Neutral citation: 2002 FCT 904
Halifax, Nova Scotia, this 23rd day of August, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
TRUDY KALKE
Applicant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
THE MINISTER OF TRANSPORT, MOHAMMED AKHTAR, and
WILLIAM J. NASH
Respondents
[1] This is the judicial review of the detention order made by an inspector of the Ship Safety Department (Pacific Region) of Transport Canada ("Ship Safety"), dated May 14, 1999, wherein it was ordered that the yacht, EL PRIMERO (the "Vessel") be held in detention.
Relief Sought
[2] The applicant seeks an order in the nature of certiorari quashing the detention order.
[3] The applicant seeks declarations that:
(a) the Vessel is not "unsafe", as that term is used in subsection 310(1) of the Canada Shipping Act, R.S.C. 1985, c. S-9, as amended;
(b) the Vessel's machinery or equipment is not defective in any way so as to expose persons on board to serious danger; and
(c) the Vessel is not subject to detention under subsection 310(1) of the Canada Shipping Act, supra.
[4] The applicant seeks a writ of prohibition:
(a) compelling the respondents to rescind the detention order and release the Vessel; and
(b) prohibiting the further detention of the Vessel; but
(c) granting the respondents leave to apply at any time to vary the prohibition in (b), should future changes in circumstances render it necessary.
Background
[5] The applicant, Trudy Kalke, is the owner of the Vessel that is held in detention. The Vessel is a vintage 114 foot sailing yacht constructed in 1893, and is registered in the Port of Vancouver under Official No. 812803.
[6] The respondent, William J. Nash, was the Regional Director of Ship Safety at the time of the detention order.
[7] The respondent, Mohammed Akhtar, was a steamship inspector employed by Ship Safety and was the marine surveyor that inspected and detained the Vessel on May 14, 1999.
[8] The relevant history of the Vessel and Ship Safety can be summarized as follows.
[9] On November 21, 1992, George Kosanovich of Ship Safety examined the Vessel in dry-dock (out of water) in Port Angeles, Washington. Mr. Kosanovich noted the application of doubler plates on the hull and concluded that the Vessel was in seaworthy condition.
[10] Until 1995, the applicant engaged the Vessel in pleasure charters without experiencing any problems or impediments from Ship Safety. In 1995, the applicant inquired about certifying the Vessel as a "passenger vessel" under the Passenger Vessel Compliance Program ("PVCP"), administered by Ship Safety pursuant to the Canada Shipping Act, supra.
[11] On February 2, 1995, Malcolm Buchanan of Ship Safety inspected the Vessel in dry-dock to determine if it was suitable as a "commercial passenger carrying vessel". Mr. Buchanan evaluated the Vessel against the 1983 American Bureau of Shipping "Rules for Building and Classing Steel Vessels Under 61 Meters (200 Feet) in Length" ("ABS Standards").
[12] The parties disagree as to whether the Vessel should be held to ABS Standards.
[13] Subsequent to the Buchanan inspection, Mr. Kosanovich advised the applicant that the PVCP was no longer open, and that to operate a "passenger vessel", the Vessel would have to comply with all of the regulatory requirements necessary to certify it as a Home Trade III or IV passenger vessel.
[14] Geographical limits are placed on voyages of Home Trade III and IV, as set out in section 4 of the Home-Trade, Minor and Inland Waters Voyages Regulations, C.R.C. c. 1430. The applicant submits that this restricted ocean service indicates that the ABS Standards should not apply to vessels of these classes since Rule 1.11 of the ABS Standards clearly states that those standards are only meant to apply to vessels with unrestricted ocean service.
[15] Between 1995 and 1996, Ralph Marwood, President of Marine Design Associates Ltd. ("MDA") prepared several reports for the applicant to determine what would be required to bring the Vessel into compliance with the PVCP or Home Trade IV certification.
[16] On February 7, 1996, at the request of the applicant, Captain Ian Hopkinson surveyed the Vessel in the water. Capt. Hopkinson found that the Vessel was suitable for use in day and evening charters for up to 75 persons and 6 crew within certain protected waters, as well as some overnight charters.
[17] During March 20-22, 1996, the Vessel was dry-docked at Port Angeles, Washington. Alexander Greig, a former employee of Ship Safety for 26 years, inspected the Vessel at the applicant's request. Mr. Greig found that the Vessel was suitable and seaworthy for Home Trade IV classification. Mr. Greig found that extensive repairs were unnecessary. In reaching his conclusions, Mr. Greig took into account the strength calculations by Mr. Marwood.
[18] During the March 1996 dry-docking, Mr. Buchanan inspected the Vessel a second time. He produced a memorandum dated April 1, 1996 which found that the doubler plates on the hull were applied to the hull by peripheral welds only, and therefore did not contribute to the hull strength. The memo stated that to repair the hull, the doubler plates should "be removed and the shell made good".
[19] By letter dated April 23, 1996, Mr. Marwood responded to Mr. Buchanan's memo in which Mr. Marwood argued that the ABS Standards should not apply to the Vessel, that the doubler plates were in fact plug- or slot-welded to the hull, and that the doublers were not factored into Mr. Marwood's longitudinal strength calculations. Mr. Marwood's letter included an alternate proposal for repairs.
[20] On May 16, 1996, a detention order against the Vessel was issued by Ship Safety for allegedly operating as a "passenger vessel" without proper certification.
[21] On May 22, 1996, the judicial review of the May 16 detention order was commenced by the applicant.
[22] On May 23, 1996, the May 16 detention order was lifted, and a new detention order was issued, detaining the Vessel on the grounds that it was "unsafe".
[23] On May 24, 1996, an agreement was reached between the applicant and Ship Safety to end the detention of the Vessel (the "Deficiency Agreement"). The applicant agreed to a list of 23 structural and safety-related deficiencies in respect of the Vessel. In return, the respondent agreed to release the Vessel and permit the applicant to continue operation of the Vessel as a charter vessel, provided that the items in the Deficiency Agreement were addressed within the timetable set out in the agreement.
[24] Of the 23 deficiencies listed in the Deficiency Agreement, only one deficiency has not been repaired to the satisfaction of the respondents. The remaining deficiency in dispute, number 23 of the Deficiency Agreement, states:
23. When used commercially until acceptable scantlings are fitted and completed the vessel's voyage will be limited to within 3 n.mls. from a Port of refuge. (Hull integrity).
[25] Mr. Buchanan wrote a memorandum dated April 11, 1997 setting out Ship Safety's requirements for operating the Vessel as a "charter vessel". The memorandum recommends that the hull be repaired by removing doublers attached to the hull plating and: (a) replacing them with new shell plating; or alternatively, (b) inspecting the doublers for underlying corrosion and reapplying them if in satisfactory condition.
[26] Mr. Marwood wrote a letter to Ship Safety, dated May 15, 1997, advising that the replacement of doubler plates would be "unnecessary and, indeed, in some ways unwise", and "in our opinion, unreasonable".
[27] Mr. Greig wrote a letter to respondent Nash, dated June 1, 1997, stating that the scope of repairs required by Ship Safety was excessive and unnecessary.
[28] By letter dated September 12, 1997, the applicant responded to Mr. Buchanan's memo of April 11, 1997 by proposing alternate repairs and renewing objections to Mr. Buchanan's findings. The applicant wrote another letter on January 24, 1998 to set out an alternate proposal for dealing with item 23 (hull repair) from the Deficiency Agreement.
[29] The applicant met with Mr. Kosanovich and respondent Nash on January 30, 1998. No further progress was made in resolving the hull issue.
[30] By letter dated January 27, 1999, Transport Canada advised the applicant that unless a meeting was set to create a working plan to resolve the hull integrity issue, the Vessel would no longer be allowed to operate as in the past.
[31] On May 14, 1999, the Vessel was detained by Ship Safety. The circumstances listed by Mohammed Akhtar on the detention order were "C.S.A. 310(1)" and "see attachment". The attachment indicated that the grounds were:
(i) vessel operating without certification to carry passengers on board
(ii) no temporary Engineer / Restricted engineer
(iii) Master without certificate to operate the vessel as spoken forgot home [sic]
M.V. El Primero detained until vessel complied the above items [sic]
[32] Also on May 14, 1999, Chris Seeley of the Canadian Coast Guard - Boating Safety (which is part of the Ministry of Fisheries and Oceans) examined the Vessel and declared it fit for use as a "pleasure craft" and "rental (bareboat charters)".
[33] On May 20, 1999, Mr. Akhtar wrote a memo listing a number of deficiencies relating to the Vessel, including some that were unrelated to the grounds listed in the May 14, 1999 detention order. No new detention order was issued to include these new grounds.
[34] On June 1, 1999, the applicant wrote to Transport Canada and offered to undertake to only use the Vessel for pleasure use only if the vessel was released. Transport Canada responded on June 2, 1999, stating that it now considered the Vessel unsafe and that it was not prepared to lift the detention order even if the Vessel was only to be used by the applicant for purely private pleasure purposes.
[35] On August 10, 1999, Capt. Hopkinson conducted a new survey of the Vessel. The entire underwater hull was filmed by divers. Capt. Hopkinson found that there was no active corrosion on the hull and it appeared to be in good condition and free from any visible deterioration. Capt. Hopkinson issued his second opinion declaring that the Vessel was suitable as a pleasure vessel and was not unsafe. Capt. Hopkinson found that the welded doublers contributed to the hull strength.
[36] This is the judicial review of the detention order issued by Ship Safety on May 14, 1999.
Applicant's Submission
[37] The applicant submits that the appropriate standard of review lies between reasonableness simpliciter and patent unreasonableness. This standard of review was used in the Federal Court, Appeal Division decision of British Columbia Vegetable Marketing Commission et al. v. Washington Potato and Onion Association et al. unreported decision (November 5, 1997), docket number A-435-97 (FCA). Writing for the Court at paragraph 3, McDonald J.A. wrote:
The Canadian International Trade Tribunal is clearly an expert body but Parliament has not protected its decisions with a true privative clause, rather it provided a right to apply for judicial review. Nonetheless, great deference is to be shown to the Tribunal's decisions particularly when dealing with questions that go to the heart of its expertise. It is trite law that more judicial deference is accorded to decisions of tribunals that arrive at this Court by way of application for judicial review than by way of appeal. It follows that there is a fourth standard of review that falls between reasonableness simpliciter and patent unreasonableness which is reserved for those cases where a decision has been rendered by an expert tribunal on an issue within its field or expertise and has arrived at a higher Court by way of application for judicial review. This fourth standard of review requires more deference to a tribunal's findings than that given to expert tribunals containing a statutory right of appeal but slightly less deference than that given to tribunals protected by a true privative clause. Having determined the appropriate degree of judicial deference to be given to the Canadian International Trade Tribunal's decision, I will address the arguments of the Applicants. On the issue of whether the Tribunal erred in applying the appropriate test as by asking itself the wrong legal question, we are all of the view that, while not at all times very specific, the tribunal did have regard to all of the relevant and material factors and therefore there are no grounds to interfere with its decision on that basis.
[38] The applicant submits that repairs to the hull were already in progress at the time of the first detention order, which was on May 16, 1996.
[39] The applicant submits that ABS Standards should not apply to the Vessel because Rule 1.11 of the ABS Standards states that ABS Standards are intended to apply for unrestricted ocean service. The applicant submits that the Vessel is intended to engage in restricted ocean service, such as not beyond certain sheltered waters or within a maximum up to 10 miles between ports of refugee. These restrictions are requirements for vessels belonging to the classes of Home Trade III and Home Trade IV.
[40] Alternatively, the applicant submits that if ABS Standards do apply, Mr. Buchanan erred by failing to take into account under Rule 1.15 of ABS Standards that the Vessel's 100 year history of safe operation should be considered to demonstrate that it meets the overall safety and strength standards of the rules.
[41] The applicant admits that the Vessel sank in 1989, when it was being handled by the shipyard. The applicant submits that the sinking occurred when the shipyard was doing repairs and had missed a part. The applicant submits that most of the doublers were applied after the sinking, and that the accidental sinking by the shipyard does not taint the Vessel's 100 year history of safe operation.
[42] The applicant submits that Mr. Nash and Mr. Buchanan admit that if doubler plates were properly plug-welded or slot-welded to a steel hull, as well as peripherally welded, these plates would contribute to the structural strength of the hull. The applicant submits that the doubler plates were properly plug-welded or slot-welded to the steel hull, and Ship Safety has not made any inquiries to verify or disprove this submission.
[43] The applicant alleges that the detention order dated May 14, 1999 was based solely on findings of Mr. Buchanan dated April 1, 1996. The applicant submits that Mr. Buchanan's findings only contemplated passenger and charter use but not pleasure.
[44] The applicant submits that the respondents have led no evidence to demonstrate that the Vessel was being used commercially without "acceptable scantlings" more than three nautical miles from a port of refuge. The applicant submits that there is no basis for the detention of the Vessel based on an alleged breach of item No. 23 from the Deficiency Agreement.
[45] The applicant submits that the detention of the Vessel is a warrantless seizure and constitutes a breach of section 8 of the Charter. The applicant submits that if a tribunal decision is found to breach a provision of the Charter, it will be a patently unreasonable decision.
[46] The applicant submits that it is impossible to generate any meaningful proposal for repair of the Vessel without knowing what is supposed to be addressed.
Respondents' Submission
[47] The respondents submit that there is no reasonable apprehension of bias. The respondents do not agree with any of the factors alleged by the applicant to support a reasonable apprehension of bias.
[48] The respondents submit that the onus is on the Vessel owner to come up with the development of a plan to have the Vessel comply with the regulatory requirements of the Canada Shipping Act, supra.
[49] The respondents submit that the concern of Ship Safety is the safety of life at sea, and is not restricted solely to passengers, but includes anyone, including the applicant, on board a vessel.
[50] The respondents submit that a detention order issued on May 23, 1996 remains in effect against the Vessel and has never been judicially considered.
[51] The respondents submit that there is a very real concern about the condition of the Vessel's hull. The respondents submit that the Vessel had sunk before and that the applicant admits that there were holes in the hull when the applicant purchased the Vessel.
[52] The respondents submit that the detention order of May 14, 1999 was based solely upon the actions of the respondent, Mr. Akhtar, and his opinion that the Vessel was unsafe. The respondents submit that Mr. Akhtar reached this conclusion without knowledge of the Deficiency Agreement of May 1996.
[53] Issues
1. Did the respondents err in law in finding that: (1) the Vessel was "unsafe"; (2) the Vessel's machinery or equipment was defective in any way so as to expose persons on board to serious danger; and/or (iii) the Vessel was otherwise subject to detention under section 310(1) of the Canada Shipping Act, supra?
2. Did the respondents' detention order against the Vessel constitute a seizure without due process or reasonable and probable grounds, thereby violating the applicant's right to be secure against unreasonable seizure, in contravention of section 8 of the Canadian Charter of Rights and Freedoms?
3. Did the respondents violate a common law duty of procedural fairness to the applicant in making the decision to detain the Vessel?
4. Was the decision to detain the Vessel made under a reasonable apprehension of bias on the part of the respondents?
Relevant Statutory Provisions and Regulations
[54] The relevant sections of the Canada Shipping Act, supra, state as follows:
| 2. In this Act, . . . "hull" means the body of a vessel including the masts and rigging and all parts of its structure; . . . "passenger" means a person carried on a ship by the owner or operator, other than |
2. Les définitions qui suivent s'appliquent à la présente loi. . . . « coque » Le corps d'un bâtiment, y compris la mature et le gréement, ainsi que toutes les parties de sa structure. . . . « _passager_ » Personne transportée sur un navire par le propriétaire ou l'exploitant. Sont exclus de la présente définition_: |
| (a) a person carried on a Safety Convention ship who is (i) the master, a member of the crew or a person employed or engaged in any capacity on board the ship on the business of that ship, or (ii) under one year of age, (b) a person carried on a ship that is not a Safety Convention ship who is (i) the master, a member of the crew or a person employed or engaged in any capacity on board the ship on the business of that ship, or (ii) a guest on board the ship, if the ship is used exclusively for pleasure and the guest is carried on it without remuneration or any object of profit, (c) a person carried on a ship in pursuance of the obligation on the master to carry shipwrecked, distressed or other persons or by reason of any circumstances that neither the master nor the owner could have prevented, or (d) special purpose personnel; "passenger ship" means a ship carrying passengers; . . . "sea-going ship" means any ship employed on a voyage any part of which is on the sea; . . . |
a) la personne transportée sur un navire ressortissant à la Convention de sécurité et qui est_: (i) soit le capitaine ou un membre de l'équipage, ou une personne employée ou occupée à bord, en quelque qualité que ce soit, pour les affaires de ce navire, (ii) soit âgée de moins d'un an; b) la personne transportée sur un navire ne ressortissant pas à la Convention de sécurité et qui est_: (i) soit le capitaine ou un membre de l'équipage, ou une personne employée ou occupée à bord, en quelque qualité que ce soit, pour les affaires de ce navire, (ii) soit un invité transporté gratuitement ou sans but lucratif sur un navire utilisé exclusivement pour l'agrément; c) la personne transportée sur un navire, soit en exécution de l'obligation qui incombe au capitaine de transporter des naufragés, des personnes en détresse ou d'autres personnes, soit par suite de circonstances que ni le capitaine, ni le propriétaire ne pouvaient empêcher; d) le personnel d'un navire à usage spécial. « navire à passagers » Navire qui transporte des passagers. . . . « navire de mer » Navire employé à un voyage dont une partie s'effectue sur mer. . . . |
| "ship", except in Parts II, XV and XVI, includes (a) any description of vessel used in navigation and not propelled by oars, and (b) for the purpose of Part I and sections 574 to 581, any description of lighter, barge or like vessel used in navigation in Canada however propelled; . . . "vessel" includes any ship or boat or any other description of vessel used or designed to be used in navigation; . . . 7. (1) Except as otherwise provided in this Act, the Minister of Transport is responsible for the administration of this Act. (2) The Minister of Fisheries and Oceans is responsible for all matters under this Act relating to safety and licensing of pleasure craft. 310. (1) A steamship inspector, in the performance of his duties, may go on board any ship at all reasonable times and inspect the ship, or any of the machinery or equipment thereof, or any certificate of a master, mate or engineer, and if he considers the ship unsafe, or, if a passenger ship, unfit to carry passengers, or the machinery or equipment defective in any way so as to expose persons on board to serious danger, he shall detain that ship. |
« navire » Sauf aux parties II, XV et XVI_: a) les bâtiments de toutes sortes employés à la navigation et non mus par des avirons; b) pour l'application de la partie I et des articles 574 à 581, les chalands ou allèges de toutes sortes et les bâtiments semblables employés à la navigation au Canada, quel qu'en soit le mode de propulsion. . . . « bâtiment » Tout navire ou bateau ou toute autre sorte de bâtiments servant, ou destinés à servir, à la navigation. . . . 7. (1) Sauf disposition contraire de la présente loi, le ministre des Transports est responsable de l'application de la présente loi. (2) Le ministre des Pêches et des Océans est responsable de toute question, en vertu de la présente loi, relative à la sécurité des embarcations de plaisance et à la délivrance des permis à leur égard. 310. (1) Un inspecteur de navires à vapeur peut, dans l'exercice de ses fonctions, monter à bord de tout navire, à des heures convenables, inspecter le navire, ses machines ou son équipement et examiner le certificat ou brevet du capitaine, d'un officier de pont ou d'un officier mécanicien; si le navire lui paraît dangereux, ou dans le cas d'un navire à passagers, inapte au transport de passagers, ou si les machines ou l'équipement lui paraissent défectueux au point d'exposer sérieusement au danger les personnes à bord, il doit détenir ce navire. |
| (2) A steamship inspector may detain any ship in respect of which any of the provisions of this Act have not been complied with, if, in his opinion, detention is warranted in the circumstances. (3) When, under this section, a steamship inspector visits any ship, he may ask the owner or his agent, the master or chief engineer, or any other person on board and in charge or appearing to be in charge any pertinent question concerning the ship, or concerning any accident that has happened thereto, that he thinks fit, and every such person shall fully and truly answer every question. (4) A steamship inspector may require that the machinery of a ship be put in motion so that he may satisfy himself as to its condition. |
(2) Un inspecteur de navires à vapeur peut détenir un navire à l'égard duquel l'une des dispositions de la présente loi n'a pas été observée, s'il juge que les circonstances le justifient. (3) Durant la visite qu'il opère d'un navire en vertu du présent article, un inspecteur de navires à vapeur peut poser au propriétaire ou à son agent, au capitaine ou au chef officier mécanicien, ou à toute autre personne se trouvant à bord et ayant la direction du navire, ou paraissant l'avoir, toute question pertinente qu'il juge à propos concernant le navire ou un accident qui lui est survenu; ces personnes doivent répondre à la question d'une manière complète et conforme à la vérité. (4) Un inspecteur de navires à vapeur peut exiger que les machines d'un navire soient mises en marche, afin de pouvoir se rendre compte de leur état. |
[55] The relevant section of the Home-Trade, Minor and Inland Waters Voyages Regulations, supra states:
| 4.(3) Subject to section 7, a home-trade voyage, Class III, means a home-trade voyage made within the limits specified in the inspection certificate of the steamship making the voyage, in the course of which, (a) on the Atlantic coast, the steamship does not go south of the port of New York; (b) on the Pacific coast, the steamship does not go south of Portland, Oregon; |
4.(3) Sous réserve de l'article 7, un voyage de cabotage, classe III, s'entend d'un voyage de cabotage effectué dans les limites spécifiées dans le certificat d'inspection du navire à vapeur et au cours duquel, a) sur la côte de l'Atlantique, le navire à vapeur ne va pas au sud du port de New York; b) sur la côte du Pacifique, le navire à vapeur ne va pas au sud de Portland, Oregon; |
| (c) the steamship is at no time more than 20 miles off shore; and (d) the maximum distance between suitable ports of refuge on the route does not at any time exceed 100 miles. (4) Subject to section 7, a home-trade voyage, Class IV, means a home-trade voyage in the course of which a steamship does not go beyond certain sheltered waters specified in the inspection certificate, or, in fine weather, on short voyages so specified, beyond the limits of those sheltered waters, between May 1st and September 30th in any year. |
c) le navire à vapeur ne se trouve jamais à plus de 20 milles de la rive; et d) la distance entre les ports de refuge convenables sur la route n'excède pas 100 milles. (4) Sous réserve de l'article 7, un voyage de cabotage, classe IV, s'entend d'un voyage de cabotage au cours duquel un navire à vapeur ne va pas au-delà de certaines eaux abritées, mentionnées dans le certificat d'inspection, ni, dans des voyages courts, ainsi spécifiés, au-delà des limites desdites eaux abritées, par beau temps, du 1er mai au 30 septembre d'une année quelconque. |
[56] The relevant sections of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 states:
| 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 8. Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned. |
1. La Charte canadienne des droits et libertés garantit les droits et libertés qui y sont énoncés. Ils ne peuvent être restreints que par une règle de droit, dans des limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d'une société libre et démocratique. 8. Chacun a droit à la protection contre les fouilles, les perquisitions ou les saisies abusives. 9. Chacun a droit à la protection contre la détention ou l'emprisonnement arbitraires. |
| 24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. |
24. (1) Toute personne, victime de violation ou de négation des droits ou libertés qui lui sont garantis par la présente charte, peut s'adresser à un tribunal compétent pour obtenir la réparation que le tribunal estime convenable et juste eu égard aux circonstances. |
Analysis and Decision
[57] It should be stated again that the application for judicial review before me is only in respect of the following:
This is an application for judicial review in respect of Detention Order and Attachment No. MA-502-41 dated May 14, 1999 (the "Detention Order"), made by the Respondents on behalf of the Board of Steamship Inspection (established pursuant to s. 304(1) of the Canada Shipping Act, R.S.C. 1985, c. S-9, as amended), detaining the motor vessel "El Primero" (the "Vessel"), a vessel owned by the Applicant.
[58] Issue 1
Did the respondents err in law in finding that: (1) the Vessel was "unsafe"; (2) the Vessel's machinery or equipment was defective in any way so as to expose persons on board to serious danger; and/or (iii) the Vessel was otherwise subject to detention under section 310(1) of the Canada Shipping Act, supra?
There is no definition of "unsafe" in the Canada Shipping Act, supra or in the Interpretation Act, R.S.C. 1985, c. I-23. The term "unsafe" appears in subsection 310(1) of the Canada Shipping Act, supra. Subsection 310(1) of the Canada Shipping Act, supra provides the following obligation to a Ship Safety inspector:
| 310. (1) A steamship inspector, in the performance of his duties, may go on board any ship at all reasonable times and inspect the ship, or any of the machinery or equipment thereof, or any certificate of a master, mate or engineer, and if he considers the ship unsafe, or, if a passenger ship, unfit to carry passengers, or the machinery or equipment defective in any way so as to expose persons on board to serious danger, he shall detain that ship. |
310. (1) Un inspecteur de navires à vapeur peut, dans l'exercice de ses fonctions, monter à bord de tout navire, à des heures convenables, inspecter le navire, ses machines ou son équipement et examiner le certificat ou brevet du capitaine, d'un officier de pont ou d'un officier mécanicien; si le navire lui paraît dangereux, ou dans le cas d'un navire à passagers, inapte au transport de passagers, ou si les machines ou l'équipement lui paraissent défectueux au point d'exposer sérieusement au danger les personnes à bord, il doit détenir ce navire. |
Subsection 310(1) gives the inspector power to detain the ship if he considers it unsafe or if it is a passenger ship it is unsafe to carry passengers or if the machinery or equipment is defective so as to expose persons on board to serious danger. Thus, there are three bases which require the detention of the ship. The detention order issued in this case indicates "C.S.A. 310(1)" but does not state the inspector considered the ship unsafe. I might add that the wording of the statute suggests that the inspector has a broad discretion as to the interpretation of "unsafe".
[59] According to the detention order, the Vessel was detained under section 310 for the following reasons:
(i) vessel operating without certification to carry passengers on board
(ii) no temporary Engineer / Restricted engineer
(iii) Master without certificate to operate the vessel as spoken forgot home [sic]
M.V. El Primero detained until vessel complied the [sic] above items
The inspector noted that the Vessel is only being detained until items (i) through (iii) are complied with. There is nothing in the terms of the detention order or the attachment that would tell me that the order related to the structural integrity of the Vessel. According to the terms of the detention order, the Vessel could be released by obtaining the necessary certificate to carry passengers, getting an engineer and by having the master bring his certificate which he had forgotten at home.
[60] I am not satisfied that the detention order issued for the three grounds listed was made in error. However, it now appears that the respondent continues to detain the Vessel under the 1999 detention order but on the basis that it is structurally unsafe, specifically raising issue with the hull integrity. I am not satisfied that the 1999 detention order applies to safety issues relating to the Vessel's structural integrity. If the applicant satisfies the three grounds listed in the 1999 detention order, the respondent has no authority to continue to detain the Vessel under that order.
[61] In view of the statutory scheme, this Court must give considerable deference to an opinion of an inspector that finds a vessel to be unsafe. However, the 1999 detention order does not indicate that the inspector found the Vessel to be unsafe.
[62] The respondents submit that the structural integrity safety issue is still covered by the 1996 detention order which has never been judicially considered. The effect of the 1996 detention order is not before me on the present application for judicial review. I note that the applicant submitted that the 1996 detention order was lifted under the Deficiency Agreement, as the applicant agreed to fix 23 deficiencies and in return be allowed to operate the Vessel for commercial purposes. Twenty-two of the 23 deficiencies were apparently fixed to the satisfaction of the respondents. The remaining deficiency in dispute states:
23. When used commercially until acceptable scantlings are fitted and completed the vessel's voyage will be limited to within 3 n.mls. from a Port of refuge. (Hull integrity).
On the face of it, this provision does not prohibit commercial use of the Vessel - it only places some restrictions on commercial use of the Vessel until the criteria is complied with. In addition, the provision does not appear to provide any restriction on the non-commercial use of the Vessel. In any event, the 1996 detention order is not before me.
[63] As I am not satisfied that the 1999 detention order was issued in error, I am not prepared to issue an order quashing the detention order. I am prepared to issue a declaration that the 1999 detention order does not detain the Vessel because it is unsafe due to its structural integrity. I am not prepared to grant the other relief requested by the applicant.
[64] Given my findings on Issue 1, it is not necessary to deal with the remaining issues but I will briefly comment on these issues for completeness.
[65] Issue 2
Did the respondents' detention order against the Vessel constitute a seizure without due process or reasonable and probable grounds, thereby violating the applicant's right to be secure against unreasonable seizure, in contravention of section 8 of the Canadian Charter of Rights and Freedoms?
The applicant alleges that the seizure of the Vessel was not authorized by law in the circumstances. The applicant admits that section 310 of the Canada Shipping Act, supra authorizes detentions, but it does so where the inspector considers the impugned Vessel to be "unsafe". The applicant submits that there is no basis in fact for concluding that the Vessel is unsafe at law, and thus the seizure is a violation of section 8 of the Charter. The applicant further submits that such a seizure is not demonstrably justifiable and therefore does not attract the protection of section 1 of the Charter.
[66] The respondents issued the order under subsection 310(1) of the Act. The power to detain vessels is an important power given to the respondent, Transport Canada (or Fisheries and Oceans for pleasure crafts), in order to ensure the safety of life at sea. I agree with the respondents that regulating the safety of sea-going vessels is a legitimate exercise of the federal authority to regulate shipping and navigation under subsection 91(10) of the Constitution Act, 1867. I further agree that this provision, and specifically this application of the provision, is not an unreasonable seizure and thus does not violate section 8 of the Canadian Charter of Rights and Freedoms. Even if it did, I would still find that it is a reasonable limit prescribed by law that is demonstrably justified in a free and democratic society such that it would be saved by section 1.
[67] On a related note, the applicant raised issue with a possible violation of section 9 of the Charter in the notice of application. This argument was not advanced by the applicant in argument and, accordingly, will not be addressed.
[68] Issue 3
Did the respondents violate a common law duty of procedural fairness to the applicant in making the decision to detain the Vessel?
The respondents have provided the applicant with a number of memoranda and letters explaining the deficiencies of the Vessel. The applicant has been represented by a variety of experts and counsel during her various dealings with the respondents over the last few years. The respondents have indicated their repeated willingness to meet with the applicant. Accordingly, I do not find that the respondents have breached a duty of procedural fairness.
[69] Issue 4
Was the decision to detain the Vessel made under a reasonable apprehension of bias on the part of the respondents?
The respondents have a positive obligation and duty for the administration of safety of life at sea as set out in the Canada Shipping Act, supra. According to the respondents, the detention order detaining the Vessel on May 14, 1999, was made by the respondent, Mr. Akhtar, without notice or knowledge of the Deficiency Agreement of May 1996. I am aware that the applicant and other respondents have been involved in ongoing discussions and disagreement over detentions that occurred prior to 1999. I am not satisfied that the prior detention orders, the disagreement over the Deficiency Agreement, or the ongoing discussions between the applicant and the respondents have given rise to a reasonable apprehension of bias such that the detention order of May 14, 1999 is tainted. In my view, this issue does not indicate that the detention order was unreasonable.
[70] As both parties have succeeded on some issues, there shall be no order as to costs.
ORDER
[71] IT IS ORDERED that:
1. A declaration shall issue declaring that the 1999 detention order does not detain the Vessel on grounds that it is unsafe due to structural integrity.
2. There shall be no order as to costs.
"John A. O'Keefe"
J.F.C.C.
Halifax, Nova Scotia
August 23, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1948-99
STYLE OF CAUSE: TRUDY KALKE
- and -
HER MAJESTY THE QUEEN
THE MINISTER OF TRANSPORT
MOHAMMED AKHTAR and WILLIAM J. NASH
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: Tuesday, February 26, 2002
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
APPEARANCES:
Mr. David McEwen and Mr. Roger Watts
FOR APPLICANT
Mr. Joseph Spears and Mr. George Carruthers
FOR RESPONDENTS
SOLICITORS OF RECORD:
McEwen, Schmitt & Co.
1615 - 1055 West Georgia Street
Vancouver, British Columbia
V6E 3R5
FOR APPLICANT
Spears and Company
6438 Bay Street
West Vancouver, British Columbia
V7W 2H1
Department of Justice
900 - 840 Howe Street
Vancouver, British Columbia
V6Z 2S9
FOR RESPONDENTS
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020823
Docket: T-1948-99
BETWEEN:
TRUDY KALKE
Applicant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE MINISTER OF TRANSPORT,
MOHAMMED AKHTAR, and WILLIAM J. NASH
Respondents
REASONS FOR ORDER AND ORDER