Title

The Cat Came Back: The Continued Applicability of Common Law Tort Doctrines in Canadian Maritime Law

Date of Award

1993

Document Type

Thesis

Abstract

In a trilogy of cases, commencing in 1986, the Supreme Court identified the principal characteristics of Canadian maritime law. It is federal law, uniform across the country and contains common law principles which have been accepted and applied in maritime contexts. Generally unaffected by provincial statutes, Canadian maritime law, including its federal common law component, remains isolated from changes made to the common law in provincial legislation. A consequence of the Supreme Court trilogy, this thesis argues, is that certain ancient common law tort doctrines still apply in Canadian maritime law. These doctrines would include the contributory negligence rule, last clear chance, the rule against contribution between joint tortfeasors, common employment, and the prohibition against wrongful death claims. They would supply the relevant law when neither a federal statute nor a traditional admiralty principle governs an aspect of a claim. Stemming from an age when absoluteness characterized the common law, these doctrines are incompatible with the prevailing consensus about fairness and logic in the law, especially that one's share of a negligently caused loss should be proportionate to fault. This thesis proposes that the common law tort doctrines can be displaced by the courts and Parliament. While ideally both the judicial and statutory approaches would be employed, the courts should be considered the more likely agents of change, in the interests of immediacy and flexibility. Guidance in the reform process can be derived through the norms evident in provincial statutes and Quebec civil law. Dealing with the problems raised by the common law tort doctrines in the maritime context, this thesis concludes, should sensitize the courts to a larger problem, the extent and contents of a common law underlying other areas of federal jurisdiction.

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