Thursday, October 05, 2006

Isen v. Simms--Case Comment--Thumbs Up

One of the things supposed to end at the water's edge is provincial tort law. Because the Constitution gives Parliament jurisdiction over "navigation and shipping," accidents on the lakes, rivers and seas are governed by statutory and customary marine law. But what is water safety and what is vehicle safety? Where is the water's edge?

In the summer of 1999, Mr. Isen attained one of the key goals of Ontario's bourgeoisie since the nineteenth century: he got a physician friend and his wife to come up to the cottage in the Muskokas. Unfortunately, the cottage was not actually on Lake Muskoka. So to go boating, Mr. Isen had to tow his boat from his cottage to the lake. After a pleasant day on the lake, it was time to bring the boat home. After he removed the boat from the water, Mr. Isen had to secure the engine cover with a bungee cord. But while doing this, Mr. Isen let the cord slipped and the metal hook hit Dr. Simms in the eye.

Dr. Simms found a personal injury lawyer and sued for over $2 million. Mr. Isen's insurers realized that they would be better off if the accident was covered by federal maritime law, since there is a $1 million statutory cap on damages involving "ships" with a tonnage under 300 tons. No similar cap exists on regular personal injury awards in Ontario. So the key question was whether this was a matter of water or highway safety.

unusually for a modern constitutional case before the SCC, neither the federal nor provincial government showed up to claim jurisdiction over this accident, presumably on the basis that the balance of the federation would not be put too far out-of-whack no matter what happened.

Without a great deal of fuss, Justice Rothstein decided that the accident was not a matter of "navigation" because it did not occur either on or while entering or exiting the water. And it wasn't a matter of "shipping" because the only craft involved were pleasure craft. At least for non-commercial activities, the legal water's edge is at the water. Which makes sense.

Isen v. Simms, 2006 SCC 41.

Photo Credit Phillipe Landreville, Supreme Court of Canada collection

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