What is the test for determining whether a subject matter falls within maritime law?

British Columbia, Canada


The following excerpt is from Jackson v. Fisheries and Oceans Canada et al, 2006 BCSC 1492 (CanLII):

Nevertheless, Ordon Estate v. Grail is relevant because, in the course of its judgment, the court sets out the test for determining whether a subject matter falls within maritime law. The test for determining this issue was set out at para. 71-1 and para. 73, as follows: 71-1 ... The test for determining whether a subject matter under consideration is within maritime law requires a finding that the subject matter is so integrally connected to maritime matters as to be legitimate Canadian maritime law within federal competence ... 73 The first step involves a determination of whether the specific subject matter at issue in a claim is within the exclusive federal legislative competence over navigation and shipping under s.91(1) of the Constitution Act, 1867. Is the matter truly a matter of Canadian maritime negligence law? ... or rather a matter which is in pith and substance one of local concern involving property and civil rights or any other matter which is in essence within exclusive provincial jurisdiction under s.92 of the Constitution Act,1867. The test for making this determination is to ask whether the subject matter under consideration in the particular case is so integrally connected to maritime matters as to be legitimate Canadian maritime law within federal legislative competence. As is clear from this court's recent jurisprudence on the issue, the answer to this question is to be arrived at through an examination of the factual context of the claim.

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