These proceedings arose from a collision between two boats, a Zodiac RIB operated by Janzen, and the yacht Tian Cheng, operated by Bown, on 27 August 2020 in Indian Arm, just off the coast of Vancouver, British Columbia.

Held: Both Janzen and Bown were equally negligent in the operation of their respective boats, and in their contribution to the collision. Bown, and the defendant ship in the in rem action, the Tian Cheng, are jointly and severally liable to Janzen and Kang for 50% of the injuries, losses, and other damages they suffered as a result of the collision. The owner of the defendant ship, Tian Cheng Mining Ltd (TCM), is also vicariously liable for Bown's negligence.

This case raises legal issues in regard to the law of negligence and standards of care for vessels operating on Canadian waters, including assessing contributory negligence. In Whitbread v Walley [1990] 3 SCR 1273, 1990 CanLII 33 (CMI961), the Supreme Court confirmed federal jurisdiction over tort liability in relation to vessels navigating in both high or Canadian seas and in inland waterways within a province. The Court also specifically affirmed that Canadian maritime law applies to vessels operating in Indian Arm. This jurisdiction is exercised through both federal statute and Canadian maritime common law.

The Court must apportion liability based on the blameworthiness of each party based on: (i) the extent or degree to which each party departed from the standard of care expected in all of the circumstances; and (ii) the gravity of the risk this departure created. Here, the degrees of fault or blameworthiness of either party do not outweigh the other. Based on that, and in the alternative based on the default apportionment in s 17(1) of the Marine Liability Act (Canada), Bown and Janzen are each 50% liable for the collision. Pursuant to ss 17(2) and 17(4) of that Act, Bown and the yacht are jointly and severally liable for 50% of the losses suffered by Janzen and Kang as a result of the collision.

The plaintiffs seek to hold TCM vicariously liable for Bown's negligence. They referred to the decision in Peracomo Inc v TELUS Communications Co 2014 SCC 29 (CMI147). The trial Judge, in reasons indexed at Société Telus Communications v Peracomo Inc 2011 FC 494 (CMI674), found that all three of Captain Vallée, Peracomo, and the vessel were liable for Captain Vallée’s negligence. By the time it reached the Supreme Court of Canada, the only issues before that Court were whether Captain Vallée could be personally liable and whether any or all of the defendants' liability was 'limited to $500,000 by virtue of both the Convention on limitation of liability for maritime claims, 1976, 1456 U.N.T.S. 221 (“Convention”), and s. 29 of the Marine Liability Act'. While the trial Judge's finding that the vessel owner was vicariously liable for Captain Vallée's actions was never set aside, it is of limited use because the trial Judge's analysis in support of that finding is cursory. Further, while the Court referred to that liability as 'vicarious', it did so by relying on other legal principles related to the beneficial ownership Captain Vallée had in the corporation, and how he was essentially its directing mind.

After weighing all of the relevant factors - not just the volume that fall on each side of the scale but their significance and the circumstances as a whole - the Court finds that Bown's contractual relationship with TCM is that of an employer-employee, sufficient to support a finding of TCM's vicarious liability for Bown’s negligence while captaining the yacht pursuant to that relationship.