Product Liability Claims In Canadian Maritime Law

• Published date: 20 October 2022
• Subject Matter: Consumer Protection, Transport, Product Liability & Safety, Marine/ Shipping
• Law Firm: Borden Ladner Gervais LLP
• Author: Mr Robin Squires and Alex Kim

I. Introduction

Canadian maritime law operates within a distinct legal sphere developed and shaped by common law, statute, and the Canadian Constitution. Compared to other areas of Canadian law, maritime law often presents unique challenges to those unfamiliar with its highly specialized nature.³ Where product liability claims have a maritime aspect or are fully part of the maritime context, legal professionals must have a strong understanding of Canadian maritime law to spot the relevant issues and assess them properly. In this article, the authors provide a high-level overview of Canadian maritime law as it relates to product liability and provide practical insights for commencing or defending these proceedings in Canada. In addition, the authors highlight how changes in the technological landscape may impact product liability claims in the Canadian maritime context.

II. What is Canadian Maritime Law?

Canadian maritime law is a single body of federal law that governs maritime and admiralty disputes. It is established in the Federal Courts Act ("FCA") under s. 2, which describes its substantive content, and s. 22, which vests jurisdiction over maritime matters within the Federal Court and the provincial Superior Courts. Generally, where it is found to apply to a dispute, Canadian maritime law governs and not provincial laws and/or statutes.⁴

Historically, Canadian maritime law stemmed from the English Admiralty Courts, which exercised jurisdiction over "wet" matters or things done at sea. Typically, these have included contracts and torts committed at sea, collisions, salvage and rescue operations, acts of mariners etc. However, once Canada obtained the rights to self-govern under the Statute of Westminster, 1931 and the subsequent modern Federal Courts Act, the scope of Canadian maritime law and jurisdiction expanded beyond what it had been before.

Today, Canadian maritime law governs and deals with all claims in respect to maritime and admiralty matters, subject only to the defined scope of the federal government's jurisdiction over navigation and shipping matters under s. 91(10) of the Constitution Act, 1867. ⁵ Because it is a separate body of law, its substantive content draws from statutory and non-statutory sources of law, including the common law; national statutes; international statutes and agreements; and specialized rules and principles of admiralty. ⁶

III. Does Canadian Maritime Law Apply to this Claim?

The first question a product liability lawyer must answer is whether Canadian maritime law applies to the claim. Generally, where a claim can be characterized as being so "integrally connected with maritime matters", Canadian maritime law will apply. To assess this, the Supreme Court of Canada in ITO-Int'l Terminal Operators v Miida Electronics, developed a three part test to determine whether a claim falls under the federal court's jurisdiction over maritime matters.⁷

First, the subject matter of the claim, or its "pith and substance", must concern a matter in respect of which there is a statutory grant of jurisdiction by the federal Parliament. This is can be satisfied by showing a claim falls under s. 22 of the FCA or other federal legislation that grants jurisdiction to the Federal Court. The absence of a statutory grant is fatal to a finding of jurisdiction in...