Decisions

TATC File No. MA-0043-37
MoT File No. A20091215-201-00083

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Northern Harvest Sea Farms Inc., Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canada Shipping Act, 2001, S.C. 2001, c.26; section 87 and of paragraph 106(2)(a)


Review Determination
C. Michael Keefe


Decision: February 16, 2011

Citation: Northern Harvest Sea Farms Inc. v. Canada (Minister of Transport), 2011 TATCE 2 (Review)

Heard at Saint John, New Brunswick, on December 14, 2010

Held:

Count 1 – The Minister has proven, on a balance of probabilities, that Northern Harvest Sea Farms Inc. violated paragraph 106(2)(a) of the Canada Shipping Act, 2001. I confirm the penalty of $6 000.

Count 2 - The Minister did not prove, on a balance of probabilities, the allegation that the Applicant, Northern Harvest Sea Farms Inc., violated section 87 of the Canada Shipping Act, 2001. Consequently, the monetary penalty of $5 000 set out in the Notice of Violation of January 15, 2010, is dismissed.

I. BACKGROUND

[1] On January 15, 2010, the Minister of Transport issued a Notice of Violation ("Notice") to the Applicant, Northern Harvest Sea Farms Inc., for violations of section 87 and paragraph 106(2)(a) of the Canada Shipping Act, 2001 ("Act"). Schedule A of the Notice states the following:

1) On or about October 2, 2009, at or near Seeleys Cove, in the county of Charlotte, in the province of New Brunswick, Northern Harvest Sea Farms Inc., being the authorized representative of the vessel "Quoddy Salmon", Official Number 813134, failed to ensure that the vessel and its machinery and equipment were inspected for the purpose of obtaining all of the Canadian maritime documents that are required under Part 4 of the Canada Shipping Act, 2001, thereby contravening paragraph 106(2)(a) of that Act.

In particular, the vessel was not inspected for the purpose of obtaining an inspection certificate required under subsection 10(1) of the Vessel Certificates Regulations.

Penalty: $6 000.

2) On or about October 2, 2009, at or near Seeleys Cove, in the county of Charlotte, in the province of New Brunswick, Steven Hooper was employed on board the vessel "Quoddy Salmon", Official Number 813134, in a position in respect of which a certificate is required under Part 3 of the Canada Shipping Act, 2001, without holding that certificate, thereby contravening section 87 of that Act.

Pursuant to subsection 238(2) of that Act, Northern Harvest Sea Farms Inc., is being proceeded against as the employer of Steven Hooper in respect of this violation and is liable for the penalty provided as punishment for it.

Penalty: $5 000.

[2] On February 26, 2010, Mr. Jim Needle, acting on behalf of Northern Harvest Sea Farms Inc., filed a request for a review of the Minister's decision with the Transportation Appeal Tribunal of Canada ("Tribunal").

II. STATUTES, REGULATIONS AND POLICIES

[3] Section 87, paragraph 106(2)(a), section 107, paragraphs 120(1)(e) and 121(1)(s), and subsections 238(2) and 265(1) of the Act provide the following:

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.

106.(2) The authorized representative of a Canadian vessel shall ensure that

(a) the vessel and its machinery and equipment are inspected for the purpose of obtaining all of the Canadian maritime documents that are required under this Part; and

107. The master of a Canadian vessel shall, before the vessel embarks on a voyage from a port in Canada, ensure that all of the Canadian maritime documents required under this Part have been obtained.

120. (1) The Governor in Council may, on the recommendation of the Minister, make regulations respecting the safety of vessels or classes of vessels and of persons on board or loading or unloading a vessel, including regulations

(e) requiring the obtaining of certificates certifying that any of the requirements referred to in paragraph (d) are met;

...

121. (1) Every person who, or vessel that, contravenes any of the following commits an offence:

(s) a provision of the regulations made under this Part.

238. (2) A person or vessel is liable for a violation that is committed by an employee or agent of the person or vessel acting in the course of the employee's employment or within the scope of the agent's authority, whether or not the employee or agent who actually committed the violation is identified or proceeded against in accordance with this Act.

265. (1) A document made, given or issued under this Act and appearing to be signed by the Minister of Transport, the Minister of Fisheries and Oceans, the Chief Registrar or a registrar, a marine safety inspector, the Chair of the Marine Technical Review Board, a marine communications and traffic services officer, a person exercising powers under subsection 135(2), a pleasure craft safety inspector or an enforcement officer is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in the document without proof of the signature or official character of the person appearing to have signed the document.

[4] Paragraphs 5(1)(a)(b)(c) and subsection 44(1) of the Small Fishing Vessel Inspection Regulations ("SFVIRs") provide the following:

5. (1) Subject to subsections (2) and (3), this Part applies to every fishing vessel that

(a) exceed 15 tons, gross tonnage, but does not exceed 150 tons, gross tonnage;

(b) does not exceed 24.4 m in length; and

(c) is not a sailing ship.

44. (1) Every fishing vessel shall be inspected during construction at such times as the inspector deems advisable.

[5] Paragraphs 2(a) and (b), section 201, subsection 212(1) and Table 2 of the Marine Personnel Regulations ("MPRs") state the following:

2. In these Regulations,

(a) Part 1 applies to applicants for a certificate of competency or an endorsement; and

(b) Part 2 applies in respect of Canadian vessels, other than pleasure craft, everywhere and in respect of foreign vessels in Canadian waters.

201. No Canadian vessel shall navigate anywhere and no foreign vessel shall navigate in Canadian waters unless the requirements of this Part are met.

212. (1) This section applies to a fishing vessel beginning on

(a) November 7, 2008 if the vessel is of 60 gross tonnage or less and more than 15 m in overall length;

...

TABLE 2

MASTER CERTIFICATES — FISHING VESSELS

Item

Certificate

Unlimited Voyage

Near Coastal Voyage, Class 1

Near Coastal Voyage, Class 2

Sheltered Waters Voyage

1.

Fishing Master, First Class

Master

Master

Master

Master

2.

Fishing Master, Second Class

Chief Mate

Master

Master

Master

3.

Fishing Master, Third Class

Officer in charge of watch

Master

Master

Master

4.

Fishing Master, Fourth Class

N/A

Master, fishing vessel of up to 100 gross tonnage

Master, fishing vessel of up to 100 gross tonnage

Master, fishing vessel of up to 100 gross tonnage

     

Officer in charge of the watch

Officer in charge of the watch

 

5.

Certificate of Service as Master of a Fishing Vessel of Less Than 60 Gross Tonnage

Validity specified on the certificate

Validity specified on the certificate

Validity specified on the certificate.

See note.

Validity specified on the certificate

[6] Subsections 2(1), 10(1) and (2) of the Vessel Certificates Regulations ("VCRs"), provide the following:

2.(1) These Regulations apply in respect of Canadian vessels everywhere and foreign vessels in Canadian waters.

10. (1) No vessel shall engage on a voyage unless it holds a certificate issued under subsection (2).

10. (2) On application by the authorized representative of a vessel, the Minister shall issue an inspection certificate to the vessel if the requirements under the Act that apply in respect of the vessel when engaged in its intended service are met.

III. ELEMENTS TO BE PROVEN

[7] Based on the Notice and the applicable legislation, I identified the following elements to be proven by the Minister:

Count 1:

I. BACKGROUND

Count 2:

I. BACKGROUND

IV. EVIDENCE

A. Minister of Transport

(1) Lionel Comeau

[8] At the time of the alleged violation, Lionel Comeau was employed by Transport Canada, Marine Safety, ("TCMS") in Saint John, New Brunswick. He testified that during the afternoon of October 2, 2009, the Royal Canadian Mounted Police ("RCMP"), from the St. George detachment, had advised his manager that there had been a serious accident on board the vessel Quoddy Salmon. He and another Inspector were assigned to carry out an investigation. Inspector Comeau testified that they proceeded to Limekiln Bay, in the Letang area, where he believed the vessel to be, having been on board the vessel at that location in the past. The vessel was not at Limekiln Bay but was at Seeleys Cove, ashore on the beach. Mr. Rob Little, who was a company representative, vessel crew members, and a representative/investigator from WorkSafe, NB, were on site.

[9] Inspector Comeau took photographs of the vessel (Exhibits M1-1 and M1-2). He described the vessel as being a typical aquaculture service barge. He requested to see the Vessel's Certificate of Registry and subsequently took a photograph of it. (Exhibit M-2). Inspector Comeau reviewed the certificate that states that the vessel's gross tonnage was 22.74 and the owner was 620309 N.B. Inc., of Letang, New Brunswick. The certificate was valid at the time of the incident. Inspector Comeau testified that upon his return to his office he searched the TCMS vessel registry database and found that the authorized representative was recorded as being Northern Harvest Sea Farms Inc.

[10] Inspector Comeau said that he first became aware of the existence of the Quoddy Salmon on May 11, 2007, at Chamcook, N.B. at which time he carried out some preliminary inspections. On June 12, 2007, Inspector Comeau received a Request for Inspection signed by Larry Ingalls of 620309 N.B. Inc. Inspector Comeau stated that prior to May 2007, there were no records of any inspections made. His inspections of May 11, 2007, at Chamcook, New Brunswick, revealed that the vessel had no engine or propeller and was at the very early stages of being brought up to acceptable standards. He discussed the work required with Donny Turnbull. He further indicated that he had visited the vessel several times at the wharf at Limekiln, N.B., and he pointed out several structural defects to Mr. Turnbull.

[11] Inspector Comeau stated that, the SFVIRs require a vessel of greater than 15 gross tons to be inspected. He also stated that a vessel inspection certificate had never been issued to the Quoddy Salmon. As for the certification of the master, he testified that the minimum certificate requirement would be a Certificate of Service as Master of a Fishing Vessel of Less Than 60 Gross Tonnage for a vessel with an overall length in excess of 15 meters.

[12] Inspector Comeau testified that he had been in contact with Mr. Needle regarding the requirement for the vessel to be certified and to have a Minimum Safe Manning document. He said that on September 22, 2009, he explained to Mr. Needle that the person proposed as master should contact the Nautical Examiner in the TCMS office in Saint John in order to go through the process of obtaining the required certificate.

[13] Under cross-examination, the Applicant's representative stated that he had never been told that the vessel should not be in operation and he indicated that traditionally vessels undergoing inspections towards full certification were permitted by TCMS to operate. Inspector Comeau replied that this was not the case and he referred to an email dated September 22, 2009, in which he advised Mr. Needle that operating without a certificate is an offence under the Act. Mr. Needle asked if Inspector Comeau knew the vessel was operating prior to October 2, 2009. Inspector Comeau replied that had not observed it in an operational situation.

(2) Stephen Cann

[14] At the time of the alleged violation, Stephen Cann was employed by TCMS, in Saint John, N.B. He testified that on October 2, 2009, the RCMP had reported an accident on board a barge, the Quoddy Salmon. He and another Inspector were subsequently assigned to carry out an investigation. He testified that they proceeded to Limekiln Bay, in the Letang area, where they believed the vessel to be. The vessel was not at Limekiln Bay but at Seeleys Cove where he saw the Quoddy Salmon ashore on the beach.

[15] Inspector Cann testified that Mr. Little informed him that he was representing the owners, whom Inspector Cann believed to be Northern Harvest Sea Farms Inc. Mr. Little said that the crew was comprised of three individuals and Mr. Hooper was identified as being in charge of the vessel.

[16] During the course of his investigation, Inspector Cann was led to believe that the barge had been in service at an aquaculture farm. He indicated that the boom of the vessel's crane was in the near vertical position and had suffered some damage at the upper end, a few pieces of rigging were missing and the wire cable had been parted. Inspector Cann testified that Mr. Little indicated that the accident had happened as the result of crane operations while attempting to move a buoy.

[17] When asked by the Minister's representative if any crew members had certificates of competency, Inspector Cann replied in the negative.

[18] Under cross-examination, Inspector Cann was asked if Mr. Little had pointed out that Mr. Hooper was operating the barge under emergency conditions following the accident in an attempt to get the injured crew member ashore as fast as possible. Inspector Cann indicated that it was not made clear to him that Mr. Hooper was acting in an emergency situation nor that the injured crew member was the one who was in charge of the vessel.

[19] I asked if it was Mr. Little who indicated that none of the crew members possessed a certificate of competency or if it was an absence of information which led Inspector Cann to that belief. Inspector Cann stated it was an absence of information as no one had told him there were no certificates of competency and, no one produced a certificate of competency. When I asked if the crew members were requested to produce certificates of competency, Inspector Cann could not recall.

[20] Following my questions to Inspector Cann, the Minister's representative asked him who Mr. Little had identified as working on the vessel on October 2, 2009. One of the three individuals identified by Mr. Little was Mr. Hooper. The Minister's representative asked if a search of the TCMS certificate database was made to determine if any of the three crew members possessed a certificate of competency. Inspector Cann stated he believed it was done but could not swear to it.

B. Applicant

[21] No evidence was entered on behalf of the Applicant.

V. ARGUMENTS

A. Minister of Transport

[22] The Minister's representative referred to subsection 10(1) of the VCRs and stated that there is no allowance to operate a vessel while working towards certification. TCMS only found out that the Quoddy Salmon was in service as the result of the accident reported on October 2, 2009. He submits that he has proven that the vessel was operating on October 2, 2009, without having a valid inspection certificate.

[23] With regards to Count 2, the Minister's representative stated that since July 1, 2007, section 212 of the MPRs has required fishing vessels the size of the Quoddy Salmon to have, effective November 7, 2008, a certified master while in operation. He submitted that none of the three crew members had certificates of competency.

[24] With regards to the amount of the sanctions, as there are no aggravating or mitigating circumstances, the penalty should be set as per comments in the gazetted Regulatory Impact Analysis Statement ("RIAS") accompanying the Administrative Monetary Penalties Regulations. For a vessel or a corporation, the minimum would be $6 000, for Count 1 as stated in Annex A of the Notice. However, as offences in accordance with section 87 have a maximum penalty of $5 000, the penalty for Count 2 cannot be set at $6 000 as per the RIAS. Therefore, the maximum permitted amount of $5 000 was assessed.

B. Applicant

[25] With regards to Count 1, the Applicant's representative does not dispute that the vessel was operating without an inspection certificate. He stated that, in the past, vessels have been permitted to operate while they were working towards obtaining their final certification. He submits that this is a practice that has gone on in the past within the traditional fishing industry as well as within the aquaculture industry. He submits that there are many instances where TCMS inspectors have used their discretion and permitted uncertificated vessels to work. In this case, he submits, his company had no warning not to put the vessel into service.

[26] With regards to Count 2, the Applicant's representative stated that he believes that many vessels are permitted by TCMS to operate without certificates of competency being on board.

VI. ANALYSIS OF EVIDENCE, LAW AND POLICY

A. Count 1

[27] Inspector Comeau testified that he carried out various inspections of the Quoddy Salmon while the vessel was at Letang. Upon receiving the report of the accident from the RCMP, he and Inspector Cann proceeded to Letang as they were under the impression that the vessel was still there, not having been put into service yet. As the vessel was later found to be at Seeleys Cove and reportedly brought there in order to seek assistance for an injured crew member, I believe, on the balance of probabilities, that the vessel had been in service on October 2, 2009. Therefore, the first element in Count 1 is proven.

[28] Inspector Comeau's testimony, with respect to the vessel's Certificate of Registry (Exhibit M-2), indicates that the vessel was 22.74 gross tons. The vessel therefore is subject to the requirements of subsection 5(1) of the SFVIRs. As the vessel had never before been inspected, Inspector Comeau rightly approached the inspection as a "new vessel" inspection pursuant to paragraph 44(1) of the SFVIRs.

[29] Pursuant to section 106 and paragraphs 120(1)(d) and (e) in Part 4 of the Act, a vessel is required to be inspected and to be certified. Pursuant to paragraph 106(2)(a) of the Act, the authorized representative is responsible for obtaining an inspection certificate and pursuant to section 107 of the Act, the master of the vessel is responsible to ensure that an inspection certificate is on board prior to sailing.

[30] Paragraph 106(2)(a) states as follows:

106. (2) The authorized representative of a Canadian vessel shall ensure that

(a) the vessel and its machinery and equipment are inspected for the purpose of obtaining all of the Canadian maritime documents that are required under this Part; and

[31] A vessel can be visited several times in the course of being inspected by a TCMS inspector for compliance with the Regulations made pursuant to the Act. While each visit to a vessel might be referred to by some as an "inspection", it is my view, and in keeping with the objectives of the Act, that the "inspection" referred to in paragraph 106(2)(a) is the end result of those several visits to inspect the various components of the ship. The proof that the inspection referred to at paragraph 106(2)(a) has been carried out lies with the Safety Inspection Certificate issued by TCMS. Without the issuance of a Safety Inspection Certificate, the "inspection" required under paragraph 106(2)(a) has not been completed.

[32] During direct examination, Inspector Comeau stated that he had carried out inspections on the Quoddy Salmon on several occasions prior to October 2, 2009, the date of the alleged offence. His first inspection was on May 11, 2007 at Chamcook near St. Andrews, New Brunswick. He stated that he had a lot of concerns and he asked that several items be addressed. At that time, he also requested a hull survey. He stated that he received a request for inspection from Mr. Ingalls on June 12, 2007. Inspector Comeau further testified that, over a period of time, he had been dealing with Mr. Turnbull regarding the work required to be done in order to bring the vessel up to an acceptable standard. He stated that he saw and made "a few visits to the vessel" after May 11, 2007, mostly at the wharf at Limekiln as the work progressed. He stated he had inspected the structural work and that later he concentrated his inspections on safety equipment.

[33] This indicates to me that the inspection process of the vessel was near the later stages. It certainly does not indicate that the inspection process was complete. As stated above, the inspection process and hence the "inspection" required by paragraph 106(2)(a) of the Act is complete only upon the issuance of a Safety Inspection Certificate.

[34] Inspector Comeau's testimony indicates to me that the authorized representative and/or his agents did not complete the inspection process and therefore did not ensure that the vessel and its machinery and equipment were inspected for the purpose of obtaining an inspection certificate. The second element of Count 1 has therefore been proven.

B. Count 2

[35] For the reasons given above, under Count 1, at paragraph [27], I conclude that the first element in Count 2 has been proven on a balance of probabilities.

[36] Inspector Comeau testified with respect to the length of the Quoddy Salmon. A photograph of the Certificate of Registry that was on board the vessel at the time of the accident (Exhibit M-2) indicates the registered length of the vessel as being 15 meters. Inspector Comeau testified that the length overall ("LOA") was therefore in excess of 15 meters. I accept that the LOA of the vessel was greater than 15 meters.

[37] While I accept the photograph of the Certificate of Registry to be an accurate reproduction of that document and an accurate reflection of some of the information in the vessel registry database at the time that document was issued on February 7, 2007, the Minister's case would have been better served by producing a document signed by a Registrar attesting to the contents of the database for the vessel in question at the time of the incident on October 2, 2009, pursuant to subsection 265(1) of the Act. The photograph shows a Certificate of Registry dated eight months prior to the case at hand and information on that document does not appear to be an accurate reflection of the Registry database contents at the time of the alleged violation. The comments made by the Minister's representative in his opening statement indicate to me that the vessel has changed ownership since the Certificate of Registry was issued.

[38] Section 212 of the MPRs applies to fishing vessels of 60 gross tons or less and with an overall length of more than 15 meters. I am satisfied that Exhibit M-2 proves that the Quoddy Salmon is subject to the requirements of Table 2 of section 212 of those regulations and that the vessel was required to have employed on board a master who possessed, at the minimum, a Certificate of Service as Master of a Fishing Vessel of Less Than 60 Gross Tonnage.

[39] I accept Inspector Cann's testimony that he was told by Mr. Little, the representative of the vessel owners, that Mr. Hooper was acting as the person in command of the vessel on October 2, 2009.

[40] I conclude, on the balance of probabilities, that Mr. Hooper was acting as master of the Quoddy Salmon on October 2, 2009. Therefore, the second element of Count 2 has been proven.

[41] The only evidence submitted is Inspector Cann's negative response to the Minister's representative question as to whether there were any certificates of competency on board the vessel on October 2, 2009. I find Inspector Cann to be a very credible witness. His response appears to be based on an absence of information from the crew members, Mr. Little, the company representative, and a belief that a search of the TCMS certificate database revealed no certificates for any of the crew members. He stated that he was unable to swear that a search of the database was conducted. If the Minister's representative presented a witness who could have testified that a search of the database had been conducted and returned negative results, I would be convinced, on a balance of probabilities, that Mr. Hooper did not possess a certificate of competency. However, the testimony given falls short of the standard of a balance of probabilities and strikes me as being closer to a suspicion on the part of TCMS and does not convince me of Mr. Hooper's lack of certification. I determine that the Minister has failed to prove the third element of Count 2.

VII. DETERMINATION

[42] With respect to the two violations alleged by the Minister I determine as follows:

Count 1: The Minister has proven, on a balance of probabilities, the allegation that the authorized representative of the fishing vessel Quoddy Salmon violated paragraph 106(2)(a) of the Act. I confirm the monetary penalty of $6 000.

Count 2: The Minister did not prove, on a balance of probabilities, the allegation that the Applicant, Northern Harvest Sea Farms Inc., violated section 87 of the Act. Consequently, the monetary penalty of $5 000 set out in the Notice of Violation of January 15, 2010, is dismissed.

February 16, 2011

C. Michael Keefe

Member