Date: 20180713

Docket: T-1720-17

Citation: 2018 FC 728

Ottawa, Ontario, July 13, 2018

PRESENT:  The Honourable Mr. Justice O'Reilly

BETWEEN:

HUGH MACKENZIE

Applicant

and

TRANSPORTATION SAFETY BOARD OF CANADA

Respondent

JUDGMENT AND REASONS

I.  Overview

[1]  The applicant, Mr Hugh Mackenzie, is the General Manager of Kingston and the Islands Boatlines Ltd (KIB), which operates tour boats in the area of the Thousand Islands, near Kingston, Ontario. On August 8, 2017, one of KIB’s vessels, the Island Queen III, touched bottom near Whisky Island and took on some water. The Transportation Safety Board of Canada investigated and issued a notice to obtain information from the owners and operators of the vessel, particularly, information about the passengers on board at the time, the crew list, and a report taken from one passenger who claimed to have experienced shock. (The latter has already been disclosed and is no longer in issue). The Board relied on its powers under the Canadian Transportation Accident Investigation and Safety Board Act, SC 1989, c 3, s 19 (see Annex for provisions cited).

[2]  Mr Mackenzie brought this application for judicial review challenging the Board’s notice on the grounds that it is overbroad and violates the protection against unreasonable search and seizure in s 8 of the Canadian Charter of Rights and Freedoms. He asks me to strike parts of the notice or compel the Board to disclose the basis for its contention that the requested information is relevant to its investigation. He also asks me to strike an affidavit on which the Board relies.

[3]  I cannot grant Mr Mackenzie the relief he seeks. The Board reasonably exercised its statutory authority, and did not offend s 8 of the Charter in doing so. I must, therefore, dismiss this application for judicial review.

[4]  After the hearing of this application, Mr Mackenzie filed a motion to introduce fresh evidence. The Board opposes the motion.

[5]  There are four issues:

1. Should Mr Mackenzie’s fresh evidence be admitted?

2. Was the decision of the investigator to issue a notice unreasonable?

3. Did the investigator’s decision comply with the Charter?

4. Should the Laporte affidavit be struck?

II.  Issue One – Should Mr Mackenzie’s fresh evidence be admitted?

[6]  In support of his general position that the Board has engaged in an unduly broad investigation and overstepped its statutory powers, Mr Mackenzie seeks to introduce evidence about other recent Board activities. He claims that the Board has carried out illegal warrantless searches of other companies’ tour vessels as revealed in so-called “advisory letters” recently sent out by the Board. The letters set out some of the Board’s safety concerns arising from its investigation into the Island Queen III incident.

[7]  Mr Mackenzie also wants to file evidence relating to an interview the Board conducted with Captain Stephen Steels, Senior Master for KIB, which took place several weeks after the hearing. Mr Mackenzie suggests that the interview was conducted under threat of prosecution for obstruction of the investigation, which supports his characterization of the Board’s actions as excessive.

[8]  In my view, this fresh evidence is not admissible. To be admitted, the evidence would have to be so significant that it would likely change the result of the application: Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 104, at para 19. (The case also lays out two other criteria that I need not consider, given that the evidence here does not satisfy the first).

[9]  For two reasons, that criterion is not met here. First, the evidence does not, in fact, support Mr Mackenzie’s characterization of the Board’s conduct. Second, it is irrelevant to the issues on this application for judicial review.

[10]  The evidence Mr Mackenzie points to as proof that the Board has conducted illegal, warrantless searches shows that Board investigators bought tickets for tours on other boats and made some observations while on board. The investigators identified some safety issues that they brought to the attention of the tour operators and Transport Canada by way of the “advisory letters.” This evidence does not indicate that the Board’s conduct amounted to an intrusion on any reasonable expectation of privacy for which a warrant would normally be required. Nor does it suggest that that the Board had exceeded its statutory mandate, discussed below.

[11]  With respect to the Steels interview, the evidence shows that the interview was entirely voluntary. Captain Steels does not refer to any coercion in his affidavit. He simply states that he was asked to attend an interview, and he did so on May 18, 2018. The series of emails attached to his affidavit show that representatives of the Board requested an interview, provided a list of topics to be explored, and made clear that it was up to Captain Steels to decide whether to participate. The reference to the offence of obstruction was not contained in any email to Captain Steels; it was cited in an email to Mr Mackenzie who had questioned the purpose of the interview.

[12]  Accordingly, Mr Mackenzie has not characterized the proposed evidence accurately. The evidence does not support his contention that the Board was exceeding its powers.

[13]  It follows that the evidence is also irrelevant. The main issue on this application is whether the notice issued by the Board is valid. That requires an interpretation of the Board’s statutory mandate and authority as granted by Parliament. The proposed fresh evidence seeks to assign oblique motives to the Board. Not only does the evidence miss its mark, it does not assist in determining the proper scope of the Board’s powers. It is irrelevant.

III.  Issue Two – Was the decision of the investigator to issue a notice unreasonable?

[14]  Mr Mackenzie argues that the Board’s powers under the Act are limited to investigating transportation occurrences and identifying safety deficiencies. He maintains that an investigator can issue a notice requiring a person to produce information, but only information relevant to an actual investigation into a transportation occurrence. Mr Mackenzie asserts that the investigator here sought information not related to an occurrence but to support a broad industry-wide audit, and a study of KIB’s overall operations.

[15]  I disagree.

[16]  The information being sought relates, first, to the passengers on board at the time of the occurrence. These people witnessed the incident and may have useful information that would assist the investigation, including photos or videos. Second, the investigator sought information about the crew on board that day, as well as other crew members who may have useful information about qualifications, training, procedures, and other aspects of KIB’s operations. The latter request is obviously quite broad. However, it falls within the Board’s statutory powers.

[17]  The Board has the authority to investigate transportation occurrences for purposes of carrying out its mandate (s 14). The Board’s mandate includes advancing transportation safety through investigations into transportation occurrences “in order to make findings as to their causes and contributing factors.” However, the Board’s objects also include broader tasks, such as identifying safety problems, making recommendations, and reporting publicly on its findings (s 7(1)).

[18]  Mr Mackenzie asserts that the Act makes clear that the Board’s powers to investigate transportation occurrences relate solely to identifying their causes and contributing factors. That is not how I read the statute. The Board can investigate transportation occurrences to further any of its statutory objects, including making findings about the causes and contributing factors of occurrences, but those objects also extend to identifying “safety deficiencies as evidenced by transportation occurrences,” making recommendations to eliminate or reduce safety problems, and reporting on investigations and findings.

[19]  Accordingly, the Board’s interest in speaking to passengers and crew members can readily be seen as a means of determining whether there are any safety issues arising from the occurrence itself, or more systemic safety problems that merit its attention. I can see nothing unreasonable about the investigator’s request for information that would permit the Board to pursue its broad statutory mandate.

IV.  Issue Three – Did the investigator’s decision comply with the Charter?

[20]  Mr Mackenzie argues that the notice intrudes on a reasonable expectation of privacy in respect of KIB’s business records.

[21]  While privacy interests can certainly arise in respect of business records, here the Board was seeking information about passengers and crew members, not the business of KIB per se. KIB, as the custodian of that information, may have an obligation not to disclose it unless required to do so. But here, as discussed above, the Board acted within its statutory powers in requesting the information. Any impact on anyone’s privacy is minor and outweighed by the public safety concerns underlying the statutory grant of those powers. Short of a challenge to the constitutionality of those powers, no s 8 issue arises.

V.  Issue Four – Should the Laporte affidavit be struck?

[22]  Mr Mackenzie maintains that an affidavit sworn by the Chief Operating Officer of the Board, Mr Jean Laporte, should be struck because it contains hearsay, and is from a person who has no experience in investigations.

[23]  I disagree.

[24]  The persons involved in the investigation into the transportation occurrence are not competent or compellable witnesses, so no one with direct knowledge could author an affidavit. Accordingly, by necessity, the affidavit had to be from a person relying on hearsay. In any case, however, Mr Laporte states that he does, in fact, have extensive experience in investigations over the course of his more than 30 years of employment at the Board. Further, the affidavit is largely devoted to describing the Board’s mandate and operations, and contains general statements about the nature of the investigation and the rationale for issuing the notice in issue here. A person in Mr Laporte’s position would appear to be a reliable source for that kind of information. Accordingly, any hearsay in the affidavit is admissible because it satisfies the criteria of necessity and reliability under the principled approach.

VI.  Conclusion and Disposition

[25]  The notice issued to KIB represented a reasonable use of the statutory powers available to the Board to discharge its legal mandate. Further, it did not amount to an unreasonable intrusion on privacy. Finally, there is no basis on which to strike the Laporte affidavit. Therefore, I must dismiss this application for judicial review, with costs.

 

JUDGMENT IN T-1720-17

THIS COURT’S JUDGMENT is that the application for judicial review is dismissed with costs.

"James W. O'Reilly"

Annex

 

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	T-1720-17
STYLE OF CAUSE:	HUGH MACKENZIE v TRANSPORTATION SAFETY BOARD OF CANADA
PLACE OF HEARING:	Toronto, Ontario
DATE OF HEARING:	APRIL 3, 2018
JUDGMENT AND REASONS:	O'REILLY J.
DATED:	July 13, 2018

APPEARANCES:

Alan S. Cofman Rui M. Fernandes	For The Applicant
Barbara McIsaac Patrizia Huot	For The Respondent

SOLICITORS OF RECORD:

Fernandes Hearn LLP Toronto, Ontario	For The Applicant
McIsaac Law Ottawa, Ontario	For The Respondent