Decisions

TATC File No. MQ-0011-33
MoT File No. 8252-10-101

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Fernand Gauvin, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canada Shipping Act, 2001, S.C. 2001, c.26, section 87


Review Determination
Danièle Dion


Decision: September 3, 2009

Citation: Gauvin v. Canada (Minister of Transport), 2009 TATCE 25 (review)

[Official English Translation]

Heard at Bathurst, New Brunswick, on July 14, 2009

Held: I confirm the decision of the Minister of Transport set out in the notice of violation dated February 4, 2009. The total amount of $1250 is payable to the Receiver General for Canada and must be received by the Tribunal within 35 days of service of this determination.

I. BACKGROUND

[1] On February 4, 2009, the Minister of Transport issued a notice of violation to the applicant, Fernand Gauvin, for a contravention of section 87 of the Canada Shipping Act, 2001 (Act). It is alleged that on or about August 4, 2008, on the St. Lawrence River in Quebec, Mr. Gauvin was employed on board the M/V Port Méchins without holding the certificate required for the position in which he was employed. The Minister imposed a monetary penalty of $1250 on the applicant.

[2] Schedule A of the notice of violation states the following:

[translation]

On or about August 4, 2008, on the St. Lawrence River in the province of Quebec, Fernand Gauvin was employed in a position on board a Canadian vessel, namely the M/V Port Méchins, but did not hold the certificate required for the position or comply with its terms and conditions under Part 3 of the Canada Shipping Act, 2001, contrary to section 87 of said Act.

Penalty: $1250

[3] On February 10, 2009, Mr. Gauvin filed a request for review with the Tribunal.

II. LAW

[4] Section 87 of the Act provides as follows:

87 Every person who is employed on board a Canadian vessel in a position in respect of which a certificate is required under this Part shall hold the certificate and comply with its terms and conditions.

[5] It is important to note subsection 17(1) of the Act, which states the following:

17(1) Every Canadian maritime document is valid for the period specified by the Minister of Transport. The Minister may, on application made before a document expires and in the form and manner specified by the Minister, extend the period if the Minister is satisfied that it is not feasible to issue a new document before the document expires. (emphasis added)

III. EVIDENCE

A. Minister of Transport

[6] The Minister alleges that Mr. Gauvin was employed in the position of second engineer on board the M/V Port Méchins even though his fourth-class engineer certificate had expired.

(1) Christian Van Sterthem

[7] Christian Van Sterthem is an examiner and inspector for Transport Canada in Rimouski. An excerpt from the document entitled Contrat d'engagement et rôle d'équipage (Crew agreement and ship's articles) for the vessel Port Méchins was filed in evidence (exhibit M-1). This document states, at reference number 68 on page 10, that Mr. Gauvin came aboard the vessel on August 4, 2008, as second engineer, fourth class. Reference number 68 on page 11 states that his employment ended on August 15, 2008, and gives the following reason for departure: "3r. eng prox. litt cl cab2". Mr. Gauvin's signature appears on the relevant line but, curiously, it is crossed out and another, unidentified signature appears there. On cross‑examination, no explanation was requested on this subject.

[8] Mr. Van Sterthem explained that on August 15, 2008, the M/V Port Méchins was en route from Québec City to the Îles de la Madeleine, Quebec. Since it was a near coastal voyage, class 2, a third-class engineer was required to be on board for the trip, whereas Mr. Gauvin held a fourth-class engineer certificate. Mr. Van Sterthem specified that on August 15, 2008, the vessel's owner, Claudette Verreault, had filed an application at the Transport Canada office in Québec City for a waiver to allow Mr. Gauvin to continue to be employed as engineer on the M/V Port Méchins for this trip. It was then that Mr. Gauvin's certificate was determined to be no longer valid. For that reason, Mr. Gauvin's employment ended on August 15, 2008, as the crew agreement shows.

(2) Gilles Hubert

[9] Gilles Hubert is an inspector at the Transport Canada Marine Safety office on the Îles de la Madeleine. He testified that on August 18, 2008, he met with Mr. Gauvin and the captain of the M/V Port Méchins, Mr. Chiasson, regarding the renewal of Mr. Gauvin's engineer certificate. He acted as intermediary in sending a copy of the documents pertaining to Mr. Gauvin to Inspector Van Sterthem for the certificate's renewal.

B. Applicant

(1) Fernand Gauvin

[10] Mr. Gauvin testified that he came aboard the M/V Port Méchins on August 4, 2008, and showed his certificate to the captain. Believing his certificate to be valid, he signed the crew agreement as fourth-class engineer. The vessel left immediately for the Îles de la Madeleine. Prior to leaving Québec City, the captain did not inform Mr. Gauvin that his certificate had expired. There were three engineers on board, including one who held the class of certificate required to make the voyage from Québec City to the Îles de la Madeleine.

[11] Mr. Gauvin testified that he also held a third-class engineer certificate that was valid on August 4, 2008. It was only when he applied to renew his certificate at the Transport Canada office in Bathurst, New Brunswick, that John Pilote, Marine Safety Inspector, found his third‑class certificate. A copy of his certificate of third-class engineer, motor ship, issued on February 9, 2009, and expiring on February 8, 2014, was filed in evidence (exhibit R-1). The third-class engineer certificate that, according to Mr. Gauvin, was valid on August 4, 2008, was not filed in evidence.

[12] On cross-examination, Mr. Gauvin admitted that prior to going to the Îles de la Madeleine, the M/V Port Méchins was in operation from August 4 to 10, 2008, as shown in the Marine Communications and Traffic Services logs (exhibit M-3). He also admitted that he worked as an engineer on board the M/V Port Méchins from August 4 to 10, 2008.

(2) John Pilote

[13] John Pilote, also an inspector at Transport Canada, renewed Mr. Gauvin's certificate, since it had initially been issued by the Transport Canada office in Bathurst.

[14] On cross-examination, Inspector Pilote revealed that on or about August 15, 2008, he received a call from the captain of the M/V Port Méchins, Mario Noël. Captain Noël informed him that Mr. Gauvin's certificate had expired. Since the M/V Port Méchins was en route to the Îles de la Madeleine, the captain requested that Mr. Gauvin's certificate be extended until Mr. Gauvin could go to the Marine Safety office on the Îles de la Madeleine, upon the vessel's arrival at destination. A copy of a message dated August 15, 2008, sent by Inspector Pilote to the captain of the M/V Port Méchins, was filed in evidence (exhibit M-2). The message states the following:

[translation]

RE:  Fourth Class Certificate, Motor

CDN 41248M Fernand Gauvin

Mario,

I extended the certificate until 30/08/2008 as stamped on the STCW document.

Mr. Gauvin must report to a marine safety office as soon as possible to update his certificate.

Sincerely,

J. Pilote

The document sent contains two pages, but only one was filed in evidence.

IV. DISCUSSION

[15] Although Mr. Gauvin's expired certificate was not filed in evidence, Mr. Gauvin admitted that the fourth-class engineer certificate that he held in August 2008 had expired on February 5, 2007.

[16] As for the third-class engineer certificate, it was not valid on August 4, 2008 (exhibit R‑1). In my opinion, the evidence does not support a conclusion that at the time of the alleged events, Mr. Gauvin held a third-class engineer certificate.

[17] Pursuant to subsection 17(1) of the Act, the Minister of Transport may extend the period of validity of a maritime document on application made before the date on which the document expires, if the Minister is satisfied that it is not feasible to issue a new document before the date on which the document expires. On or about August 15, 2008, Inspector Pilote extended Mr. Gauvin's certificate until August 30, 2008.

[18] The Minister's representative submits that even if Inspector Pilote could have validly extended the certificate, the extension would only have come into effect on August 15, 2008, the date that the message from Inspector Pilote was sent by fax to Captain Noël. That submission cannot stand.

[19] According to the Grand dictionnaire terminologique (Office québécois de la langue française, http://www.olf.gouv.qc.ca/ressources/gdt.html), the French term "prolongation" (extension) as used in public administration is defined as follows: [translation] "Time added to a fixed period so as to lengthen the term of a contract, allow the completion of certain tasks or postpone the termination of an agreement".

[20] An extension presupposes the existence of a valid certificate. In my opinion, the extension necessarily had to begin once the certificate expired, namely on February 5, 2007. This interpretation is confirmed by the wording of subsection 17(1) of the Act. However, the extension was not valid since the application for extension was made after the date on which the certificate expired and contrary to the wording of subsection 17(1) of the Act.

[21] What is the effect of this invalidity? On August 15, 2008, when Mr. Gauvin received the confirmation that his certificate had been extended until August 30, 2008, he could, in good faith, work as engineer during that period, and the expiry of his certificate could not be raised against him. However, prior to August 15, 2008, the extension did not apply to Mr. Gauvin.

[22] On August 4, 2008, Mr. Gauvin was employed as engineer on board the M/V Port Méchins without holding the certificate required for that position. The onus was on Mr. Gauvin to ensure that he held a valid certificate when he signed the crew agreement on August 4, 2008. The evidence discloses no justification that allows me to relieve him of this offence.

[23] The Minister's representative raised the possibility of the Tribunal imposing a penalty below the minimum prescribed by regulation. However, subsection 232.1(4) of the Act provides that my decision is governed by the Administrative Monetary Penalties Regulations, SOR/2008‑97, the schedule to which establishes the range of penalties applicable to violations. A violation to section 87 of the Act is in the range between $1250 and $5000. Accordingly, I believe that the minimum penalty must be $1250.

V. DETERMINATION

[24] I confirm the decision of the Minister of Transport to impose a monetary penalty of $1250 on the applicant.

September 3, 2009

Danièle Dion

Member