Law:Merchant Seamen Compensation Act

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R.s.c., 1985, c. M-6

An Act respecting compensation for merchant seamen


Contents

Short Title

Short title

1. This Act may be cited as the Merchant Seamen Compensation Act.

R.S., c. M-11, s. 1.


Interpretation

Definitions

2. (1) In this Act,

“accident”

« accident »

“accident” includes a wilful and an intentional act, not being the act of a seaman, and a fortuitous event occasioned by a physical or natural cause;

“Board”

« Commission »

“Board” means the Merchant Seamen Compensation Board established by section 3;

“compensation”

« indemnité »

“compensation” includes medical and hospital expenses and any other benefits, expenses or allowances authorized by this Act;

“dependants”

« personnes à charge »

“dependants” means members of the family of a seaman who were wholly or partly dependent on his earnings at the time of his death, or who but for the incapacity of a seaman due to an accident would have been so dependent;

“employer”

« employeur »

“employer” includes every person having any seaman in his service under a contract of hiring or apprenticeship, written or oral, express or implied;

“foreign voyage”

« voyage de long cours »

“foreign voyage” means a voyage extending beyond the area of a home-trade voyage and not being an inland or minor waters voyage;

“home-trade voyage”

« voyage de cabotage »

“home-trade voyage” means a voyage, not being an inland or minor waters voyage, between places within the following areas, namely, Canada, the United States other than Hawaii, St. Pierre and Miquelon, the West Indies, Mexico, Central America and the northeast coast of South America, in the course of which a ship does not go south of the sixth parallel of north latitude;

“inland voyage”

« voyage en eaux internes »

  “inland voyage” means a voyage, not being a minor waters voyage, on the inland waters of Canada together with such part of any lake or river forming part of the inland waters of Canada as lies within the United States or on Lake Michigan;

“invalid”

« invalide »

class="Defi“invalid” means physically or mentally incapable of earning;

“medical aid”

« assistance médicale »

“medical aid” means the medical, surgical and dental aid, the hospital and skilled nursing services and the artificial member or members and apparatus and repair mentioned in subsection 46(1);

“Minister”

« ministre »

“Minister” means the Minister of Labour;

“minor waters of Canada”

« eaux secondaires du Canada »

  “minor waters of Canada” means all inland waters of Canada other than Lakes Ontario, Erie, Huron, including Georgian Bay, and Superior and the St. Lawrence River east of a line drawn from Father Point to Point Orient, and includes all bays, inlets and harbours of or on those lakes and Georgian Bay and the sheltered waters on the seacoasts of Canada that the Minister of Transport may specify;

“minor waters voyage”

« voyage en eaux secondaires »

  “minor waters voyage” means a voyage within the following limits, namely, the minor waters of Canada together with the part of any lake or river forming part of the minor waters of Canada that lies within the United States;

“seaman”

« marin »

 “seaman” means every person, except pilots, apprenticed pilots and fishers, employed or engaged on

(a) a ship registered in Canada under the Canada Shipping Act, 2001 , or

(b) a ship chartered by demise to a person resident in Canada or having their principal place of business in Canada,

 when the ship is engaged in trading on a foreign voyage or on a home-trade voyage, and, if so ordered by the Governor in Council, includes a seaman engaged in Canada and employed on a ship that is registered outside Canada and operated by a person resident in Canada or having their principal place of business in Canada when that ship is so engaged;

“ship”

« navire  »

 “ship” means a vessel as defined in section 2 of the Canada Shipping Act, 2001 .

“survivor”

« survivant »

“survivor” means a person who, at the time of the death of a seaman, was

(a) the seaman’s spouse, if there is no person described in paragraph (b), or

(b) a person who was cohabitin with the seaman in a conjugal relationship for a period of at least one year immediately before the seaman’s death.

Deemed accident

(2) A seaman who suffers a disability arising out of and in the course of his employment as a seaman, otherwise than as a result of an accident, shall be deemed for the purposes of this Act to have suffered the disability as a result of an accident and, except for the purpose of computing compensation, the accident shall be deemed to have taken place on the day the disability first became known to his employer.

R.S., 1985, c. M-6, s. 2; 2000, c. 12, s. 187; 2001, c. 26, s. 307.

Previous Version

Merchant Seamen Compensation Board

Board constituted

3. (1) There is hereby established a Board to be known as the Merchant Seamen Compensation Board consisting of three members appointed by the Governor in Council.

Chairman, vice-chairman

(2) The Governor in Council shall designate one of the members of the Board to be chairman and one to be vice-chairman.

Chairman to preside

(3) The chairman, and in his absence the vice-chairman, shall preside at the meetings of the Board.

Office and salary

(4) A member of the Board holds office during pleasure and shall be paid such salary as the Governor in Council may fix.

Substitute member

(5) When a member of the Board is unable at any time to perform the duties of his office by reason of absence or temporary incapacity, the Governor in Council may appoint a temporary substitute member on such terms and conditions as the Governor in Council may prescribe.

R.S., c. M-11, s. 3.

Quorum

4. (1) Two members of the Board constitute a quorum.

Majority to govern

(2) In all proceedings of the Board, the votes of the majority of the members of the Board govern.

Questions referred to full Board

(3) At any meeting of the Board where only two of the members of the Board are present, all questions on which an agreement cannot be reached shall be referred for decision to a meeting of the full Board.

Officers, clerks and employees

(4) The Board may, with the approval of the Governor in Council, employ such professional, technical or other officers, clerks and employees as it deems necessary for the proper conduct of its business and fix their remuneration.

R.S., c. M-11, s. 3.


Scope

When compensation not payable

5. No compensation is payable under this Act,

(a) where a seaman or his dependants are entitled to claim compensation under the Government Employees Compensation Act or under any provincial workers' compensation law; or

(b) where a seaman is or his dependants are entitled to claim compensation under the Order in Council of April 30, 1942 (P.C. 104/3546), or any statute or law that provides similar benefits.

R.S., c. M-11, s. 4.

Compensation under law of foreign country

6. (1) Where an accident happens in respect of which a seaman or his dependants are entitled to claim compensation under the law of any foreign country, they are bound to elect whether they will claim compensation under that law or under this Act, and to give notice of that election, and if an election is not made and notice not given it shall be presumed that they have elected not to claim compensation under this Act.

Notice of election

(2) Notice of an election under subsection (1) shall be given to the Board within three months after the happening of an accident or, where an accident results in death, within three months after the death or within such longer period as, either before or after the expiration of the three months, the Board may allow.

Waiver of all claims

(3) No compensation is payable in respect of any accident mentioned in subsection (1) unless the seaman or his dependants submit to the Board, in a form approved by the Board, a waiver of all claims for compensation under the foreign law referred to in that subsection.

R.S., c. M-11, s. 5.

Application of Act

7. This Act applies to accidents happening within or outside Canada.

R.S., c. M-11, s. 6.


Compensation

Compensation, how paid

8. (1) The employer of a seaman injured by reason of an accident arising out of and in the course of his employment shall pay compensation in the manner and to the extent provided by this Act, except where the injury

(a) does not disable the seaman for a period of at least three days from earning full wages at the work at which he was employed; or

(b) is attributable solely to the serious and wilful misconduct of the seaman unless the injury results in death or serious disability.

Payable from date of disability

(2) Where compensation for disability is payable, it shall be computed and be payable from the date of the disability.

R.S., c. M-11, s. 7.

Deductions

9. Except with the approval of the Board, the amount of compensation payable under this Act is not subject to any deduction or abatement by reason or on account of or in respect of any matter or thing whatever except in respect of any sums of money that have been paid by the employer to a seaman on account of an injury received by the seaman, which sum or sums shall be deducted from the amount of the compensation.

R.S., c. M-11, s. 8.

Amount not to be assigned, etc.

10. Except with the approval of the Board, the amount of compensation payable under this Act is not capable of being assigned, charged or attached and shall not pass to any other person by operation of law nor shall any claim be set off against it.

R.S., c. M-11, s. 9.

Seaman may not forego benefits

11. It is not competent for a seaman to agree with his employer to waive or to forego any of the benefits to which he or his dependants are or may become entitled under this Act and every agreement to that end is absolutely void.

R.S., c. M-11, s. 10.

Claims to be heard by the Board

12. No action lies for the recovery of compensation payable under this Act but all claims for compensation shall be heard and determined by the Board.

R.S., c. M-11, s. 11.

Right to compensation in lieu of all other rights

13. The right to compensation provided by this Act is in lieu of all rights and rights of action, statutory or otherwise, to which a seaman or his dependants are or may be entitled against the employer of the seaman for or by reason of any accident happening to him while in the employment of the employer, and no action lies in respect thereof.

R.S., c. M-11, s. 12.

Board to decide right to compensation

14. Any party to an action may apply to the Board for adjudication and determination of the question of the plaintiff’s right to compensation under this Act, or whether the right to bring the action is taken away by this Act, and the adjudication and determination is final and conclusive.

R.S., c. M-11, s. 13.

Exclusive jurisdiction of the Board

15. The Board has exclusive jurisdiction to examine into, hear and determine all matters and questions arising under this Act and with respect to any matter or thing in respect of which any power, authority or discretion is conferred on the Board, and the action or decision of the Board thereon is final and conclusive and is not open to question or review in any court, and no proceedings by or before the Board shall be restrained by injunction, prohibition or other process or proceeding in any court or be removable by certiorari or otherwise into any court.

R.S., c. M-11, s. 14.

Reconsideration and amendment

16. Nothing in section 15 prevents the Board from reconsidering any matter that has been dealt with by it or from rescinding, altering or amending any decision or order previously made, all of which the Board has authority to do.

R.S., c. M-11, s. 15.

Witnesses and documents

17. (1) In any matter or thing arising under this Act, the Board has the power of summoning before it any witnesses, and of requiring them to give evidence on oath, or on solemn affirmation if they are persons entitled to affirm in civil matters, and orally or in writing, and to produce such documents and things as the Board deems requisite.

Idem

(2) The Board has the same power to enforce the attendance of witnesses and to compel them to give evidence as is vested in any court of record in civil cases.

R.S., c. M-11, s. 16.

Real merits

18. The decision of the Board in any case shall be made on the real merits and justice of the case and it is not bound to follow strict legal precedent.

R.S., c. M-11, s. 17.

Decisions final

19. The decisions and findings of the Board on all questions of law or fact are final and conclusive.

R.S., c. M-11, s. 18.

Award

20. The Board may award such sum as it may deem reasonable to the successful party to a contested claim for compensation or to any other contested matter as compensation for the expenses that party has been put to by reason of or incidental to the contest, and an order of the Board for the payment by any employer of any sum so awarded when filed in the manner provided by section 21 becomes a judgment of the court in which it is filed and may be enforced accordingly.

R.S., c. M-11, s. 19.

Order enforced as judgment of court

21. An order of the Board for the payment of compensation by an employer or any other order of the Board for the payment of money made under the authority of this Act, or a copy of the order certified by the Secretary of the Board or other person duly authorized by the Board to be a true copy, may be filed with

(a) if the employer resides or carries on business in the Province of Quebec, the clerk of the Superior Court of Quebec,

(a.1) if the employer resides or carries on business in the Province of Ontario, the clerk of the Superior Court of Justice for the region in which the employer resides or carries on business,

(a.2) if the employer resides or carries on business in the Province of Nova Scotia, the prothonotary of the Supreme Court of Nova Scotia for the judicial district in which the employer resides or carries on business,

(b) if the employer resides or carries on business in the Province of New Brunswick, Manitoba or Alberta, the clerk of the Court of Queen’s Bench of that province for the judicial district in which the employer resides or carries on business,

(c) if the employer resides or carries on business in the Province of Prince Edward Island or Newfoundland, the clerk of the Trial Division of the Supreme Court of the Province,

(c.1) if the employer resides or carries on business in the Province of British Columbia, the registrar of the Supreme Court of British Columbia, or

(d) if the employer resides or carries on business in the Province of Saskatchewan, the Local Registrar of the Court of Queen’s Bench for the judicial centre in which the employer resides or carries on business,

and may be enforced as a judgment of that Court.

R.S., 1985, c. M-6, s. 21; R.S., 1985, c. 27 (2nd Supp.), s. 10; 1990, c. 16, s. 17, c. 17, s. 35; 1992, c. 51, s. 57; 1998, c. 30, ss. 13(F), 15(E).

Where seaman not a resident of Canada

22. (1) Where a seaman is not a resident of Canada and by the law of the place or country in which he resides compensation in respect of accidents is payable and an accident happens in respect of which he is entitled under this Act to receive compensation for permanent total disability or permanent partial disability, then, notwithstanding anything in this Act, the amount of compensation payable under this Act shall not exceed the amount of compensation that would be payable had the accident happened in the place or country in which he resides.

Where dependant not a resident of Canada

(2) Where a dependant of any seaman is not a resident of Canada, the dependant is not entitled to compensation under this Act unless, by the law of the place or country in which he resides, the dependants of a seaman to whom an accident happens in that place or country if resident in Canada would be entitled to compensation, and where such dependants would be entitled to compensation under that law, the compensation to which the non-resident dependant is entitled under this Act shall not be greater than the compensation payable in the like case under that law.

R.S., c. M-11, s. 21.

Discretion of the Board

23. Notwithstanding section 22, compensation or a sum in lieu of compensation may be awarded to any seaman who is not a resident of Canada or to any non-resident dependant, as the Board may deem proper, but the compensation or sum in lieu of compensation shall not in any case exceed the amount of compensation provided under this Act.

R.S., c. M-11, s. 22.

Where entitled to action against other person

24. (1) Where an accident happens to a seaman arising out of and in the course of his employment under such circumstances as entitled him or his dependants to an action against a person other than his co-employees, his employer, the servants or mandataries of his employer, the seaman or his dependants if entitled to compensation under this Act may claim compensation or may bring an action.

Where smaller amount collected

(2) Where an action is brought and less is recovered and collected than the amount of the compensation to which a seaman or his dependants are entitled under this Act, the difference between the amount recovered and collected and the amount of the compensation shall be payable as compensation to the seaman or his dependants.

Employer subrogated

(3) Where a seaman or his dependants elect to claim compensation under this Act, the employer is subrogated to the rights of the seaman or his dependants and may maintain an action in his or their names or in the name of the employer against the person against whom the action lies.

Notice of election

(4) Notice of the election referred to in subsection (3) shall be given to the employer within three months after the happening of an accident or, where an accident results in death, within three months after the death or within such longer period as, either before or after the expiration of the three months, the Board may allow.

No right of action

(5) No seaman entitled to compensation under this Act or the dependants of the seaman have a right of action against an employer who is subject to this Act.

R.S., c. M-11, s. 23.

When compensation not payable

25. (1) Subject to subsection (4), compensation shall not be payable unless

(a) notice of the accident is given as soon as practicable after it happens and before the seaman has voluntarily left the employment in which he was injured; and

(b) the claim for compensation is made within six months after the accident happens or, in case of death, within six months from the time of death.

Contents of notice

(2) The notice referred to in paragraph (1)(a) shall give the name and address of the seaman and is sufficient if it states in ordinary language the cause of the injury and where the accident happened.

Service of notice

(3) The notice referred to in paragraph (1)(a) may be served by delivering it at, or sending it by registered mail addressed to, the place of business or the residence of the employer, or where the employer is a body of persons, corporate or unincorporate, by delivering it, or sending it by registered mail, addressed to the employer, at the office of, or if there are more offices than one, at any of the offices of, that body of persons.

Failure to give notice

(4) Failure to give the prescribed notice or to make the claim referred to in subsection (1), or any defect or inaccuracy in a notice, does not bar the right to compensation if in the opinion of the Board the employer was not prejudiced thereby or it appears that the claim for compensation is a just one and ought to be allowed.

R.S., c. M-11, s. 24.


Notice Of Accident

Employer to give notice

26. (1) Every employer shall, unless relieved by order of the Board, within sixty days after the happening of an accident to a seaman in his employment by which the seaman is disabled from performing his duties or which necessitates medical aid, notify the Board in writing of

(a) the happening of the accident and its nature,

(b) the time of the accident,

(c) the name and address of the seaman,

(d) the place of the accident, and

(e) the medical aid received by the seaman following the accident,

and shall furnish such further information respecting any accident or claim to compensation as the Board may require.

Board may relieve employer

(2) The Board may by order relieve any employer from compliance with subsection (1) to the extent provided in the order.

Failure to comply

(3) Every person who contravenes or fails to comply with subsection (1) is guilty of an offence and liable on summary conviction to a fine not exceeding five hundred dollars or to imprisonment for a term not exceeding twelve months or to both.

Consent of Board

(4) No proceedings shall be taken against any person under this section without the consent of the Board.

R.S., c. M-11, s. 25.


Medical Examination

Medical examination

27. (1) A seaman who claims compensation, or to whom compensation is payable under this Act, shall, if so required by his employer, submit himself for examination by a duly qualified medical practitioner provided by the employer and shall, if so required by the Board, submit himself for examination by a medical referee.

In accordance with Act

(2) A seaman is not required at the request of his employer to submit himself for examination otherwise than in accordance with this Act.

Costs paid by employer

(3) The cost of any examination made pursuant to subsection (1) and the cost of any reference under section 28 shall be paid by the employer.

R.S., c. M-11, s. 26.

Board may refer matter to a medical referee

28. (1) Where a seaman has on the request of his employer submitted himself for examination, or has been examined by a duly qualified medical practitioner selected by himself, and a copy of the report of the medical practitioner on the seaman’s condition has been furnished in the former case by the employer to the seaman and in the latter case by the seaman to the employer, the Board may, on the application of either of them or of its own motion, refer the matter to a medical referee.

Certificate of medical referee

(2) The medical referee to whom a reference is made under subsection (1) or who has examined the seaman by the direction of the Board under subsection 27(1) shall certify to the Board as to the condition of the seaman and his fitness for employment, specifying, where necessary, the kind of employment, and, if unfit, the cause and degree of the unfitness, and his certificate, unless the Board otherwise directs, is conclusive as to the matters certified.

Right suspended in case refusal of examination

(3) When a seaman does not submit himself for examination when required to do so under subsection 27(1) or on being required to do so does not submit himself for examination to a medical referee under that subsection or under subsection (1) of this section, or in any way obstructs any examination, his right to compensation, or if he is in receipt of a weekly or other periodical payment, his right to it, is suspended until the examination has taken place.

Diminution or suspension of compensation

(4) The Board may diminish the compensation to which a seaman is entitled, or suspend payment thereof, whenever the seaman persists in dangerous and unsanitary practices imperilling or retarding his cure and whenever he refuses to submit to such medical treatment as the Board on the advice of the medical referee may deem necessary for his cure.

Reasonable refusal

(5) Subsection (4) does not apply in the event of the seaman reasonably refusing to submit to surgical aid.

R.S., c. M-11, s. 27.


Review Of Compensation

Payments may be reviewed

29. Any weekly or other periodic payment to a seaman may be reviewed at the request of the employer or of the seaman, and on such review the Board may put an end to or diminish the payment or increase the payment to a sum not beyond the maximum prescribed in this Act.

R.S., c. M-11, s. 28.


Insurance

Employer to be insured

30. (1) Every employer shall cover by insurance or other means satisfactory to the Board the risks of compensation arising under this Act.

Ship may be detained

(2) The Board may give notice in writing to the chief officer of customs at any port that the provisions of this section have not been complied with to the satisfaction of the Board in respect of seamen employed on any ship at that port, and thereupon the officer shall detain that ship until he receives notice from the Board that he may release the ship.

R.S., 1985, c. M-6, s. 30; R.S., 1985, c. 1 (2nd Supp.), s. 213.


Scale Of Compensation

Amounts of compensation

31. (1) Where the death of a seaman results from an injury, the following amounts of compensation shall be paid:

(a) the necessary expenses of burial of the seaman not exceeding seven hundred and forty-two dollars;

(b) in addition to the sum mentioned in paragraph (a), a sum not exceeding one hundred and twenty-five dollars for necessary expenses for transportation and things supplied and services rendered in connection therewith necessitated by the transfer of the body of a seaman from the place of death to the place of interment;

(c) if the expenses of burial of a seaman are paid by an employer under section 93 of the Canada Shipping Act, 2001 following any accident in respect of which compensation is payable under this Act, the amount of the expenses shall be deducted from the amount payable under paragraphs (a) and (b);

(d) where the survivor is the sole dependant, a monthly payment of $1,451.92;

(e) where the dependants are a survivor and one or more children, a monthly payment of $1,451.92 with an additional monthly payment of $161.18 to be increased on the death of the survivor to $164.93

(i) for each child under the age of eighteen years, and

(ii) with the approval of the Board, for each child under the age of twenty-one years who is attending school;

(f) where the dependants are children only, a monthly payment of one hundred and fifteen dollars

(i) to each child under the age of eighteen years, and

(ii) with the approval of the Board, to each child under the age of twenty-one years who is attending school; and

(g) where the dependants are persons other than those mentioned in paragraphs (d) to (f), a sum reasonable and proportionate to the pecuniary loss to those dependants occasioned by the death, to be determined by the Board.

Where no survivor

(2) Where a seaman leaves no survivor or the survivor subsequently dies, and it seems desirable to continue the existing household, and a suitable person acts as foster-parent in keeping up the household and maintaining and taking care of the children entitled to compensation in a manner that the Board deems satisfactory, the foster-parent while so doing is entitled to receive the same monthly payments of compensation as if the foster-parent were the survivor of the deceased, and in that case the children’s part of the payments shall be in lieu of the monthly payments that they would otherwise have been entitled to receive.

Additional sum

(3) In addition to any other compensation provided for under this section, the survivor or, where the seaman leaves no survivor, the foster-parent, as described in subsection (2), is entitled to a lump sum of $16,868.50.

Duration of payments

(4) In the case provided for by paragraph (1)(g), the payments shall continue only so long as, in the opinion of the Board, it might reasonably have been expected that the seaman, had he lived, would have continued to contribute to the support of the dependants, and, in any case under that paragraph, compensation may be made wholly or partly in a lump sum or by such form of payment as the Board in the circumstances deems most suitable.

Dependant to whom seaman stood in loco parentis

class="Subsecti(5) A dependant to whom the seaman stood in loco parentis or a dependant who stood in loco parentis to the seaman is entitled, as the Board may determine, to share in or receive compensation under paragraph (1)(e), (f) or (g).

Invalid child

(6) Compensation is payable to an invalid child without regard to the age of the child, and payments to the child shall continue until in the opinion of the Board the child ceases to be an invalid.

Total and partial dependants

(7) Where there are both total and partial dependants, the compensation may be allotted partly to the total and partly to the partial dependants.

Payments to other persons

(8) Where the Board is of the opinion that for any reason it is considered necessary or desirable that a payment in respect of a child should not be made directly to its parent, the Board may direct that the payment be made to such person or be applied in such manner as the Board may deem most advantageous for the child.

Maximum compensation

(9) Exclusive of the expenses of burial of the seaman and the lump sum of eight hundred and thirty-three dollars referred to in subsection (3), the compensation payable as provided by subsection (1) shall not in any case exceed seventy-five per cent of the average earnings of the seaman mentioned in section 36, and if the compensation payable under subsection (1) would in any case exceed that percentage, it shall be reduced accordingly, and where several persons are entitled to monthly payments the payments shall be reduced proportionately, but the minimum compensation shall be

(a) where the survivor is the sole dependant, a monthly payment of $1,451.92, or if the seaman’s average earnings are less than $1,451.92 per month, the amount of those earnings; and

(b) where the dependants are a survivor and one or more children, a monthly payment of $1,613.10 for the survivor and one child irrespective of the amount of the seaman’s earnings, with a further monthly payment of $161.18 for each additional child unless the total monthly compensation exceeds the seaman’s average earnings, in which case the compensation shall be a sum equal to those earnings or $1,613.10, whichever is the greater, the share for each child entitled to compensation being reduced proportionately.

R.S., 1985, c. M-6, s. 31; R.S., 1985, c. 31 (1st Supp.), s. 81; 2000, c. 12, s. 188; 2001, c. 26, s. 308.

Previous VersionPayment of additional compensation

32. (1) In addition to the amounts of compensation payable under section 31 to dependants of a seaman as a result of his death from an accident, there shall be paid,

(a) where the survivor of the seaman is the sole dependant, a monthly payment equal to the amount remaining, if any, after subtracting from $100 the amount of any monthly payment payable to that person pursuant to section 31;

(b) where the dependants are a survivor and one or more children,

(i) a monthly payment equal to the amount remaining, if any, after subtracting from $100 the amount of any monthly payment payable to that survivor pursuant to section 31, and

(ii) an additional monthly payment for each child equal to the amount remaining, if any, after subtracting from $35 the amount of any monthly payment payable pursuant to section 31 for that child, that payment to be increased on the death of the survivor to an amount equal to the amount remaining, if any, after subtracting from $45 the amount of any monthly payment payable pursuant to section 31 to that child; and

(c) where the dependants are children only, a monthly payment to each child equal to the amount remaining, if any, after subtracting from forty-five dollars the amount of any monthly payment payable pursuant to section 31 to that child.

Dependent minors attending school

(2) In addition to the amounts of compensation payable under section 31 to or for the dependent children of a seaman as a result of his death from an accident incurred before May 1, 1965, there shall be paid, with the approval of the Board, to or for each dependent child under the age of twenty-one years who is attending school, the compensation that would have been payable had the accident from which the death of the seaman resulted occurred on or after May 1, 1965.

Payment made out of C.R.F.

(3) The amounts payable pursuant to this section shall be paid out of the Consolidated Revenue Fund and shall be paid subject to the same terms and conditions as apply to the compensation payable pursuant to the other provisions of this Act.

"Section 31"

(4) In this section, the expression "section 31" means that section as it read at the date of the accident to the seaman in respect of whose resulting death compensation is payable.

R.S., 1985, c. M-6, s. 32; R.S., 1985, c. 31 (1st Supp.), s. 82; 2000, c. 12, s. 189.

33. (Repealed, 2000, c. 12, s. 190)

34. (Repealed, R.S., 1985, c. 31 (1st Supp.), s. 83)

Orders of Governor in Council

35. The Governor in Council may, by order, increase all or any of

(a) the amounts specified in paragraphs 31(1)(a), (b), (d), (e) and (f), in subsections 31(3) and (9) and in section 40,

(b) the percentages specified in subsection 31(9), in section 36 and in subsections 37(2) and (4), and

(c) the maximum rate of earnings specified in subsection 41(1),

but no order shall increase an amount, percentage or maximum rate of earnings to an amount, percentage or maximum rate of earnings that exceeds the highest equivalent amount, percentage or maximum rate of earnings specified, at the time the order is made, in the enactments of the Legislature of the Province of Nova Scotia, New Brunswick, Prince Edward Island or Newfoundland relating to compensation of workers and their dependants for accidents occurring to workers during the course of their employment.

R.S., c. 19(2nd Supp.), s. 4.

Permanent total disability

36. Where permanent total disability of a seaman results from an injury, the amount of the compensation shall be a weekly payment during the life of the seaman equal to seventy-five per cent of his average weekly earnings during the previous twelve months if he has been so long employed, but if not, then for the period during which he has been in the employment of his employer.

R.S., c. M-11, s. 33.

Permanent partial disability

37. (1) Where permanent partial disability of a seaman results from an injury, the impairment of earning capacity of the seaman shall be estimated from the nature and degree of the injury, and the compensation shall be a weekly payment during the lifetime of the seaman in the same proportion to the weekly payment payable under section 36 as the impairment of earning capacity is to total earning capacity.

Idem

(2) Where the Board deems it more equitable, the Board may award compensation for permanent partial disability, having regard to the difference between the average weekly earnings of the seaman before the accident and the average amount that he is earning or is able to earn in a suitable employment or business after the accident, and the compensation may be a weekly payment of seventy-five per cent of the difference, and regard shall be had to the seaman’s fitness to continue the employment in which he was injured or to adapt himself to some other suitable occupation.

Rating schedule

(3) The Board may compile a rating schedule of percentages of impairment of earning capacity for specified injuries or mutilations that may be used as a guide in determining the compensation payable in permanent partial disability cases.

Fixed amount

(4) Notwithstanding subsections (1) and (2), where the impairment of earning capacity of the seaman does not exceed ten per cent of his earning capacity, instead of a weekly payment payable under those subsections, the Board may, unless the Board is of the opinion that it would not be to the advantage of the seaman to do so, fix an amount to be paid to the seaman as full compensation therefor and pay him the amount either in one sum or in periodic payments as the Board may direct.

R.S., c. M-11, s. 34.

Temporary total disability

38. Where temporary total disability of a seaman results from an injury, the compensation shall be the same as that prescribed by section 36, but is payable only so long as the disability lasts.

R.S., c. M-11, s. 35.

Temporary partial disability

39. Where temporary partial disability of a seaman results from an injury, the compensation shall be the same as that prescribed by section 37, but is payable only so long as the disability lasts and subsection 37(4) applies.

R.S., c. M-11, s. 36.

Minimum compensation

40. The amount of compensation to which an injured seaman is entitled for temporary total or permanent total disability under this Act shall not be less than one hundred and twenty-four dollars per week or, where his average earnings are less than one hundred and twenty-four dollars per week, the amount of those earnings, and for temporary partial or permanent partial disability a corresponding amount in proportion to the impairment of earning capacity.

R.S., c. M-11, s. 37; R.S., c. 19(2nd Supp.), s. 5; SOR/74-384; SOR/76-462; SOR/79-892; SOR/81-315; SOR/82-382; SOR/84-911.

Computation of average earnings

41. (1) Average earnings shall be computed in such a manner as is best calculated to give the rate per week or month at which a seaman was remunerated but not so as in any case to exceed the rate of twenty-seven thousand two hundred and fifty dollars per annum.

In case of shortness of employment

(2) Where, owing to the shortness of the time during which a seaman was in the employment of his employer or the casual nature of his employment or the terms thereof, it is impracticable to compute the rate of remuneration as of the date of an accident, regard may be had to the average weekly or monthly amount that, during the twelve months previous to the accident, was being earned by a person in the same grade employed at the same work by the same employer, or if there is no person so employed, then by a person in the same grade employed in the same class of employment on a ship of the same class.

Definition of "employment by the same employer"

(3) For the purpose of this section, the expression “employment by the same employer” means employment by the same employer in the grade in which the seaman was employed at the time of the accident, uninterrupted by absence from work due to illness or any other unavoidable cause.

Special expenses not counted

(4) Where an employer was accustomed to pay a seaman a sum to cover any special expense entailed on him by the nature of his employment, that sum shall not be reckoned as part of his earnings.

Earnings at time of accident considered

(5) Where in any case it seems more equitable, the Board may award compensation, having regard to the earnings of a seaman at the time of an accident.

R.S., c. M-11, s. 38; R.S., c. 19(2nd Supp.), s. 5; SOR/73-5; SOR/74-384; SOR/76-462; SOR/79-892; SOR/81-315; SOR/82-382; SOR/84-911.

Payments, etc., during disability considered

42. (1) In fixing the amount of a weekly or monthly payment, regard shall be had to any payment, allowance or benefit that a seaman may receive from his employer during the period of his disability, including any pension, gratuity or other allowance provided wholly at the expense of the employer.

No compensation if wages paid

(2) No compensation is payable in respect of the period during which an employer is, under the Canada Shipping Act, 2001, or otherwise, liable for the payment of wages and to defray the expenses of maintenance of an injured seaman.

Compensation paid in full

(3) Any sum payable by way of compensation by the owner of a ship under this Act shall be paid in full notwithstanding anything in Part 3 of the Marine Liability Act.

R.S., 1985, c. M-6, s. 42; 2001, c. 6, s. 116, c. 26, s. 309.

Previous VersionFortnightly or monthly payments

43. (1) Wherever the Board deems it advisable, the payment of compensation may be made fortnightly or monthly instead of weekly.

Residence outside Canada

(2) Subject to section 23, where a seaman or dependant is not a resident of Canada or ceases to reside therein, the periods of payments may be otherwise fixed or the compensation commuted as the Board may deem proper.

R.S., c. M-11, s. 40.

Cases where compensation may be diverted

44. (1) If a seaman is entitled to compensation and it is made to appear to the Board that the seaman’s spouse, former spouse, common-law partner, former common-law partner or children under 18 years of age are without adequate means of support, the Board may divert the compensation in whole or in part from the seaman for their benefit.

Diversion of compensation from survivor

(2) If the survivor of a seaman is entitled to compensation under section 31 and it is made to appear to the Board that the seaman’s spouse, former spouse, former common-law partner or children under 18 years of age are without adequate means of support, the Board may divert the compensation in whole or in part from the survivor for their benefit.

Meaning of "common-law partner"

(3) In this section, “common-law partner” means a person who is cohabiting with a seaman in a conjugal relationship, having so cohabited for a period of at least one year, or who had been so cohabiting for a period of at least one year at the time of the seaman’s death.

R.S., 1985, c. M-6, s. 44; R.S., 1985, c. 31 (1st Supp.), s. 84, c. 3 (2nd Supp.), s. 30(F); 2000, c. 12, s. 191.

Where seaman or dependant a minor

45. Where a seaman or a dependant is a minor under the age of twenty-one years or under any other legal disability, the compensation to which he is entitled may be paid to such person or be applied in such manner as the Board may deem best to his advantage.

R.S., c. M-11, s. 43.


Medical Aid

Seaman entitled to medical aid, etc.

46. (1) Every seaman entitled to compensation under this Act is entitled to such medical, surgical and dental aid, and hospital and skilled nursing services as may be necessary as a result of the injury, and is entitled to such artificial member or members and apparatus and dental appliances and apparatus as may be necessary as a result of the injury and to have the same kept in repair or replaced when deemed necessary.

Responsibility of employer

(2) The medical aid to which a seaman is entitled under subsection (1) shall be furnished and paid for by the employer of that seaman.

Question of necessity

(3) Any question as to the necessity, character and sufficiency of any medical aid furnished or to be furnished may be referred to the Board for a decision.

Fees or charges

(4) The fees or charges for the medical aid under subsection (1) shall not be more than would be properly and reasonably charged to a seaman if that seaman were paying the bill, but shall not, in any case where the seaman is furnished with medical aid in Canada, exceed the fees or charges that would be paid in similar circumstances by the workers' compensation board of the province in which the medical aid was furnished.

Transportation to hospital

(5) Every employer shall at his own expense furnish any seaman injured in his employment, who is in need of it, with immediate conveyance and transportation to a hospital, a physician or the seaman’s home within a reasonable limit.

R.S., c. M-11, s. 44.

Medical aid under one Act only

47. Notwithstanding anything in this Act, a seaman entitled to medical aid under Part 3 of the Canada Shipping Act, 2001, or under any other Act that provides similar benefits, is not entitled to medical aid under this Act during the period and to the extent that medical aid is furnished under that Part or that other Act.

R.S., 1985, c. M-6, s. 47; 2001, c. 26, s. 310.

Previous VersionReports by physician, etc.

48. Every physician, surgeon or hospital official attending, consulted respecting or having the care of any seaman shall furnish the employer from time to time with such reports as may be required by the employer in respect of that seaman, and may charge for the preparation of those reports reasonable fees as may be agreed on with the employer or, in the absence of an agreement, as the Board may approve.

R.S., c. M-11, s. 46.


Rules And Orders

Board may make rules, orders and by-laws

49. The Board may make such rules, orders and by-laws as it may deem expedient or necessary for regulating its procedure and for carrying any of the purposes or provisions of this Act into effect.

R.S., c. M-11, s. 47.


Reports

Reports to the Minister

50. The Board shall report, from time to time, to the Minister, as he may require.

R.S., c. M-11, s. 48.


Costs Of Administration

Costs chargeable against employers

51. All costs incurred relative to the administration of this Act, including salaries, expenses, fees and commissions, are chargeable against the various employers, apportioned on a basis to be determined by the Board.

R.S., c. M-11, s. 49.


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