Ottawa, Ontario, the 19th day of April 2006
Present: The Honourable Mr. Justice Beaudry
BETWEEN:
Applicant
and
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review filed pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F‑7, of a decision on June 21, 2005 by an Appeal Board (the Board) formed pursuant to section 73 of the Crewing Regulations, SOR 97‑390 (the Regulations), declaring the respondent fit for service at sea and issuing a medical certificate to him to this effect, with the following restrictions:
(a) the respondent is able to perform the functions of watch officer on a “local voyage” (as defined in the Regulations);
(b) the respondent must continue to take his medication;
(c) the respondent must continue to be followed up every four months by his specialist physician.
ISSUES
[2] The applicant raised the following points:
(a) Did the Board err in its interpretation of subsection 63.1(2) of the Regulations?
(b) Did the Board err in concluding that the respondent was suffering from [TRANSLATION] “few symptoms” of paranoid schizophrenia?
[3] For the following reasons, the answers to these questions are in the negative and the application for judicial review will be dismissed.
FACTUAL BACKGROUND
[4] The respondent Gaétan Houle is a seafarer. In 1995, he obtained his long-distance master mariner’s certificate.
[5] The respondent suffers from paranoid schizophrenia, a chronic illness. In 1992, he was kept for two months at the Hôtel-Dieu de Montmagny because of acute paranoid disorders.
[6] The respondent takes medication daily to suppress or minimize the symptoms of his illness. Except for a two-week interruption in 1994, during which his symptoms reappeared, the respondent has been taking his medication regularly.
[7] Since 1995, the respondent has been followed by a psychiatrist, Dr. Claude Girard. His clinical condition is stable and he has had few symptoms since then. Between 1995 and 1999, he held several officer positions on ships, apparently without incident.
[8] On March 11, 2002, Dr. Blanchet, a designated physician, issued a medical certificate in which he referred to someone else the task of making a decision as to the respondent’s ability to navigate.
[9] On June 20, 2002, Dr. François Dubé, senior marine consultant at the Ottawa Marine Medical Certification Section, issued a medical certificate declaring the respondent unfit for service at sea.
[10] On September 19, 2002, the respondent sought a review of his case pursuant to section 72 of the Regulations.
[11] A review took place on March 21, 2005. The respondent met with Dr. Yvan Gauthier, who confirmed Dr. François Dubé’s appraisal and issued a medical certificate declaring the respondent unfit for service at sea.
[12] At the respondent’s request, the Board was created to hear the appeal from Dr. Yvan Gauthier’s decision.
[13] The hearing took place on May 27, 2005, and the Board allowed the respondent’s appeal on June 21, 2005.
IMPUGNED DECISION
[14] The Board held that the respondent did not have a disability due to an active psychiatric disorder within the meaning of paragraph 63.1(2)(e) of the Regulations making him completely incapable of or unfit for service at sea.
[15] The Board’s conclusions read as follows:
[translation]
The Board is of the view that the “active psychiatric disorder” mentioned in paragraph (e) of subsection (2) cannot be viewed in isolation. The subsection has to be looked at as a whole and each of the disorders, problems and deficiencies mentioned in the paragraphs must be read in conjunction with the statement in the introductory subsection referring to disabilities. Therefore, the disorder must be such as to make a person to some extent incapable of performing his duties or carrying out his functions or responsibilities.
WHEREAS the evidence has shown that:
Mr. Houle is suffering from a chronic treated psychiatric disorder, controlled by medication and not developing;
Since his hospitalization in 1992, he has not suffered any acute phase and his clinical condition is stable;
Mr. Houle performed the duties of watch officer from 1995 to 1999 on various ships without significant incident;
This leads the BOARD to HOLD that Mr. Houle has no disability due to an active psychiatric disorder which makes him completely incapable of or unfit for performing his duties.
However, IN VIEW OF the chronic nature of the illness from which he suffers and the very broad scope of the certificate held by Mr. Houle, the BOARD CONSIDERS that the imposition of certain conditions is necessary.
ACCORDINGLY, the Board declares him fit, subject to restrictions.
AND THEREFORE issues him a marine medical certificate dated June 21, 2005, containing the restrictions indicated below:
1. Able to perform the functions of watch officer on a “local voyage” (as defined in the Regulations);
2. Must continue to take his medication;
3. Must continue to be followed up every four months by his specialist physician.
ANALYSIS
[16] The relevant provisions of the Regulations are the following:
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63. No person shall employ a person as a seafarer to whom this Division applies unless the person produces a valid medical certificate issued under this Division, attesting to the person’s fitness |
63. Il est interdit d’employer une personne à titre de navigant à qui s’applique la présente section à moins qu’elle ne présente un certificat médical valide délivré en vertu de la présente section, qui atteste de son aptitude : |
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(a) to perform the duties for which the person is to be employed; and |
a) d’une part, à effectuer le travail pour lequel elle doit être employée; |
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(b) to make the voyage to be engaged in by the ship. |
b) d’autre part, à effectuer le voyage que le navire doit entreprendre.
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63.1 (1) A seafarer who meets the requirements of this section may obtain a medical certificate. |
63.1 (1) Tout navigant peut obtenir un certificat médical s’il satisfait aux exigences du présent article. |
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(2) The seafarer shall not have any of the following disabilities: |
(2) Le navigant peut obtenir un certificat médical s’il n’est atteint d’aucune des incapacités suivantes : |
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(a) an impairment that could cause an unpredictable loss of consciousness and is not controlled through medication or otherwise;
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a) une déficience qui pourrait causer une perte de conscience imprévisible et qui n’est pas contrôlée à l’aide de médicaments ou d’une autre façon;
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(b) a disorder that could prevent the seafarer from reacting effectively while performing duties;
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b) des troubles de nature à l’empêcher de réagir efficacement dans l’exercice de ses fonctions;
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(c) a condition that could endanger others, taking into account the duration of voyages and the conditions on board ship;
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c) un problème de santé de nature à poser un risque pour les autres personnes, compte tenu de la durée des voyages et des conditions à bord du navire;
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(d) a condition that is likely to require emergency medical care and is not controlled through medication or otherwise; or
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d) un problème de santé qui risque de nécessiter des soins médicaux urgents et qui n’est pas contrôlé à l’aide de médicaments ou d’une autre façon;
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(e) an active psychiatric disorder, including drug or alcohol dependence or abuse. |
e) un trouble psychiatrique actif, notamment une dépendance à l’égard de la drogue ou de l’alcool ou l’abus de l’un ou de l’autre. |
1. Did the Board err in its interpretation of subsection 63.1(2) of the Regulations?
[17] The applicant argued that the Board made an error in its interpretation of subsection 63.1(2) of the Regulations. He contended that it is apparent from the wording of the provision and the intention of Parliament that a person suffering from a psychiatric disorder which manifests itself and is active in any way cannot obtain a medical certificate of fitness for service at sea.
[18] As the illness from which the respondent is suffering is chronic, the applicant argued that the Board erred in interpreting the term “active psychiatric disorder” as meaning that [translation] “the disorder must be such as to make a person to some extent incapable of performing his duties or carrying out his functions or responsibilities”.
[19] Interpretation of the terms of a legislative provision is a question of law, subject on judicial review to the correctness standard (Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982).
[20] In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Mr. Justice Iacobucci wrote at paragraphs 21 and 22:
Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Elmer Driedger, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
Recent cases which have cited the above passage with approval include: R. v. Hydro-Québec, [1997] 1 S.C.R. 213; Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411; Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550; Friesen v. Canada, [1995] 3 S.C.R. 103.
[21] Now, applying this method of statutory construction, I am not of the view that the Board erred in its interpretation of paragraph 63.1(2)(e) of the Regulations. The word “active” indicates that Parliament did not intend to exclude every person suffering from a psychiatric disorder from service at sea.
[22] A good example is that of alcohol dependency or drug addiction, which can also be chronic conditions and are expressly referred to in this provision. It would seem troubling to say the least if a person suffering from alcohol dependency who had stopped drinking for over ten years could not be granted a certificate of fitness for service at sea provided the person did not consume alcohol. The same applies to the condition from which the applicant suffers, which is not an “active disorder” so long as he takes his medication regularly.
[23] Therefore, I conclude from this that the Board made no error in interpreting the phrase “active psychiatric disorder” as meaning that [translation] “the disorder must be such as to make a person to some extent incapable of performing his duties or carrying out his functions and responsibilities”. That interpretation is consistent with the overall context of the Regulations and does not conflict with the wording of paragraph 63.1(2)(e) or the intention of Parliament.
2. Did the Board err in concluding that the respondent was suffering from “few symptoms” of paranoid schizophrenia?
[24] The applicant alleged that the Board erred in concluding that the respondent was only suffering from “few symptoms” of paranoid schizophrenia. He contended that the symptoms exhibited by the respondent were considerable and that even if this Court ruled that the interpretation by the Board of paragraph 63.1(2)(e) of the Regulations is correct, the psychiatric disorder from which the respondent is suffering is so severe as to make him unfit for service at sea.
[25] To determine the standard of review applicable to this ruling by the Board, we must make the pragmatic and functional analysis recommended by McLachlin C.J. in Dr. Q, supra, at paragraph 26:
In the pragmatic and functional approach, the standard of review is determined by considering four contextual factors – the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular; and the nature of the question – law, fact or mixed law and fact. The factors may overlap. The overall aim is to discern legislative intent, keeping in mind the constitutional role of the courts in maintaining the rule of law. I find the approach taken in the courts below problematic. As a result, I believe it will be helpful to re‑articulate the focus of the factors involved and update the considerations relevant to each. Before doing this, I must emphasize that consideration of the four factors should enable the reviewing judge to address the core issues in determining the degree of deference. It should not be viewed as an empty ritual, or applied mechanically. The virtue of the pragmatic and functional approach lies in its capacity to draw out the information that may be relevant to the issue of curial deference.
[26] In this case, the pragmatic and functional approach leads the Court to conclude that the applicable standard of review is that of reasonableness simpliciter. This conclusion is based on the following four factors:
(a) the Regulations contain no privative clause and do not provide for any right of appeal;
(b) we note among the members of the Board the presence of Drs. Laurent Marcoux and François Piché, and the Board was assisted in its deliberations by Dr. Guy Croisetière: it seems clear to the Court that the medical expertise available to the Board in assessing the respondent’s symptoms favours a measure of restraint in considering its findings on judicial review;
(c) the purpose of section 73 of the Regulations is to enable the Board to determine the fitness for service at sea of a person challenging a medical certificate declaring him or her unfit: it is more a provision seeking to resolve a pure lis inter partes than one for balancing contradictory policy objectives (Dr. Q, supra, at paragraph 32); the Board’s finding here applies only to the respondent, and this favours a low degree of deference on judicial review;
(d) the finding challenged by the applicant derives from an issue of fact, which justifies quite a high degree of deference.
[27] Accordingly, the pragmatic and functional analysis leads this Court to conclude that the appropriate standard of review is that of reasonableness simpliciter. Therefore, this Court must ask whether it was unreasonable for the Board to conclude that the respondent exhibited [translation] “few symptoms” of paranoid schizophrenia.
[28] After having examined the record, I conclude that the Board’s finding was not unreasonable. It chose to rely on the assessment made by the physician treating the respondent, Dr. Claude Girard, who had cared for and treated him for several years and who stated that the respondent was one of his patients whose prognosis was most positive, that he functioned well and that he was fit for service at sea.
[29] In addition, it should be noted that the respondent has been taking his medication regularly since 1994 and that the medical certificate granted by the Board imposes very specific restrictions on him.
[30] In view of all those factors, I find that the Board’s conclusion was not unreasonable.
[31] As to the question of costs, the applicant stated that these would be waived in the event of a successful outcome and asked that if the application for judicial review was dismissed it should also be without costs. The respondent, for his part, accepted the applicant’s proposal if the latter was successful, but if the application was dismissed asked to be awarded his costs. As the respondent has been successful, I see no special circumstances justifying a departure from the rule that the losing party must pay costs.
JUDGMENT
THE COURT ORDERS that the application for judicial review be dismissed with costs.
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1214-05
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA
v.
GAÉTAN HOULE
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: April 6, 2006
AND JUDGMENT BY: The Honourable Mr. Justice Beaudry
APPEARANCES:
Nadine Dupuis FOR THE APPLICANT
Stéphanie Côté FOR THE RESPONDENT
SOLICITORS OF RECORD:
John H. Sims, Q.C. FOR THE APPLICANT
Deputy Attorney General of Canada
Ottawa, Ontario
Côté & Desmeules, Attorneys FOR THE RESPONDENT
Beauport, Quebec