Isen v Simms: The SCC Failed to Jibe

In Isen v Simms, 2006 SCC 41, a judgment handed down on October 5th, 2006, we have the second unanimous decision written by Rothstein J. after his appointment to the SCC. Reading the decision evoked memories of boating injuries I sustained after reacting too slowly to the warning, “Prepare to jibe!”


The decision centers on an injury sustained by Dr. Simms during the removal and preparation of a boat owned by Mr. Isen. The boat was being removed from the lake, in order to prepare it for transportation on the highway after some recreational boating. The injury was sustained by Simms when Isen was trying to secure the engine cover of the boat. Isen lost his grip on a bungee cord, which then hit Simms and caused injury to his eye. Simms and his wife brought a claim against Isen for $2,200,000.

The issue in the case was the applicability of a federal limitation on liabililty found in maritime law. The specific limitation of liability in question is contained in s. 28(1)(a) of the Maritime Liability Act, SC 2001, c 6 [Maritime Act] (formerly s. 577 of the Canada Shipping Act, RSC 1985, c S-9), which states:

28. (1) The maximum liability for maritime claims that arise on any distinct occasion involving a ship with a gross tonnage of less than 300 tons, other than claims mentioned in section 29, is

(a) $1,000,000 in respect of claims for loss of life or personal injury…

Judicial History

The decision by the Supreme Court overturned both lower court decisions (see 2004 FC 227 and 2005 FCA 161).

At the Federal Court, Snider J. found that the event in question was sufficiently connected to navigation and shipping to bring it within the jurisdiction of maritime law. In his reasons he cites four connecting factors: the hooks of the bungee cord were applied to the boat; the cord was used to secure the engine cover of the boat; the incident arose immediately following the use of the boat; and the incident occured when the boat was to be transported to another lake.

At the Federal Court of Appeal, Nadon J.A. for the majority stated “launching of a pleasure boat into a lake and its removal from the water after a day of navigation constitute land-based activities that are sufficiently connected with pleasure craft navigation“. Based on the connection between securing the engine cover with navigation of the pleasure craft, both lower courts held that the incident was sufficiently connected to navigation and shipping to fall under the Federal Parliament’s powers under s.91(10) of the Constitution Act, 1867. The ultimate result of both lower court decisions was that Dr. Simms and his wife could not sue for $2,200,000 for the eye injury caused by the bungee cord, but rather for a maximum of $1,000,000.

The SCC Decision

In overturning the lower courts, the SCC decided that the act of securing the engine cover was not sufficiently connected to the act of shipping or navigation. Thus s. 28 of the Maritime Act would not be applicable as the incident would fall under the provincial powers in s. 92(13) of the Constitution.

Rothstein J., in his decision for the SCC, agreed with Nadon J.A. of the Federal Court of Appeal that the launching and removal of a pleasure boat from the water would be sufficient to bring the matter within federal jurisdiction. For Rothstein and the SCC, however, the securing of the engine cover was not properly part of the removal process. Instead they characterized it as preparation for highway transport, rendering the boat no different then any other cargo being transported on the highway.

Division of powers questions often necessitate the splitting of fine hairs. But as someone who grew up around vehicle enthusiasts of all kinds – automotive, aerial, and nautical – I think the notion that securing an engine cover is not directly related to the navigation or operation of the vehicle in question is jarring. It seems that the SCC has created a legal fiction, rather than exercising legal reasoning grounded in a practical understanding of boating.

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