Boating is a very popular pastime and big business in Canada. Out of a population of 35 million, about 6 million or 18% participates in recreational boating. The country has a phenomenal amount of water resources, including 3 oceans, as well as one of the longest commercial seaways and canal systems in the world. Canada also borders 4 out of 5 of the Great Lakes and has an almost immeasurable number of inland lakes, streams and rivers.
Ontario alone has more than 250, 000 lakes and those lakes contain about one-third of the world’s fresh water. Needless to say, Ontarians take great pleasure in making the most of their beautiful and bountiful waterways each summer and recreational boating has long been a part of that. From the St. Lawrence River to Georgian Bay, you will find thousands taking part in all kinds of water sports or activities with their neighbours, friends and family. Of course, some of these activities can be riskier than others, but even some of the most benign endeavours can have unpredictable outcomes. Personal injury professionals know all too well that even a leisurely boat ride can end badly and can result in anything from the basic slip and fall of a passenger jolted by a big wave to a drowning when said passenger goes overboard.
According to Transport Canada, recreational boats or “pleasure crafts” are vessels that are non-commercial in nature, strictly used for recreation and do not carry paying passengers to and fro. It is a vessel of a prescribed class under the Canada Shipping Act, 2001 and can be human powered or motor powered. Pleasure crafts include boats, canoes, rowboats, kayaks, fishing boats, yachts, dinghies, tenders, motorboats, sailboats and personal watercraft [i.e. seadoos and jet skis].
There are four types of recreational boating accidents: a boat hits another boat; a boat hits another’s wake; a boat hits a wave and when a boat hits a submerged object like rocks or land. Negligence claims can also be filed by those injured in boating-related activities such as jet skiing, scuba-diving, water skiing, sailing, swimming, fishing, yachting, canoeing, speed boating etc. Since navigable waterways falls under federal purview and motor vehicles are provincial, boating accidents are multi-jurisdictional. Given that several of our Great Lakes are shared with our American neighbours, they can also involve cross-border issues. Ontario recreational boat owners are covered by, the federal Marine Liability Act, 2001 [MLA] and the provincial Occupier’s Liability Act, 1990 [OLA], Highway Traffic Act, 1990 [HTA], and the Insurance Act, 1990, including its Statutory Accident Benefits Schedule [SABS] added in 2010. Since this is just meant to be a primer on boating liability, the focus is on recreational boating as opposed to commercial boating. This survey only addresses accidents taking place in Canadian waters that may or may not involve other pleasure crafts involving the owners and/or operators. It is common practice for a plaintiff to sue both the owner and operator of the vessel, if they are different.
Owning a boat is bit like owning a car. Similar to motor vehicle regulations, boating safety regulations include speed limits, right of way, traffic/signal lights and signs. Unlike their human powered counterparts, motorised watercraft must be registered and licensed and anyone operating a power driven boat must prove competency. That means they must fully understand the rules of the waterways and other safety information. In accordance with Transport Canada, operators are mandated to obtain their Pleasure Craft Operator Card. In many cases, they will also take an accredited boating safety course in order to obtain it. But, car drivers and boat operators differ in one significant way: benefits. Event though motorised boats are considered a “motor vehicle” under section 1 of Ontario’s Highway Traffic Act, boat operators are not entitled to the same types or amount of benefits as say a truck driver or someone operating a snowmobile. Unlike these types of drivers, they are ineligible for no-fault benefits and those injured in a boating accident can only seek damages for negligence from the at-fault party.
In order for a plaintiff to sue a boat owner and/or operator for negligence he must prove four things: a prima facie duty of care, the applicable standard of care that was breached, damage resulting from the breach and if the damage or loss incurred was foreseeable. As stated in last week’s discussion on the duty of care of social hosting occupiers [ see “ The Great Canadian Summer: Duty of Care and Occupier’s Liability in Ontario”, July 7, 2014] the owners and operators of property or residence owe a duty of care to those visiting their premises both at common law and under provincial statute. As per section 1 of Ontario’s Occupier’s Liability Act, 1990, |”premises” include ships and vessels. Basically, victims can sue boat owners whose craft meets residential requirements for negligence under the provincial occupier’s liability statute or can rely on case precedent such as Waldick v. Malcolm (1991), 83 D.L.R. (4th) 114 (S.C.C.) to back up their claim.
By and large, most Ontarian boating lovers do not live on their boats, so the bulk of boating accidents involve smaller vessels, including non-motorised ones like canoes or kayaks. In certain instances, the plaintiff does not prove negligence, but rather contributory negligence. In Chamberland v. Fleming (1984), 29 C.C.L.T 213 (Alta. Q.B.), the family of the deceased Ronald
Chamberland attempted to sue the motorboat owner Robert Fleming for negligence in the drowning of Mr. Chamberland. Mr. Fleming sped by the deceased’s canoe, tipping it over, causing him to drown. At trial, it was discovered that Chamberland [a non swimmer and inexperienced canoeist] had refused to wear a life jacket that would have saved his life. Consequently, the Court only found Fleming 75% at fault. Although the deceased plaintiff’s actions [i.e. refusal to wear a life jacket] did not cause the incident, they did impact the extent of the loss, which in this case was Mr. Chamberland’s life. As such, the Court found the deceased guilty of contributory negligence. Thirteen years later the Supreme Court of Canada dealt with Bow Valley Jusky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd.,  establishing the current standard for contributory negligence, which states “ where a man is part author of his own injury, he cannot call on the other party to compensate him in full.” Plaintiff’s have a “duty to mitigate” , which is premised on the notion that the injured party cannot recover from the defendant damages which he himself could have avoided by taking reasonable steps.
In Ontario, this standard became statutory following the enactment of the Negligence Act, R.S.O. 1990, c. N.1. Under sections 1, 3 and 4, plaintiffs are mandated to factor in their own actions in a negligence claim and accept that the court will apportion damages in proportion to the degree in which they are respectively found to be at fault or negligent. As such, injured parties not only have grounds to sue at common law, but are also free to do so under the this provincial statute.
Boating accident victims are also protected by another provincial statute, the Highway Traffic Act, 1990. As per section 105 of the Act, all drivers are liable for the safety of their passengers. In this case of motor-powered boats, this means owners and operators owe a duty of care to those they invite aboard. Any breach to that duty of care is determined by a “standard of care”, which is defined as what a reasonable person would have done given similar circumstances. When an individual falls beneath that “reasonable standard”, then they are considered in breach as per the rule tested in Cooper v. Hobart (2001), 206 D.L.R. (4th) 193 (S.C.C.).
A prime example of how the Highway Traffic Act applies within the context of a negligence action is with impaired motor boating. Boating and booze is a lethal combo and the presence of alcohol on boats is significantly higher than on highways. According to a 2009 study done by the Red Cross, 37% of boating operators admit they drink every time they go boating. Can you imagine what would happen if Ontario’s 9 million drivers knocked back a couple every time they got behind the wheel? In 2006, the Ontario Government launched a crackdown on impaired boating and amended the Highway Traffic Act so that it would tie criminally negligent behaviour of boat owners and operators to their driving records. Since then, a conviction for impaired driving of a motorboat caries a one-year license suspension. Police also have the discretion to suspend your driver’s license for 12 hours if you blow between 50 and 80 mgs, which is under the legal limit. If you blow over 80, you license will be suspended immediately for 90 days.
It follows plaintiffs suing an impaired boat owner and/or operator for negligence after being harmed can rely on the reasoning provided by the Supreme Court of Canada in Childs v. Desormeaux,  1 S.C.R. 643, 2006 SCC 18. In Childs, the plaintiff Zoe Childs successfully sued the defendant Desmond Desormeaux for damages arising from a vehicular collision caused by the inebriated defendant that left her boyfriend dead and her paralysed. Arguably, Childs provides an analogous basis for any negligence claim seeking compensation for minor, non-catastrophic or [in Ms. Child’s case] catastrophic injuries resulting from a recreational boating accident involving a motor-powered watercraft.
Like with occupier’s liability, volenti can also be used as a defence by negligent boating operators seeking to show that the loss suffered by say an injured passenger comes as a result of “risks willingly assumed.” They usually resort to it as a means of showing the contributory negligence of the victim suing them.
As previously mentioned, there are four types of recreational boating accidents. Often the defendants who caused them resort to using the Marine Liability Act to limit their liability based on the limitation of liability provisions provided in the Act. These provisions include part 3 which covers the limitation of liability; article 1 which lists the persons entitled to limit; article 2 which identifies the claims subject to limitation; article 3 which states the claims exempted from limitation; article 4 which establishes conduct barring limitation; article 6 which lays out the limits of liability in accordance with vessel criteria and article 7 which limits the liability for claims involving fatalities and personal injuries to passengers.
Basically, the Act and its accompanying regulations sets out the rules regarding the apportionment of liability, the limitation periods, as well as the maximum payable in terms of compensation. Accident victims involving vessels that are less than 300 gross tonnage can be compensated a maximum of a $1,000,000 for loss of life or personal injury, regardless of the number people injured or making claims. In the case of a boat being operated recklessly, a victim may be entitled to more than $1,000, 000, since the boat operator would have to be familiar with boating safety regulations or known that the harm was foreseeable. For examples of negligence and liability limitation as per the Act, please see Whitbread v. Walley,  3 S.C.R. 1273, Vukorep v. Bartulin, 2005 BCCA 142 [when a boat hits a wave from a passing ferry] and Dixon v. Leggat, 2003 CanLII 21626 (ON CA) [when a boat runs a ground a submerged object like rock or land].
Boating accidents compromise the health and well-being or [at worse] lives of thousands of Canadians every year. Don’t allow yourself or your loved ones to get added to the list. Obey provincial and federal boating statutes and observe boating safety procedures and regulations, particularly those surrounding impaired boating. Should you find yourself the ill-fated victim of a boating accident, please call an ambulance [if necessary], your local police, the Transport Safety Board of Canada and a personal injury lawyer that specialises in federal maritime law and provincial motor vehicle law who can navigate the complexities of a boating-related negligence claim including the limitations set by the Marine Liability Act and get you the compensation your are lawfully entitled to.