If the fishing undertaking is provincial, then the mere fact that its vessels navigate does not reassign the constitutional jurisdiction over that undertaking’s labour relations exclusively to Parliament. [55] In Montcalm Construction Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754, at 768-70, Justice Beetz for the majority stated principles to govern the determination of constitutional jurisdiction over labour relations. In Northern Telecom Limited v. Communications Workers of Canada, [1980] 1 S.C.R. 115, at pp. 131-3, Justice Dickson for the Court summarized Justice Beetz’ principles from Montcalm: (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. (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. [56] An application of this approach is Singbeil v. Hansen (1985), 19 D.L.R. (4th) 48 (B.C.C.A.). The Canada Shipping Act R.S.C. 1970, c. S-9, exempted seamen’s wages from attachment. The court held this was ultra vires Parliament. Justice Seaton referred to Agence Maritime, among other cases, and said (p. 55): 16 I conclude that the distinction is between the undertaking and the operations. Attachment of seamen's wages has to do with the undertaking, not the operations. Attachments of the wages of seamen in the employ of the British Columbia Ferry Corporation fall within provincial jurisdiction and the federal legislation does not apply to them. Justice Craig (pp. 58-9) referred to Agence Maritime, Montcalm and Northern Telecom, and concluded that, despite Parliament’s power over “navigation and shipping”, the constitutional issue should be determined according to the nature of the undertaking - Was it a federal undertaking or a provincial undertaking? Justice Craig found that the B.C. Ferry Corporation was a provincial undertaking, and labour relations including garnishment of wages were exclusively provincial. Justice Lambert (pp. 62-64) referred to Northern Telecom and phrased the issue (p. 64): The question, therefore, in this case, becomes whether the British Columbia ferries are a core federal undertaking. He said (p. 66) that, to answer this question, it is necessary to follow Justice Dickson’s sixth principle in Northern Telecom to examine the normal and habitual activities of the business as a going concern. Justice Lambert added, respecting the federal “navigation and shipping” power: (pp. 66-7): 53 My third comment is that laws that are truly laws in relation to matters coming within the class of subjects "navigation and shipping" in head 91(10) of the Constitution Act 1867 will apply to the British Columbia ferries. It is not necessary for me to deal further in this case with the legislative competence of the Parliament of Canada under head 91(10), or with whether "navigation" should be treated as a separate head from "shipping". The law has been settled by the Supreme Court of Canada that legislative competence over labour relations follows the legislature that has the power to regulate the particular undertaking. The legislative competence of the Parliament of Canada over "navigation and shipping" deals with many matters that impinge on the operations of the British Columbia ferries, but it does not encompass the regulation of the British Columbia ferries as an undertaking. The power to regulate the British Columbia ferries as an undertaking rests with the provincial legislature. [emphasis added] [57] From these authorities, I summarize the principles as follows: 1. Nova Scotia’s OHS Act in pith and substance relates to the matters of labour relations or management of an undertaking. 2. Labour relations and management of an undertaking generally are provincial under s. 92(13), unless the exercise of federal jurisdiction is integral to Parliament’s exclusive jurisdiction over a class of subjects in s. 91. 3. As a subset of point 2, and subject to the same federal exception, labour relations of a provincially based fishing undertaking generally is provincial, notwithstanding that the vessels fish and navigate waters outside the provincial boundaries. 4. Whether the labour relations (including occupational health and safety) of Mersey Seafoods or the Mersey Venture is federal as an exception to the general rule, depends principally on whether Mersey Seafoods or Mersey Venture is a federal undertaking. 5. The determination of whether the undertaking is federal or provincial depends on the normal and habitual activities of the business as a going concern. (Justice Dickson’s sixth point in Northern Telecom). [58] Though the SCAC referred to Northern Telecom, the SCAC’s characterization analysis did not consider the activities of Mersey Seafoods as a going concern. Rather the SCAC shifted its focus to the view that Parliament has exclusive jurisdiction over “safety aboard ships, including fishing vessels”. There is little evidence in the record concerning Mersey Seafoods’ activities as a going concern. That evidence is recited earlier (¶ 2-4, 8-13). Mersey Seafoods is in the business of catching, and processing fish and selling fish product. It is based and managed in Nova Scotia. Its vessels, including the Mersey Venture, catch fish at sea well beyond provincial boundaries and unload in Nova Scotia. The alleged offence, according to the Information, happened “at or near Stormont, Guysborough County, Nova Scotia”. [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 SCAC’s 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 Scotia’s OHS Act 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). [60] In Ordon Estate, relied on by the SCAC here, Justices Iacobucci and Major (¶ 73 ff) prescribed a four step test to determine the constitutional applicability of a provincial statute to a maritime law negligence claim. The first three steps are pre-constitutional, to assess whether it is necessary to consider the constitutionally permissible application of the provincial statute: (1) Is the matter of the negligence claim within federal competence under s. 91(10) of the Constitution Act? (2) Is the subject matter of the provincial statute governed by a counterpart principle already within maritime negligence law? If the answer to question 1 is yes and to question 2 is no, then (3) may the Court reform maritime negligence law to introduce such a principle without resorting to the provincial statute? If these three steps do not resolve the problem, the fourth step, entitled “Constitutional Analysis”, applies: 81 As a general matter within the Canadian federal system, it is constitutionally permissible for a validly enacted provincial statute of general application to affect matters coming within the exclusive jurisdiction of Parliament. The principal question in any case involving exclusive federal jurisdiction is whether the provincial statute trenches, either in its entirety or in its application to specific factual contexts, upon a head of exclusive federal power. Where a provincial statute trenches upon exclusive federal power in its application to specific factual contexts, the statute must be read down so as not to apply to those situations. This principle of statutory interpretation is known perhaps most commonly as the doctrine of "interjurisdictional immunity": see P. W. Hogg, Constitutional Law of Canada (loose‑leaf ed.), vol. 1, at pp. 15‑25 et seq. It is this doctrine which is relevant for present purposes. Any constitutional encroachment is resolved under the interjurisdictional immunity doctrine. [61] In Canadian Western Bank, ¶ 33 ff and British Columbia (Attorney General) v. Lafarge Canada Inc., [2007] 2 S.C.R. 86, ¶ 41 ff, the Supreme Court of Canada recast the principles of interjurisdictional immunity. Both decisions were released after the SCAC’s decision here. In Canadian Western Bank, Justices Binnie and LeBel (¶ 48) said that a provincial statute will offend federal interjurisdictional immunity when the statute “impairs” (rather than merely “affects” - the earlier test) either (1) the “core”of a federal competence or (2) a vital or essential part of a federal undertaking. It is navigation and shipping, not plenary “safety” per se, that is exclusively federal under s. 91(10). Provincial occupational health and safety standards may supplement federal shipping safety regulation without impairing the core of federal competence over navigation and shipping. Counsel for the Attorney General of Canada acknowledged in his submissions that the OHS Act does not hamper federal navigation and shipping governance in theory or practice. As Mersey Seafoods is a provincial undertaking, the second test of interjurisdictional immunity does not apply. [62] At the hearing, counsel for Mersey Seafoods submitted that, even if Mersey Seafoods was a provincial corporate undertaking, the Mersey Venture is a separate federal undertaking to which the application of the OHS Act would offend federal interjurisdictional immunity. Mersey Seafoods’ counsel referred to C.P.R. Co. v. Attorney General of British Columbia, [1950] 1 D.L.R. 721, where the Canadian Pacific Railway’s Empress Hotel was found to be a provincial undertaking separate from the C.P.R.’s federal railway undertaking. See also Northern Telecom , p. 134. [63] In my opinion, the C.P.R. principle does not help Mersey Seafoods. In C.P.R., Lord Reid said (p. 732): . . . It may be that, if the appellant chose to conduct a hotel solely or even principally for the benefit of travellers on its system, that hotel would be part of its railway undertaking. Their Lordships do not doubt that the provision of meals and rest for travellers on the appellant's system may be a part of its railway undertaking whether that provision is made in trains or at stations, and such provision might be made in a hotel. But the Empress Hotel differs markedly from such a hotel. Indeed there is little if anything in the facts stated to distinguish it from an independently owned hotel in a similar position. No doubt the fact that there is a large and well‑managed hotel at Victoria tends to increase the traffic on the appellant's system; it may be that the appellant's railway business and hotel business help each other, but that does not prevent them from being separate businesses or undertakings. The Empress Hotel and the Canadian Pacific Railway were functionally separate. Mersey Venture and Mersey Seafoods are a functional unit. A fishing vessel is integral to its fishing undertaking. The suggestion that the Mersey Venture is a separate and differently governed undertaking resembles the untenable proposition that a train, rather than a hotel, is separate from its railway undertaking. Mersey Venture belongs to Mersey Seafoods’ provincial undertaking. [64] In summary, in my respectful view, the SCAC judge erred in law by ruling (1) that the application of Nova Scotia’s OHS Act to Mersey Seafoods and Mersey Venture infringed Parliament’s power over navigation and shipping in s. 91(10). and (2) that Mersey Seafoods or the Mersey Venture was a federal undertaking. There is no infringement of federal interjurisdictional immunity. Subject to the paramountcy issue, that I will discuss next, Nova Scotia’s OHS Act validly applies to Mersey Seafoods and the Mersey Venture. Fourth Issue – Is the OHS Act inoperative because of paramountcy? [65] In Canadian Western Bank, Justices Binnie and LeBel summarized the paramountcy test: 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. See also Lafarge Canada ¶ 76-77. [66] In discussing the first alternative test – impossibility of mutual compliance – Justices Binnie and LeBel said: 71 In developing its approach, this Court, despite the problems occasionally caused by certain relevant aspects of its case law, has shown a prudent measure of restraint in proposing strict tests: General Motors, at p. 669. In Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161, the Court defined the fundamental test for determining whether there is sufficient incompatibility to trigger the application of the doctrine of federal paramountcy. Dickson J. stated: 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. [p. 191] [67] Respecting the second alternative test – frustration of the federal purpose – they said: 75 An incompatible federal legislative intent must be established by the party relying on it, and the courts must never lose sight of the fundamental rule of constitutional interpretation that, "[w]hen a federal statute can be properly interpreted so as not to interfere with a provincial statute, such an interpretation is to be applied in preference to another applicable construction which would bring about a conflict between the two statutes" . . . They noted that legislative history may shed light on the federal purpose (¶ 104-8). [68] Justices Binnie and LeBel stated that mere duplication will not render a provincial statute inoperative: 72 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 (Spraytech). In both cases, the laws can apply concurrently, and citizens can comply with either of them without violating the other. So the mere existence of federal legislation on a topic does not generate a presumption that Parliament’s purpose was to exclude provincial legislation. They confirmed that the former “occupied field” test of paramountcy is not the law: 74 That being said, care must be taken not to give too broad a scope to Hall, Mangat and Rothmans. The Court has never given any indication that it intended, in those cases, to reverse its previous decisions and adopt the "occupied field" test it had clearly rejected in O'Grady in 1960 [O’Grady v. Sparling, [1960] S.C.R. 804]. The fact that Parliament has legislated in respect of a matter does not lead to the presumption that in so doing it intended to rule out any possible provincial action in respect of that subject. As this Court recently stated, "to impute to Parliament such an intention to 'occup[y] the field' in the absence of very clear statutory language to that effect would be to stray from the path of judicial restraint in questions of paramountcy that this Court has taken since at least O'Grady" (Rothmans, at para. 21). [69] Hogg, Constitutional Law of Canada (looseleaf, 5th edition, supplemented) Vol. 1, p. 16-16, under Paramountcy, comments on federal and provincial duplication: There is no reason why duplication should be a case of inconsistency once the negative implication, covering the field test as rejected. On the contrary, duplication is “the ultimate in harmony”. [70] The SCAC judge referred to the proper tests but, in my respectful view, he erred in their application. [71] The SCAC judge assumed that the federal safety standards under the Canada Labour Code applied to Mersey Seafoods and the Mersey Venture: [8] . . . The vessel is subject to numerous federal safety standards and inspections under the Canada Shipping Act and Canada Labour Code, particulars of which are set out in the affidavit of the Marine Manager of the defendant. The SCAC judge (¶ 9, 84) referred specifically to the Marine Occupational Safety and Health Regulations, SOR/87-183, March 26, 1987, Canada Gazette Part II, Vol. 121, pp. 1337, March 26, 1987, as amended (“MOSH Regulations”) under the Canada Labour Code. [72] The SCAC said: [87] . . . I conclude that both levels of legislation are self contained complete schemes. Piecemeal comparison of individual provisions may not, in all cases, conflict directly, but the totality of the effect of superimposing the provincial legislative scheme on the federal legislative scheme creates a conflict and repugnancy of the kind described in Hall and Mangat. . . . [92] It may be that some "untidiness" or "diseconomy" of duplication is the price we pay for a federal system (Multiple Access, paragraph 47), but more important, in my view, is the concern expressed in Bell 1988 at paragraph 260 that a two fold jurisdiction promotes the proliferation of preventative measures and controls in which the contradictions, or lack of co‑ordination [SCAC’s emphasis], may well threaten the very occupational health and safety which is sought to be protected. . . . [93] The closing obiter at paragraph 328 in Bell 1988 is applicable to the paramountcy analysis in this case: 328 . . . a procedural conflict may suffice to render the provincial act inoperative if the conflict is irreconcilable or if, as the majority held, it leads to a deadlock. The mere duplication of two enactments certainly does not make the Act inoperative: . . . However, in view of the difference between the mechanisms resulting in re‑assignment in both statutes, between the rights conferred on workers under the two schemes, between the types of danger which give rise to the right, between the procedures and the avenues of appeal, I am inclined to think as did the majority on the Court of Appeal that there is a practical and functional incompatibility between the two groups of provisions. . . . [101] Alternatively, the provincial legislation is in conflict with the federal legislation, in the manner described in Hall and Mangat. It should not be operative in respect of safety aboard ships regulated by the Canada Shipping Act and Canada Labour Code, by reason of the paramountcy [SCAC’s emphasis] doctrine. The passage from ¶ 328 of Justice Beetz’ decision in Bell 1988, quoted by the SCAC judge here, refers to Quebec’s occupational health and safety statute and the former Part IV of the Canada Labour Code, that dealt with occupational safety of federal undertakings at that time. [73] Similarly, the Provincial Court judge assumed, for his paramountcy ruling, that Mersey Seafoods and the Mersey Venture were regulated by the current Part II of the Canada Labour Code, governing occupational health and safety. [74] Their assumptions were mistaken. There is no evidence that Mersey Seafoods or the Mersey Venture has been regulated by the Canada Labour Code Part I (Industrial Relations) or Part II (Occupational Health and Safety), or its regulations. I have summarized Mr. Bush’s affidavits and his exhibits earlier (¶ 8-13). They do not mention the Canada Labour Code, the MOSH Regulations, or any regulatory activity under the Canada Labour Code. The federal regulation of the Mersey Venture stems principally from the Canada Shipping Act and Fisheries Act. The erroneous assumption of the courts below that the Mersey Venture was regulated by the Canada Labour Code is significant to the paramountcy issue. [75] Part II of the Canada Labour Code entitled “Occupational Health and Safety”, says: Application Application of Part 123. (1) Notwithstanding any other Act of Parliament or any regulations thereunder, this Part applies to and in respect of 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; and (c) by a Canadian carrier, as defined in section 2 of the Telecommunications Act, that is an agent of Her Majesty in right of a province. [76] A provincial undertaking such as Mersey Seafoods, is outside s. 123 and therefore outside Part II. This complements s. 4 (2) (b) of Nova Scotia’s OHS Act, quoted earlier (¶ 37), stating that the OHS Act applies to matters within the legislative jurisdiction of the province. In short, a federal undertaking is regulated for occupational health and safety by Part II of the Canada Labour Code, not by Nova Scotia’s OHS Act. A provincial undertaking is regulated by the OHS Act, not by Part II of the Canada Labour Code. These are two mutually exclusive regimes between which paramountcy does not arise. (Lafarge Canada ¶ 77-79). [77] Mersey Seafoods and the Mersey Venture are provincial undertakings. The OHS Act applies. Part II of the Canada Labour Code does not. [78] This conclusion undermines the foundation of the SCAC’s paramountcy ruling. This case is unlike Bell 1988, quoted by the SCAC (above ¶ 72), where Justice Beetz considered the hypothetical application of provincial occupational health and safety legislation to a federal undertaking already governed by the Canada Labour Code’s occupational safety provisions. We are not dealing with two “self contained complete schemes” that, absent paramountcy, would affect the same undertaking. [79] I will add a word about the Provincial Court judge’s reasoning on paramountcy. The Provincial Court judge repeatedly said that the federal legislation (which in his view included the Canada Labour Code) “occupied” or “covered” the field: An examination of the law clearly, however, reveals that both the Province and the Federal Government are attempting to occupy the same legislative space. . . . It’s clear that in each aspect of the charges there is federal legislation that would deal with the same situation. . . . . . . There is federal law to cover the allegations made by the Province. . . . So it’s clear that, as I said before, that both the Province and the Federal Parliament are trying to occupy the same legislative space. The Provincial Court judge effectively applied the obsolete “occupied field” test. [80] Mersey Seafoods’ factum to the Court of Appeal reiterates these errors. The factum lists six examples described as “operational conflict”. Four of these are alleged conflicts between the OHS Act and the Canada Labour Code or its regulations. As the Canada Labour Code does not apply to this provincial undertaking, there is no conflict. The other two examples cite topics that Mersey Seafoods says are “addressed” by Canada Shipping Act regulations or “within the power” of the Governor in Council to enact regulations under the Canada Shipping Act. This is the old occupied field test warmed over, not operational conflict. [81] We are left with federal safety regulation of the Mersey Venture mainly under the Canada Shipping Act, and provincial regulation under the OHS Act. No operational conflict has been established under the first paramountcy test. [82] Neither is there frustration of a federal purpose under the second paramountcy test. I say this for the following reasons. [83] Federal shipping undertakings must comply with the Canada Shipping Act, and its regulations, and also with Part II of the Canada Labour Code respecting occupational health and safety. This is clear from s. 123(1) (a) of the Canada Labour Code, quoted earlier, stating that Part II applies to federal undertakings, and from s. 2 of the Canada Labour Code which defines “federal work, undertaking or business” as: . . . any work, undertaking or business that is within the legislative authority of Parliament, including, without restricting the generality of the foregoing, (a) a work, undertaking or business operated or carried on for or in connection with navigation and shipping, whether inland or maritime, including the operation of ships and transportation by ship anywhere in Canada. Clearly, Parliament’s legislative purpose was to subject federal undertakings engaged in navigation and shipping to both the safety provisions of the Canada Shipping Act and the occupational health and safety provisions in Part II of the Canada Labour Code. [84] This federal legislative purpose is confirmed from the Regulatory Impact Analysis Statement attached to the MOSH Regulations, SOR/87-183, March 26, 1987, Canada Gazette Part II, Vol. 121, pp. 1385-1387 under the Canada Labour Code. The Statement expresses the legislative purpose that employees of federal undertakings be covered by occupational health and safety standards in addition to the safety standards in the Canada Shipping Act. [85] As Mersey Seafoods, including Mersey Venture, is a provincial undertaking, Part II of the Canada Labour Code and the MOSH Regulations are replaced by Nova Scotia’s OHS Act. But that substitution does not change the federal purpose – the Canada Shipping Act does not aim to exclude occupational health and safety legislation. Nova Scotia’s OHS Act does not frustrate any federal statutory purpose. [86] In my view, the SCAC erred in law by ruling that the OHS Act was inoperative for paramountcy. Conclusion [87] I would grant leave to appeal, allow the appeal and reinstate the charges that had been quashed by the Provincial Court and the SCAC. Fichaud, J.A. Concurred in by: Cromwell, J.A. Hamilton, J.A.