Decisions

TATC File No. MQ-0085-37
MoT File No. Q20100902 303 00180

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Excursions de pêche des Îles Inc., Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canada Shipping Act, 2001, S.C. 2001, c.26, sections 87, 107


Review Determination
Yves Villemaire


Decision: September 14, 2011

Citation: Excursions de pêche des Îles Inc. v. Canada (Minister of Transport), 2011 TATCE 23 (review)

[Official English translation]

Heard at Havre‑aux‑Maisons, Quebec, on April 19, 2011

Held: Charge No. 1

The Minister of Transport has established, on a balance of probabilities, that Excursions de pêche des Îles Inc. contravened section 107 of the Canada Shipping Act, 2001. Consequently, the $1 250 fine imposed by the Minister is confirmed.

Charge No. 2

The Minister of Transport has established, on a balance of probabilities, that Excursions de pêche des Îles Inc. contravened section 87 of the Canada Shipping Act, 2001. Consequently, the $1 250 fine imposed by the Minister is confirmed. 

The total amount of $2 500 is payable to the Receiver General for Canada and must be received by the Tribunal within 35 days of the service of this decision.

I. BACKGROUND

[1] On October 27, 2010, the Minister of Transport issued a Notice of Violation to the Applicant, Excursions de pêche des Îles Inc. ("Excursions de pêche"), for contraventions of sections 87 and 107 of the Canada Shipping Act, 2001 ("Act"). The Minister imposed a fine of $1,250 on the Applicant for each of the two charges.

[2] Schedule A to the Notice of Violation states the following:

[translation]

No.

Violation

Penalty

1

On or about July 21, 2010, in the Baie de Plaisance, Îles de la Madeleine, in the province of Quebec, Joey Chevarie, master of the Canadian vessel C05445QC, failed to ensure that a Canadian maritime document, that is, the inspection certificate issued under Part 4 of the Canada Shipping Act, 2011, had been obtained before the vessel embarked on a voyage from a port in Canada, thus contravening section 107 of that Act, and is liable to the penalty set out for that contravention.

Under section 238(2) of the CSA2001, the EXCURSIONS DE PÊCHE DES ÎLES INC. company, the employer of Mr. Chevarie, is liable for the violation committed.

$1,250

2

On or about July 21, 2010, in the Baie de Plaisance, Îles de la Madeleine, in the province of Quebec, Joey Chevarie was employed on board the Canadian vessel C05445QC in a position in respect of which a certificate is required under Part 3 of the Canada Shipping Act, 2011, but did not hold that certificate, contrary to section 87 of that Act.

Under subsection 238(2) of the CSA2001, the EXCURSIONS DE PÊCHE DES ÎLES INC., the employer of Mr. Chevarie, is liable for the violation committed.

$1,250

[3]  On December 8, 2010, Excursions de pêche filed a request for review with the Transportation Appeal Tribunal of Canada ("Tribunal").

II. STATUTES AND REGULATIONS 

[4] Section 2, subsection 14(1), paragraph 16(2)(c), subsection 17(1), sections 87 and 107, subsection 238(2), paragraph 244(h) and section 254 of the Act provide as follows:

. . .

2. The definitions in this section apply in this Act.

"authorized representative" means, in respect of a Canadian vessel, the person referred to in subsection 14(1) and, in respect of a foreign vessel, the master.

"Canadian maritime document" means a licence, permit, certificate or other document that is issued by the Minister of Transport under Part 1 (General), 3 (Personnel), 4 (Safety), 9 (Pollution Prevention — Department of Transport) or 11 (Enforcement — Department of Transport) to verify that the person to whom or vessel to which it is issued has met requirements under that Part.

"Canadian vessel" means a vessel registered or listed under Part 2 (Registration, Listing and Recording).

"master" means the person in command and charge of a vessel. It does not include a licensed pilot, within the meaning of section 1.1 of the Pilotage Act, while the pilot is performing pilotage duties under that Act.

"passenger" means a person carried on a vessel by the owner or operator, other than

(b) a person carried on a vessel that is not a Safety Convention vessel who is

(i) the master, a member of the crew or a person employed or engaged in any capacity on board the vessel on the business of that vessel, or

(ii) a guest on board the vessel, if the vessel is used exclusively for pleasure and the guest is carried on it without remuneration or any object of profit;

14. (1) Every Canadian vessel must have a person — the authorized representative — who is responsible under this Act for acting with respect to all matters relating to the vessel that are not otherwise assigned by this Act to any other person.

16. (2) In addition to the specified information or documents, the Minister of Transport may

(c) if the document is in respect of a vessel, require that the vessel or its machinery or equipment undergo any inspections that the Minister considers necessary to establish that the requirements for the issuance of the document have been met.

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.

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.

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.

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.

244. The Governor in Council may, on the recommendation of the Minister, make regulations for carrying out the purposes and provisions of this Part, including regulations

(h) designating violations that may be proceeded with by issuing notices of violation and fixing a penalty or a range of penalties in respect of each such violation, up to a maximum of $25,000 but in any event not greater than the maximum fine if the violation were proceeded with by way of summary conviction;

254. (1) No person may be found guilty of an offence under this Act if the person establishes that they exercised due diligence to prevent its commission.

(2) No vessel may be found guilty of an offence under this Act if the person who committed the act or omission that constitutes the offence establishes that they exercised due diligence to prevent its commission.

[5] Subsection 2(1), paragraph 9(1)(a) and subsections 10(1) and (2) of the Vessel Certificates Regulations provide as follows:

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

9. (1) Sections 10 and 11 apply in respect of the following Canadian vessels if they are not Safety Convention vessels:

(a) vessels of 15 gross tonnage or less that carry more than 12 passengers;

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

(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.

[6] Subsection 212(3), paragraph 212(4)(a), subsection 212(5) and items 18 and 19 of Table 1 in the Marine Personnel Regulations provide as follows:

212. (3) This section applies to a passenger‑carrying vessel of up to 5 gross tonnage or not more than 8 m in overall length that is not a fishing vessel, beginning on November 7, 2009.

(4) Every vessel that is engaged on a voyage shall have on board, and its authorized representative shall employ,

(a) subject to subsection (6), a master;

(5) Every person who holds a certificate set out in column 1 of table 1 to this section may perform the duties of a position referred to in any of columns 2 to 5 on board a vessel that is engaged on a class of voyage set out in the heading of the column that applies to that position, subject to any limitations indicated.

TABLE 1

MASTER AND MATE CERTIFICATES

Item

Certificate

Unlimited voyage

Near Coastal Voyage, Class 1

Near Coastal Voyage, Class 2

Sheltered Waters Voyage

18.

Small Vessel Operator Proficiency training certificate

N.A.

N.A.

Operator, vessel of up to 5 gross tonnage (except tugs)

Operator, vessel of up to 5 gross tonnage (except tugs)

19.

Pleasure Craft Operator Card

N.A.

N.A.

Operator, vessel of not more than 8 m in overall length that is not a passenger‑carrying vessel and that is engaged on a voyage not more than two nautical miles from shore (except tugs)

 

[7] Subsections 2(1) and (2) of, and items 26 and 49 of the schedule to, the Administrative Monetary Penalties Regulations provide as follows:

2.(1) The contravention of a provision of the Act set out in column 1 of the schedule is designated as a violation that may be proceeded with in accordance with sections 229 to 242 of the Act and by the issuance of a notice of violation.

(2) The range of penalties set out in column 2 of the schedule is the range of penalties in respect of a violation set out in column 1.

SCHEDULE (section 2)

VIOLATIONS

 

. . .

   

26.

Section 87

1,250 to 5,000

 
 

. . .

   

49.

Section 107

1,250 to 25,000

 

. . .

The Regulatory Impact Analysis Statement regarding the Administrative Monetary Penalties Regulations includes the following table:

Gravity

1st Violation Individual/Vessel or Corporation

2nd Violation Individual/Vessel or Corporation

Subsequent Violation Individual/Vessel or Corporation

Low

$250 to $1,000

$500 to $2,000

$1,000 to $5,000

Medium

$600 to $3,000

$1,200 to $6,000

$2,400 to $2,000

High

$1,250 to $6,000

$2,500 to $12,000

$5,000 to $25,000

III. ELEMENTS TO ESTABLISH

[8] On the basis of the Notice of Violation, I concluded that the Minister had the onus of establishing the following elements in order to make his case.

A. Charge No. 1

  1. The C05445QC is a Canadian vessel.
  2. Excursions de pêche was Joey Chevarie's employer on or about July 21, 2010.
  3. Mr. Chevarie was master of the C05445QC on or about July 21, 2010.
  4. The C05445QC embarked on a sea voyage on or about July 21, 2010.
  5. An inspection certificate required for the C05445QC was not obtained before the vessel embarked on the voyage on or about July 21, 2010.

B. Charge No. 2

  1. The C05445QC is a Canadian vessel.
  2. Excursions de pêche was Joey Chevarie's employer on or about July 21, 2010.
  3. Mr. Chevarie was master of the C05445QC on or about July 21, 2010.
  4. Mr. Chevarie did not hold the certificate required for the position in which he was employed on or about July 21, 2010.

IV. EVIDENCE

A. Minister of Transport

(1) Paul Drouin

[9] Paul Drouin is a Transport Canada marine safety inspector. He stated that he was familiar with the vessel C05445QC. A certified copy of a document entitled "SCVRS Certificate Detail" was filed in evidence (Exhibit M‑1). This document states that Excursions de pêche is the authorized representative for the C05445QC, a vessel of 5.94 m in length and 4.6 gross tonnage.

[10] A copy of a document entitled [translation] "Notice of inspection for vessels of up to 15 gross tonnes authorized to carry not more than 12 passengers" was also filed in evidence (Exhibit M‑2). This document provides the following information: date of first inspection of the vessel C05445QC: July 12, 2005; date of construction: 2001; maximum number of passengers: 12; minimum number of crew members: 1 including the master, and a maximum of 13 persons on board.

[11] Inspector Drouin stated that, on July 21, 2010, he and another inspector boarded the vessel C05445QC to conduct an unannounced inspection. He explained that the main purpose of the inspection was to verify the compliance of the presentation of safety measures given to passengers. The inspectors therefore did not announce their professional capacity or the purpose of their visit, and came aboard with the tourists. During this visit, the inspectors also checked the compliance of the master's certificate of competency.

[12] Inspector Drouin stated that Mr. Chevarie was master of the vessel during this voyage on July 21, 2011, and that he correctly fulfilled his responsibilities as regards the safety message. However, after the vessel left the quay, the inspector noticed that the number of passengers exceeded the standard allowed by the vessel's inspection certificate in that there were 13 passengers, whereas 12 was the maximum number allowed. He explained that the certificate requires at least one crew member, including the master, and allows a maximum of 12 passengers, which makes for a maximum of 13 persons on board. He testified that there were 14 persons on board the vessel on this voyage.

[13] Inspector Drouin testified that since all of the passengers were [translation] "paying", he and the other inspector waited until the end of the excursion to identify themselves to the master and explain the true purpose of their visit. They then informed him that there were too many passengers and asked him to show them his competency certificate for administrative verification purposes. Contrary to the requirements, the master did not have his licence in his possession, but he did provide it the next day. A (not very clear) copy of a document entitled "Pleasure Craft Operator Card" has been filed in evidence (Exhibit M‑3). This document indicates that the holder is "Joey Chevarie" and that the validity period began on June 14, 2010. Inspector Drouin testified that he informed the master and the ticket agent that this licence was only valid for not more than 6 passengers and therefore noncompliant.

[14] On cross‑examination, Gaston Arseneau took issue with the date of construction indicated on the Notice of Inspection (Exhibit M‑2), stating that the correct date is 1995, not 2001. He also took issue with the fact that the maximum number of persons is set at 13, suggesting that this is a second error on the document. He further challenged the statement that all of the passengers were [translation] "paying", asking Inspector Drouin if he had asked the passengers if this was the case. Inspector Drouin replied that he had not done so.

(2) Robert Fecteau

[15] Robert Fecteau is a marine safety manager at Transport Canada. He is responsible for the Rimouski, Gaspé and Îles‑de‑la‑Madeleine Service Centres. He testified having made a first visit on board the C05445QC in 2003 to check that the vessel was in compliance. He stated having conducted a second visit for the same reason in 2005, after the Small Vessel Regulations came into force. He stated that the C05445QC is registered in the register as a vessel that can carry not more than 12 passengers.

[16] A copy of a letter entitled [translation] "New Requirements for Masters of Small Passenger‑Carrying Vessels of Less Than 5 Gross Tonnage (GT)", dated May 20, 2009, has been filed in evidence (Exhibit M‑4). On the reverse is a table titled [translation] "Small Passenger‑Carrying Vessels – Certificate and Training Requirements". Inspector Fecteau testified that he sent this letter to Mr. Arseneau to inform him of the new certification requirements.

[17] Inspector Fecteau testified that, on May 27, 2009, he gave an information session in Cap‑aux‑Meules, which Mr. Arseneau attended. He stated that such information sessions address the following points: responsibilities of authorized representatives and masters; minimum complement; possible exemptions; new compliance tools, including administrative monetary penalties; and the need to maintain possession of the certificate in anticipation of unannounced visits. He also explained the procedure followed when an exemption application is made.

[18] On cross‑examination, Mr. Arseneau questioned why large businesses obtain dispensations allowing them, for example, to operate their vessels after September 30, whereas his company is not given such treatment. He asked why he was issued a contravention instead of being granted a dispensation. Inspector Fecteau testified that a dispensation is only granted upon application by the authorized representative, and that this person must demonstrate the need for the dispensation. He testified that applications are given equal consideration, regardless of the type of vessel or operation.

[19] On cross‑examination, Mr. Arseneau took issue with the fact that he was granted dispensations for some masters, but received a contravention in Mr. Chevarie's case. Inspector Fecteau testified that after having become aware of the offence committed by Mr. Chevarie, his office had examined the files of each candidate in order to determine which course of action to take.

B. Applicant

[20] Mr. Arseneau acknowledged that, since November 7, 2009, the master of a vessel transporting more than six passengers must hold a Master's certificate for small vessels. However, he states that, since this change in 2009, the first training course for small vessel operators offered in the Îles‑de‑la‑Madeleine was held the week of April 11, 2011. He explained that, in the absence of a training opportunity, his company employs masters already holding the certificate for a tonnage of 60.

[21] Mr. Arseneau seemed to concede that Mr. Chevarie's certificate was noncompliant under the regulations. However, he explained that, since Mr. Chevarie was in his first year of employment for the company, he had been assigned the easier excursions such as those with caves and cliffs. He stated that he requires all of his staff members to complete a few weeks of training to ensure that they are able to provide the service.

[22] Mr. Arseneau explained that there is a high turnover rate in his company among seagoing personnel because it provides them with experience serving as a springboard for career advancement. Consequently, Excursions de pêche is forced to continually train new personnel, which is proving to be difficult. Mr. Arseneau explained that the week‑long courses given in Rimouski and Québec result in enormous disbursements that the company can ill afford, particularly for temporary employees.

[23] Mr. Arseneau testified that Mr. Chevarie did not obtain a certificate equivalency until the end of the 2010 season, after he was issued the contravention. He admitted that he had failed to apply to Transport Canada for a dispensation before the contravention was imposed.

[24] Mr. Arseneau testified that, 2003 and 2005 aside, his vessels were inspected by a private inspector. Four documents, each dated April 26, 2010, and titled [translation] "Letter of Compliance", indicating the registration numbers C05445QC, C11546QC, C05447QC and C05446QC for the different vessels, have been filed in evidence (Exhibits R‑1, R‑2, R‑3 and R‑4). Mr. Arseneau emphasized that each of these letters of compliance permits a total of 14 persons on board, that is, 12 passengers, the master and another crew member.

[25] Mr. Arseneau submitted that he believed the letters of compliance to be valid. He stated that, in the past, 12 passengers and two crew members were permitted. He stated being surprised to learn that only 12 passengers and one crew member are permitted now. He suggested that the information on the Notice of Inspection is unreliable given that the date of construction indicated on this document is incorrect, being stated as 2001 rather than 1995.

[26] Mr. Arseneau admitted having received training from Transport Canada, which was intended to inform authorized representatives of changes to the regulations on the required competency certificates. However, he testified that he believed that he was exempt from the regulations because the training was unavailable. He explained that he believed that Mr. Chevarie could continue to transport more than six passengers, given that the training course had not been held.

[27] Mr. Arseneau testified that he believed that, when the master was acting as a guide, the master could allow, in addition to the 12 paying passengers, one other person to come aboard, such as a relative to take the guide's place or a non‑paying passenger.

[28] A (not very clear) copy of a list of persons who came aboard, titled "Excursions en Zodiac Grottes et Falaises" [Zodiac excursions – caves and cliffs] was filed in evidence (Exhibit R‑5). The date [translation] "Wednesday 21" is handwritten in the top margin of this document, as are the following names and annotations to the right of the timeslot indicated as [translation] "12:30 to 2:30 p.m.": [translation] "Boudreau (4A), Drouin (2A), Richer (2S) and Mathieu (5A)". Mr. Arseneau explained that the annotations written in parentheses after the name of the person in charge of each group indicates the number of passengers (adults or seniors), which comes to a total of 13 for the excursion at issue here. He testified that one of the 13 passengers was actually a [translation] "mystery client", who replaced the guide and travelled for free on this excursion. He submitted that this person acted under contract, providing a service in exchange for a voyage, and therefore cannot be considered a passenger.

[29] A copy of a document titled [translation] "permit for the transport of passengers by water" was filed in evidence (Exhibit R‑6). This document, dated July 8, 2010, indicates that the vessel has a capacity of 12 persons. However, on cross‑examination, Mr. Arseneau stated that this was certainly a typographical error.

[30] On cross‑examination, Mr. Arseneau acknowledged that the evidence he submitted are not documents issued by Transport Canada. He stated that Transport Canada only inspects the vessel in the first year and that, thereafter, private inspectors perform the inspections required by the Quebec government. However, he contended that the private inspector, Jean‑Paul Cyr, follows Transport Canada's regulations.

V. SUBMISSIONS

(1) Minister of Transport

[31] The Minister's representative made the argument that Mr. Chevarie, as master of the vessel, failed to ensure that an inspection certificate had been obtained before embarking on a voyage, as required by section 107 of the Act. This "certificate" is required under section 9 of the Vessel Certificates Regulations. She explained that the Notice of Inspection (Exhibit M‑2) is only valid for vessels of up to 15 gross tonnage carrying not more than 12 passengers.

[32] The Minister's representative contended that the person who came aboard as a [translation] "mystery client" for the voyage met the definition of passenger set out at section 2 of the Act. Specifically, she submitted that none of the exemptions from the definition of passenger apply in this case. The exemptions include any person employed or engaged in any capacity on board the vessel on the business of that vessel or a guest on board the vessel, if the vessel is used exclusively for pleasure and the guest is carried on it without remuneration or any object of profit. She stated that a pilot, for example, would meet the criteria regarding the business of the vessel, whereas a [translation] "mystery client" does not. In addition, she noted that the vessel is not used exclusively for pleasure, but in an object of profit.

[33] The Minister's representative submitted that the Notice of Inspection (Exhibit M‑2) meets the definition of a Canadian maritime document, whereas the letter of compliance (Exhibit R‑1) does not, being a document not issued by Transport Canada. She stated that if there is a discrepancy in terms of the number of persons authorized to come aboard, the Notice of Inspection (Exhibit M‑2) takes precedence, since it is the document issued under the Act. Furthermore, she submitted that even if two crew members had been permitted, this is irrelevant because, when the alleged violation was committed, there was only one crew member on board.

[34] The Minister's representative also submitted that Mr. Chevarie did not hold the certificate as required by section 87 of the Act in respect of the position for which he was employed on board the vessel. She also argued that, in accordance with subsection 212(5) and item 18 of Table 1 of the Marine Personnel Regulations, a small vessel operator certificate had been required for that voyage.

[35] The Minister's representative stated that, under subsection 238(2) of the Act, Excursions de pêche, as the employer, is liable for both violations.

[36] The Minister's representative explained that item 26 of the schedule established under section 2 of the Administrative Monetary Penalty Regulations provides for a range of penalties of $1 250 to $5 000 for violations of section 87 of the Act. For violations of section 107 of the Act, item 49 of the same schedule provides for a range of penalties from $1 250 to $25 000. She explained that the gravity of these first two violations is considered to be high and that the Minister had applied the penalty to the individual rather than to the corporation or the vessel, as he could have done.

[37] The Minister's representative also emphasized that, without being legally obliged to do so, Transport Canada, in good faith, took steps to warn authorized representatives, including the Applicant, of amendments to the Regulations and upcoming unannounced inspections.

(2) Applicant

[38] Mr. Arseneau testified that a guide on board of one of his vessels does not act for the needs of the vessel. He explained that the mystery client had acted for the company's needs by gathering feedback from other clients. In exchange for his work, the mystery client received a free voyage on the vessel. Mr. Arseneau submitted that since he acted as a contractual employee for the duration of the voyage, the mystery client does not satisfy the Act's definition of a passenger.

[39] Mr. Arseneau submits that Mr. Cyr, the private marine inspector who issued the letters of compliance (Exhibits R-1 to R-4), is certified by Transport Canada to carry out the vessel inspection visits required by the Commission des transports du Québec for the issuance of permits for the transport of passengers by water (Exhibit R-6). He explained that he could rely on the letters indicating 12+2, but that he could not rely on the Transport Canada Notice of Inspection (Exhibit M-2) since that document contained an error in the vessel's construction date.

[40] Mr. Arseneau explained that he was contesting the Notice of Violation since Transport Canada inspectors were not impartial. He alleged that there were [translation] "two sets of rules" for small and large businesses.

VI. ANALYSIS

[41] The evidence contained in the document "SCVRS Certificate Detail" (Exhibit M-1) was not challenged and demonstrates that the C05445QC is a Canadian vessel. Consequently, I conclude that the Minister has established, on a balance of probabilities, the first element of both charges against the Applicant.

[42] According to the Notice of Inspection (Exhibit M-2), Excursions de pêche is the owner of the vessel. Under subsection 238(2) of the Act, 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. Moreover, Inspector Drouin testified that Mr. Chevarie was master of the C05445QC on July 21, 2010, a fact that has not been challenged, meaning that Excursions de pêche was his employer. Consequently, I conclude that the Minister has established, on a balance of probabilities, the second and third elements of both charges against the Applicant.

[43] Inspector Drouin testified that he came aboard the vessel C05445QC on July 21, 2010, to carry out an unannounced inspection during a sea voyage. This fact has not been challenged and is confirmed by the list of individuals on board and the notation of the date [translation] "Wednesday 21" and the time of 12:30 p.m. to 2 p.m. for this voyage (Exhibit R-5). Consequently, I conclude that the Minister has established, on a balance of probabilities, the fourth element of the first charge against the Applicant.

[44] The Notice of Inspection (Exhibit M-2), issued on July 12, 2005, by the Minister of Transport for the C05445QC, satisfies the definition of Canadian maritime document at section 2 of the Act. The letter of compliance issued on April 26, 2010 (Exhibit R-1), by Entreprises Jean-Paul Cyr enr. does not satisfy the definition of Canadian maritime document since it was not issued by the Minister of Transport or under his authority. I will therefore consider only the Notice of Inspection.

[45] The [translation] "first inspection" box ticked on the Notice of Inspection (Exhibit M‑2) does not provide an expiry date. The validity period specified by the Minister is consequently indefinite, and the document remains valid unless otherwise specified under subsection 17(1) of the Act. The document allows a maximum of 12 passengers and a maximum of 13 persons on board the vessel. This is the maximum applicable.

[46] The evidence does not make it possible to explain the difference in the maximum number of persons allowed on board by the Notice of Inspection and the letter of compliance, which allows for a total of 14 persons on board, which includes the master and a crew member in addition to a maximum of 12 passengers. The letter of compliance indicates that the vessel satisfies Transport Canada's regulatory requirements, but introduces an error regarding the maximum number of persons allowed on board. The permit issued by the Commission des transports du Québec (Exhibit R-6) indicates that the vessel has a capacity of 12, without specifying the number of passengers or the maximum number of people allowed on board. This document provides however that its holder must comply with the [translation] "regulatory requirements".

[47] In my opinion, Mr. Arseneau is a credible witness. I do not doubt his willingness to respect the regulations in effect. It seems that the letter of compliance led Mr. Arseneau to believe that he could allow 14 persons—12 passengers and two crew members—on board. When the master was acting as guide therefore, he believed that, in addition to 12 paying passengers, he could have another person on board taking the place of the guide. Mr. Arseneau was surprised to see the figure 13 on the Notice of Inspection. He submitted that he could not rely on the Notice of Inspection issued by Transport Canada with regard to the maximum number of persons allowed on board since the document already contained an error on the construction date. He suggested that the maximum of 13 persons allowed on board was merely the second mistake on the document.

[48] Under section 254 of the Act, "No person may be found guilty of an offence under this Act if the person establishes that they exercised due diligence to prevent its commission." In this case, however, it seems that Mr. Arseneau relied solely on the compliance notice. In light of the evidence submitted, I conclude that the Applicant did not satisfactorily demonstrate the steps he took with Transport Canada or Entreprises Jean-Paul Cyr enr. to attempt to clarify the different requirements in the two documents regarding the maximum number of persons allowed on board the vessel. Evidence of written or oral communication with a Transport Canada inspector, for example, could have satisfied that requirement.

[49] The Notice of Inspection (Exhibit M-2) states that the maximum number of persons on board the C05445QC should not exceed 13. The list of individuals on board in this case (Exhibit R-5) indicates that there were 13 clients, which clearly demonstrates that, with the master, there were 14 people on board.

[50] The presence on board of a mystery client in addition to the master reduced the number of persons allowed to embark as passengers to 11 for the maximum of 13 persons on board to be met. This is valid whether one considers the mystery client to be a passenger or a crew member.

[51] Section 2 of the Act excludes from the definition of passenger any person employed or engaged in any capacity on board the vessel on the business of that vessel and a guest on board the vessel, if the vessel is used exclusively for pleasure and the guest is carried on it without remuneration or any object of profit. What is relevant therefore is the function of the person and not whether all passengers have paid or not. Since the C05445QC is not used exclusively for pleasure, but also in an object of profit, I must examine the function of the mystery client to determine whether he satisfies the definition of passenger as argued by the Minister's representative.

[52] Mr. Arseneau testified that, throughout the voyage, the mystery client acted as a contractual employee for the needs of the company and not of the vessel. He explained that the mystery client's function was to gather unbiased feedback on the services offered. I accept this statement to be factual. A guide who helps to guide or to secure the vessel during excursions could, where necessary, serve the vessel's needs. Such is not the case here.

[53] The Act makes it possible to classify the persons on board a vessel as master, crew member or passenger. The distinction between the needs of the vessel and those of the company as described by the Applicant is sufficiently clear to allow me to conclude that the mystery client was not a crew member but rather acted as a passenger during the voyage.

[54] Under section 107 of the Act and subsection 9(1) of the Vessel Certificates Regulations, the C05445QC had to hold an inspection certificate before embarking on a voyage at sea. It has been established that the Notice of Inspection held by the C05445QC was valid solely for a vessel of not more than 15 gross tonnage that carries not more than 12 passengers. As it has also been established that the C05445QC was carrying more than 12 passengers, the certificate therefore did not comply with the needs of the voyage carried out on or about July 21, 2010. Consequently, I conclude that the Minister has established, on a balance of probabilities, the fifth element of the first charge against the Applicant.

[55] Subsection 212(3) of the Marine Personnel Regulations applies to the C05445QC, since it is a passenger-carrying vessel of up to 5 gross tonnage. Under subsection 212(5) of these Regulations, item 18 of Table 1 requires masters of vessels similar to the C05445QC to hold a small vessel operator proficiency training certificate. Inspector Drouin testified that Mr. Chevarie held only a pleasure craft operator card (Exhibit M-3) on the July 21, 2010, voyage. This fact has not been challenged.

[56] Mr. Arseneau admitted that he received a letter from Transport Canada (Exhibit M-4) informing him of the existing regulations concerning the certificates required for masters of small vessels on May 20, 2009, that is, about two months before the unannounced inspection. This letter clearly established that a pleasure craft operator card, such as that held by Mr. Chevarie, is valid for no more than six passengers.

[57] Mr. Arseneau described how difficult it was to obtain the required master training in the Îles de la Madeleine. Indeed, he seemed to acknowledge that Mr. Chevarie's certificate was insufficient for the anticipated service, but he had nonetheless believed that he could continue to operate since the course had not been given. Mr. Arseneau admitted that he had not requested a dispensation from Transport Canada before he was issued a contravention.

[58] Given the steps taken by Transport Canada to inform the Applicant of its obligations, it is my opinion that, under the Act, Mr. Arseneau failed in his obligations as an employer. Under subsection 14(1) of the Act, the authorized representative is responsible for acting with respect to all matters relating to the vessel. Mr. Arseneau failed to take the measures required to confirm the validity of Mr. Chevarie's certificate and to submit a dispensation request. Consequently, I conclude that the Minister has established, on a balance of probabilities, the fourth element of the second charge against the Applicant.

[59] The amount of the fines is set at $1 250, the minimum provided at items 26 and 49 of the schedule established under section 2 of the Administrative Monetary Penalty Regulations. The Minister decided to impose a lower fine on the individual rather than the corporation as he could have done. Even considering Mr. Arseneau's argument regarding the different treatment of small and large businesses, I conclude that the amount of the fines is appropriate in the circumstances of the case.

VII. DECISION

Charge No. 1:

The Minister of Transport has established, on a balance of probabilities, that Excursions de pêche des Îles Inc. contravened section 107 of the Canada Shipping Act, 2001. Consequently, the $1 250 fine imposed by the Minister is confirmed.

Charge No. 2:

The Minister of Transport has established, on a balance of probabilities, that Excursions de pêche des Îles Inc. contravened section 87 of the Canada Shipping Act, 2001. Consequently, the $1,250 fine imposed by the Minister is confirmed.

September 14, 2011

Yves Villemaire

Member